Coe v Governor
| Jurisdiction | Cayman Islands |
| Judge | (Henderson, J.) |
| Judgment Date | 17 February 2014 |
| Court | Grand Court (Cayman Islands) |
| Date | 17 February 2014 |
(Henderson, J.)
A. Akiwumi and I. Banks for the plaintiffs;
R. Keen, Q.C., Ms. R. Sharma, Senior Crown Counsel, and Ms. J. Catran, Crown Counsel, for the first to fourth defendants;
Lord Goldsmith, Q.C., M. Imrie and A. Huckle for the fifth defendant.
(1) Ackermon v. Cayman Islands Govt., 2013 (2) CILR 1, referred to.
(2) Att. Gen. (Trinidad & Tobago) v. Romanoop, [2006] 1 A.C. 328; [2005] 2 W.L.R. 1324; [2005] UKPC 15, applied.
(3) Bahamas Telecomms. Co. Ltd. v. Public Util. Commn., [2008] UKPC 10, referred to.
(4) Clark v. Lincolnshire & Humberside Univ., [2000] 1 W.L.R. 1988; [2000] 3 All E.R. 752, referred to.
(5) D v. Home Office, [2006] 1 W.L.R. 1003; [2006] 1 All E.R. 183; [2005] EWCA Civ 38, applied.
(6) Ellenborough Park, In re, [1956] Ch. 131; [1955] 3 W.L.R. 892; [1955] 3 All E.R. 667, applied.
(7) Harrikssoon v. Att. Gen. (Trinidad & Tobago), [1980] A.C. 265; [1979] 3 W.L.R. 62, applied.
(8) O”Reilly v. Mackman, [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, applied.
(9) Shonleigh Nominees Ltd. v. Att. Gen., [1974] 1 W.L.R. 305; [1974] 1 All E.R. 734; (1974), 27 P. & C.R. 407, considered.
(10) Stancliffe Stone Co. Ltd. v. Peak District Natl. Park Auth., [2006] Env. L.R. 7; [2005] 4 P.L.R. 35; [2005] EWCA Civ 747, referred to.
(11) Summers v. Fairclough Homes Ltd., [2012] 1 W.L.R. 2004; [2012] 4 All E.R. 317; [2012] UKSC 26, referred to.
(12) Trim v. North Dorset D.C., [2011] 1 W.L.R. 1901; [2011] P.T.S.R. 1110; [2011] 2 P. & C.R. 7; [2010] EWCA Civ 1446, referred to.
Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.23(1):
‘If in any legal proceedings primary legislation is found to be incompatible with this Part, the court must make a declaration recording that the legislation is incompatible with the relevant section or sections of the Bill of Rights and the nature of that incompatibility.’
s.26(1): The relevant terms of this sub-section are set out at para. 34.
s.26(4): ‘Proceedings under subsection (1) shall be commenced within one year of the decision or act that is claimed to breach the Bill of Rights, or from the date on which such decision or act could reasonably have been known to the complainant . . .’
Constitutional Law-Bill of Rights-enforcement of rights and freedoms-under 2009 Constitution, s.26(1), may challenge governmental decision in private law action if decision breaches personal right under Constitution-if challenge possible as either s.26(1) claim or public law action, plaintiff to bring public law action unless available redress inadequate
Constitutional Law-Bill of Rights-enforcement of rights and freedoms-time limit-for purposes of calculating time limit to challenge decision under s.26(4), ‘decision’ means point decision actually made-decision forming part of agreement between public and private sector made at very latest when agreement executed, even if agreement subject to ongoing changes-if plaintiff aware of highly publicized decision, requirement of publication in Gazette not to affect date time begins to run
The plaintiffs (members of the Concerned Citizens Group) brought a writ action alleging that the defendant”s decision to close a section of the West Bay Road was unconstitutional.
On June 15th, 2011, the defendants announced a proposed agreement between the Government and the fifth defendant for substantial commercial development. This involved the closure of a section of West Bay Road, although the majority of the land surrounding that section of road was ultimately owned by the fifth defendant and none was owned by any of the plaintiffs. The section of road had previously facilitated public access to Seven Mile Beach and the agreement required that the fifth defendant create several cycle paths and footpaths to allow continued access to it. The announcement received considerable media attention and the defendants held several meetings and press conferences to discuss the agreement. The agreement was executed between the defendants on December 15th, 2011 and, on February 25th, 2013, the plaintiffs commenced the present action. A notice of the closure of the road was placed in the Gazette on March 13th, 2013, as required by the Roads Law (2005 Revision), s.14.
The plaintiffs 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 defendants had breached the plaintiffs” rights by closing it, the plaintiffs were entitled to bring a writ action under the 2009 Constitution, s.26(4) rather than being restricted to 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). 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 defendants 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 the bringing of 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.
Held, dismissing the application:
(1) The plaintiffs were not necessarily required to challenge the decision by means of judicial review. The principle of exclusivity required that challenges to governmental acts and decisions normally be pursued by way of judicial review and, accordingly, making such a claim in a writ action would usually amount to an abuse of process. This did not apply, however, if the governmental act or decision breached a personal right or freedom under the 2009 Constitution as, under s.26(1), the Grand Court had jurisdiction to hear the claim. Accordingly, a constitutional claim could be brought by a writ action, although if such a claim would have been possible before the Bill of Rights took effect, it should ordinarily be advanced in the traditional manner (i.e. through a public law action). When a claim could either be brought under s.26(1) or as a public law action, a potential plaintiff should not bring a case for constitutional relief unless there was a feature which indicated that legal redress available in a public action would be inadequate (e.g. an arbitrary use of state power) (paras. 25–27).
(2) Even if the plaintiffs were entitled to make a claim under s.26(1), however, the time limitation for the claim had expired. Under the 2009 Constitution, s.26(4), the plaintiffs were required to bring a challenge
within one year of either the date on which the decision was made or the date on which the plaintiff could reasonably have known about the decision. Although the making of the decision was, to some extent, a continuing process, it...
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