An Application for Leave to Seek Judicial Review Between 1) Cayman Islands Urgent Care Ltd 2) Kaiser Day Cannaceuticals Ltd 3) Kaiser Day Pharmaceuticals Ltd Applicants v Director of Public Prosecutions Respondent
| Jurisdiction | Cayman Islands |
| Judge | Justice Cheryll Richards |
| Judgment Date | 16 February 2023 |
| Docket Number | CAUSE NO. G 103 OF 2022 |
| Court | Grand Court (Cayman Islands) |
In the Matter of an Application for Leave to Seek Judicial Review
The Hon. Justice Cheryll Richards K.C. (in Chambers)
CAUSE NO. G 103 OF 2022
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Leave to seek judicial review - relevant test for granting leave, Grand Court Rules Order 53 rule 3
Mr. James Austin-Smith, Campbells LLP on behalf of the Applicants
Attorney Generals Chambers for the Respondent
This is a ruling on an amended ex parte application for leave to apply for judicial review. The application is supported by the Affidavit of Samuel Banks dated 4 th May 2022. It is made on notice to the Respondent, the Director of Public Prosecutions, (“the Director”).
The Applicants, Cayman Islands Urgent Care Ltd., trading as Doctors Express, (“Doctors Express”), Kaiser Day Cannaceuticals Ltd., and Kaiser Day Pharmaceuticals Ltd., seek relief in respect of certain decisions made by the Director. These are: -
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i) The decision not to institute criminal proceedings against the former Chief Medical Officer of the Cayman Islands Dr. John Lee (“Dr. Lee”) for perjury, attempting to pervert the course of justice, misfeasance in public office or other offences.
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ii) The decision not to institute criminal proceedings against Customs Officer Holly Schneider (“CO Schneider”) for perjury, attempting to pervert the course of justice, misfeasance in public office or other offences.
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iii) The decision not to institute proceedings against certain other individuals.
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iv) The refusal to give reasons for his decisions in the three matters above.
Orders of certiorari are sought to quash:-
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i) The decisions of the Director not to bring criminal prosecutions against Dr. Lee and CO Schneider as to what are alleged to be unlawful actions in relation to their evidence given in judicial review proceedings in Grand Court Cause 169 of 2019 (“the 2019 proceedings”).
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ii) The decision of the Director not to bring criminal prosecutions against other parties as a result of what are alleged to be unlawful actions in relation to the facts giving rise to the 2019 proceedings.
An order of mandamus is sought to direct the Director to reconsider the charging decisions made in respect of the matters above.
Two declarations are sought to declare that the failure to give reasons for the decisions not to bring criminal proceedings was unlawful and rendered the decisions void and that the Attorney General's Chambers is conflicted in acting for the Director in this matter.
On the 14 th April 2022 pursuant to the Pre-action Protocol (Practice Direction No. 4 of 2013), the Applicants provided to the Director a notice of a possible application to bring judicial review proceedings if no response was received by the 28 th April 2022 to their request. The request was for full reasons for the decisions which were taken not to bring criminal prosecutions against any person and the evidence underpinning those decisions. No response was received by that date.
The judicial review application was filed on the 4 th May 2022. Subsequent to that filing there was a letter from the Director dated 6 th May 2022. There is a factual issue as to whether an earlier letter under the hand of the Assistant Director dated 4 th May 2022 had been received before or after the filing of the application. By letter dated 20 th May 2022 the Attorney General's Chambers (“the Attorney General”) on behalf of the Director provided a detailed response. This maintains the position of the Director which had been briefly stated in the two earlier letters that applying the evidential test, there was insufficient evidence to justify bringing charges against any of the identified individuals and no reasonable prospect of conviction of any person. In addition, details are set out as to the materials and evidence which formed the basis of the decisions made and the reasons for the conclusion that the test was not satisfied in each case. The Attorney General also refers to the case law on the jurisdiction to review decisions made by the Director and contends that in the particular circumstances of this case the application for permission to judicially review the decisions made “is misconceived and wholly without merit.”
On the 31 st May 2022, the Applicants filed an amended application with an Addendum of paragraphs 69 to 132 which is said to be responsive to the submissions of the Attorney General.
I have reviewed all the material provided and the written submissions of both parties. Given the nature of the subject matter involving as it does a power of review which is to be “sparingly exercised” and the conclusion which I have reached, I consider that it is appropriate to provide these short reasons.
The Grand Court Rules Order 53 rule 3 provides that on an application for leave to apply for Judicial Review:-
“The Judge may determine the application without a hearing, unless a hearing is requested in the notice of application, and need not sit in open Court; in any case, the Clerk of the Court shall serve a copy of the Judge's order on the applicant.”
I am conscious that the purpose of the leave stage is to act as a filter for claims at an early stage to prevent the time of the Court being wasted on applications which are groundless or hopeless.
The test to be applied on the application for leave is set out in the case of R v The Commissioner for the Special Purposes of the Income Tax Acts ex parte Stipplechoice 1. In order for leave to be granted the Applicants must demonstrate that there is an arguable case that a ground for judicial review exists. The test is also stated in one of the cases cited by the Attorney General, Sharma v. Brown-Antoine and Others 2. The court “will refuse leave to claim judicial review
The broad sequence of events in the instant matter may not be much in dispute. On the 17 th September 2019, a search warrant was executed by Customs and Police Officers at the premises of Doctors Express. The search warrant had been obtained from a Justice of the Peace on the application of CO Schneider. The purpose of the search warrant was to search for and seize vaporised cannabinoid products. Doctors Express had previously obtained the necessary licenses and permissions to allow them to import, hold and prescribe these products. About forty-five minutes after the search began, Doctors Express was served with a Cease and Desist Notice issued by Dr. Lee. The Notice required that health practitioners cease the provision of vaporising cannabinoid products. It had been issued on the 14 th or 15 th September 2019 but had not been immediately sent to the Applicants.
Following the search, the Applicants brought the 2019 proceedings. The judgment of McMillan J. in those proceedings concluded inter alia that the Cease Notice and the search were unlawful. The Court found that the Cease Notice had not been issued because of the serious health risks of vaporisable cannabinoid products and that the search warrant had been sought and obtained for an improper purpose. The learned Judge made findings of fact as to inconsistencies in the evidence of the witnesses, Dr. Lee and CO Schneider and ultimately as to their veracity and motives.
On the 9 th April 2021, after the conclusion of the 2019 proceedings, the Applicants complained to the Anti-Corruption Commission about possible criminal conduct by some persons in relation to the search. The Commission carried out an investigation and submitted a file to the Office of the Director. On the 28 th February 2022, the Applicants were advised by the Commission that following a review of the evidence, the Office of the Director had recommended that no charges be brought against any person in respect of the complaint made.
The circumstances leading up to the search may be briefly summarised. This is by no means intended to be a full exposition of the facts some of which are in clear dispute. The sequence of events appears to be that on the 10 th September 2019, Doctors Express caused or permitted to be circulated a text message to users of Digicel telephones advertising the availability of vaporisable medical cannabinoids. This came to the attention of Customs Officers. CO Schneider was given instructions to investigate this. Customs Officers approached and met with the Health Practice Commission raising concerns as to these products. The Commission raised the matter with the Chief Medical Officer who thereafter issued the referenced Cease and Desist Notice to all registered Health Care Practitioners.
The Applicants rely on what is said to be powerful evidence of wrongdoing arising from the judgment in the 2019 proceedings and the materials disclosed during that Court process. In particular, they highlight the following: Dr. Lee stated in the Cease Notice that it was issued inter alia because of concerns as to the exponential growth in cannabinoid prescribing in the Cayman Islands. The Notice stated that in the best interest of the Cayman Islands public, the ministry and other entities had opened an investigation into the use of cannabinoids. The Notice also stated:-
“There is a lack of...
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