William McKeeva Bush OBE Plaintiff v (1) David Baines OBE, Commissioner of Police (2) Duncan Taylor CBE (3) The Attorney General of the Cayman Islands Defendants
| Jurisdiction | Cayman Islands |
| Judge | The Hon. Justice Ingrid Mangatal |
| Judgment Date | 11 October 2016 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO G 188 of 2015 |
| Date | 11 October 2016 |
The Hon. Justice Ingrid Mangatal
Civil Practice and Procedure — Application to set aside ex parte Order for Substituted Service on the grounds of Non-disclosure — Whether service on diplomat by Courier or email at British Embassy in Mexico proper service — Vienna Convention 1961 — Hague Service Convention — Application for extension of time .
IN-CHAMBERS
Mr. G. Cox Q.C. instructed by Mr. I Huskisson of Travers Thorp Alberga for the Plaintiff.
Mr. M. Griffiths Q.C. instructed by Mr. D Schofield on behalf of the Attorney General's Chambers, representing the Second Defendant.
The Plaintiff, William McKeeva Bush (‘Mr. Bush’) filed a Writ of Summons on 21 October 2015 with a supporting Statement of Claim naming as the First Defendant David Baines, Commissioner of Police (‘Mr. Baines’), the Second Defendant Duncan Taylor (‘Mr. Taylor’) and the Third Defendant, the Attorney General of the Cayman Islands (‘the AG’). The First and Third Defendants are both represented by the Attorney General's chambers.
Mr. Bush was at the time of commencement of these proceedings, the current Leader of the Opposition and a Member of the Legislative Assembly. Mr. Baines was at the time of commencement of this action, the Commissioner of the Royal Cayman Islands Police Service. Mr. Taylor, to whom this application relates, is a British Diplomat who was the Governor to the Cayman Islands between January 2010 and September 2013 and is now the British Ambassador to Mexico.
There are a number of limbs to Mr. Bush's claim, including a claim for malicious prosecution, that the Defendants conspired to cause him to lose political office as Premier of the Cayman Islands, and that in so doing Mr. Baines and Mr. Taylor breached their respective constitutional duties as Commissioner of Police of the RCIPS and as Governor respectively.
On 27 January 2016 Mr. Bush's Attorneys-at-Law filed an Ex-parte Summons seeking leave to serve the Writ of Summons and Statement of Claim on Mr. Taylor by way of substituted service in a number of methods set out in the Summons. In his Affidavit in support of the application, filed 27 January 2016, at paragraphs 6–8 (inclusive) Mr. Bush states
‘Leave to serve out
6. The Writ was filed in the Grand Court on 21 October 2015. The Writ was hand delivered in an envelope addressed to Mr. Taylor care of Anne-Marie Rambarran, Crown Counsel, at the Government Administration Building in George Town on 21 October 2015. A letter dated 22 October 2015 was sent by the AG's Chambers advising that they were unable to accept service on behalf of the Second Defendant, Mr. Taylor, who was outside the jurisdiction and did not instruct them, The AG's Chambers have also since written another letter in which we note, at that time, that they were in the process of retaining external Counsel to represent Mr. Baines and the AG.
7. I believe it would be practically impossible to serve Mr. Taylor personally in Mexico. I am not aware of where Mr. Taylor resides and doubt that this information would be available or that security would allow for a process server to deliver documents to him personally there. As the British Ambassador, I imagine he travels extensively.
8. I therefore ask that the Court grant me leave to serve the Writ by way of substituted service by the following means, all of which should result in the Writ being brought to the attention of Mr. Taylor by: delivery by Fedex courier to Mr. Taylor at the British Embassy in Mexico City at (iii) email to the email address for the British Embassy in Mexico is available on the UK Government's website and is ukinmexico@fco.gov.uk;….’
Following the hearing of the Application on 2 nd March 2016, an Order was made by Williams J in the following terms:
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‘1. Pursuant to GCR Order 65, rule 4 the Plaintiff be granted leave to serve the Writ of Summons and Statement of Claim and any further applications, pleadings or orders on the Second Defendant out of the jurisdiction by way of substituted service by:
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a. Delivery by FedEx courier addressed to Mr. Taylor at the British Embassy in Mexico City at Rio Lerma, No. 71, Co. Cuauhtemoc, CP. 06500;
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b. By email to ukinmexico@fco. gov.uk or any alternative address provided to the Plaintiff in response to the email annexed to this order.
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2. The Second Defendant shall, after the service of the Writ and Statement of Claim in the manner provided for in paragraphs 1. A. and 1, B. above, have 28 days to acknowledge service.
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3. The Plaintiffs costs of and occasioned by this application be in the cause. ’
Mr. Taylor makes two applications to the Court. The first is to set aside the ex parte Order, as set out in the Summons filed on 13 May 2016 as follows:
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‘ 1, An order that the ex parte Order of the Honourable Mr. Justice Williams, dated 2 March 2016 (‘the ex parte Order’) be discharged under Grand Court Rules Order 12 rule 8 and/or on the grounds of failure to make full and frank disclosure of material facts and law to the Court at the ex parte hearing on 2 March 2016.
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2. An order setting aside service of the Writ and Statement of Claim and other documents on the Second Defendant pursuant to the ex parte Order.
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3. An order declaring that the Writ and Statement of Claim have not been duly served on the Second Defendant.
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4. An order that the costs of and occasioned by the ex parte Order and the costs of and occasioned by this Summons be the Second Defendant's costs in any event, to be taxed if not agreed on the indemnity basis and paid forthwith.
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5. Further or other relief.’
Jacqueline Wilson, the learned Solicitor General, filed an Affidavit on 22 April 2016 in support of the application by Mr. Taylor to set aside the Order of Justice Williams dated 2 March 2016 and the related relief, and seeking indemnity costs. In her Affidavit Ms. Wilson states as follows:-
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‘12. It does not appear that the Judge's attention was drawn to the Hague Convention which is referred to in the notes to the 1999 Supreme Court Practice. The Hague Convention (full name: The Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters) came into effect in 1969.
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13. The Hague Convention was ratified by the United Kingdom in 1967 and came into force for the United Kingdom on 10 February 1969. It came into force for the Cayman Islands on 19 July 1970. It was ratified by Mexico in 1999 and came into force for Mexico on 1 June 2000.
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14. The Hague Conference on Private International Law website at www.hcch.net contains details of Mexico's central authority (for the purpose of the Hague Convention) and of Mexico's responses to and derogations from the Hague Convention. This is now produced and shown to me marked ‘JW8’.
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15. The Hague Convention is not included in the Bundle for the hearing on 2 March. It is not referred to in the Plaintiffs Skeleton Argument. It is not mentioned in the File Note of the hearing and it is not mentioned in the Judgment.
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16. No effort has been made in the Plaintiffs application, or in the Order which was obtained ex parte as a result of it, either to follow the letters rogatory procedure for overseas service usually followed in the case of non-parties to the Hague Convention, or to follow the provisions of the Hague Convention in relation to service.
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17. It does not appear that the Judge's attention was drawn to the mandatory provisions of Grand Court Rule Order 11 rule 5(3)(a) which requires service of a Writ outside the jurisdiction to be performed ‘in accordance with the law of the country in which service is effected
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18. It does not appear that any evidence was put before the Judge, or that any evidence had been sought or obtained by the Plaintiff of the law of service of proceedings in Mexico.
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19. The methods of service proposed by the Plaintiff in the ex parte summons, and the methods of service provided for in the ex parte Order, are not compliant with the law of Mexico. I base this statement on information from Mr. Xavier Cortina Cortina, whose evidence of Mexican law and procedure will be filed separately.
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20………
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21. In addition, there is the question of diplomatic immunity, including the diplomatic inviolability of the Embassy premises, and of the Second Defendant as a serving ambassador, and his residence. The Plaintiffs attorneys know that the Second Defendant is the United Kingdom Ambassador to Mexico and this is referred to (for example) in paragraph 6 of their skeleton argument
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22………
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23………
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24. I am informed by the Accreditation and Immunities Officer in the International Human Resources Team of the Foreign and Commonwealth Office that the proper way to serve a British Diplomat in Mexico would be through the Mexican Ministry of Foreign Affairs. Mission premises, diplomats and each diplomat's private residence are accorded inviolability by Articles 22, 29 and 30 of the 1961 Convention. That inviolability would be breached by serving process in person or by post on those properties’
As a result of mishaps which are explained in the Second Affidavit of Ms. Wilson and the First Affidavit of Douglas Schofield, this Summons was believed to have been filed in time on 22 April 2016 with the supporting Affidavit evidence. The Summons turned out not to have been filed and served on that date. Ms. Wilson's second Affidavit of 20 June 2016 explains ‘this Application is made upon the ground that the late filing of the Summons occurred solely by reason of inadvertent error, in the circumstances...
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