Myrie v Barbados

• Jurisdiction: Caribbean States
• Judge: Byron, P. CCJ,Saunders, J. CCJ,Wit, J. CCJ
• Judgment Date: 26 October 2012
• Court: Caribbean Court of Justice
• Docket Number: CCJ Application OA 2 of 2012
• Date: 26 October 2012

Court of Appeal

Byron, P. CCJ; Saunders, J. CCJ; Wit, J. CCJ

CCJ Application OA 2 of 2012

Myrie

and

Barbados

Civil practice and procedure - Evidence — Admissibility — Use of statements in cross-examination of witnesses.

REASONS FOR JUDGMENT

INTRODUCTION

1 This judgment arises out of an application by the State of Jamaica for leave to intervene in proceedings brought by Ms. Shanique Myrie, a national of Jamaica, against the State of Barbados. The Court opted to deal with the matter during the Long Vacation because the Court considered it to be one requiring prompt attention. Oral submissions having been received on September 20th, 2012, the Court on September 27th, 2012 made several orders including an order granting leave to Jamaica to intervene in the proceedings. These are the reasons for the orders that were made.

2 Ms. Myrie had previously applied for and obtained Special Leave to appear as a party in the proceedings filed against Barbados. Her application for Special Leave was supported, inter alia, by evidence demonstrating that, in accordance with Article 222(c) (ii) [Article 222(c) states: “Persons, natural or juridical, of a Contracting Party may, with the special leave of the Court, be allowed to appear as parties in proceedings before the Court where:

• (a) …

• (b) …

• (c) the Contracting Party entitled to espouse the claim in proceedings before the Court has:

  • (i) omitted or declined to espouse the claim, or

  • (ii) expressly agreed that the persons concerned may espouse the claim instead of the Contracting Party so entitled;”]

of the Revised Treaty of Chaguaramas (“the Revised Treaty”), Jamaica had expressly agreed that she should herself bring her claim against Barbados in lieu of Jamaica espousing it on her behalf.

3 Ms. Myrie filed an Originating Application on May 17th, 2012 alleging that the object or purpose of the Revised Treaty was being frustrated and prejudiced by Barbados. She claimed relief for serious injury, prejudice suffered and impairment of benefits in respect of enjoyment of her rights under the treaty, with specific reference to Articles 7, 8, 9, 28(1) and 45. The claim is rooted in an incident involving her and Barbadian Customs and Immigration officials on March 14th and 15th, 2011 at the Grantley Adams International Airport.

4 Arising from the allegations made in the Originating Application, the Court is required, among other things, to consider, interpret and apply several provisions of the Revised Treaty and also a Decision of the Conference of Heads of Government at their Twenty-Eighth Meeting held in Barbados from July 1st – 4th, 2007 (“the Conference Decision”).

5 On May 24th, 2012 in keeping with Part 10.3 of the relevant Rules of Court, the Registrar of the Court sent a Notice to The Community and all Member States of the filing of Ms. Myrie's Originating Application. The Registrar's notice set out the relief and Orders sought by Ms. Myrie and gave notice that any person or Contracting Party who wished to intervene in the proceedings should file an application for leave to intervene within six weeks of being served with the said notice.

6 Barbados filed a Defence to Ms. Myrie's claims on July 11th, 2012. Many of the factual allegations contained in the Originating Application are disputed in the Defence. More importantly for the purpose of the present proceedings, the status, validity and efficacy of the Conference Decision were put in issue as was the interpretation that Ms. Myrie placed on the several Articles of the Revised Treaty which she claims were violated by Barbados.

7 Jamaica received the Registrar's notification on June 1st, 2012 and on July 13th, 2012, within the time limited for so applying, Jamaica requested leave to intervene in the proceedings. The request to intervene was supported by Ms. Myrie. Barbados objected to the proposed intervention.

THE STATUTORY FRAMEWORK GOVERNING INTERVENTION

8 Article XVIII of the Agreement Establishing the CCJ (“the Agreement”) [Article XVIII states: “1) Should a Member State, the Community or a person consider that it has a substantial interest of a legal nature which may be affected by a decision of the Court in the exercise of its original jurisdiction, it may apply to the Court to intervene and it shall be for the Court to decide on the application. 2) Whenever the construction of a convention to which Member States and persons other than those concerned in the case are parties, is in question, the Registrar shall notify all such States and persons forthwith. 3) Every State or person so notified has the right to intervene in the proceedings; but if the right is exercised, the construction given by the judgment will be equally binding on all parties.”] provides for intervention by Third Parties. Section 1 of this Article gives the Court a discretionary power to allow intervention in the proceedings by any Member State, the Community or a person who considers that it has a substantial interest of a legal nature which may be affected by a decision of the Court in the exercise of its original jurisdiction.

9 Article XVIII is buttressed by Part 14 of the Rules of Court. Part 14 sets out how and when to intervene and the procedure to be followed both before an application to intervene is made and, if the same is successful, after it has been granted. Rule 2 of Part 14 requires the applicant, inter alia, to set out the substantial interest of a legal nature that is claimed, how that interest may be affected by a decision of the Court and the contentions which the applicant wishes to put forward in the current proceedings. Rule 6 of Part 14 makes it clear that an Intervener shall accept the case as he finds it at the time of his intervention so that his intervention shall have prospective effect only.

CONTENTIONS OF JAMAICA

10 Jamaica submits that its substantial legal interests that may be affected lie in the circumstance that any judgment rendered in this case will establish a binding precedent for all Member States, whether parties or not to the proceedings which give rise to the judgment. Jamaica relies for this submission on its interpretation of Article 221 of the Revised Treaty [Article 221 states: “Judgments of the Court shall constitute legally binding precedents for parties in proceedings before the Court unless such judgments have been revised in accordance with Article 219.”]. Jamaica considers that its interest in seeking to safeguard the rights enshrined in the Revised Treaty and ensuring that Barbados, like all other Member States, respects the rights and benefits arising under the same sufficiently entitle it to intervene in the proceedings. Jamaica contends that the rights and benefits at stake here for Jamaican citizens are among the most practical manifestations of the operation of the CARICOM Single Market and Economy (“the CSME”) including freedom of movement within the Community arising under Articles 9, 28(1), 45 and 240 of the Revised Treaty; the right to non-discrimination on the ground of nationality as contained in Article 7; the right to most favoured nation treatment contained in Article 8 and the obligation of all Member States to respect and protect the dignity of every person in accordance with the Preamble and Article 9.

11 The claimant supports the submissions of Jamaica and requests that the Court grant Jamaica permission to intervene in the proceedings.

CONTENTIONS OF BARBADOS

12 Barbados disputes the interpretation placed on Article 221 by Jamaica. The position of Barbados is that a decision of this Court in proceedings can affect only the parties to those proceedings. Jamaica's interests are therefore entirely unaffected by the outcome of the present proceedings. Only Ms. Myrie and Barbados can be bound by decisions arising out of the present Originating Application because judgments of this Court create binding precedent only for the existing parties before the Court. In this respect Barbados equates Article 221 with Article 59 [Article 59 states: “The decision of the Court has no binding force except between the parties and in respect of that particular case”.] of the Statute of the International Court of Justice (“ICJ”). Barbados also claims that there is no system of binding precedent in general public international law and various European publicists [Kaczorowska, European Union Law, 2nd Edition (London: Routledge, 2011), at p. 231; Arnull, The European Union and its Court of Justice (Oxford: Oxford University Press, 1999) at 528–533] are cited to support the notion that, as a Court of both original and final jurisdiction, it is imperative that this Court should retain the ability to change the directions of its jurisprudence and depart from previous decisions.

13 Secondly, Barbados contends that Jamaica's interest in securing respect for the rules of international law including the provisions of the Revised Treaty are too generalized to ground an application for intervention. Such interests are shared in common by all Member States of CARICOM and are therefore incapable of meeting the legal threshold established by Article XVIII. In elaborating on this submission Barbados considers Article 211 of the Revised Treaty (the Article giving the Court jurisdiction to hear disputes) and distinguishes State versus State claims [See: Article 211(a)] from applications by private entities [See: Article 211(d)]. According to Barbados, these two forms of claims seek to vindicate different rights because while a State brings a claim to ensure respect for its sovereignty and for the rules of international law, a private entity like Ms. Myrie here is claiming personal remedies for specific harm allegedly done to her. Barbados claims that Jamaica has no, and can have no peculiar interest, far less a substantial interest of a legal nature which may be affected by a determination in Ms. Myrie's application....