Coe, Multon, Smith and Ebanks v Governor

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Rix, JJ.A.)
• Judgment Date: 21 November 2014
• Court: Court of Appeal (Cayman Islands)
• Date: 21 November 2014

Court of Appeal

(Chadwick, P., Mottley and Rix, JJ.A.)

COE, MULTON, SMITH and EBANKS

and

GOVERNOR and FOUR OTHERS

A. Akiwumi and I. Banks for the appellants;

R. Keen, Q.C., Ms. R. Sharma and Ms. J. Catran for the first to fourth respondents.

M. Imrie and A. Huckle for the fifth respondent.

Cases cited:

(1) Att. Gen. (Trinidad & Tobago) v. Ramanoop, [2006] 1 A.C. 328; [2005] 2 W.L.R. 1324; [2005] UKPC 15, dicta of Lord Nicholls applied.

(2) Bato Star Fishing (Pty) Ltd. v. Environmental Affairs & Tourism Min., 2004 (4) SA 490; 2004 (7) BCLR 687; [2004] ZACC 15, considered.

(3) Pharmaceutical Mfrs. Assn. of S. Africa, In re, ex p. President of Republic, 2000 (2) SA 674; 2000 (3) BCLR 241; [2000] ZACC 1, considered.

(4) R. (Burkett) v. Hammersmith & Fulham L.B.C., [2002] 1 W.L.R. 1593; [2002] 3 All E.R. 97; [2002] C.P. Rep. 66; [2003] Env. L.R. 6; [2003] 1 P. & C.R. 3; [2002] UKHL 23, considered

(5) R. (Garden & Leisure Group Ltd.) v. North Somerset Council, [2004] 1 P. & C.R. 39; [2003] EWHC 1605 (Admin), distinguished.

(6) R. (Nash) v. Barnet L.B.C., [2013] PTSR 1457; [2013] EWCA Civ 1004, considered.

(7) Shrewsbury & Atcham B.C. v. Communities & Local Govt. Secy., [2008] 3 All E.R. 548; [2008] A.C.D. 58; [2008] EWCA Civ 148, distinguished.

Legislation construed:

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.18: The relevant terms of this section are set out at para. 15.

s.19: The relevant terms of this section are set out at para. 16.

s.26: The relevant terms of this section are set out at para. 18.

Grand Court Rules 1995 (Revised), O.53, r.1;

‘(1) An application for-

(a) an order of mandamus, prohibition or certiorari; or

(b) an injunction restraining a person from acting in any substantive office of a public nature and permanent character which is held under the Crown or which has been created by any statutory provision, regulation or directive,

shall be made by way of an application for judicial review in accordance with the provisions of this Order.’

O.53, r.4(1): The relevant terms of this paragraph are set out at para. 21.

O.53, r.4(3): The relevant terms of this paragraph are set out at para. 21.

O.77A, r.2: The relevant terms of this paragraph are set out at para. 22.

O.77A, r.4: The relevant terms of this paragraph are set out at para. 22.

Administrative Law-judicial review-alternative remedies-abuse of process to make claim under 2009 Constitution, s.26 if no alleged breach of rights or freedoms under Bill of Rights, or if litigant uses s.26 procedure solely to avoid need for using ordinary judicial review-s.26 procedure not to become general substitute for established procedures of judicial review

Administrative Law-judicial review-alternative remedies-exclusivity principle part of Cayman law but qualified by introduction of constitutional claim in 2009 Constitution, s.26-challenge to administrative action no longer only by judicial review-cases involving breaches of rights and freedoms protected under Bill of Rights may be brought under s.26 writ-based procedure (as enforceable under GCR, O.77A) but constitutional claims limited to alleged breaches of protected rights and freedoms

Constitutional Law-Bill of Rights-enforcement of rights and freedoms-governmental ‘decision or act’ challenged under 2009 Constitution, s.26(1) and (4) to be pleaded with ‘full particulars’ (GCR, O.77A,

r.4(1))-if only one such ‘decision or act’ particularized (and others merely mentioned in passing) court obliged to decide challenge only on basis of that ‘decision or act’

The appellants (members of the Concerned Citizens Group) brought an action by writ in the Grand Court claiming that the first respondent”s decision to close a section of the West Bay Road was unconstitutional.

On June 15th, 2011, the respondents announced a proposed agreement between the Government and the fifth respondent for substantial commercial development involving the closure of a section of West Bay Road. The section of road had previously facilitated public access to Seven Mile Beach and the agreement required the fifth respondent to create several cycle paths and footpaths to allow continued access to it. The announcement received considerable media attention and the respondents held several meetings and press conferences to discuss the agreement. The agreement was executed between the respondents on December 15th, 2011, and on February 25th, 2013, the appellants commenced the present proceedings. A notice of the closure of the road was published in the Gazette on March 13th, 2013.

The appellants submitted that (a) the Roads Law, s.14 was incompatible with ss. 18, 19 and 24 of the 2009 Constitution-and so was ultra vires-as it did not provide for prior notification of the closure of a road, it did not set out a specific process by which members of the public could challenge the closure, there was no obligation to give reasons for the decision to close the road and no way to appeal from such a decision; (b) as the agreement to close the road was ultra vires and the respondents had breached the plaintiffs” rights by closing it, the plaintiffs were entitled to bring an action by writ under the 2009 Constitution, s.26(4) rather than by making a claim for judicial review of the decision; (c) although the claim had to be made within one year of the decision being challenged, the decision to close the road had been ongoing and had not been finalized until the road had been formally closed (as marked by the publication of the Gazette notice), and as the claim had been brought before the notice had been published, the time limit had not expired; and (d) they had, together with the people of the Cayman Islands, acquired a prescriptive right of way and right of passage over the road and its beach access points. The closure of the road would therefore deprive the citizens of their legally acquired rights and should be reversed.

The respondents submitted in reply that the action was an abuse of the process of the court and should be dismissed. The plaintiffs were primarily seeking to challenge the administrative decision and therefore their claim was essentially public in nature. The writ action, however, was a private law claim made for the purposes of avoiding the 3-month time limit for making an application for judicial review. As the time limit should have started to run from when the decision was made, rather than from when the closure was gazetted, it had now expired and the plaintiffs could not attempt to have the decision reviewed.

The Grand Court (Henderson, J.) dismissed the application (in proceedings reported at 2014 (1) CILR 251). It held that (a) although the principle of exclusivity normally required that challenges to governmental acts be pursued only by way of judicial review, this did not apply if the governmental act or decision breached a personal right or freedom under the 2009 Constitution, as by s.26(1) of the Constitution the Grand Court then had jurisdiction to hear a constitutional claim commenced by writ; (b) even if the appellants were entitled to claim under s.26(1), however, the time limitation for such a claim had expired under s.26(4) since under that provision they had to commence their proceedings within one year of either the date on which the decision was made or the date on which they could reasonably have known about the decision. The making of the decision was, to some extent, a continuing process, but it had been made, at the latest, when the agreement between the respondents was executed on December 15th, 2011-and the publication of the closure in the Gazette was simply a legal formality and did not act as a starting point for the time limit, as the intention to close the road had been publicly known for a considerable time; (c) no declaration of incompatibility of the Roads Law with the Constitution could be made under s.23(1), since such a declaration could only be made as part of a claim under s.26(1), which the court had held was time-barred; and (d) the appellants could not claim a prescriptive easement over the West Bay Road as none of them owned land adjacent or near to the road.

On appeal, the appellants submitted primarily that the Grand Court had erred in finding that the decision complained of was that contained in the agreement between the respondents on December 15th, 2011; since the making of the decision was, as the court had said, a continuing process, it should have selected either February 14th, 2013, as likely to be the date of the decision to gazette the closure (and inferred from the Cabinet press briefing the following day), or March 13th, 2013, when the road was gazetted for closure, as the date of the decision, since that represented the point at which the governmental respondents formally committed themselves to proceeding with the closure.

The respondents submitted in reply that (a) the Grand Court had been correct in holding that that the ‘decision or act’ which was the focus of the complaint was the agreement of December 15th, 2011, since by that agreement they publicly committed themselves to proceed with the closure and were bound by the law of contract to do so; and (b) in any event, the appellants” bringing the action by writ under O.77A of the Grand Court Rules was an abuse of process since the ‘decision or act’ was not a breach of a ‘right or freedom’ under the Bill of Rights but, at best, the breach of a ‘responsibility of government,’ for which the appropriate remedy was a traditional judicial review application under O.53 of the Rules, s.19(1) of the Constitution having effectively re-enacted the law of judicial review.

Held, dismissing the appeal:

(1) The appellants” pleadings complained only that it was the agreement of December 15th, 2011 that breached their constitutional rights and freedoms and there was sufficient evidence before the Grand Court that the ‘decision or...