Carter J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Grand Court Cause No. G 22 of 2023
BETWEEN
FELINE FRIENDS LIMITED
Applicant
-and-
THE CABINET OF THE CAYMAN ISLANDS
Respondent
-and-
THE NATIONAL CONSERVATION COUNCIL
Interested Party
ON THE PAPERS
Before:
Hon Justice Marlene I. Carter (Actg.)
Parties:
Jackson Law for the Applicant
Attorney General's Chambers for the Respondent and Interested Party
Decision:
4 April 2023
Ruling on Application for leave for Judicial Review
1.
The Applicant seeks leave to apply for judicial review of the decision of the Respondent to
promulgate the National Conservation (Alien Species) Regulations 2022, ("the Regulations"),
pursuant to Section 50 (l)(h) of the National Conservation Act ("the NCA")
•
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Digitally signed by Advance Performance Exponents
Inc
Date: 2023.04.17 16:48:29 -05:00
Reason: Apex Certified
Location: Apex
The Parties
2.
The Applicant is a Cayman Island registered not-for-profit limited liability company engaged in,
amongst other aims, the care of feral and abandoned cats in the Cayman Islands.
3.
The Respondent is the Cabinet of the Cayman Islands who promulgated the Regulations, pursuant
to the NCA.
4.
The Interested Party is established by section 3(1) of the NCA and is charged with exercising its
powers and carrying out its duties under that Act.
5.
The Relief sought by the Apj..;licant on the review is set out at page 1 of the .\pplication for leave
("the Application") and consists of an order of certiorari or alternatively an order of prohibition
as well as a declaration that the provisions of Part 3 of the Regulations are ultra vires and/or
incompatible with Sections 15 and/or 19 of the constitution. The Applicant seeks a stay of the
Regulations, particularly Part 3 thereof. Alternatively, the Applicant seeks an interim injunction
to prevent the enforcement of Part 3 of the Regulations at this stage.
6.
The Application was initially placed before this court to be considered ex parte. The court's
attention was drawn to a letter from the Attorney General, counsel for the Respondent and the
Interested Party which referred to the fact that the Pre-Action Protocol1 ("the Protocol") had not
been complied with. The Letter before Action was sent to the Attorney General's Chambers on
the 30th of January 2023. The Application was filed on the 3rd February 2023. The Respondent
and the Interested Party were therefore not afforded the requisite 14 days, as per the Protocol,
to consider their position before the Application was filed.
7.
The court determined that an inter partes hearing was appropriate and invited the Attorney
General to attend.
8.
The court was thereafter informed of the inability of the parties to agree a date for hearing before
28 April 2023. In an effort to have the views of all of the parties, and not wanting to delay
consideration of the application the court invited counsel or the Respondent and the Interested
Party to set out their position in writing, if they were so minded, by 13th March 2023.
9.
The Attorney General has now filed submissions and authorities for the Court's consideration.
1 GCR Order 53 as read with Practice Direction no. 4 of 2013
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The Pre-Action Protocol
10.
The Respondent submits that the court should not grant leave based on the Applicant's non
compliance with the Protocol. The Protocol states at paragraph 3:
"3.1 The Parties should consider whether some form of alternative dispute
resolution procedure would be more suitable than litigation, and if so,
endeavour to agree which form to adopt. Both the applicant and the
defendant may be required by the Court to provide evidence that alternative
means of resolving their dispute were considered. The Court takes the view
that litigation should be a last resort, and that proceedings should not be
issued prematurely when a settlement is srill actively being explored. Parties
are warned that if the protocol is not followed (including this paragraph)
then the Court may have regard to such conduct when determining costs.
However, parties should also note that an application for judicial review
"shall be made promptly and in any event within 3 months from the date
when grounds for the application first arose."
11.
The Applicant's pre-action protocol letter of 31st January stated, inter alia:
119.
In order to avoid unnecessary time and expense, Cabinet is asked to consent
to a voluntary Stay of the Regulations, pending resolution of the disputed
and/or the until the Court has determined the claim.
11.
In light of the short timeframe, we are unable to provide you with the usual
14 days to respond to the subject letter and we therefore propose to file the
application for leave for judicial review with the Grand Court on the 2
February 2023 and would therefore welcome your response to this letter on
or before the 1 February 2023."
12.
At paragraph 10 of the affidavit of Patricia Bodden, the Director of the Applicant, the following is
stated:
"10. I first became aware of the National Conservation (Alien Species) Regulations
(the I/Regulations") on or about the 14th December 2022, when I came across
an article in the Cayman Compass. It took me some time to make sense of
the contents of the Regulations,... After the Christmas and New Year
holidays, I was able to contact legal counsel to undertake a review of the
regulations on or about mid-January 2023 and advise Feline Friends as to the
effect of the regulations on the charity. Once onboarding was completed
and we received the relevant advice we felt constrained to file this
application for leave for judicial review."
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13.
The affidavit of Gina Ebanks-Petrie was filed in support of the Respondent and the Interested
Party. Ms. Ebanks-Petrie is the Director of the Department of the Environment and a voting
member of the National Conservation Council. At paragraph 4 of her affidavit filed in these
proceedings, regarding the filing of the Application without counsel having had an opportunity to
respond to the letter before action, she stated: "This unilaterally ended any pre-litigation
opportunity for Alternative Dispute Resolution as required by the Protocol."
14.
The contents of paragraph 5 and that affidavit is also noted:
"5.
I have been advised by Counsel and do verify believe the same to be true that,
upcn Examination of the actual grounds filed, there were r'1ate:ial
differences observed from what issues and grounds had been outline in the
Letter. In fact, many of the grounds were new and others were materially
altered. To date, the Applicant has failed to respond to our Counsel's letter
of 1st February 2023, nor has the Applicant explored or undergone ADR. The
Respondent and Interested Party are not averse to ADR, especially where it
may significantly reduce the number of grounds or eliminate the need for a
judicial review altogether."
15.
The Attorney General submits that the court should not grant leave based on the Applicant's non
compliance with the Protocol. The Protocol "sets out a code of good practice and contains the
steps which parties should generally follow before making an application for judicial review."
While the court will always endorse full compliance with the Protocol and encourage engagement
between parties before litigation of this nature is embarked upon to explore alternative methods
to resolve the issues between them or, at the very least, to narrow those issues, non-compliance
with the Protocol is not determinative of an application for leave.
16.
Paragraph 12 of the Protocol states: "An application should not normally be issued until the
proposed date for reply given in the letter before action has expired, unless the circumstance of
the case require more immediate action to be taken." It appears from the tenor of the Applicant's
affidavit and the Letter before Action that the Applicant was keenly conscious of the time limit for
filing the application. The Applicant seemingly concluded that the circumstances of the case
required immediate action be taken.
17.
Any issue as to the conduct of the Applicant in this regard and consequences flowing therefrom
are matters that may be considered at a substantive hearing stage.
18.
Section 50 (1) (h) of the National Conservation Act states that the Cabinet may make regulations
"controlling or regulating population of alien or genetically altered species;" The Applicant states
in paragraph 5 of its application that-
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"5. Pursuant to its Mandate the Applicant has provided free community trap
neuter-and-release, health care and feeding programs on Grand Cayman for
stray and feral cats since 2011. The Applicant is severely impacted by the
promulgation of the Regulations as it has provided free community spay, neuter
and release programs, feeding programs of established neutered and spayed
cats and provided general veterinary medical care wherever necessary for stray
and feral cats throughout the Islands, albeit primarily in Grand Cayman, which
programs have now been prohibited or severely impacted by the Regulations
under threat of criminal penal sanction.
7.
The Regulations refer to "Domestic Cat" and provide that if it is living in the wild,
defined as any area which is not under active management and control of any
person may
11destroy11 the cat
11in a manner which does not cause unnecessary
suffering". The Regulations also provide that it is an offence to feed such a cat.
A person contravenes the Regulations is liable to penalties under section 38 of
the Act, which provides that a person who commits an offence under the Act is
liable on conviction to a fine of five hundred thousand dollars or to
imprisonment for a term of four years, or both.
11
19.
I am satisfied that the applicant has a sufficient interest in the matter to which this application
relates.
The grounds of the application
20.
There were four main grounds of the application each of which involved consideration of several
aspects of the Regulations. These were set out at pages 13-18 of the Application. In summary
these were:
(i) the Regulations are unlawful and/or ultra vires in
(a) In exceeding the scope of the NCA as the Regulations purport to extend beyond
the overall remit of the NCA by creating definitions for terms whereby those
definitions effectively alter the spirit and intent of the NCA.
(b) Regulation 16 authorizes actions beyond the scope and remit of the NCA and
procures or intends to authorize persons to commit offences against the Animals
Act and/or the Penal Code.
(c)
Part 3 of the Regulations are in conflict with the provisions of the Animals Act.
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(d) Regulation 15 purports to grant the Director of the Department of the
Environment authority that exceeds her statutory powers under the NCA.
(e) The Regulations purport to usurp and/or displace the powers and duties of the
Department of Agriculture and the Director of Agriculture under Section 70(8)
of the Animals Act.
(ii) the promulgation of the Regulations was irrational since:
(a) Neither the cabinet nor the Interested Party were in possession of necessary
independent scientific information /data to make a reasonable determination as
to the need for and/or effect of the regulations.
(b) It was unreasonable to authorize private persons to kill an animal they believe
to be a feral alien species or genetically altered species under stated provisions
of the Regulations.
(c) The
Respondent failed to consult with and/or reasonably take into
considerations the views or the public and relevant stakeholders.
(d) Terms in Regulation 18 are undefined and ambiguous.
(e) Penalties imposed in Regulations 17 and 18 are manifestly disproportionate.
(f)
The
effects
of
Regulations
17
and
18
are
counterintuitive
and
counterproductive.
(g) The Regulations purport to apply uniformly throughout the 3 Cayman Islands
which is manifestly unreasonable as different considerations apply to the
different islands and even within particular areas within grand Cayman.
(iii) the promulgation of the regulations was procedurally unfair as the Respondent failed to
confer with the Public, the Applicant and other relevant stakeholders despite being aware
of the severe impact to the Regulations on such organizations
(iv) The Regulations are incompatible with the Cayman Islands Constitution Order 2009
(a)
they threaten the unlawful interference with personal property rights
protected by Section 15 of the Constitution including the personal rights to an
animal and the personal rights to the enjoyment of property by feeding and/or
providing water to alien species and genetically altered species thereon
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(b)
the Regulations are in breach of Section 19 of the Constitution as the
promulgation of same was not lawful, rational, proportionate and/or
procedurally fair.
Court's considerations
21.
In considering whether to grant leave to apply for judicial review the court's role is to consider
whether "there is some arguable case or claim which is not obviously untenable, vexatious or
frivolous". 2
22.
In Sharma v Brown-Antoine3 it was further clarified that the applicant must demonstrate that it
has arguable grounds for judicial review having a realistic prospect of success.
23.
In Shirley Tyndall O.J. et al v Hon. Justice Boyd Carey (ret'd) et. al.4 Mangatal J. stated:
"It is to be noted that an arguable ground with a realistic prospect of success is not
the same thing as an arguable ground with a good prospect of success. The
ground must not be fanciful or frivolous. A ground with a real prospect of success
is not the same thing as a ground with a real likelihood of success. The Court is
not required to go into the matter in great depth though it must ensure that there
are grounds and evidence that exhibit this real prospect of success."
24.
This court is not now concerned with the merits of the claim. It is no part of my consideration at
this stage to determine the issues raised by the affidavit of the Applicant. I am satisfied that the
Applicant has met the required threshold on the application for leave. The grounds of challenge
are not obviously vexatious or frivolous. There is an arguable case for the granting of the relief
sought by the Applicant on grounds 1, 2 and 4. Leave is not granted regarding Ground 3 of the
Application.
25.
The applicant has also sought a stay of Part 3 of the Regulations pursuant to Order 53, rule 3(10)
of the Grand Court Rules. The stay will be granted with respect to Part 3 of the Regulations with
liberty to apply to the Respondent and the Interested Party.
Hon Justice Marlene Carter
Judge of the Grand Court (Actg.)
'J. (l.»-3. 0
2 Smith v Commissioner of Police [1980-83 CILR 126]
3 [2006] UKPC 57
4 2010 HCV 00474, (Unreported) Mangatal J.
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