Kirk Freeport Plaza Ltd v Immigration Bd

JurisdictionCayman Islands
CourtCourt of Appeal (Cayman Islands)
Judge(Zacca, P., Kerr and Collett, JJ.A.)
Judgment Date28 November 1997
Date28 November 1997
Court of Appeal

(Zacca, P., Kerr and Collett, JJ.A.)

KIRK FREEPORT PLAZA LIMITED
and
IMMIGRATION BOARD and ISLAND COMPANIES LIMITED

J. Jowell, Q.C. and A.J. Taylor for the appellant;

I.F. Archie, Solicitor General, for the first respondent;

R.D. Alberga, Q.C. and S.T. McCann for the second respondent.

Cases cited:

(1) Att.-Gen. (N.S.W.) v. Quin, [1992] LRC (Const) 751.

(2) Clough v. Greyson, Court of Appeal of Jamaica, Civil App. No. 24 of 88, unreported, distinguished.

(3) Co-operative Retail Servs. Ltd. v. Taff-Ely Borough Council (1979), 39 P. & C.R. 223; on appeal, sub nom. Att.-Gen. ex rel. Co-op. Retail Servs. Ltd. v. Taff-Ely Borough Council(1981), 42 P. & C.R. 1.

(4) Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374; [1984] 3 All E.R. 935.

(5) De Verteuil v. Knaggs, [1918] A.C. 557.

(6) Harley Dev. Inc. v. Inland Rev. Commr., [1996] 1 W.L.R. 727, considered.

(7) Kane v. Minister of Home Affairs & JusticeUNK(1975), 23 W.I.R. 416, distinguished.

(8) McInnes v. Onslow-Fane, [1978] 1 W.L.R. 1520; [1978] 3 All E.R. 211, considered.

(9) Preston, In reELR, [1985] A.C. 835; sub nom. Preston v. Inland Rev. Commrs., [1985] 2 All E.R. 327, considered.

(10) R. v. Birmingham City Council, ex p. Ferrero, [1993] 1 All E.R. 530; (1991), 89 L.G.R. 977.

(11) R. v. Chief Const. (Merseyside), ex p. Calveley, [1986] 1 Q.B. 424; [1986] 1 All E.R. 257, dicta of Sir John Donaldson, M.R. applied.

(12) R. v. Devon County Council, ex p. Baker, [1995] 1 All E.R. 73; (1992), 6 Admin. L.R. 113, considered.

(13) R. v. Gaming Bd. for G.B., ex p. Benaim, [1970] 2 Q.B. 417; [1970] 2 All E.R. 528, considered.

(14) R. v. Home Secy., ex p. Fayed, [1998] 1 W.L.R. 763; [1997] 1 All E.R. 228, considered.

(15) R. v. Huntingdon District Council, ex p. Cowan, [1984] 1 W.L.R. 501; [1984] 1 All E.R. 58, dicta of Glidewell J. applied.

(16) R. v. West Oxfordshire District Council, ex p. Pearce Homes Ltd., [1986] J.P.L. 522n.

Legislation construed:

Immigration Law (Law 13 of 1992), s.5: The relevant terms of this section are set out at page 510, lines 15–18.

s.10: The relevant terms of this section are set out at page 510, lines 23–31.

Local Companies (Control) Law (1995 Revision) (Law 24 of 1971, revised 1995), s.8(2): The relevant terms of this sub-section are set out at page 508, lines 32–38.

s.10: The relevant terms of this section are set out at page 509, lines 2–11.

s.11: The relevant terms of this section are set out at page 509, line 14 – page 510, line 9.

Administrative Law-judicial review-alternative remedies-judicial review available to applicant with right of appeal from Immigration Board”s decision under Local Companies (Control) Law (1995 Revision) since appeal process inappropriate to remedy decision potentially void for procedural unfairness

Administrative Law-judicial review-consolidation of actions-court may hear competing applications for judicial review together if factual and legal issues relating to public body”s decision common to both causes

Companies-administrative control of companies-change in status of local company-Immigration Board”s decision under Local Companies (Control) Law (1995 Revision), s.8(2) to approve share transfers ineffective unless confirmed in writing-applicant has no legitimate expectation of written confirmation merely because decision orally communicated

Companies-administrative control of companies-change in status of local company-third party objections-applicant for Immigration Board”s approval of share transfers to non-Caymanians or grant of licence to trade under Local Companies (Control) Law (1995 Revision) entitled to opportunity to respond to third party objections likely to influence Board”s decision

The appellant and the second respondent applied to the Grand Court for judicial review of decisions taken by the first respondent.

The second respondent (‘ICL’) applied to the Immigration Board for approval in principle of the grant of a licence to trade in the Cayman Islands as a non-local company. Since, at the time of its application, less than 40% of its shares were held by non-Caymanians, it was required under the Local Companies (Control) Law (1995 Revision), s.8(2) to obtain approval for the transfer of shares to non-Caymanians before a licence to trade could be granted.

The Board received objections to the application from the appellant (‘KFL’), alleging improper conduct by ICL. The Board considered these before deciding to refuse ICL”s application and communicated the decision orally to both KFL and ICL shortly afterwards.

Upon its request, ICL was then given the opportunity to make representations to the Board at a meeting, though it was not informed of the substance of KFL”s objections, and the Board reversed its decision, once again informing both companies orally.

Following a complaint from KFL arguing that it ought to have been asked to attend the Board”s meeting with ICL and make further comments, the Board, upon legal advice, reinstated its original decision to refuse ICL”s application, on the basis that it should not have altered that decision without new evidence.

When the Board informed ICL that its application had been refused after consideration of the criteria relevant to an application under s.10 for a licence to trade, ICL requested a complete rehearing at which it would present a fresh application and all interested parties would be heard. When the Board agreed to this, KFL sought the prohibition of such a rehearing, and ICL then applied for an order of certiorari to quash the decisions against it, and a declaration that the Board”s grant in principle of a licence to trade was valid.

The Grand Court (Smellie, J.) held that ICL”s application would be regarded as being for the approval of share transfers to non-Caymanians, under s.8(2) of the Local Companies (Control) Law, since the Law did not recognize an approval in principle of a licence to trade; that judicial review was the appropriate remedy for both applicants, since KFL had no right of appeal against a decision under s.8(2) and the issues in the case were unsuitable for resolution by the appeal process; that the Board”s two decisions refusing ICL”s application were procedurally unfair since ICL had not been given the opportunity to answer KFL”s objections; and that KFL could have no legitimate expectations in respect of decisions which were void. The Board”s decision in ICL” favour was upheld. The proceedings in the Grand Court are reported at 1996 CILR 281.

On appeal, KFL submitted that (a) since ICL had not appealed under the Immigration Law, s.10 against the Board”s refusal and since there were no exceptional circumstances to justify bypassing the appeal procedure, the Grand Court had erred in granting judicial review; (b) the Board”s decision was not void for procedural unfairness since it was

under no duty, as a public body exercising a discretion to grant a benefit rather than to remove an existing one, to inform the applicant of objections which had been raised by a third party or give ICL an opportunity to respond, particularly as its refusal did not imply any slur on the reputation of ICL as a company; and (c) therefore the Board had erred in reversing its decision after submissions from ICL and had properly restored its original decision, giving rise to a legitimate expectation by KFL that the Board would confirm its decision in writing; accordingly, the orders of certiorari quashing the decisions to refuse ICL”s application should be set aside.

ICL submitted in reply that (a) judicial review was the appropriate procedure by which to challenge the Board”s decisions, even though it had a right of appeal, since there existed the exceptional circumstance that the appeal procedure could not address a decision which was null and void for procedural irregularity; (b) since natural justice required that it be informed of KFL”s objections to its application (as they might influence the Board”s decision) and that it be given an opportunity to make representations, the Board”s initial refusal and later reinstatement of that decision were procedurally defective and had properly been quashed; and (c) the Grand Court had properly upheld the Board”s intervening decision to grant approval of the share transfers and had correctly found KFL to have no legitimate expectation, as a mere objector, of any decision in its favour.

Held, allowing the appeal in part:

(1) In the exceptional circumstances of this case, the Grand Court had properly granted judicial review to both parties, notwithstanding that ICL had not exercised its right of appeal under the Immigration Law, s.10, since (a) the appeals procedure was not appropriate to address issues of procedural fairness and would not have afforded ICL as effectual or convenient a remedy as judicial review; and (b) the factual and legal issues relating to the Board”s decisions were common to ICL”s application for certiorari and KFL”s application for prohibition of the rehearing of the case (page 511, lines 8–12; page 516, line 40 – page 517, line 17; page 524, lines 4–9).

(2) Since the Board”s initial decision refusing ICL”s application was taken without giving ICL the opportunity to discover the substance of KFL”s objections or to respond to them, it was in breach of natural justice or procedural fairness and would be quashed (page 523, lines 3–11; page 524, lines 24–33).

(3) Whilst the later decision to reverse the refusal would have cured this irregularity, it had not been confirmed in writing as required by s.8(2) of the Local Companies (Control) Law (1995 Revision). It was therefore of no legal effect and the court had erred in declaring it to be valid. The fact that it had been communicated orally to ICL could not create a

legitimate expectation in ICL that it would be administratively ratified in writing (page 522, lines 8–10; page 524, lines...

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