Streeter v Immigration Bd

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 25 May 1999
• Court: Grand Court (Cayman Islands)
• Date: 25 May 1999

Grand Court

(Smellie, C.J.)

STREETER and K COAST DEVELOPMENT

and

IMMIGRATION BOARD and GOVERNOR-IN-COUNCIL

R.D. Alberga, Q.C. and C.G. Quin for the applicants;

Miss J. Wilson, Crown Counsel, for the respondents.

Cases cited:

(1) Associated Provncl. Picture Houses v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680.

(2) Costellow v. Somerset County Council, [1993] 1 W.L.R. 256; [1993] 1 All E.R. 952, dicta of Bingham, M.R. applied.

(3) Finnegan v. Parkside Health Auth., [1999] 1 W.L.R. 411; [1998] 1 All E.R. 595.

(4) Iran Nabuvat, The, [1990] 1 W.L.R. 1115; [1990] 3 All E.R. 9, followed.

(5) Practice Direction (Court of Appeal: Leave to Appeal & Skeleton Arguments), [1999] 1 W.L.R. 2; [1999] 1 All E.R. 186.

(6) Smith v. Cosworth Casting Processes Ltd. (Practice Note), [1997] 1 W.L.R. 1538; [1997] 4 All E.R. 840, considered.

(7) Universal & Surety Co., In re, 1992–93 CILR 157.1992–93 CILR 157.

Legislation construed:

Court of Appeal Law (1996 Revision) (Law 9 of 1975, revised 1996), s.6(f): The relevant terms of this paragraph are set out at page 268, lines 39–43.

Court of Appeal Rules, 1987, r.8(1): The relevant terms of this sub-rule are set out at page 269, lines 7–14.

r.12: The relevant terms of this rule are set out at page 269, lines 1–4.

Grand Court Rules, O.3, r.5(1): The relevant terms of this paragraph are set out at page 269, lines 25–28.

r.5(2): The relevant terms of this paragraph are set out at page 269, lines 29–31.

Civil Procedure-appeals-extension of time for appeal-only Court of Appeal may act out of time to extend time-limit for appeal prescribed by Court of Appeal Rules, 1987, r.12-Grand Court”s power of extension under Grand Court Rules, O.3, r.5 limited to matters governed by Grand Court Rules

Civil Procedure-appeals-extension of time for appeal-court to consider length of delay, reasons, likelihood of success on appeal and potential prejudice to respondent-good reason for delay not essential if just claim with realistic prospect of success-appeal on procedural matter prejudicial to respondent if will require substantive claim to be retried

Civil Procedure-appeals-extension of time for appeal-public interest in subject-matter of appeal or need for clarification of point of law may warrant extension of time for appeal even if no realistic prospect of success

The applicants applied for judicial review of the respondents” decision to revoke the first applicant”s work permit.

The applicants requested the discovery of documents by the respondents in aid of their application for judicial review. When the respondents did not respond to this request, the applicants obtained a declaration that the respondents were obliged to disclose the records of their deliberations and decisions and any materials (including records relating to other permit-holders) that they had considered in deciding to revoke the first applicant”s work permit. The proceedings are reported at 1998 CILR 357.

The material discovered by the respondents in response to the court”s declaratory ruling proved to be relevant to the judicial review application

and the applicants succeeded in having the decision quashed. The respondents appealed against that decision. However, they failed to lodge a notice of appeal against the ruling on discovery before the expiry of the 14-day period permitted for appeals against interlocutory orders by the Court of Appeal Rules, 1987, r.12. They therefore sought an extension of time in which to seek leave to appeal on the basis that the court should not have ordered discovery before they had responded to the applicants” requests and should not have ordered the disclosure of records relating to non-parties to the proceedings.

They submitted that (a) the court had power to grant an extension of time in which to apply for leave, under the Grand Court Rules, O.3, r.5 and the Court of Appeal Law, s.6(f); (b) the six weeks which had elapsed between the court”s ruling and this application did not amount to inordinate delay, given that the trial of the judicial review application had taken place in the meantime; (c) the court should not, on purely procedural grounds, prevent their appeal from being heard, since it had a realistic prospect of success; and (d) in any event, the appeal should proceed since it was in the public interest that the Court of Appeal should examine and clarify the question of discovery in judicial review proceedings in general and in this case in particular.

The applicants submitted in reply that (a) the Grand Court had no power outside the 14-day time-limit for an appeal (prescribed by r.12 of the Court of Appeal Rules, 1987) to extend that time-limit under the Grand Court Rules, O.3, r.5, since r.5 related only to matters contemplated by the Grand Court Rules and not to those governed by the Court of Appeal Law or Rules; (b) in any event, the respondents” failure to lodge a notice of appeal within the prescribed time-limit was not justified by their pre-occupation with preparing for the substantive judicial review hearing; (c) the proposed appeal had no real prospect of success, since (i) the respondents had suffered no prejudice as a result of the alleged procedural irregularity, and (ii) the respondents sought the court”s sanction to suppress evidence which had proved to be highly relevant to the proceedings; (d) the applicants would be seriously prejudiced if the appeal were to be heard; and (e) the appeal was not warranted in the public interest.

Held, dismissing the application:

(1) The court lacked jurisdiction to hear the application, since only the Court of Appeal (under r.8(1) of the Court of Appeal Rules, 1987) could extend a time-limit prescribed by those Rules after the expiry of the time-limit. After that time, the Grand Court could no longer hear the application for leave to appeal and the Court of Appeal alone had power to extend the time in which to seek leave. The power of extension contained in the Grand Court Rules, O.3, r.5 related only to matters within the Grand Court”s province under those Rules (page 269, lines 4–39).

(2) In any event, taking into consideration the length of the delay, the reasons for it, the likelihood of success on the appeal and any potential prejudice to the applicants, the court would not have granted the extension of time. Although the absence of a good reason for delay would not in itself be sufficient to warrant refusing an extension if that refusal would prevent a just claim from being heard, the present appeal was not such a case. Applying the test used on an application for leave to appeal, namely, whether the appeal had a realistic prospect of success, the case would fail on both grounds of appeal relied on. The respondents” objections to the timing and content of the court”s declaration on discovery were technical complaints, since the only prejudice resulting from the declaration was the disclosure of relevant information helpful to the applicants” case. Furthermore, the applicants would suffer considerable prejudice if the appeal were to be allowed, since the substantive application had proceeded on the basis of the material discovered and would have to be retried if the respondents succeeded (page 269, line 41 – page 270, line 28; page 270, line 38– page 271 line 13; l=page 272, lines 7–25).

(3) Finally, there was no public interest reason for the appeal to be heard, despite its poor prospects of success, either in terms of the subject-matter of the case or the need for clarification of the law. The court”s declaration had been specific to the parties” obligations to...