Ebanks (C.C.), Mendoza and Gomez v Governor of The Cayman Islands, National Roads Authority and Attorney General
| Jurisdiction | Cayman Islands |
| Judge | (Richards, J.) |
| Judgment Date | 04 October 2021 |
| Court | Grand Court (Cayman Islands) |
(Richards, J.)
Constitutional Law — Bill of Rights — peaceful enjoyment of property — Roads Act (2005 Revision), which provides for compulsory acquisition of land, not incompatible with Bill of Rights, s.15(1) — no provision in Act for right of access to Grand Court, but right to bring petition under Constitution or to seek judicial review
Constitutional Law — Bill of Rights — right to fair trial — landowners’ right to fair trial in Bill of Rights, s.7(1) not infringed by Roads Act (2005 Revision) — no provision in Act for right of access to Grand Court, but right to bring petition under Constitution or to seek judicial review
	Held, dismissing the petition:
	(1) The Roads Act was not incompatible with the Constitution by reason of the absence of provision for a right of access to the Grand Court. Provision was made by other means, which was what was required by s.15(1) of the BoR. The court would not make a declaration of incompatibility. Constitutional provisions were to be given a generous interpretation. Such interpretation, while faithful to the language used, must ensure that citizens had the full measure of rights and freedoms to which they were entitled. Any application of interpretive principles must first begin with the grammatical meaning or linguistic meaning of the words used. In the present case, the word “law” in s.15(1) was grammatically capable of more than one meaning. “Law” was not limited to primary legislation and included regulations, rules and codes made pursuant to a power conferred by law. The court accepted the respondents’ argument that there was the general right to bring a petition under the Constitution, which would be applicable to any interference with property rights. There was also the remedy of judicial review, which was a common law remedy but continued to operate by virtue of GCR O.53. Judicial review provided an effective right of access to the court. However, this was not to say that a bespoke route to appeal to the Grand Court was not desirable and that there was not a need for the legislature to give specific consideration to providing the same (paras. 126–150).
	(2) The right of the petitioners to a fair trial as provided for by s.7 of the BoR had not been infringed by failing to permit them a right of access to the Grand Court, whether direct or on appeal from any other authority, for the determination of the legality of the taking of possession of the petitioners’lands. Section 7 of the BoR dealt with the process for the determination of civil rights as between the individual and the state. Compulsory acquisition of land and planning rights issues would involve the determination of civil rights. One had to consider the nature of the subject matter in issue to determine the adequacy of what was said to satisfy s.7. In the present case, the road notices published on behalf of the Cabinet evidenced clear policy decisions said to have been taken in the public interest. They involved the widening of a road for the benefit of the public. They therefore fell within the ambit of decisions made on the basis of expediency. They were decisions made in a democratic society for which the executive was answerable to the public on behalf of whom they purported to be acting. The essential requirement to satisfy s.7 was access to a court, an independent and impartial tribunal. That access could be obtained by way of judicial review. The making of a declaration as to the acquisition of private property for the purpose of road construction engaged s.7 rights and before any such decision was made affected persons should be given an opportunity to be heard. In the present case, prior notice and information as to the precise boundary details were published as required by the Roads Act. There did not appear to be a formal consultation scheme. However, there appeared to have been a broad scheme which gave an opportunity for affected persons to be heard. The petitioners challenged the extent and limited nature of any consultation. These were administrative acts in respect of which there was a right of challenge before a judicial body. Importantly, this included a right to challenge the adequacy of the process, which process would therefore be subject to judicial control. The court was satisfied given the nature of the subject matter, the broad scheme which appeared to exist, that it would be subject to sufficient judicial control by way of judicial review such as to ensure compatibility with s.7 of the BoR (paras. 195–200).
(1)	Appleby (Cayman) Ltd. v. Chief Immigration Officer, Cause No. G0046/2016, Grand Ct., June 14th, 2016, unreported, considered.
(2)	Att. Gen. (Hong Kong) v. Lee Kwong-Kut, [1993] A.C. 951, referred to.
(3)	BDO Cayman Ltd. v. Governor in Cabinet, 2018 (1) CILR 457, considered.
(4)	Bryan v. United Kingdom, [1995] ECHR 50; (1996), 21 EHRR 342, [1996] 2 EGLR 123; [1996] 1 PLR 47, considered.
(5)	Chief Immigration Officer v. Ellington, 2020 (2) CILR 911, considered.
(6)	Day v. Governor, Civil Cause Nos. 111 and 184 of 2018, Grand Ct., March 29th, 2019, unreported; further proceedings, sub nom. Deputy Registrar v. Day, 2019 (1) CILR 510, considered.
(7)	Delcourt v. Belgium, [1970] ECHR 1; (1970), 1 EHRR 355, referred to.
(8)	Home Affairs Min. v. Fisher, [1980] A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, considered.
(9)	Matadeen v. Pointu, [1999] 1 A.C. 98; [1998] 3 W.L.R. 18, considered.
(10)	Meerabux v. Att. Gen. (Belize), [2005] UKPC 12; [2005] 2 A.C. 513; [2005] 2 W.L.R. 1307, considered.
(11)	Nairne, In re, 2013 (1) CILR 345, considered.
(12)	Pretty v. Solly (1859), 26 Beav. 606; 53 E.R. 1032; [1859] Eng R 249, referred to.
(13)	R. v. A, [2001] UKHL 25; [2002] 1 A.C. 45; [2001] 2 W.L.R. 1546; [2001] 3 All E.R. 1; [2001] HRLR 48, referred to.
(14)	R. (Taylor) v. Darlington Local Bd. of Health (1865), 6 B. & S. 562; 122 E.R. 1303; 35 L.J. (Q.B.) 45, referred to.
(15)	R. v. J., [2004] UKHL 42; [2005] 1 A.C. 562; [2004] 3 W.L.R. 1019; [2005] 1 All E.R. 1; [2005] 1 Cr. App. R. 19, referred to.
(16)	R. (Alconbury Devs. Ltd.) v. Environment Secy., [2001] UKHL 23; [2003] 2 A.C. 295; [2001] 2 W.L.R. 1389; [2001] 2 All E.R. 929; [2002] Env. L.R. 12, considered.
(17)	R. (Edison First Power Ltd.) v. Central Valuation Officer, [2003] UKHL 20; [2003] 4 All E.R. 209, considered.
(18)	R. (Good Law Project) v. Electoral Commn., [2018] EWHC 2414 (Admin); [2019] 1 All E.R. 365; [2018] ACD 130, considered.
(19)	R. (Wright) v. Health Secy., [2009] UKHL 3; [2009] 1 A.C. 739; [2009] 2 W.L.R. 267; [2009] 2 All E.R. 129; [2009] HRLR 13, considered.
(20)	Reyes v. R., [2002] UKPC 11; [2002] 2 A.C. 235; [2002] 2 W.L.R. 1034, referred to.
(21)	Roodal v. State, [2003] UKPC 78; [2005] 1 A.C. 328; [2004] 2 W.L.R. 652, considered.
(22)	Transport Min. v. Noort, C.A. 369/91; [1992] NZCA 51; [1992] 3 NZLR 260, considered.
(23)	Wall v. Mutuelle de Poitiers Assur., [2014] EWCA Civ 138; [2014] 1 W.L.R. 4263; [2014] 3 All E.R. 340; [2014] 1 CLC 253; [2014] C.P. Rep. 23; [2014] RTR 17, considered.
(24)	Zumtobel v. Austria (1994), 17 EHRR 116; [1993] ECHR 41, considered.
Cayman Islands Constitution Order 2009, s.5(1): The relevant terms of this subsection are set out at para. 20.
s.7(1): The relevant terms of this subsection are set out at para. 21.
s.7(2): The relevant terms of this subsection are set out at para. 128.
s.13(3)(c): The relevant terms of this provision are set out at para. 144.
s.15: The relevant terms of this section are set out at para. 22.
s.19: The relevant terms of this section are set out at para. 23.
s.23: The relevant terms of this section are set out at para. 24.
s.24: The relevant terms of this section are set out at para. 26.
s.25: The relevant terms of this section are set out at para. 27.
s.28: The relevant terms of this section are set out at para. 131.
s.124: The relevant terms of this section are set out at para. 88.
Grand Court Rules 1995, O.55, r.1: The relevant terms of this rule are set out at para. 55.
O.55, r.7(7): The relevant terms of this subrule are set out at para. 108.
Interpretation Act (1995 Revision), s.3(1): The relevant terms of this subsection are set out at para. 93.
National Conservation Act, 2013, s.39: The relevant terms of this section are set out at para. 58.
Registered Land Act (2018 Revision), s.147: The relevant terms of this section are set out at para. 57.
Roads Act (2005 Revision), s.3: The relevant terms of this section are set out at para. 38.
s.6: The relevant terms of this section are set out at para. 39.
s.20(h): The relevant terms of this provision are set out at para. 206.
Parliament and Council Regulation EC No. 864/2007, art. 15: The relevant terms of this article are set out at para. 78.
	The petitioners claimed that their rights under the Constitution had been breached by the Government.
	The petitioners were proprietors of parcels of land in the North West block of the district of West Bay. A road notice was published in the Cayman Islands Gazette on behalf of the Cabinet of the Cayman Islands. The notice was a declaration under s.3 of the Roads Act (2005 Revision) that it was the intention of the National Roads Authority (“the NRA”) to gazette a new public road in West Bay North West. The notice listed the portions of land required for construction of the road, including portions of the lands owned by the petitioners. The petitioners were informed of the declaration and of their right to claim compensation.
	The petitioners filed an ex parte summons seeking orders that the NRA vacate their lands and cease all road construction works and be restrained from entering their lands for the purpose of laying or...
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