Bennett v Speaker of The Legislative Assembly

• Jurisdiction: Cayman Islands
• Judge: (Hall, Ag. J.)
• Judgment Date: 28 December 2018
• Court: Grand Court (Cayman Islands)
• Date: 28 December 2018

BENNETT

and

SPEAKER OF THE LEGISLATIVE ASSEMBLY

(Hall, Ag. J.)

Grand Court, Civil Division (Cayman Islands)

Statutes — interpretation — Hansard — Legislative Assembly (Immunities, Powers and Privileges) Law (2015 Revision), ss. 11 and 26 (allowing Speaker to refuse access to Hansard for use in proceedings) unconstitutional by reason of Cayman Islands Constitution, s.82

Held, declaring as follows:

(1) By reason of s.82 of the Cayman Islands Constitution, ss. 11 and 26 of the Legislative Assembly (Immunities, Powers and Privileges) Law (2015 Revision) were unconstitutional and of no effect. The court rejected the defendant’s submission that the court was precluded from considering the constitutionality of ss. 11 and 26 due to the definition of “public official” and “public office” under ss. 28 and 124(2) of the Constitution. The court accepted the evidence presented that the powers and privileges contained in ss. 11 and 26 of the Legislative Assembly Law exceeded the powers of the UK House of Commons and its members. Those sections were in breach of s.82 of the Constitution. It was accepted, however, that ss. 11 and 26 remained valid law unless and until the legislature acted. No further order was made with respect to those two sections (paras. 108–114; para. 131).

(2) It was still appropriate to consider the plaintiff’s challenge to the Speaker’s actions under the Bill of Rights. The Speaker had exercised his discretion and responded to the plaintiff’s application by making a decision which was permitted at the present time by s.11 of the Legislative Assembly Law. It was accepted that Hansard had been used in several cases before the Grand Court but it was clear that the Speaker had no basis to believe that any application had previously been made under s.11.He did not therefore make a mistake of fact when he stated that historically the use of Hansard in the Grand Court had not been “allowed.” With respect to the alleged errors of law, the Speaker’s submission that an assessment under the principles of Pepper v. Hart fell properly to the courts and not the legislature was accepted. The implication of any decision on access to justice was a matter for the trial court. The plaintiff’s submission was accepted that the tone of the rationale for the Speaker’s formal refusal suggested a blanket refusal ever to grant permission to such requests. That must be taken against the background that, as pointed out by the plaintiff, any person with access to a computer and the internet would have access to Hansard. Further, s.11 of the Evidence Law (2018 Revision) allowed minutes of proceedings before the Legislative Assembly to be used in evidence in court. The foregoing rendered the rationale never to permit the use of Hansard irrational and unreasonable. By seeming to echo the words of art. 9 of the UK 1689 Bill of Rights, which had no relevance in this jurisdiction, the Speaker had made an error of law. The court considered whether those findings concerning the Speaker’s errors were sufficient to engage s.7 of the Bill of Rights, namely the right to a fair trial. All parties agreed that a decision by the present court with respect to Hansard was not binding on the trial court dealing with the personal injuries claim. The trial court could and should make its own decision concerning the use of Hansard. If the plaintiff were to be aggrieved by the decision of the trial court, she would have a right of appeal. Since the future decision of the trial court with respect to Hansard was not a certainty, the plaintiff could not assert that the decision by the Speaker had breached s.7 of the Bill of Rights. Further, the Speaker’s errors did not reach the level of a breach of the plaintiff’s rights to a fair trial. Section 7 of the Bill of Rights was not engaged (paras. 115–130).

Cases cited:

(1)Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680; (1947), 177 L.T. 641, referred to.

(2)Cordova v. Italy (No. 1) (2005), 40 E.H.R.R. 43; [2003] ECHR 47, considered.

(3)Nairne, In re, 2013 (1) CILR 345, considered.

(4)Pepper (Inspector of Taxes) v. Hart, [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42; [1992] STC 898; [1993] I.C.R. 291; [1993] IRLR 33; [1992] BTC 591; [1993] 2 LRC 153, followed.

(5)R. v. Chaytor, [2010] UKSC 52; [2011] 1 A.C. 684; [2010] 3 W.L.R. 1707; [2011] 1 All E.R. 805; [2011] 1 Cr. App. R. 22, referred to.

(6)Toussaint v. Att. Gen. (St. Vincent & Grenadines), Eastern Caribbean Supreme Ct. (C.A.), Civil Appeal No. 1 of 2004, March 14th, 2005, unreported, considered.

Legislation construed:

Legislative Assembly (Immunities, Powers and Privileges) Law (2015 Revision), s.11: The relevant terms of this section are set out at para. 9.

s.26: The relevant terms of this section are set out at para. 10.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.28:

“In this Part—

. . .

‘public official’—

. . .

(e)unless otherwise stated, excludes private schools (whether or not in receipt of government funding, subsidy or other assistance), churches, the Legislature and the courts.”

s.82: The relevant terms of this section are set out at para. 12.

The plaintiff sought judicial review of a decision of the Speaker of the Legislative Assembly refusing permission to adduce in evidence extracts from the official Hansard record.

In 2012, the plaintiff was injured in a road traffic accident. The writ of summons in her cause of action was issued three years and nine months from the date of the accident, which was outside the limitation period in the Motor Vehicle Insurance (Third Party Risks) Law 1990. The circumstances were such that the plaintiff considered she had been let down by the legal system. The defendant in the cause of action raised the limitation period as a defence and argued that the court should not exercise its discretion under the Limitation Law 1991 to extend the limitation period.

The plaintiff took the view that the relevant provisions of the Motor Vehicle Insurance (Third Party Risks) Law 1990 had been repealed by the Limitation Law 1991, giving the court a discretion to consider the justice of the case. The plaintiff submitted that integral to that argument were the details in Hansard which showed that the introducer of the Limitation Law had made clear that traffic accident victims were not uniquely disadvantaged but were intended to be covered by the provisions of the new legislation.

The Legislative Assembly (Immunities, Powers and Privileges) Law (2015 Revision), s.11 provided:

“(1) No evidence relating to—

(a)debates or proceedings in the Assembly; or

(b)the contents of the minutes of evidence taken or any document laid before the Assembly or a committee or any proceedings of or before, or any examination had before, the Assembly or any such committee,

is admissible in any proceedings before a court or person authorised by law to take evidence unless the court or such person is satisfiedthat permission has been granted by the Speaker for such evidence to be given.

(2) The permission referred to in subsection (1) may be given during a recess or adjournment by the Speaker.”

Section 26 provided:

“Neither the Speaker nor any member of the Assembly shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Speaker or member by or under this Law.”

The Cayman Islands Constitution, s.82 provided:

“A law made under this Constitution may determine and regulate the privileges, immunities and powers of the Legislative Assembly and its members, but no such privileges, immunities or powers shall exceed those of the House of Commons of the United Kingdom or of its members.”

The plaintiff requested permission through the Clerk to the Legislative Assembly to cite various Hansard transcripts in the personal injury action. The Clerk responded, stating that the Speaker had been unable to grant permission and that historically Hansard had not been allowed to be used in the Grand Court. The plaintiff invited the Speaker to reconsider, stating that Hansard had been used on several occasions in the Grand Court. The Speaker issued a formal refusal letter which stated:

“As the Members enjoy certain privileges and immunities during House sitting and Committee meetings the speeches of such are protected and accordingly the Honourable Speaker is not prepared to subject the Hansard Reports to arguments or questioning in a court of law.”

As it related to any previous Grand Court proceedings, the letter also stated: “. . . permission was not granted by the Speaker of the Legislative Assembly for use of any Hansard Reports . . .”

The plaintiff sought declarations that by reason of s.82 of the Cayman Islands Constitution, s.26 of the Legislative Assembly Law was unconstitutional and of no effect; alternatively, s.26 was unconstitutional and of no effect in so far as the immunity therein purported to extend to s.11 of the Legislative Assembly Law; s.11 was unconstitutional and of no effect; alternatively, s.11 was unconstitutional and of no effect in so far as the power therein purported to extend to the grant or withholding of permission to give in evidence the official Hansard record. The plaintiff sought, further or alternatively, a declaration that s.11 and s.26 were in contravention of the Bill of Rights, Freedoms and Responsibilities and were incompatible with the right of access to a court, further or alternatively, a declaration that the court had jurisdiction to judicially review a decision made purportedly pursuant to s.11. Further or alternatively, the plaintiff also sought an order of certiorari to quash the decision of the Speaker to refuse permission; an order that the Speaker grant permission; and an order of mandamus requiring the Speaker properly to consider the plaintiff’s application for permission.

The plaintiff submitted inter alia that (a) the official Hansard record was...