Between: The King (on the Application of Lurlane Berry and Others) Applicants v (1) Public Lands Commission Cayman Islands Government (2) Cayman Islands Attorney General Respondents

• Jurisdiction: Cayman Islands
• Court: Grand Court (Cayman Islands)
• Judge: Justice Jalil Asif,(Asif, J.)
• Judgment Date: 19 July 2024
• Docket Number: CAUSE NO: G2024-0067

Between:

The King (On the Application of Lurlane Berry and Others)

Applicants

and

(1) Public Lands Commission Cayman Islands Government

(2) Cayman Islands Attorney General

Respondents

Before:

The Honourable Justice Jalil Asif KC

CAUSE NO: G2024-0067

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CIVIL DIVISION

Practice and Procedure — Grand Court Rules — GCR O.53, r.5(2) — time for serving claim for judicial review — whether failure to serve in time results in proceedings being a nullity — whether leave lapses if claim not started in time — whether court has power to extend time for service

Practice and Procedure — conflicting judgments of courts of coordinate jurisdiction — approach of court to reconciling the conflict

Appearances:

Mr Rupert Wheeler instructed by H Phillip Ebanks for the Applicants

Mr Nigel Gayle, Mrs Anna Russell-Knee and Miss Alexandria Fatta of the Attorney General's Chambers for the Respondents

A. Introduction

1 This case involves a direct challenge to the correctness of the recent judgment of Carter J in ( Anderson v Utility Regulation and Competition Office unreported 20/03/24), in which the learned judge concluded that: (i) GCR O.53, r.5(2) imposes a mandatory time limit of 7 days from the grant of leave for commencing judicial review proceedings; (ii) there is no discretion to extend the time limit stated in the Rule; (iii) any grant of leave to pursue judicial review is conditional upon a notice of motion being issued and served in time; and (iv) if the notice of motion is not served in time, then the leave lapses, and cannot be renewed, so that the applicant automatically loses the ability to pursue any judicial review claim.

2 It is useful to set out the terms of GCR O.53, r.5(2) in full:

“(2) Within 7 days of being granted leave, the applicant shall serve copies of —

(a) the notice of motion;

(b) the supporting affidavits;

(c) the order for leave; and

(d) the Form No. 53 of the Grand Court Rules — Vol II — Forms (as amended and revised) application

upon the defendant and all other persons directly affected.”

3 Mr Rupert Wheeler, who appears for the Applicants, instructed by H Phillip Ebanks, cogently argues that I am able to, and should, disagree with Carter J's conclusion. Mr Nigel Gayle, who appears for the Respondents, argues to the contrary that Carter J's decision is correct and that I should follow it and apply it in this case. I was told during the hearing that there is an outstanding summons for leave to appeal in Anderson, and that Carter J has not yet determined whether she will grant leave. Neither party invited me to defer the hearing in this matter or the completion of my judgment pending the determination of that application for permission to appeal, and any appeal if permission were to be granted.

B. Relevant background

4 The background can be briefly stated as follows. The Applicants are various persons who have been involved in operating businesses at Public Beach on Seven Mile Beach, Grand Cayman, for periods ranging from 2–19 years. During 2023, the Public Lands Commission brought into effect a new regime for licensing those who wish to trade on Public Beach. Each of the Applicants applied for a licence and was refused. Each of the Applicants was sent a letter dated 15 January 2024 notifying them of the decision and requiring that they cease trading and vacate the site by 14 February 2024.

5 On 12 February 2024, the Applicants filed a joint application for leave to commence judicial review proceedings and their supporting affidavits. The matter came before me in Chambers on Tuesday 13 February 2024 on an ex parte application but on informal notice to the Respondents. The Respondents did not attend. Having heard counsel for the Applicants, I granted leave to move. In addition, I directed that each Applicant should file further evidence by Friday 23 February 2024 giving further particulars of representations regarding their licences, which they allege were made to them by officials from the Public Lands Commission and on which they relied in support of their claim. Finally, I stayed the requirement that the Applicants should cease trading and vacate Public Beach until the judicial review has been determined.

6 My order confirming the grant of leave was signed, filed and sealed on 13 February 2024.

7 It is common ground that, having obtained leave on 13 February 2024, the Applicants did not file and serve their Notice of Originating Motion within the 7 days specified in GCR O.53, r.5(2). The Applicants' evidence demonstrates the following timeline of events:

• 7.1 On Thursday 22 February 2024, the Applicants sent the Respondents by email a link to download an electronic copy of the bundle on which they had relied at the application for leave. This included the primary affidavits and the Form 53 setting out the grounds of the intended judicial review claim. The Applicants intended that this would be effective service of those documents upon the Respondents.

• 7.2 On Friday 23 February 2024, the Applicants sought an extension of time from the Respondents to complete and serve the supplemental affidavits that I ordered on 13 February 2024. The Respondents did not have instructions to agree, so the Applicants renewed their request to the court, and I granted them an extension to 26 February 2024.

• 7.3 On Monday 26 February 2024, the Applicants sought to file their supplemental affidavits, but these were rejected by the Registry for reasons relating to their form. The Applicants therefore sought an additional extension from the court to Tuesday 27 February 2024 for filing the supplemental affidavits, which I granted, and the affidavits were filed on 27 February 2024.

• 7.4 Also on 27 February 2024:

  • (a) The Respondents informed the Applicants that they did not accept service of the leave bundle via the link to the soft copies sent on 23 February 2024. There was not material before me to explain why this was not communicated to the Applicants sooner and, in particular, before time for service putatively expired.

  • (b) The Respondents served their summons to strike out the claim for failure to comply with GCR O.53, r.5(2).

  • (c) The Applicants served an electronic copy of the leave bundle upon the Respondents by email, instead of link, which is a mode of service permitted by the Respondents.

• 7.5 On Thursday 29 February 2024, the Applicants sought to file their notice of motion at court and sent the Respondents an unsealed copy and the supplemental affidavits, along with a summons seeking an extension of time for service.

8 Unfortunately, there was then a delay in having the two summonses listed before me, with the result that they were only heard on 13 June 2024.

C. Summary of the parties' arguments

C.1 The Respondents' submissions

9 By their summons, the Respondents complain that time for service of the Notice of Originating Motion expired on 23 February 2024, but nothing had been served by 27 February 2024, when their summons was issued. They ask that the proceedings be struck out. The grounds relied on are that the grant of leave was conditional on compliance with GCR O.53, r.5(2); the Applicants failed to comply with the 7-day time limit specified in GCR O.53, r.5(2); the leave therefore lapsed as a result of the Applicants' failure; and the proceedings are therefore a nullity and should be struck out pursuant to GCR O.18, r.19(a) or (d) or the inherent jurisdiction. The Respondents rely on Anderson but also on the underlying substantive arguments that were advanced in Anderson, and which were accepted by Carter J.

10 In response to the Applicants' argument, summarised in paragraph 12 below, that I should not follow Anderson, Mr Gayle disputes that Cayman Islands Urgent Care Ltd v HM Director of Customs [2021] (1) CILR 443 (which I will refer to as Urgent Care) is a relevant judgment that should have been brought to Carter J's attention, and argues that it does not give me license to differ from Carter J. His position is that insofar as McMillan J made any potentially relevant comments, those were obiter dicta.

C.2 The Applicants' submissions

11 The Applicants' skeleton argument summarises their submissions as follows:

“4. The arguments in support of the Respondents' summons appear premised on the proposition that O.53, r.5(2) imposes a condition, and failure to abide by that condition results in leave lapsing and the action becoming a nullity. This is demonstrably incorrect. In short, the Applicants submit as follows:

• i. Leave to apply for judicial review is not conditional under O.53. Consequently, leave does not expire if the notice of motion and other documents are not served in accordance with O.53, r.5(2).

• ii. The failure to meet the timeframe stated in r.5(2) does not render the application a nullity. It renders it an irregularity pursuant to O.2, r.1.

• iii. If the timeframe has been missed in this instance, the Court should cure the irregularity rather than exercising its discretion to set aside the proceedings for irregularity.”

12 Mr Wheeler does not shy away from the fact that he is asking me to disagree with Carter J, and that that is a difficult argument for the Applicants to make. However, he submits that the law was not fully or adequately argued before Carter J. Mr Wheeler points out that the judge was taken only to cases from Jamaica and the Eastern Caribbean Supreme Court (ECSC). He says that she was not directed to the earlier judgment of McMillan J in Urgent Care, in which McMillan J reached the opposite conclusion to that of Carter J in Anderson.

13 Mr Wheeler concedes that he cannot say that McMillan J's judgment on this point is a comprehensive consideration of all relevant authorities, but he submits that McMillan J clearly received extensive written submissions, which he considered in detail.

14 Mr Wheeler submits that Urgent Care is a...