Between: CTMH Holdings Ltd Applicant v The Government of the Cayman Islands Respondent (1) Narayana Hrudayalaya Private Ltd (2) Aster Caribbean Holdings Ltd Interested Parties
| Jurisdiction | Cayman Islands |
| Judge | Justice Richard Williams |
| Judgment Date | 14 February 2023 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G 55 OF 2021 and CAUSE NO. G 150 OF 2021 |
Hon. Justice Richard Williams
CAUSE NO. G 55 OF 2021 and CAUSE NO. G 150 OF 2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Judicial review — Government contracts with private medical facilities containing undertakings granting long term customs duty and stamp duty waivers and work permit concessions — Relief hearing — Declarations and recitals sought — Costs hearing
Mr. Chris Buttler KC instructed by Ms. Sally Bowler on behalf of McGrath Tonner for the Applicant
Mr. Tom Hickman KC instructed by Mr. Jevon Alcock and Mr. Nigel Gayle of the Attorney General's Chambers for the Respondent
The Applicant is CTMH Holdings Limited (“CTMH”). CTMH trades as the Doctors Hospital. The Respondent is the Government of the Cayman Islands (“the Government”).
Narayana Hrudayalaya Private Limited (“NHPL”) is an interested party. NHPL is an Indian domiciled company which set up an integrated hospital in Grand Cayman primarily aimed at medical tourists, with an assisted living facility. In April 2010, NHPL entered into a contract with the Respondent (“the 2010 Contract”) to provide medical care facilities and, as a part of the agreement, it was agreed that it would benefit from tax and duty waivers. NHPL has not sought to take up the opportunity to actively participate in these proceedings.
Aster Caribbean Holdings Limited (“ACHL”) is also an interested party and has also not sought to take up the opportunity to actively participate in these proceedings. ACHL agreed to set up a three-phase project to develop new medical facilities to provide affordable healthcare to residents and further the growth of medical tourism, with an assisted living facility and a medical university. In December 2020, ACHL entered into a contract with the Respondent (“the 2020 Contract”) to provide medical care facilities and, as a part of the agreement, it was agreed that it would benefit from tax and duty waivers.
On 20, 21 and 22 April 2022, I heard the substantive hearing of the Applicant's two consolidated applications for Judicial Review. The first application is brought in Cause No. G 55 of 2021. The Court was informed that the relief sought in the first application was in respect to:
-
(i) “The Respondent's ongoing grants of waivers of customs duty, work permit fees and stamp duty to (NHPL) and proposed grant of such waivers to (ACHL) in reliance on its view … that it is contractually bound to grant such waivers”; and
-
(ii) “The Respondent's failure to publish a transparent statement of criteria by which it will grant or refuse waivers of customs duty, work permit fees and stamp duty”.
In the Notice of Motion filed in Cause No. G 55 of 2021 1 the Applicant pleads its two grounds for judicial review as follows:
“11. First, the Respondent cannot lawfully contract out of or otherwise fetter the exercise of its statutory discretion to waive (or refuse to waive) customs duty, work permit fees and stamp duty. The Respondent's 2010 and 2020 Undertakings are expressly stated to be subject to the laws of the Cayman Islands and, accordingly, (on their true construction) do not fetter the Respondent's powers. Alternatively, if (on their true construction) the Respondent's Undertakings purport to bind the Respondent then they are ultra vires and of no legal effect. Either way, the Respondent is currently operating under a misapprehension of its statutory powers to waive customs duty, work permit fees and stamp duty in relation to Health City East End. For the same reasons, the Respondent's 2010 Undertaking will not bind the Respondent in relation to Health City Camana Bay. And, again, for the same reasons, the 2020 Undertaking cannot bind the Respondent to grant customs waivers to the Second Interested Party.
12. Second, the rule of law requires the Respondent to publish a transparent statement of the criteria to be applied when determining applications for the waiver of work permit fees, stamp duty and customs duty, to ensure that such applications are determined in a consistent and non-arbitrary way. The Respondent's failure to publish such criteria is unlawful.”
In the Notice of Motion, the following relief was sought:
-
(i) A declaration that the Respondent's statutory powers to refuse to grant waivers of customs duty, work pennit fees and stamp duty to the Interested Parties are unfettered;
-
(ii) A declaration that the Respondent is obliged to publish a transparent statement of the criteria it will apply when determining applications for waivers of customs duty, work permit fees and stamp duty;
-
(iii) A declaration that the Respondent's decisions to grant waivers to NHPL and/or ACHL and/or refusal to grant waivers to the Applicant were unlawful and breached s.19 of the Constitution 2; and
-
(iv) An order for damages, to be assessed, against the Respondent, on the ground that the Respondent's grant of waivers to NHPL and/or ACHL and/or refusal of waivers to the Applicant, which were unlawful and in breach of s.19 of the Constitution, have caused financial loss to the Applicant in terms of the duty which the Applicant has paid and the competitive disadvantage caused by the difference in treatment.
The second application is brought in Cause No. G 150 of 2021. The relief sought in the second application was in respect to:
“The Respondent's ongoing failure to:
(a) formulate criteria for designating an institution as a place at which institutionally registered practitioners may be employed;
(b) formulate criteria for reviewing such designation: and (c) publish a transparent statement of those criteria.”
The following relief was sought in the Notice of Motion in Cause No. G 150 of 2021:
-
(i) A declaration that the Respondent is obliged to formulate criteria for designating an institution as a place at which institutionally registered practitioners may be employed;
-
(ii) A declaration that the Respondent is obliged to formulate criteria for periodically reviewing such designation; and
-
(iii) A declaration that the Respondent is obliged to publish a transparent statement of those criteria.
After the close of each party's case and after receiving comments on the draft judgment pursuant to Practice Direction 1/2004, I delivered my reserved judgment on 18 August 2022. I do not intend to again set out the background contained in the Judgment.
In the early stages of the Judgment, prior to dealing with the parties' positions in relation to the live issues, I reviewed areas of agreement and made certain observations in relation to both Causes.
At paragraph 21 in the Judgment, I noted that no issues (save for costs) in Cause No. G 150 of 2021 now required the Court's consideration. In its Skeleton Argument dated 30 March 2022, the Applicant stated that there was no evidence that the Respondent had made any progress in preparing draft criteria with a view to placing it before Cabinet and at that stage still sought a declaration that the Respondent had a legal duty to prepare such criteria. However, in its Supplementary Skeleton Argument dated 10 April 2022, the Applicant accepted that the Respondent had produced the required “Guidelines for Designation as an Institutionally Registered facility to employ practitioners on the Institutional Registration List”, albeit adding that this was at the “eleventh hour” and in response to the claim. The Respondent submitted in its Written Submissions dated 6 April 2022 that this made the ground of challenge “moot”, but added the approval of the guidelines was without prejudice to the Respondent's position that it was not under any legal obligation to formulate such criteria. The Applicant agreed that this rendered academic the claim for a declaration concerning such criteria. Accordingly, in the Judgment, I noted that prior to the hearing there had been a narrowing of the issues because the Government had produced the criteria sought in one of the requested declarations. 3
During the hearing, the remaining pleaded declaratory issue raised in Cause No. G 150 of 2021, which related to the absence of published criteria for periodically reviewing the designations of institutions, did not require resolution by the Court following indications given by Mr. Hickman KC. Mr. Buttler KC invited (i) the Court to record the concessions expressed by Mr. Hickman KC concerning such criteria; and (ii) to indicate whether the Court accepted that concession was one properly made. Accordingly, I commented at paragraph 21 of the Judgment as follows:
“Towards the close of the second day of the hearing, Mr. Hickman QC addressed the second declaration sought by the Applicant, namely that the Government should put in place “some sort” of criteria for reviewing a designation. Mr. Hickman QC stated: “I accept my instructions 4 that there should be and must be and will be a review of designated institutions against the designation criteria at reasonable intervals.” He added that this did not amount to a concession that the Government was under a duty to formulate and publish these criteria or that the Court had the power to order it to do so. He indicated that the review “concession” was being made because, following the formulation and distribution of the designation criteria, it was necessary for a mechanism for review to also be set out. This concession is one that is understandably made by the Government, and it is clearly in the medical profession's and patients' interests that such...
To continue reading
Request your trial