Solomon v Scotland

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 03 August 2009
• Court: Grand Court (Cayman Islands)
• Date: 03 August 2009

Grand Court

(Smellie, C.J.)

SOLOMON and FIVE OTHERS

and

SCOTLAND and SEYMOUR

G. Clarke, D.T. McGrath and J.A. Kennedy for the plaintiffs;

Lord Pannick, Q.C., R.D. Alberga, Q.C. and A.S. McField for the defendants.

Cases cited:

(1) Ahmed v. Kennedy, [2003] 1 W.L.R. 1820; [2003] 2 All E.R. 440, considered.

(2) Allen v. Wright (No. 2)UNK(1960), 2 W.I.R. 102, considered.

(3) Att. Gen. v. Bodden (J.), Grand Ct., July 1972, unreported, considered.

(4) Att.-Gen. v. Guardian Newspapers Ltd. (No. 2), [1990] 1 A.C. 109; [1988] 3 W.L.R. 776; [1988] 3 All E.R. 545; (1988), 132 Sol. Jo. 566, referred to.

(5) Att.-Gen. (Hong Kong) v. Lee Kwong-Kut, [1993] A.C. 951; [1993] 3 W.L.R. 329; [1993] 3 All E.R. 939, referred to.

(6) Dabdoub v. Vaz, Jamaica C.A., March 13th, 2009, unreported, referred to.

(7) De Silva v. Att.-Gen. (Ceylon)(1949), 93 Sol. Jo. 432, referred to.

(8) Devan Nair v. Yong Kuan Teik, [1967] 2 A.C. 31; [1967] 2 W.L.R. 846; [1967] 2 All E.R. 34, dicta of Lord Upjohn applied.

(9) Galway County Election, In re(1872), 2 O”M. & H. 46, referred to.

(10) Gouriet v. Union of Post Office Workers, [1978] A.C. 435; [1977] 3 W.L.R. 300; [1977] 3 All E.R. 70, referred to.

(11) Harrikissoon v. Att.-Gen (Trinidad & Tobago), [1980] A.C. 265; [1979] 3 W.L.R. 62, followed.

(12) Jaroo v. Att.-Gen. (Trinidad & Tobago), [2002] 1 A.C. 871; [2002] 2 W.L.R. 705, referred to.

(13) Kirk Freeport Plaza Ltd. v. Immigration Bd., 1997 CILR 502, referred to.

(14) Patterson v. Solomon, [1960] A.C. 579; [1960] 2 W.L.R. 685; [1960] 2 All E.R. 20, referred to.

(15) Payne v. Adams, [2009] NZHC 508, applied.

(16) Petch v. Gurney (Inspector of Taxes), [1994] 3 All E.R. 731; [1994] S.T.C. 689, dictum of Millett, L.J. applied.

(17) Pratt v. Att.-Gen. (Jamaica), [1994] 2 A.C. 1; [1993] 3 W.L.R. 995; [1993] 4 All E.R. 769, referred to.

(18) R. v. Oakes, [1987] LRC (Const) 477, referred to.

(19) R. v. Weir, [2001] 1 W.L.R. 421; [2001] 2 All E.R. 216; [2001] 2 Cr. App. R. 9, referred to.

(20) Rudolphy v. LightfootUNK(1999), 197 C.L.R. 500; 73 ALJR 1619; 167 ALR 105, considered.

(21) Surfers” Paradise Election Petition, Re, [1975] Qd. R. 114, not followed.

(22) Théberge v. LaudryELR(1867), 2 App. Cas. 102, dictum of Lord Cairns, L.C. followed.

(23) Thompson-Murphy v. Pierson, 1997 CILR 61, not followed.

(24) Tipperary County Election, In re, (Morton v. Galway) (1875), 3 O”M. & H. 19; I.R. 9 C.L. 173, considered.

(25) Williams v. Tenby Corp.ELR(1879), 5 C.P.D. 135, dictum of Grove J. applied.

Legislation construed:

Cayman Islands (Constitution) Order 1972 (S.I. 1972/1101), Schedule 2, s.19(1): The relevant terms of this sub-section are set out at para. 6.

s.23: The relevant terms of this section are set out at para. 8.

s.28: The relevant terms of this section are set out at para. 9.

Elections Law (2004 Revision), s.83: The relevant terms of this section are set out at para. 10.

s.84: The relevant terms of this section are set out at para. 12.

s.87: The relevant terms of this section are set out at para. 14.

Elections-undue election-procedure for challenge-challenge to validity of election to be brought by election petition within time limit specified in Elections Law-provides comprehensive and exclusive statutory scheme regulating challenges and enacted in accordance with Constitution-abuse of process to bypass statutory requirements by reliance on Constitution

Elections-undue election-standing of Attorney General-Attorney General always able to challenge validity of election under Constitution if in public interest-not restricted by statutory limitations of Elections Law-closes lacuna in law apparent if ground for challenge arises after time limit specified in Elections Law expired

The plaintiffs sought a declaration, pursuant to the Cayman Islands (Constitution) Order 1972 that the defendants were not qualified to be elected as members of the legislature.

The defendants had been elected as members of the Legislative Assembly. The plaintiffs commenced the present proceedings against them 26 days later, alleging that by virtue of s.19(1)(g) of the Constitution they were disqualified from being elected for failing to disclose their interest in public service contracts within the deadline before the poll prescribed by the Constitution.

The plaintiffs submitted that they were not restricted to bringing their

challenge by petition under the Elections Law (2004 Revision), nor was their action prescribed by the time limit of 21 days under that Law, and could instead bring an action under s.23 of the Constitution which provided an independent remedy to which no time limit applied because (a) the provisions of the Constitution had a wider ambit than that of the Elections Law, as demonstrated by the Attorney General”s right to apply to the court other than by way of election petition; (b) election petitions challenging an ‘undue election or undue return’ were appropriate when the election was tainted by procedural failure but not when challenging a person”s qualifications to be ‘validly elected’ which would have to be brought under the Constitution; and (c) election petitions were not an exclusive route by which to make a challenge, with an alternate remedy provided under the Constitution, since otherwise it would be impossible to bring an action against those elected when the potential for challenge came to light after the time limit had passed.

The defendants submitted in reply that the form of action taken by the plaintiffs was improper in that the only permitted remedy was that provided by petition under the Elections Law within 21 days after the return of the member because (a) the language of the constitutional and statutory provisions provided that the Elections Law was the exclusive framework for challenging elections, which would otherwise be rendered worthless if it could be easily bypassed; (b) the history of election petitions provided vital limits on the manner and time in which the validity of elections could be challenged; and (c) the purposes of the Elections Law, designed to protect the public interest, would otherwise be frustrated. Further, it was submitted that the Attorney General had a special status to bring challenges outside this regulatory regime because of his role as guardian of the public interest.

Held, striking out the plaintiffs” application:

(1) The plaintiffs would be required to challenge the validity of the defendants” elections by bringing an election petition within the prescribed time stated in the Elections Law. This provided a comprehensive and exclusive statutory scheme, with mandatory procedural rules for the challenging of the validity of elections. A complaint of ‘undue election or undue return’ encompassed grounds of challenge relating to the electoral process generally and would therefore include questions concerning whether the candidates had been qualified to be elected, as well as challenges based on the existence of corrupt or illegal practices, the counting of votes or the conduct of returning officers. It had been enacted by the legislature in accordance with the powers conferred on it by s.28 of the Constitution and thus served as the principal means of regulating election challenges, rather than ousting the court”s jurisdiction under s.23 of the Constitution. The right to challenge was not a personal right, but one to be exercised in accordance with public interest objectives. This inherent public interest in the speedy determination of the composition of

an elected government dictated that the time limits within which challenges were to be brought and other procedural requirements were regarded as mandatory. It would be an abuse of process if the plaintiffs were permitted to bypass, by reliance on the Constitution, these statutory requirements (such as the time limit within which to bring an election petition) which were themselves enacted pursuant to it, and would otherwise be rendered redundant. Their application would therefore be struck out since the 21-day time limit had expired (para. 45; paras. 60–63; paras. 84–87; paras. 91–94).

(2) The provisions of the Elections Law did not affect the standing of the Attorney General to bring a motion in the public interest. Since he was the guardian of the public interest under the law, and it was assumed that he would not abuse the process of the court, he would be permitted to bring an action under the Constitution to determine whether a person had been validly elected, irrespective of the time or any other statutory limitation, if it was in the public interest to do so. This would also close any lacuna in the law since if the grounds for challenge were to only come to light after the time limit had expired, it would always be open to the Attorney General to apply to the court, unfettered by the regulatory scheme of the Elections Law (paras. 64–68; para. 94).

1 SMELLIE, C.J.: The plaintiffs bring this action under the Cayman Islands (Constitution) Order 1972 (‘the Constitution’) seeking a declaration that the defendants were not qualified to be elected as members of the Legislative Assembly at the general elections held on May 20th, 2009. The plaintiffs aver that the defendants were disqualified from the election by having failed to disclose their interests in certain public service contracts within the one month deadline prescribed by the Constitution for the notification to the public of such interests.

2 While making no admission as to the merits of the plaintiffs” claim, the defendants respond by challenging the propriety of the form of action

taken by the plaintiffs, and questioning the jurisdiction of the court to hear the plaintiffs” case. The defendants now apply to strike out the plaintiffs” action on the basis that it is impermissibly brought under the Constitution instead of by petition under the Elections Law (2004 Revision) and since the...