Between: Gregg Vanguard Anderson Appellant v Utility Regulation and Competition Office Respondent; Between: The Attorney General of the Cayman Islands Public Lands Commission Cayman Islands Government Appellants v The King (Otao Lurlane Berry and Others) Respondents

• Jurisdiction: Cayman Islands
• Court: Court of Appeal (Cayman Islands)
• Judge: Beatson JA,Martin JA,Goldring P
• Judgment Date: 07 March 2025
• Docket Number: CICA (Civil) Appeal 13 of 2024 CICA (Civil) Appeal 20 of 2024 (Formerly Cause No. G2024-0067)

Between:

Gregg Vanguard Anderson

Appellant

and

Utility Regulation and Competition Office

Respondent

Between:

The Attorney General of the Cayman Islands Public Lands Commission Cayman Islands Government

Appellants

and

The King (Otao Lurlane Berry and Others)

Respondents

Neutral Citation Number: [2025] CICA (Civ) 6

Before:

The Rt Hon Sir John Goldring, President

The Hon John Martin KC, Justice of Appeal

The Rt Hon Sir Jack Beatson, Justice of Appeal

CICA (Civil) Appeal 13 of 2024

(Formerly Cause No. G2023-0046)

CICA (Civil) Appeal 20 of 2024

(Formerly Cause No. G2024-0067)

THE COURT OF APPEAL OF THE CAYMAN ISLANDS

ON APPEAL FROM THE COURT OF THE CAYMAN ISLANDS, CIVIL DIVISION

Appearances:

In CICA No 13 of 2024 Mr Rupert Wheeler instructed by KSG Attorneys for the Appellant, and Mrs Marilyn Brandt, Deputy Solicitor General and Mr Nigel Gayle, Senior Crown Counsel for the Respondent

In CICA No 20 of 2024 Mrs Marilyn Brandt, Deputy Solicitor General and Mr Nigel Gayle, Senior Crown Counsel for the Applicants, and Mr Rupert Wheeler instructed by H Phillip Ebanks for the Proposed Respondent

Beatson JA

A Overview

1 For an application for judicial review to be made in these islands, it is necessary to obtain the leave of the Court in accordance with GCR Order 53, Rule 3. This appeal and application for leave to appeal concern one aspect of GCR Order 53 Rule 5 about the mode of applying for judicial review after leave has been granted. Rule 5(1) provides that “ where leave has been granted to make an application for judicial review, the application shall be made by originating motion to a judge sitting in open court unless the court directs that it will be made to a judge in chambers”.

2 The question before the court is the effect of non-compliance with GCR Order 53 Rule 5(2) which provides that “ within 7 days of being granted leave” to apply for judicial review pursuant to Order 53 Rule 3:

“… the applicant shall serve copies of –

(a) the notice of motion;

(b) the supporting affidavits;

(c) the order for leave; and

(d) the Form 53 application

upon the defendant and all other persons directly affected.”

Does non-compliance with Rule 5(2) bring the proceedings to an end on the ground that the leave granted was conditional on compliance with it, the time limit in it is mandatory, and service of the specified documents thereafter is invalid and a nullity? Or is non-compliance only an irregularity which as a result of GCR Order 2 Rule 1 does not have that effect, so that it is open to an applicant to apply to the Court pursuant to GCR Order 3 Rule 5 for an extension of time to serve the specified documents?

3 On 20 March 2024, in Anderson v Utility Regulation and Competition Office (hereafter “ Anderson”), Carter J held that the seven-day time limit in Rule 5(2) is mandatory, the grant of leave is conditional on complying with it, and that, unlike the position in ordinary civil proceedings, in judicial review proceedings the Court does not have a discretion to extend time to serve the specified documents. But on 19 July 2024, in R (Berry & others) v Public Lands Commission Cayman Islands Government and Attorney General of the Cayman Islands (hereafter “Berry & others”) Asif J declined to follow Anderson.

4 Asif J stated that he was not bound to follow Carter J's decision for two reasons. First, the attention of Carter J had not been drawn to the earlier decision in Cayman Islands Urgent Care Ltd v HM Director of Customs, Hill, Commissioner of the Royal Cayman Islands Police Service, and Chief Medical Officer [2021] (1) CILR 443 (hereafter “ Urgent Care”). In Urgent Care the consequences of non-compliance with Order 53 Rule 5(2) were in issue but McMillan J's reasoning and conclusion differed from that in Anderson. Secondly, after reviewing the arguments and authorities relied on in both decisions, Asif J concluded that the reasoning in Urgent Care was correct and that in Anderson was wrong. He held that an applicant who has not complied with the time limit in Rule 5(2) is able to apply for an extension of time in which to serve the specified documents, and he extended time in Berry & others.

5 Mr Anderson has leave to appeal against Carter J's decision, but the applications of the Respondents below, the Public Lands Commission Cayman Islands Government (hereafter “the Commission”) and the Attorney General, for leave to appeal against Asif J's decision were refused by the judge and the President of this Court on respectively 15 and 28 August 2024.

6 Before this Court, Deputy Solicitor General Ms Marilyn Brandt and Mr Nigel Gayle made a renewed application for leave to appeal in Berry & others on behalf of the Attorney General and the Commission and appeared for the Respondent Office of Utility Regulation (hereafter “OfReg”) in Anderson, as they had before Carter J. 1 They submitted that the principles enunciated by Carter J in Anderson be followed, that leave to appeal be granted in Berry & others, and that the appeal in that case should be allowed. Mr Rupert Wheeler appeared for the Respondents in Berry & others and for the Appellant in Anderson, but did not appear below in Anderson. The Court is grateful to all counsel for their written and oral submissions.

7 In broad terms, there are two principal issues before this court. The first is whether Order 53 is a self-contained procedural code which is not subject to the general provisions of the GCR unless Order 53 itself so provides. The second is whether the long-recognised need for promptness and expedition in the exercise of the judicial review jurisdiction justifies the court having no discretion to extend specified time limits unless specific power to do so is granted in Order 53 itself or whether failure to comply with the specified period is a curable irregularity.

B The substantive disputes

8 In Anderson the substantive dispute concerns OfReg's decision not to renew the Applicant, Mr Greg Anderson's, one-year fixed term employment contract as Executive Director of Energy when it expired on 20 January 2023. On 24 February 2023, Mr. Anderson instituted judicial review proceedings challenging the decision. His grounds were procedural irregularity in failing to follow the established procedure for consideration of the appointment of staff and failure by OfReg to conduct a fair and open recruitment process as required by section 41 of the Public Authority Act (2020 Revision) because colleagues had been offered three-year fixed term contracts. Mr Anderson's affidavit stated that his contract was the ninth fixed term contract between him and OfReg since September 2017.

9 In Berry & others the substantive dispute concerns the Commission's refusal in letters dated 15 January 2024 of nine applications for beach vending licences at Public Beach on Seven Mile Beach, Grand Cayman on the ground that they did not meet the criteria under a new licensing regime. The Seven Mile Public Beach Park Vendor Policy, (hereafter the “SMPB policy”), was brought into effect in 2023. At that time, the Applicants had been operating businesses at Public Beach for periods ranging from 2 to 19 years. The letter notifying them of the decision required them to cease trading and leave the site by 14 February 2024. Their application for leave to apply for judicial review was filed on 12 February 2024. The SMPB policy was later amended to include a review process for applicants aggrieved by a decision of the Commission. The amended document is dated April 2024, but the written submissions of the Attorney-General and the Commission state that the amendment was in April/May 2024.

C The procedural history of the two cases

(i) Anderson

10 As stated, judicial review proceedings were launched on behalf of Mr Anderson on 24 February 2023. Carter J gave leave on 10 March 2023, and the Minute of the Judge's Order was served on OfReg on 17 March 2023.

11 On 28 April 2023, Mr Anderson submitted the Notice of Originating Motion and the Minute of the Judge's Order granting him leave to the Court Registry for filing.

12 On 4 May 2023, the Order granting Mr Anderson leave was digitally signed by the Court. That day he or his representatives sent the Notice of Motion, the supporting affidavit, the Form 53 application, and the digitally signed Order granting leave to OfReg's counsel by email.

13 On 5 May 2023, the Order granting leave was sealed by the Court and OfReg's counsel acknowledged receipt of the documents served the day before.

14 On 17 May 2023 OfReg filed a summons to strike out on the ground that the Notice of Originating Motion was not filed within 7 days of leave being granted as required by GCR 53 r. 5(2) but was 41 days out of time and was in law “ a nullity” and “ invalid”.

15 The hearing before Carter J was on 28 June 2023 and the learned judge gave her decision on 20 March 2024. On 2 April 2024 Mr Anderson sought leave to appeal, and on 23 July 2024 Carter J granted leave by consent on two grounds. These were that Carter J erred in holding that (1) leave to apply for judicial review was conditional and failure to comply with GCR Ord 53 r. 5(2) rendered it a nullity, and (2) there is no discretion to extend time under GCR Ord. 3 r. 5.

(ii) Berry & others

16 On 12 February 2024 judicial review proceedings were issued ex parte but on notice. On 13 February the case came before Asif J who granted leave and stayed the order requiring the Applicants to cease trading and to leave the beach by 14 February. He also ordered each of them to file additional evidence as to the precise nature of the representations and/or promises allegedly made to them regarding the grant of a vendor's licence. The Order granting leave was also signed, filed and sealed on 13 February.

17 The Applicants did not file and serve their Notice of Originating Motion, and the other documents specified in r. 5(2) within the required 7-day period which...