[1] Hon. Shawn K. Richards [2] Hon. Timothy Harris [3] Hon. Eugene A. Hamilton [4] Hon. Mark Brantley Applicants v [1] The Constituency Boundaries Commission [2] His Excellency the Governor General [3] The Prime Minister of St. Christopher and Nevis [4] Attorney General of St Christopher and Nevis Respondents [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeRamdhani J (Ag.)
Judgment Date25 Nov 2013
Judgment citation (vLex)[2013] ECSC J1125-2
Docket NumberClaim No. SKBHCV2013/0241
[2013] ECSC J1125-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

A.D. 2013

Claim No. SKBHCV2013/0241

Between:

In the matter of Section 49 and 50 of the Constitution of St. Christopher and Nevis

And in the matter of an application for leave to apply for judicial review of the decision of the Constituency Boundaries Commission contained in its report dated the 5th or 6th September, 2013

And in the matter of an Application for Declaratory, injunctive and Other Relief by the Hon Shawn Richards, the Hon Timothy Harris, the Hon Eugene Hamilton and the Hon Mark Brantley, pursuant to Section 96 of the Constitution of St. Christopher and Nevis

[1] Hon. Shawn K. Richards
[2] Hon. Timothy Harris
[3] Hon. Eugene A. Hamilton
[4] Hon. Mark Brantley
Applicants
and
[1] The Constituency Boundaries Commission
[2] His Excellency the Governor General
[3] The Prime Minister of St. Christopher and Nevis
[4] The Attorney General of St Christopher and Nevis
Respondents
Appearances:

Mr. Mendez S.C. with Mr. Michael Quamina, instructed by Mr. MacClure Taylor and Ms. Talibah Byron for the Claimants

Mr. Forde Q.C. with Ms. Nargis Hardyal, and Ms. Simone Bullen-Thompson Solicitor General for the 1 st and the 4 th Respondents

Mr. Braham Q.C. with Ms. Violet Williams and Ms. Nisharma Rattan-Mack for the 2 nd Respondent

Mr. Anthony Astaphan S.C. with Dr Henry Browne Q.C. and Mr. Sylvester Anthony instructed by Ms. Angelina Sookoo for the 3 rd Respondent

Judicial Review — Report of Constituency Boundaries Commission — Allegations of Wednesbury Unreasonableness — Irrelevant Considerations — Failure to consider Relevant matters — Improper Purposes — Bias — Failure to Consult — Approach of the Court at the Permission stage — Arguable Case with Reasonable Prospect of Success — Leave Granted in Exceptional Cases for Compelling Reasons, and where Public Interest Aroused.

Pre-Action ex parte Application for Interim Order — Whether Serious Issues to be Tried-Jurisdiction to Grant Interim Order — Constitutional Ouster Provision — Whether CPR Part 17 applies to Judicial Review Proceedings — Grant of Interim Order against Governor-General — Whether Governor-General Proper Party — Discharge of Interim Order — Relevant Interest to Commence Proceedings.

Interlocutory Order — Principles governing the grant of Order in Public Law Matters — American Cyanamid Principles Applied with appropriate Flexibility — Damages not relevant consideration-Balance of Justice — Preservation of the Court's jurisdiction.

A Report published by the Constituency Boundaries Commission (the 'Commission') on the 5 th September 2013 which was placed on the parliamentary order paper to be debated in the National Assembly on the 9 th September 2013, and which has made recommendations to change the boundaries of certain constituencies in St. Kitts, has triggered concern in the minds of a number of elected members of the Assembly in opposition to the Government (the applicants in this case). It is their belief that these recommended changes to the boundaries of those constituencies, are designed to, and will have the effect of causing the loss of the electoral support base of some members of parliament in opposition to the Government, and have no other purpose but to see the affected members being unable to win their seat in the upcoming general elections. They view these recommendations as having been arrived at in complete disregard of the relevant constitutional directives of Schedule 2 of the Constitution of St. Kitts and Nevis which is expected to guide the work of the Commission. The applicants also ground their stance in their belief that the Commission is not only headed by a Chairman who is affected by an appearance of bias, but also took irrelevant matters into consideration, namely a Preliminary Census Report 2011 which has been publicly noted as being still in the verification process and is likely to undergo minor changes but which changes may have significant impact on the ground for election purposes.

In haste and before filing a substantive claim, the applicants laid un-filed papers before the Court on the evening of Friday the 6 th September 2013 and on Monday the 9 th September 2013 they sought urgently certain ex parte relief. Minutes before the Assembly was due to commence debates that morning they were granted an interim ex parte conservatory order against His Excellency the Governor-General. This interim order restrained the Governor-General from making a proclamation under sections 50(6) of the Constitution of St Kitts and Nevis which was expected to make final the recommended boundary changes, which the Court considered at that time would have effectively limited the Court's ability to intervene, and in the circumstances of this case, leave no remedy for the applicants. The applicants were ordered to commence their substantive claim within 48 hours and to serve all documents including the order of Court, on the respondents who comprised the Boundaries Commission, the Governor General, the Prime Minister and the Attorney General.

The applicants filed an application for leave to apply for judicial review supported by an affidavit of Mr. Shawn K. Richards the 1 st applicant within the 48 hours time limit. By the next day, the respondents had filed an application supported by various affidavits to discharge the interim order. Each side also filed a number of other affidavits in support of their respective application.

On the Application for a discharge the respondents raised a number of preliminary and substantive points. A number of these points went to the court's jurisdiction not only to grant and continue the interim order but also the court's power to allow this matter to proceed by way of judicial review, and to grant any interim order under that process. The respondents also contended that there were no serious issues to be tried, nor any arguable case disclosed on the affidavits.

Held, granting leave to apply for judicial review on (i) breach of the duty to consult, (ii) bias, (iii) considering irrelevant matters and failure to consider relevant matters, and granting an interim order against the Attorney General in his capacity as representative of His Excellency the Governor-General:

  • 1. An application for leave to apply for judicial review marks the point of commencing proceedings under Part 56 of the Rules. Where an applicant intends to commence judicial review proceedings, he may in an appropriate case, before filing his application for leave to apply for judicial review, or on filing such an application for leave, apply under Part 17 for an ex parte order. There is nothing in the Part 56 which states that the provisions of Part 17 of the Rules do not apply to judicial review proceedings; in fact CPR 2000 by Part 2.2(1) expressly defines 'civil proceedings' to include 'judicial review' proceedings. Accordingly the Court has the discretion to grant interim relief pursuant to Part 17 in judicial review proceedings even before leave had been granted to apply for judicial review, and in the circumstances of this case even before the application for leave had been made. (see page 50)

    Dicta of Rawlins CJ in Quorum Island (BVI) Ltd. v Virgin Island Environmental Council and Another Civil Appeal No. 21 of 2009 BVI (unreported) at paragraph 29 applied.

    Considered: MD (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ. 194 (28 February 2012); R (On the Application of Muhammad) v Secretary of State for the Home Department 2013 WL 5338116 Queen's Bench Division (Administrative Court); N v Newham LBC 2013 WL 3994856Queen's Bench Division (Administrative Court); R. (on the application of S) v Secretary of State for the Home Department 2013 WL 5730242Queen's Bench Division (Administrative Court

    CPR 56.4; Part 17; section 26 of the Eastern Caribbean Supreme Court Act (St Christopher and Nevis Chapter 3:11

  • 2. Where service of Court process is required to be effected on persons standing in the shoes of the 2 nd to the 4 th respondents in this matter, service would be proper if it were effected on the appropriate Permanent Secretary or other officer authorized to receive service on behalf of each of them. It is quite inappropriate for His Excellency the Governor General, the Hon. Prime Minister and even the Hon. Attorney General to be served court documents personally. It would be startling and could, in certain circumstances, lead to alarming consequences if service of the court's process would be required to be effected personally on each of these respondents. The evidence on service in this case demonstrated that the applicants had sought, within the 48 hours to serve all the documents on the respective secretaries and agents of the respondents. In some of those instances when service of the documents was not effected within the time required, it was because, these officers and or agents had refused to accept service. In any event, in this case, the respondents were not prejudiced by any irregularity in service, as within hours after the 48 hours period they had all filed and served an application to set aside the interim order, a clear statement that they were seized with the contents of the documents. (see page 37)

  • Considered: Richard Frederick and Lucas Frederick v The Comptroller of Customs and The Attorney GeneralHCVAP 2008/0038; Bertha Compton qua Administrative of the Succession of the lateMacrina Blaize v Dr Christiana Nathaniel and OthersCivil Appeal No. 12 of 2004 St. Lucia.

    Considered: CPR 56.9; Part 5; CPR 2.2;

  • 3. As a general rule, an ex parte interim order may be granted for a period of not more than 28 days. In this case, the interim ex parte order granted on the 9 th September 2013, was made to last until further order of the Court. There being no specific termination date on the order was not fatal to the validity of the order as the...

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