Axis Intl v Civil Aviation Auth
| Jurisdiction | Cayman Islands |
| Judge | (Smellie, C.J.) |
| Judgment Date | 17 June 2013 |
| Date | 17 June 2013 |
| Court | Grand Court (Cayman Islands) |
(Smellie, C.J.)
P. Brook Smith, Q.C. and J. Golaszewski for the plaintiff;
M.J. Beloff, Q.C. and Ms. R. Sharma, Senior Crown Counsel, for the CAACI;
T. Lowe, Q.C. and G. Giglioli for CIHL.
(1) A v. Essex County Council, [2011] 1 A.C. 280; [2010] 3 W.L.R. 509; [2010] 4 All E.R. 199; [2010] UKSC 33, referred to.
(2) CF v. Home Secy., [2004] 2 FLR 517; [2004] 1 F.C.R. 577; [2004] EWHC 111 (Fam), applied.
(3) Jacques Scott & Co. Ltd. v. Immigration Bd., 1997 CILR 219, applied.
(4) O”Reilly v. Mackman, [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, referred to.
(5) R. v. Foreign & Commonwealth Secy., ex p. World Dev. Movement Ltd., [1995] 1 W.L.R. 386; [1995] 1 All E.R. 611, referred to.
(6) R. v. Inland Rev. Commrs., ex p. National Fedn. of Self-Employed & Small Businesses Ltd., [1982] A.C. 617; [1981] 2 W.L.R. 722; [1981] 2 All E.R. 93; [1981] STC 260, followed.
(7) R. v. Inland Rev. Commrs., ex p. Rossminster Ltd., [1980] A.C. 952; [1980] 2 W.L.R. 1; [1980] 1 All E.R. 80; [1980] STC 42; (1979), 70 Cr. App. R. 157, followed.
(8) R. v. Legal Aid Bd., ex p. Bateman, [1992] 1 W.L.R. 711; [1992] 3 All E.R. 490, applied.
(9) R. v. Transport Dept., ex p.Presvac Engr. Ltd., [1992] 4 Admin L.R. 121, distinguished.
(10) R. (Anufrijeva) v. Home Secy., [2004] 1 A.C. 604; [2003] 3 W.L.R. 252; [2003] 3 All E.R. 827; [2003] UKHL 36, followed.
(11) R. (Bancoult) v. Foreign & Commonwealth Secy., [2012] EWHC 2115 (Admin), applied
(12) R. (Feakins) v. Environment, Food & Rural Affairs Secy., [2004] 1 W.L.R. 1761; [2004] EuLR 275; [2004] J.P.L. 1415, referred to.
(13) R. (G) v. Ealing London Borough Council (No. 2), [2002] M.H.L.R. 140; [2002] A.C.D. 48; [2002] EWHC 250 (Admin), applied.
(14) Trim v. North Dorset District Council, [2011] 1 W.L.R. 1901; [2011] P.T.S.R. 1110; [2011] 2 P. & C.R. 7; [2010] EWCA Civ 1446, referred to.
Grand Court Rules, O.53, r.3(7):
‘The Court shall not grant leave [to apply for judicial review] unless it considers that the applicant has a sufficient interest in the matter to which the application relates.’
r.4: ‘(1) An application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose . . .’
Administrative Law-judicial review-locus standi-‘mere busybody’ has insufficient interest to bring judicial review under GCR, O.53, r.3(7)-not mere busybody if responsible citizen challenging decision with considerable public interest-may be of sufficient public interest if involves several public safety issues
Administrative Law-judicial review-time limit-time limit for starting proceedings against decision with direct impact on plaintiff”s individual rights runs from time plaintiff discovered decision-time limit for decision with wider and more general consequences of public interest runs from time decision made
The plaintiff sought judicial review of the first defendant”s decision to grant the second defendant”s application for an aerodrome certificate.
The second defendant (‘CIHL’) applied for an aerodrome certificate to operate a heliport on a piece of land adjacent to the plaintiff”s property. This was granted by the first defendant (‘the CAACI’) on November 11th, 2011 and, shortly afterwards, the plaintiff requested a copy of the heliport”s operational manual (on which the certificate was partly based) from CIHL. The manual was not disclosed, however, until December 20th, 2011, when the plaintiff requested a copy from the CAACI under the Freedom of Information Law. On February 9th, 2012, the plaintiff filed a notice of motion for judicial review of the decision to issue the certificate. The defendants made a number of preliminary objections to the plaintiff”s application.
The defendants submitted that (a) the plaintiff did not have sufficient standing under Grand Court Rules, O.53, r.3(7) to seek judicial review of the decision. Although it owned a neighbouring property, that property was not within any of the certified flight paths and the plaintiff was not, therefore, in a position to complain about the safety of the helicopter-although the defendants conceded that it would have had sufficient standing for a nuisance claim if it had otherwise been entitled to bring one; (b) the plaintiff had not brought the application ‘promptly’ under GCR, O.53, r.4, since it had not acted with sufficient speed in obtaining the manual after the certificate had been granted or in filing the notice of
motion once it had received the manual; (c) the plaintiff should not be permitted to adduce expert evidence as part of judicial review proceedings; and (d) the plaintiff should not be entitled to cross-examine the employee of the CAACI who had made the decision to grant the certificate (‘the decision-maker’). The general rule in judicial review was that facts in dispute would be resolved in the defendant”s favour and there was nothing to indicate that cross-examination was necessary.
The plaintiff submitted in reply that (a) as its land lay within the immediate surroundings of the heliport, it should be regarded as having ‘sufficient standing’ under GCR, O.53, r.3(7) to challenge the certification; (b) it had acted promptly under GCR, O.53, r.4 (which required that the challenge be brought within 3 months) since the time limit could not begin to run until the plaintiff had had notice of the decision. As the case was highly complicated and the defendants had been uncooperative by refusing to disclose the manual, the plaintiff could not be said to have not acted promptly; (c) it should be permitted to adduce expert evidence because of the complex factual nature of the dispute; and (d) it should be entitled to cross-examine the decision-maker as there were many questions of fact which had not been adequately disclosed.
Held, making the following orders:
(1) The plaintiff had sufficient standing to bring the claim. Although a mere busybody would not have standing to bring a judicial review claim, this did not prevent responsible citizens from challenging a decision in which there was a large public interest. As a number of public safety issues arose from the certification of the heliport, the plaintiff was entitled to standing as an interested member of the public. Moreover, even on a more restrictive view, it was clear that the plaintiff had an interest in the decision to certify a heliport on neighbouring land. The Air Navigation (Overseas Territories) Order 2007, art. 105(2)(b) required that an aerodrome be safe for use given its surroundings. This must include the plaintiff”s land and it must therefore have standing to challenge the decision on the ground that it was not safe, whether or not the flight paths went over its property...
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