Richards J
____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 1 of 59 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CIVIL DIVISION 3 CAUSE NO: G 163 of 2019 4 BETWEEN: 5 (1) CROSBY COLLYMORE EBANKS 6 (2) WILSON JONATHAN MENDOZA 7 (3) MARIO ALBERTO GOMEZ 8 9 PETITIONERS 10 AND: 11 (1) THE GOVERNOR OF THE CAYMAN ISLANDS 12 (2) THE NATIONAL ROADS AUTHORITY 13 (3) THE ATTORNEY GENERAL OF THE CAYMAN ISLANDS 14 15 RESPONDENTS 16 17 18 Appearances: Mr. Rupert Wheeler of KSG Attorneys for the Petitioners 19 Mr. Michael Smith of the Attorney General’s Chambers for the Respondents 20 21 22 Before: The Hon. Justice Cheryll Richards Q.C. 23 24 Heard: 10th March 2021 25 26 Draft Judgment: 19th August 2021 27 28 HEADNOTE 29 The Cayman Islands Constitution 2009, Claim under s. 26 (1), alleged breaches of s. 7 and s. 15. 30 Compatibility with the Roads Act (2005 Revision) 31 32 JUDGMENT ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 2 of 59 1 INTRODUCTION 2 1. These are proceedings brought by the Petitioners pursuant to s.26 (1) of the Cayman Islands 3 Constitution 2009 (“the Constitution”). Pursuant to this section any person may apply to the 4 Grand Court on the basis that government has breached or threatened his or her rights and 5 freedoms under Part 1 of the Constitution, the Bill of Rights, Freedoms and Responsibilities 6 (“the BoR”). 7 8 2. By their Petition filed on the 27th September 2019, as amended on the 9th December 2019, the 9 Petitioners aver that their rights and freedoms under s.15 (1) and s7 (1) of the Constitution have 10 been breached by the Government of the Cayman Islands. The specific averments are that the 11 Roads Act does not provide a direct or indirect right of appeal to the Grand Court against the 12 legality of the interference with, taking of possession and acquisition of their land, and 13 secondly, that they have been denied a right to a fair hearing as to the decision of the Governor 14 in Cabinet under the Roads Act (2005 Revision) to make a declaration to acquire certain lands 15 owned by them for the purpose of road building. 16 17 3. The Petitioners claim: 18 i. A declaration that the Roads Act does not conform with the Petitioners’ rights and 19 freedoms under the BoR because it does not secure for the Petitioners a right of access 20 to the Grand Court, whether direct or on appeal from any other authority, for the 21 determination of the legality of the taking of their land; 22 23 ii. A declaration that, pursuant to s.5 (1) of the Cayman Islands Constitution Order , the 24 Roads Act shall be read and construed as providing a right of access to the Grand Court, 25 whether direct or on appeal from any other authority for the determination of the 26 legality of the taking of their land so as to bring the said Act into conformity with the 27 Petitioners’ rights and freedoms under the BoR; 28 29 iii. Alternatively a declaration of incompatibility under s.23 (1) of the BoR to the extent 30 that the Roads Act does not conform with the Petitioners’ rights and freedoms under 31 the BoR as described above. 32 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 3 of 59 1 iv. An injunction preventing the Roads Authority from entering upon the Petitioners’ 2 lands for the purpose of laying a road. 3 4 v. Damages 5 6 vi. Costs 7 8 9 4. Pursuant to the GCR O.77A r.4 (2) the Respondents to the Petition are the Attorney General 10 and other relevant public officials. Public officials are defined in s.28 of the Constitution as 11 including any statutory body or company in which the Cayman Islands Government has an 12 interest and any person carrying out a public function or duty including the Governor except 13 where the nature of their act is private. 14 15 5. The First Respondent is the Governor of the Cayman Islands. Part II of the Constitution 16 provides for the Office of Governor and for the functions and exercise of the functions of the 17 Governor. By s.31, the functions of the Office are to be exercised in accordance with the 18 Constitution and any other Act and subject thereto in accordance with any such instruction as 19 may be addressed to the Governor by or on behalf of Her Majesty. 20 21 6. The Second Respondent is the National Roads Authority (“the NRA”). The NRA is a statutory 22 Authority established under s.3 of the National Roads Authority Act. By s.5 of the Act, its 23 responsibilities, functions and duties include: 24 25 (i) The administration, management, control, development and maintenance of the 26 public roads and related facilities; 27 ii) To plan, design, construct, develop, maintain, protect and administer public roads 28 and related road works. 29 7. The Third Respondent is the Attorney General in his capacity as the principal legal advisor to 30 the Government of the Cayman Islands. 31 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 4 of 59 1 THE FACTUAL BACKGROUND 2 8. The Petition is verified by the First Affidavit of the Second Petitioner, Wilson Jonathan 3 Mendoza dated 27th September 2019. He attests to the truth of the contents of the Petition and 4 produces various documents which are said to be relevant to the Petition. 5 6 9. The three Petitioners are the registered proprietors of three parcels of land in the North West 7 Block of the district of West Bay. The First Petitioner, Crosby Collymore Ebanks is the 8 proprietor of Block 4B Parcel 9. The Second Petitioner, Mr. Mendoza is a joint proprietor of 9 Block 4B, Parcel 3. The Third Petitioner, Mario Alberto Gomez is the Proprietor of Block 4B 10 Parcel 8. 11 12 10. On the 23rd August 2019, a Road Notice was published in the Cayman Islands Gazette by the 13 Clerk of the Cabinet on behalf of the Cabinet of the Cayman Islands1. The Notice published 14 was a Declaration under s. 3 of the Roads Act. It stated that in exercise of the powers conferred 15 on the Governor in Cabinet by that section and acting upon the recommendation of the NRA, 16 it is declared that it is the intention of the NRA to gazette a new public road at West Bay North 17 West, Block 4B, Boundary Plan 626. The Notice listed the portions of land required for 18 construction of the road including three portions owned by the Petitioners and stated that the 19 Plan was available for inspection at the offices of the NRA or at the Lands and Survey 20 Department or on a web portal. 21 22 11. Thereafter the three Petitioners each received similar letters from the Lands and Survey 23 Department which were stated to have been written on behalf of the Governor. The letters 24 advised of the Declaration made, the publication of the Notice and of their right to claim 25 compensation. A copy of the Notice and of Boundary Plan 626 was enclosed, together with a 26 compensation Claim Form. 27 28 12. The letters2 stated in part: 29 “Section 9 of the Law details provisions by which persons affected may serve 30 notice of intent to claim for compensation (Form A) to His Excellency the 1 Page 1 of Exhibit WJM-1 to the Affidavit of Mr. Wilson Mendoza 2 Page 2 of Exhibit WJM-1 to the Affidavit of Mr. Wilson Mendoza ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 5 of 59 1 Governor not later than 22nd November 2019, being ninety (90) days after the 2 declared day. 3 For further information on the procedures please refer to the notes on the rear of 4 the enclosed Form and/or the attached Guide to compensation.” 5 6 The declared day is the day of publication of the Notice in the Gazette. 7 8 13. On the 11th September 2019, another Road Notice was published in the Cayman Islands Gazette 9 by the Clerk of the Cabinet on behalf of the Cabinet of the Cayman Islands3. This was entitled 10 s.6 Authorisation to Enter Lands under the said Act and stated in part that “In exercise of the 11 powers conferred on the Governor in Cabinet by s.6 of the Roads Law (2005 Revision), and 12 acting upon the recommendation by the National Roads Authority, it is hereby declared that it 13 is in the public interest to widen the road along the highway” in West Bay North West, Block 14 4B, (“the road works”). The Notice further stated that the NRA and its agents are authorised 15 within 15 days of the Gazette publication to enter upon the seven parcels of lands as listed in a 16 schedule for the purpose of carrying out the road works as publicly declared in the earlier notice 17 under s.3 of the Act. Three of the seven parcels are the parcels belonging to the Petitioners as 18 identified above. 19 20 14. As a result of the proposed road works the anticipated area to be lost by the Petitioners in acres 21 are 0.09, 0.11 and 0.10 respectively. Notice was also provided that the anticipated boundaries 22 of the road works are as shown edged in green on Boundary Plan 626 which Plan could be 23 inspected at the said locations stated above. 24 25 15. On the 2nd October 2019, the Petitioners filed an Ex Parte Summons in the Grand Court seeking 26 orders that the NRA vacate their lands and cease all road construction works taking place 27 thereon and be restrained from entering on their lands for the purpose of laying or constructing 28 a road. 29 30 16. The application was supported by the Second Affidavit of Mr. Mendoza dated 2nd October 31
He stated therein that he was authorised to make the Affidavit on behalf of all three 3 Page 4 of Exhibit WJM-1 to the Affidavit of Mr. Wilson Mendoza ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 6 of 59 1 Petitioners. He gives the sequence of events as being that on the 27th September 2019, following 2 the publication of the Notice, a NRA construction crew arrived in the area of the lands of the 3 Petitioners and commenced work. The Petitioners filed the Petition on the said day and by letter 4 requested confirmation from the Attorney General that the NRA would cease all construction 5 work, pending the hearing of the Petition. A response was received on the 1st October 2019 6 which advised that instructions were being sought on the matter. In the interim NRA 7 construction crews returned to the site on the 28th and 30th September 2019 and again on the 1st 8 and 2nd October 2019. 9 10 17. On the 3rd October 2019, the Grand Court granted the application of the Petitioners for an 11 Injunction and made an Order in the terms sought. The Injunction continues in effect. 12 13 18. There was a Directions hearing on the 6th December 2019 at which Orders were made by 14 consent. These included the grant of leave to the Petitioners to amend the Petition, directions 15 as to a date for the filing of Points of Reply to the Petition by the Respondents and the 16 adjournment of the question of damages until after the judgment on the Petitioner’s Claims for 17 Declaratory Relief. Additionally by paragraph 6 of the said Order the Respondent was given 18 the option to serve any affidavit evidence in response. 19 20 19. No evidence has been filed by the Respondent for the purpose of this hearing. 21 THE CAYMAN ISLANDS CONSTITUTION ORDER 2009 22 20. The Cayman Islands Constitution Order 2009 (“the Order”), came into force in the Cayman 23 Islands on the 6th November 2009, (the appointed day) with the exception of Part 1 of the 24 Constitution, the BoR. By s.4 (2) of the Order, the BoR, came into force three years after that 25 appointed day, on the 6th November 2012, with s. 6 (2) and (3) thereof having effect four years 26 after that day. The Order provides in s.2 that the Constitution means the Constitution set out 27 in Schedule 2 and that s.124 thereof shall apply for the purposes of interpreting s.1 to 9 of the 28 Order and otherwise in relation to them and to the Constitution. Section 5 of the Order deals 29 with laws in force before the appointed day. Such laws are to have effect as if they had been 30 made pursuant to the Constitution and are to be read and construed with such modifications as 31 may be necessary for them to be in conformity with the Constitution. It provides: ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 7 of 59 1 “5.— (1) Subject to this section, the existing laws shall have effect on and 2 after the appointed day as if they had been made in pursuance of 3 the Constitution and shall be read and construed with such 4 modifications, adaptations, qualifications and exceptions as may 5 be necessary to bring them into conformity with the Constitution. 6 (2) The Legislature may by law make such amendments to any 7 existing law as appear to it to be necessary or expedient for 8 bringing that law into conformity with the Constitution or 9 otherwise for giving effect to the Constitution; and any existing 10 law shall have effect accordingly from such day, not being earlier 11 than the appointed day, as may be specified in the law made by 12 the Legislature. 13 (3) In this section “existing laws” means laws and instruments (other 14 than Acts of Parliament of the United Kingdom and instruments 15 made under them) having effect as part of the law of the Cayman 16 Islands immediately before the appointed day.” 17 21. The BoR in Part 1 of the Constitution begins with a declaration that it is a cornerstone of 18 democracy in the Cayman Islands. It states that this part of the Constitution confirms or creates 19 certain responsibilities of the government to include public officials as defined in s.28 and 20 corresponding rights of every person against the government. Section 7(1) is under the heading 21 Fair trial and states: 22 “7. (1) Everyone has the right to a fair and public hearing in the determination of 23 his or her legal rights and obligations by an independent and impartial court 24 within a reasonable time.” 25 26 22. Section 15 is under the heading Property and states as follows: 27 “15. (1) Government shall not interfere in the peaceful enjoyment of any person’s 28 property and shall not compulsorily take possession of any person’s property, or 29 compulsorily acquire an interest in or right over any person’s property of any 30 description, except in accordance with law and where— 31 (a) the interference, taking of possession or acquisition is necessary or 32 expedient in the interests of defence, public safety, public order, public 33 morality, public health, town and country planning or the development 34 or utilisation of any property in such manner as to promote the public 35 benefit or the economic well-being of the community; and ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 8 of 59 1 (b) there is reasonable justification for the causing of any hardship that may 2 result to any person having an interest in or right over the property; and 3 (c) provision is made by a law applicable to that interference, taking of 4 possession or acquisition— 5 (i) for the prompt payment of adequate compensation; and 6 (ii) securing to any person having an interest in or right over the 7 property a right of access to the Grand Court, whether direct or 8 on appeal from any other authority, for the determination of his 9 or her interest or right, the legality of the interference with, 10 taking of possession or acquisition of the property, interest or 11 right, and the amount of any compensation to which he or she is 12 entitled, and for the purpose of obtaining prompt payment of that 13 compensation; and 14 (iii) giving to any party to proceedings in the Grand Court relating 15 to such a claim the same rights of appeal as are accorded 16 generally to parties to civil proceedings in that Court sitting as a 17 court of original jurisdiction.”) (Emphasis added.) 18 23. Section 19 of the Constitution is under the heading Lawful administrative action. It provides 19 that:- 20 “19. (1)All decisions and acts of public officials must be lawful, rational, 21 proportionate and procedurally fair. 22 (2) Every person whose interests have been adversely affected by such a 23 decision or act has the right to request and be given written reasons for 24 that decision or act.” 25 24. By s.23 of the Constitution, the Court may make declarations of incompatibility where primary 26 legislation is found to be incompatible with part 1 of the Constitution. It provides: 27 “23. (1) If in any legal proceedings primary legislation is found to be 28 incompatible with this Part, the court must make a declaration 29 recording that the legislation is incompatible with the relevant 30 section or sections of the Bill of Rights and the nature of that 31 incompatibility. 32 (2) A declaration of incompatibility made under subsection (1) shall 33 not constitute repugnancy to this Order and shall not affect the 34 continuation in force and operation of the legislation or section 35 or sections in question. ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 9 of 59 1 (3) In the event of a declaration of incompatibility made under 2 subsection (1), the Legislature shall decide how to remedy the 3 incompatibility.” 4 25. Primary legislation is defined in s.28 of the BoR as meaning “a Law enacted by the legislature.” 5 6 26. Section 24 is under the heading Duty of public officials. It states: 7 “24. It is unlawful for a public official to make a decision or to act in a way that 8 is incompatible with the Bill of Rights unless the public official is required 9 or authorised to do so by primary legislation, in which case the legislation 10 shall be declared incompatible with the Bill of Rights and the nature of 11 that incompatibility shall be specified.” 12 27. Section 25 imposes an interpretive obligation where the compatibility of primary or subordinate 13 legislation with the BoR is unclear or unambiguous. It states: 14 “25. In any case where the compatibility of primary or subordinate legislation 15 with the Bill of Rights is unclear or ambiguous, such legislation must, so 16 far as it is possible to do so, be read and given effect in a way which is 17 compatible with the rights set out in this Part.” 18 19 THE APPROACH TO CONSTITUTIONAL INTERPRETATION 20 28. The classic exposition of the approach to be taken with regard to the interpretation of a 21 constitution is to be found in the Privy Council case of Minister of Home Affairs v. Fisher.4 22 The Board stated: 23 “Here, however, we are concerned with a Constitution, brought into force certainly by Act 24 of Parliament, the Bermuda Constitution Act 1967 United Kingdom, but established by a 25 self-contained document set out in Schedule 2 to the Bermuda Constitution Order 1968 26 (United Kingdom S.I. 1968 No. 182) . It can be seen that this instrument has certain special 27 characteristics. 1. It is, particularly in Chapter I, drafted in a broad and ample style which 28 lays down principles of width and generality. 2. Chapter I is headed "Protection of 29 Fundamental Rights and Freedoms of the Individual." It is known that this chapter; as 30 similar portions of other constitutional instruments drafted in the post-colonial period, 31 starting with the Constitution of Nigeria , and including the Constitutions of most 32 Caribbean territories, was greatly influenced by the European Convention for the 33 Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). That 34 Convention was signed and ratified by the United Kingdom and applied to dependent 4 1980 A.C. 319 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 10 of 59 1 territories including Bermuda. It was in turn influenced by the United Nations' Universal 2 Declaration of Human Rights of 1948. These antecedents, and the form of Chapter I itself, 3 call for a generous interpretation avoiding what has been called "the austerity of tabulated 4 legalism," suitable to give to individuals the full measure of the fundamental rights and 5 freedoms referred to. 3. Section 11 of the Constitution forms part of Chapter I. It is thus to 6 "have effect for the purpose of affording protection to the aforesaid rights and freedoms" 7 subject only to such limitations contained in it "being limitations designed to ensure that 8 the enjoyment of the said rights and freedoms by any individual does not prejudice... the 9 public interest.” 10 29. In the Privy Council case of Matadeen v. Pointu5 Lord Hoffman in his judgment emphasized 11 that the question is one of construction of the language. In summary the learned Judge stated 12 that while constitutions are not construed in the same manner as commercial documents 13 because of the different contexts, the interpretation of these documents have in common that 14 “in each case the court is concerned with the meaning of the language which has been used.” 15 16 30. In the recent case of Day & Bush v. Governor of the Cayman Islands and Others6, the Grand 17 Court referenced the above cases and the case of Reyes v. R7. and concluded: 18 “Seen in the light of this venerable and authoritative body of judicial dicta the Court’s 19 duty when construing a constitutional Bill of Rights, is unmistakable. The court must 20 begin with a careful consideration of the language used and while being faithful to 21 the meaning of the words, (abjuring its own predilections and moral values), must 22 always be mindful of the fact that they are the words, not of a private document, but 23 of a Bill of Rights which enshrines fundamental constitutional rights and freedoms for 24 everyone in society. The court must therefore ascribe a meaning which while 25 consonant with the language, is also suitable for ensuring the contemporary 26 protection of “the full measure of the fundamental rights and freedoms” to which 27 individuals are entitled, in keeping with “the evolving standards of decency of a 28 maturing society” as well as in keeping with any expressed limitations which apply 29 as being “reasonably justifiable in a democratic society” (or in the modern language 30 of the formulation of limitations”. 31 31. In its judgment on the appeal in the said case, the Cayman Islands Court of Appeal (“CICA”) 32 reviewed with approval the case of Minister of Home Affairs v. Fisher and a number of other 33 authorities before concluding that: 5 1999 A.C. 98 6 Grand Court Judgment, Civ 111, 184 of 2018, 29th March 2019 7 2002 2 A.C. 335 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 11 of 59 1 “It is clear from the authorities cited that the court must approach constitutional 2 provisions such as those in the BoR in a broad and purposive manner, not narrowly 3 and technically.” 4 32. The Court stated that the decisions make plain that a court must interpret the Constitutional 5 Law of the Cayman Islands and that part of it which deals with citizens’ rights in a broad and 6 purposive way. However the Court cautioned in the context of considering societal norms and 7 changes over time that in interpreting the Constitution, it is not for the Court to ignore the clear 8 meaning and effect of a Constitutional provision. The Court also stated that when construing a 9 provision in a constitution, that provision must be considered in the context of the constitution 10 as a whole and not only individually. 11 12 33. The Appellate Court did not consider it necessary to review the approach taken by the Grand 13 Court with respect to s.5 of the Order and the interpretative obligation under s.25 of the BoR. 14 15 34. In the Grand Court the Respondent had submitted that the Court should first consider its 16 obligation under s.5 of the BoR to read or construe the Marriage Act into conformity with the 17 BoR. The Grand Court was of the view that there were two obstacles to this approach. Firstly 18 that where s.25 refers to primary legislation, this is defined in s.28 of the said Bill as meaning 19 a law enacted by the Legislature and that the Legislature therein referred to the Legislature 20 established by the 2009 Order itself and not to the Legislature established under the former 21 Constitution. The Court said that a measure passed by the former Legislature is an “existing 22 law” and the Court had no jurisdiction to make a declaration under s.23 with respect to an 23 existing law. 24 25 35. The second obstacle identified was that a finding in that case did not arise merely because the 26 law in question was unclear or ambiguous but because of what the Court found to be the 27 discriminatory intent of the law in the context of that case. The Court concluded that while it 28 could make a declaration of incompatibility, this would not be one for the purpose of s.23 and 29 that s.23 and 25 remedies do not apply where an existing law is found to be in contravention 30 of the BoR8. 31 8 Ibid, para 361 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 12 of 59 1 36. The Court’s view was that the matter fell to be dealt with under s.5 of the Order. 2 THE ROADS ACT 3 37. The Roads Act (2005 Revision) sets out the legislative frame work for proposed road works 4 involving compulsory acquisition of private land. It was originally enacted on the 15th October 5 1974, as Law 18 of 1974. It was last consolidated and revised in 2005. It predated the 2009 6 Constitution and it is agreed by the parties that it is deemed to be an existing law under it. 7 8 38. Section 3 of the Act requires that there is publication of proposals to compulsorily acquire land 9 for road building purposes. Declarations to this effect must be published in the Gazette and in 10 local newspapers and notices must also be sent to registered land owners. The section also 11 provides for the details to be included in the declaration and for a plan of the proposed new 12 road to be prepared and exhibited to any person who may wish to examine it. 13 14 It states: 15 “3. (1) Whenever it appears to the Governor, upon recommendation by the Roads 16 Authority, that any particular portion of land is needed for the layout of a new 17 public road or the widening or diverting of an existing public road, a declaration 18 to that effect 19 shall be — 20 (a) gazetted; 21 (b) sent by registered post to the registered proprietor of the land at 22 his address on the register; and 23 (c) published twice per week for three consecutive weeks in a daily 24 newspaper published and circulating in the Islands. 25 (2) The declaration shall state — 26 (a) the intention of the Roads Authority to construct a road or portion 27 of road over the portion of land; (b) the locality in which the 28 portion of land is situated, specifying particulars of block and 29 parcel numbers on the Register and, so far as feasible, any name 30 or other information which may be helpful in identifying the land; 31 (c) the line and anticipated boundaries of the road or proposed road; ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 13 of 59 1 (d) the approximate area of the portion of land; and 2 (e) the place where a plan can be inspected. 3 (3) The Governor shall cause a detached plan of the proposed new road, or of the part 4 of the road intended to be widened or diverted, and the lands through which it is to pass, 5 to be transmitted to the Registrar and the Roads Authority to be exhibited to any person 6 who may require to examine it. 7 (4) The plan produced for the purposes of this section shall be such as to allow 8 correlation of particulars thereon with particulars on the composite map.” 9 39. Section 6 of the Act provides the power to act in the public interest by taking land for road 10 building purposes, after 15 days of a declaration having been published under s.3. This states: 11 “6. In any case where a declaration has been published under section 3(1), and where 12 the Governor, upon recommendation by the Roads Authority, is satisfied that it is in 13 the public interest to lay out, widen or divert a road over the portion of land to which 14 the declaration relates, then, notwithstanding anything contained in any other law, 15 and subject to the provisions of this Law which relate to the payment of compensation, 16 the Governor may, on the expiration of fifteen days from the publication of the 17 declaration, authorise the Roads Authority to enter upon the said portion of land and 18 cause the said road or portion of road to be commenced or proceeded with without 19 further notification.” 20 40. By s.7 of the Act an Assessment Committee is established for the purpose of assessing and 21 making awards of compensation under the Act. Any person having an interest in a portion of 22 land in respect of which a declaration has been made under s.3 and who has suffered a net loss 23 by reason of such declaration may serve notice of intent to make a claim for compensation 24 within 90 days of the declared day. This is then to be followed by a claim within one year after 25 the proposed road is scheduled as a public road. The Act also contains various provisions for 26 the giving of notice of intent and claims and for the negotiation and assessment of a claim. 27 28 41. The Second Schedule to the Act provides for the practical working of the Assessment 29 Committee, its powers, for the taking of evidence of witnesses, how the assessment is to be 30 made and other such general matters. Following the making of an award by the Committee, the 31 Roads Authority or any person having an interest in the land who is aggrieved by the award 32 made, may appeal to the Grand Court. The specific grounds of appeal are that: 33 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 14 of 59 1 (a) The extent of the interest or right in the portion of land has been wrongly 2 determined. 3 (b) The Committee has erred in a matter of law. 4 THE ISSUES 5 42. It is agreed by the parties in this case that the process for assessment of compensation and 6 appeals from the decision of the Assessment Committee satisfies the requirements of s. 15 (1) 7 (a) of the Constitution. 8 9 43. It is not disputed that there are no provisions for an appeal from the decision to make a 10 declaration in the first place and that there is no statutory process under the Roads Act for 11 affected persons to make representations before the making of a declaration. This is the crux 12 of this case. 13 14 44. The Petitioners say that this is an omission and that they wished to appeal the Declaration made 15 but that the Roads Act contains no right of appeal to a statutory tribunal or other person and no 16 right of access to the Grand Court to appeal the Declaration. It also makes no provision for 17 affected persons to make representations as to the proposed Declaration nor for the provision 18 of reasons for the decisions made. 19 20 45. The four issues for determination as identified by the Petitioners in written submissions9 and 21 agreed to by the Respondents are thus as follows: 22 23 i) “Is the Roads Law incompatible with the right of the Petitioners to 24 peaceful enjoyment of property as provided for by s.15 of the BoR in that 25 it fails to provide a right of access to the Grand Court whether direct or on 26 appeal from any other authority for the determination of the legality of the 27 taking of possession of the Petitioner’s lands? 28 29 ii) Has the right of the Petitioners to a fair trial as provided for by s.7 of the 30 BoR been infringed by failing to permit them a right of access to the Grand 31 Court whether direct or on appeal from any other authority for the 9 Paragraph 3 of submissions dated 27th February 2020 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 15 of 59 1 determination of the legality of the taking of possession of the Petitioner’s 2 lands? 3 4 iii) If the Court finds either an incompatibility or an infringement, how does 5 the Court read and construe the Roads Act so as to bring it into conformity 6 with the BoR in accordance with s.15 (1) of the Constitution? 7 8 iv) If the Court does not believe that it has the power to read or construe the 9 Roads Act under s.5 (1), should it make a declaration of incompatibility 10 and what if any other relief should it grant?” 11 SUMMARY OF POSITIONS 12 46. The Petitioners’ position is that their constitutional rights have been breached by the absence 13 of specific legislation giving a right of access to the Grand Court and by the absence of a 14 detailed consultation process prior to the making of the Declarations to effect the road works. 15 16 47. In support of this position, the Petitioners make two broad submissions. Firstly that in respect 17 of s.15 (1) of the BoR, that when the Court properly applies the principles of interpretation that 18 relate to constitutional instruments in particular and to other legislation, it is clear that the 19 legislature intended for there to be a statutory right of access to the Grand Court and for that 20 statutory right of access to be contained within a law applicable to the concept of land 21 acquisition by the State. The obvious law which would be applicable say the Petitioners is the 22 Roads Act. However this makes no provisions for assessing or determining whether the land 23 should have been taken in the first place. This is a breach of s.15 (1) because there is no 24 provision made through a law applicable to the interference for the determination of that right. 25 26 48. It is further submitted that the Roads Act cannot be read and construed so as to be in conformity 27 with s.15 (1) of the Constitution. Any such reading or construction would require the Court to 28 undertake a lengthy drafting exercise which is impermissible. Thus there has to be a declaration 29 of incompatibility. 30 31 49. In relation to s.7 (1) of the BoR, it is submitted that the summary procedure for granting a 32 declaration under s.3 and s.6 of the Roads Act, both of which contain no right to make ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 16 of 59 1 representations and no procedural safeguards is insufficient to satisfy the rights under the 2 Constitution. Additionally that because of the inadequacy of the safeguards provided by the 3 Roads Act, the availability of judicial review alone as a remedy is not sufficient to satisfy s.7 4 (1). 5 6 50. The Respondents’ position is that there has been no breach of the rights under either s.15 (1) 7 or s.7 of the BoR, and that there is no incompatibility with the Roads Act because while the 8 Act does not contain a mechanism by which declarations made thereunder may be appealed 9 the Petitioners have access to the Grand Court in relation to the interference with their lands by 10 way of judicial review and by the bringing of a petition under the Constitution itself. It is said 11 further that while a statutory right of access would be one way of achieving the intention of the 12 Legislature and might perhaps even have been the best way, judicial review or a Constitutional 13 petition is good enough to provide the s.15 (1)(c)(2) right of access. It is an appropriate and 14 acceptable route for challenging the interference itself but would not be for challenging the 15 amount of compensation for which there is the statutory right of appeal as provided by s.8 of 16 the Second Schedule to the Act. 17 18 51. The Respondents describe the Petition as a collateral attack on the specific decision by the 19 Governor in Cabinet to make Lissa Lane in West Bay a public road which is “dressed up” as a 20 wider public spirited effort to ensure the compatibility of the Roads Act with the BoR. The 21 Respondents say that the Petitioners had the option of proceeding by way of judicial review 22 and deliberately chose not to do so. 23 24 52. The Respondents’ primary submission in support of its position is that the words in s.15 (1), 25 “a law applicable” should be given a broad interpretation and that the plain and grammatical 26 meaning is for a route of access by “a law”. The word law is not defined in the Constitution as 27 being limited to primary legislation. It includes secondary legislation and by reference to 28 certain case authorities it may also include rules and conventions. It thus also includes the 29 common law. 30 31 53. With respect to s.7 (1), the Respondents submit that s.15 (1) is the lex specialis for interference 32 with property rights. Secondly it is argued by reference to the case of R(Alconbury 33 Developments Ltd. & Ors. v. Secretary of State for the Environment, Transport & the ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 17 of 59 1 Regions10 that there has been compliance with the requirements for a broad scheme which 2 combined with the availability of judicial review meets the requirements of s.7 (1). 3 4 SUBMISSIONS ON INTERPRETATION OF CONSTITUTIONAL PROVISIONS 5 54. The Petitioners submit that in so far as the BoR refers to the duties of government taking lawful 6 administrative action and providing a route for redress, it is not creating any new rights, it is 7 confirmatory of rights which have existed for some time. It is submitted that the Constitution 8 has elevated property rights to the BoR and has specifically provided therein by s.15 (1) that 9 citizens who are adversely affected should have direct access to the Grand Court where there 10 is interference by the government with these rights. It is said that the correct interpretation of 11 the Constitution requires that the right of access should be contained in the law applicable to 12 the interference or a similar law and that on the plain reading of the section the ‘intention was 13 not simply to codify what was already generally available’. The legislature intended thereby to 14 create another statutory scheme to be included in the Roads Act or in another enactment on the 15 statute books. This was to be a specific and effective route to the Grand Court for a remedy to 16 challenge the legality of the taking of land and to allow for affected persons such as the 17 Petitioners to appeal to the Grand Court. 18 19 55. It is also submitted that the purpose of s.15 was to ensure that the right of access to the Grand 20 Court was in similar terms as it is for compensation, and that the legislature intended for that 21 written right of access to be probably governed by GCR O.55. This Order applies to appeals to 22 the Grand Court from the Governor in Council, Registrar of Lands, Tribunals or persons 23 general. Rule 1 states:- 24 25 (1) Subject to paragraphs 2 and 3, this Order shall apply to every appeal 26 which by or under any enactment lies to the Court from the Governor-in- 27 Council, the Registrar of Lands, any tribunal or person. 28 29 56. Counsel drew a contrast between the Roads Act and a number of other statutory schemes which 30 provide rights of appeal. These included five enactments, the Registered Land Act, in particular 31 s.18 (2), s.41 (3), s.129, s.134 and s.147 thereof, the National Conservation Act, s.36 and 39, 10 2001 2 WLR 1389, 2001 UKHL 23 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 18 of 59 1 the Development and Planning Act s.4, the Land Acquisition Act s.17 and the Land 2 Adjudication Act s.23. 3 4 57. The Registered Land Act (2018 Revision) provides for rights to be heard at the stage of various 5 decisions being made by the Registrar. By s.18 (2), the Registrar may give notice to fix 6 boundaries of land and give aggrieved persons a right to be heard. By s.41 (3), the Registrar 7 may refuse registration of an instrument or application until he has heard and determined the 8 rights of interested parties, s. 129 is the withdrawal and removal of cautions by the Registrar 9 who is to give a person an opportunity to be heard, and s.134 is the removal and variation of 10 restrictions. Section 147 which was highlighted by the Petitioners is the provision for an appeal 11 to the Court against any decision of the Registrar. It states: 12 “The Governor or any person aggrieved by a decision, direction, order, 13 determination or award of the Registrar may within thirty days of the decision, 14 direction, order, determination or award, give notice to the Registrar in the 15 prescribed form of his intention to appeal to the court against the decision.” 16 58. Similarly the National Conservation Act at s.39, provides for the right of access to the Grand 17 Court:- 18 19 “39. (1) A person aggrieved by a decision of the Council- 20 (a) refusing an application for a permit or a licence; 21 (b) …; 22 (c) …; 23 (d) …; or 24 (e )… , 25 may, within twenty-one days of the date on which notice of the decision is 26 received, appeal against it to the Cabinet …. . 27 (2) … . 28 (3) Any person aggrieved by a decision of the Cabinet … may, ….appeal to 29 the court against the decision. 30 (4) … .” 31 59. The Development and Planning Act at s.48, provides for a right of access to a tribunal, and by 32 s.48 (4), a right of appeal to the Court against the decision of the tribunal. 33 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 19 of 59 1 60. The Land Adjudication Act (1997 Revision) provides in s.23 for a person aggrieved by the 2 decision of an adjudicator a right of appeal to the Court and the Land Acquisition Act (1995 3 Revision), provides in s.17 for a reference to the Court where a person is aggrieved by an award 4 made by a magistrate. 5 6 61. By reference to these enactments, Counsel submitted that what was intended by s.15 of the 7 Constitution was a right of appeal in similar terms and that the legislature omitted to make 8 provision in the Roads Act. 9 GENEROUS AND PURPOSIVE INTERPRETATION 10 62. The Petitioners submit that particular principles of interpretation apply to the United Kingdom 11 Human Rights Act 1998 and by analogy to the Constitution which gives effect to fundamental 12 rights. Relying on the Grand Court case of Day & Bush v. Governor of the Cayman Islands 13 & Others11 and the case of Attorney General of Hong Kong v. Lee Kwong- Kut,12 Counsel 14 submits that when the Court seeks to interpret the BoR it is required to give a generous 15 interpretation rather than one that seeks to limit or to restrict rights. It is said that this principle 16 of generous interpretation favours the Petitioners’ view over that of the Respondents which 17 would seek to undermine the right of access to the Courts. 18 19 63. Counsel drew the Court’s attention to certain paragraphs from a leading text on human rights, 20 Human Rights Law and Practice by Lester, Pannick & Herberg13. This provides guidance as to 21 the general approach to interpretation of such instruments. It states that constitutional 22 instruments have their own kind of interpretive principles because of their context and purpose 23 which is very different from commercial documents. It states further: 24 “In particular, the provisions of an enactment giving effect to basic freedoms ‘call 25 for a generous interpretation avoiding what has been called “the austerity of 26 tabulated legalism” suitable to give individuals the full measure of the 27 fundamental rights and freedoms referred to.”14 11 Civ. 111, 184 of 2018 12 1993 A.C. 951 13 3rd Edition 14 Paragraph 3.02 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 20 of 59 1 64. Counsel also drew the Court’s attention to the reference in the text to the case of Minister of 2 Transport v Noort15 in which in respect of the New Zealand Bill of Rights it was said by that 3 Court that: 4 “The Bill of Rights should be given such fair, large and liberal construction and 5 interpretation as will best ensure the attainment of its object according to its true 6 intent, meaning and spirit.” 7 65. In relation to the method of interpretation of the Canadian Charter of Rights, it was said that it 8 should be a: 9 ‘Generous rather than a legalistic one, aimed at fulfilling the purpose of the 10 guarantee and securing for individuals the full benefit of the Charter’s 11 protection’.” R v Big M Drug Mart Ltd [1985] 1 SCR 295, ...” 12 66. It was further submitted by Counsel that when interpreting a constitutional document, the Court 13 needs to have regard to the general objects and purposes of a democratic society which includes 14 access to the courts. Counsel referred to the said text and in particular the following statement: 15 ‘When interpreting the HRA 1998, courts should have regard to the general objects 16 and purposes of the Convention, which is an instrument designed to maintain and 17 promote the ideals and values of a democratic society. Particularly important 18 features of a ‘democratic society’ are ‘pluralism, tolerance and broadmindedness’ 19 ‘the rule of law’ with ‘access to the courts’…”16 20 67. Counsel submitted that against the background of these principles, the interpretation of the 21 Respondents of s.15 is a “strained and miserly interpretation” as opposed to a generous one and 22 is wrong because it would deny the Petitioners the full measure of fundamental rights and 23 freedoms referred to therein and it would not provide an adequate safeguard against the 24 potential abuse that the BoR was intended to provide, Additionally it is said that such an 25 interpretation would not accord with the approach of good sense and realism as it would not 26 allow for the pre-eminence of substance and reality over a technicality. On the interpretation 27 proposed by the Respondents, access to the Courts would be limited to seeking leave to bring 28 judicial review despite the Constitutional provisions. This would be inconsistent with the 15 [1992] 3 NZLR 260, NZCA. 16 Paragraph 3.07 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 21 of 59 1 proposition that the Constitution seeks to grant access to the Courts in as generous a way as 2 possible. Judicial review would be a very limited way of challenging the decision. 3 GRAMMATICAL MEANING 4 68. Counsel for the Petitioners argued that the grammatical meaning favours the interpretation of 5 the Petitioners and that the grammatical and plain meaning of the phrase “a law applicable” is 6 to an enactment and not to the common law. 7 8 69. Counsel placed reliance on the case of BDO Cayman Ltd. v. Governor in Cabinet17 for the 9 submission that the general approach to statutory interpretation does not assist the Respondents. 10 It is said that the words in s.15(1) are capable of only one grammatical meaning and that on an 11 informed interpretation, the interpretative criteria raises no real doubt that the grammatical 12 meaning ascribed is the one intended by the legislator. 13 14 70. In the case of BDO Cayman Ltd and Four Others v. Governor in Cabinet the Applicants 15 sought judicial review of the decision of the Governor in Cabinet. This was following dismissal 16 of their appeals as to decisions on the applicable fees to be paid by firms of accountants. The 17 factual question was whether a fee per person in addition to one for the firm as a whole was 18 required. The legal issue turned on the proper approach to statutory interpretation and under 19 what circumstances internal and external aids to construction could be considered. 20 21 71. The Grand Court held that the correct approach to statutory construction was to consider both 22 internal and external aids to construction irrespective of whether there are any ambiguities in 23 the grammatical or literal meaning of an enactment. 24 25 72. The Court said that the paramount criterion is the intention of the legislature and that while the 26 grammatical and literal meaning is a starting point, the enactment is to be construed in the 27 wider context in order to determine the intention of the legislature: 28 “125 It is only if the enactment is grammatically capable of one meaning only, and on 29 an informed interpretation of that enactment the interpretative criteria raise no 30 real doubt as to whether that grammatical meaning is the one intended by the 31 legislator, will the legal meaning have the same meaning as the grammatical 17 2018 (1) CILR 457 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 22 of 59 1 meaning (the “plain meaning” rule—see Bennion, s.195, at 507). If, on the other 2 hand, on an informed interpretation the wider context does raise a doubt as to 3 whether that meaning is the one intended by the legislator—when it may be said 4 the provision is ambiguous or leads to an absurdity—then the court will need to 5 weigh the competing considerations, including any relevant statutory 6 presumptions, in determining the legal meaning. But it is not necessary for an 7 “ambiguity” to be identified before that wider context is considered. See Bennion, 8 s.193 at 504. 9 126 On an “informed interpretation” the court considers the wider context including 10 internal aids, such as other provisions in the same statute, and it may include 11 external aids, such as the legislative history and other materials in pari 12 materia which may provide guidance as to the underlying legislative intention. It is 13 in my view not necessary (as the applicants contend) for there to be some 14 “ambiguity” before those aids to construction may be considered. Thus, the court 15 can consider these aids to construction even where the grammatical or legal 16 meaning of a provision is clear. 17 127 However, I appreciate that the clearer the meaning, the slower the court should be 18 in adopting another meaning on the basis of an external aid. In R. (Spath Holme 19 Ltd.) v. Environment Secy. (16), Lord Nicholls explained ([2001] 2 A.C. at 398): 20 “Judges frequently turn to external aids for confirmation of views reached without 21 their assistance. That is unobjectionable. But the constitutional implications point to 22 a need for courts to be slow to permit external aids to displace meanings which are 23 otherwise clear and unambiguous and not productive of absurdity. Sometimes 24 external aids may properly operate in this way. In other cases, the requirement of 25 legal certainty might be undermined to an unacceptable extent if the court were to 26 adopt, as the intention to be imputed to Parliament in using the words in question, 27 the meaning suggested by an external aid. Thus, when interpreting statutory 28 language courts have to strike a balance between conflicting considerations.” 29 30 73. Counsel for the Respondents submits that the grammatical meaning favours the Respondents 31 because of the use of the word “a” rather than “the”. Further that it was open to the drafters to 32 use the term “primary legislation” rather than law and the fact that they chose not to do so 33 indicates that a law applicable is not limited to primary legislation. 34 35 74. In response to this submission, the Petitioners contend that the Respondents have put too much 36 emphasis on the three words, “a law applicable” and have not focused on the entire phrase, “a 37 law applicable to the interference.” It is said that the Respondents’ interpretation would render 38 the words that follow ‘applicable’ redundant, that is, the words “to that interference taking of 39 possession or acquisition’ given that it is always possible to seek leave to claim judicial review ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 23 of 59 1 against any action of the State. It is submitted by Counsel that laws applicable to the 2 interference would include laws such as the Registered Land Act and the Land Acquisition 3 Act and that common law is not applicable to the interference ‘except in the very loosest of 4 ways’. 5 6 75. The second argument of the Respondents is that the term “a law applicable” should be given a 7 broad interpretation. Counsel relies on the case of Wall v. Mutuelle de Poitiers Assurances18 8 per Jackson LJ. for the submission that “law” ought not to be confined to black letter rules and 9 is comprised of both rules and principles. Counsel submitted that the reference in that case to 10 the term is generally applicable and is not confined to Article 15(1) of Parliament and Council 11 Regulation EC No 864/2007 (“Rome II”). 12 13 14 76. In response, Counsel for the Petitioners submits that the reliance on the case of Wall v Mutuelle 15 de Poitiers Assurances is misplaced in that this case was specifically looking at the meaning 16 of the phrase, ‘a law applicable to a non-contractual obligation’ arising out of a tort. This was 17 in the context of Article 15, ‘Scope of the law applicable’, where there was an issue of conflict 18 of law between English law and French law and the approach to be taken as to the procedure 19 for calling expert evidence in respect of the assessment of damages. The Court was considering 20 the law applicable in terms of these regulations. 21 22 77. I have reviewed the case in some detail. The claimant therein who was English brought a claim 23 in the United Kingdom in relation to injuries which he had sustained whilst in France. The 24 preliminary issue before the Court was which law governed the procedures in relation to expert 25 witnesses and the manner for assessment of damages and thus which law was applicable in the 26 context of Article 15 (1) of Rome II. 27 28 78. The Court held that the “applicable law” with respect to evidence and procedure was the law 29 of England, the jurisdiction in which the claim was being brought. With respect to assessment 30 of damages Article 15 of Rome II provided: 18 2014 EWCA Civ. 138 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 24 of 59 1 “The law applicable to non-contractual obligations under this Regulation shall govern in 2 particular … (c) … the assessment of damage or … remedy claimed.” 19 3 79. The claimant contended for a narrow construction of the word “law” as being limited to fixed 4 legal rules. The defendant urged a broad construction so as to include practices, conventions 5 and guidelines regularly used by judges under French law. 6 7 80. The Court accepted the contention of the defendant as correct and stated that in the context of 8 a Regulation or convention which is intended to have an international element, a narrow view 9 of “law” is not appropriate. In this context applicable law could be understood in a broad sense 10 to include judicial conventions and practices. The Court said: 11 “In my view the defendant's contention is correct. As Professor Dworkin has 12 eloquently demonstrated, the law comprises both rules and principles. Principles do 13 not dictate results, but they exert influence. The judge arrives at the result in any given 14 case by applying the appropriate rules and taking into account those principles which 15 bear on the problem: see Dworkin, Taking Rights Seriously (1978) (passim) and 16 Dworkin, Law's Empire (1986), chapter 7, “Integrity in Law”. Whether one is talking 17 about civil law or common law, it is unduly restrictive to confine the notion of “law” 18 to black letter rules.” 19 81. The Court considered that the practical effect of the claimant’s contention would produce 20 unusual results as it would depend on whether or not there were formal rules of law as distinct 21 from rules of practice. 22 23 82. In my view the Petitioner’s contention is correct that where the Court stated the meaning of 24 “law applicable”, this was a reference to which law was applicable French or English in the 25 context of Rome II. It is not a finding that where the words “a law applicable” appear, they 26 must mean rules of convention and practice or that taken in any another context a broad 27 interpretation of law is required. 28 29 83. Counsel for the Respondents also referred to an extract from the book Words and Phrases 30 Legally Defined as another broad interpretation of the term law applicable. The definition of 31 law therein is taken from the case of R v Darlington Local Board of Health20, a case appearing 32 to deal with an interference by the state with property rights. Law is taken in its wider sense 19 Ibid paragraph 34 20 1865 6 B & S 562 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 25 of 59 1 as meaning “all proceedings for protecting civil rights, equitable as well as legal”. The 2 Petitioners point to the age of this case and the absence of detail as to the context in which the 3 reference was being made. 4 THE NATURAL AND ORDINARY MEANING 5 84. It is further argued by the Petitioners that the natural and ordinary meaning of the words “by a 6 law applicable” in the context of the BoR is an enacted law. Reference was made to the case 7 of R (The Good Law Project) v. Electoral Commission.21 In that case, the issue before the 8 High Court was the proper interpretation of certain legislation dealing with “referendum 9 expenses” specifically what was the meaning of “expenses incurred by or on behalf of an 10 individual or body”. 11 12 85. The Court identified the basic principle of statutory interpretation as being that the words of 13 the statute are interpreted in the sense which best reflects their ordinary and natural meaning 14 and is in accord with the purposes of the legislation. The Court said further that: 15 “It is generally reasonable to assume that language has been used consistently by the 16 legislature so that the same phrase when used in different places in a statute will bear the 17 same meaning on each occasion all the more so where the phrase has been expressly 18 defined.” 19 86. The Court agreed that it is always necessary to consider not just the ordinary meaning of the 20 words used in a statute but the context in which the words appear and the underlying policy of 21 the legislation.22 22 INFORMED INTERPRETATION - INTERNAL AIDS 23 87. Against the background of the cited case of BDO v. Governor of the Cayman Islands, the 24 Petitioners argue that regard can be had to a number of internal aids. By reference to the cannon 25 of construction, “same words, same meaning” the Petitioners point to other parts of the 26 Constitution where the word “law” refers to laws on the statute book. In particular to s.5 (3) 27 which refers to existing “laws” as meaning laws and instruments other than UK Acts of 21 2018 EWHC 2414 22 Ibid Para 74 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 26 of 59 1 Parliament. It is said that this is a clear reference to enactments and that the context of this does 2 not include common law. 3 DEFINITION IN THE CONSTITUTION 4 88. The second point relied on by the Petitioners is the definition in the Constitution. The word 5 “law” is defined in s.124 as including “any instrument having the force of law made in exercise 6 of a power conferred by law”. The Petitioners say that there is no reference to common law in 7 this definition and that if “law” included common law, it would not have been necessary for 8 the drafters of the Constitution to provide this definition. 9 10 89. In summary the argument is that instruments having the force of law are all black letter laws 11 and are of the same class as legislation, enactments and statutes while common law principles 12 are of a different class. They are not written down in the same way. The essence of Counsel’s 13 submission is that the inclusion of instruments in the definition of law evidences the restrictive 14 nature of it. Had it been intended to have a wider ambit, it would have been unnecessary to 15 expand the definition in such a very limited way, which was done to make it clear that statutory 16 instruments are also included. 17 18 90. Additionally, Counsel submitted that as a matter of ordinary language, the word “law” is 19 usually understood to mean a written law and not a common law principle. There is an obvious 20 distinction between the two, which informs the argument being made. I thought this argument 21 a less forceful one which perhaps does not take into account the context in which the term is 22 being used. 23 24 91. In response to the Respondents’ argument that if the drafters had wished to exclude the common 25 law, they would have used the term primary legislation rather than law in s.15, it is submitted 26 that the term was used so as to include instruments. Thus as used in section 15, it includes both 27 primary legislation as well as statutory instruments and other written law. 28 29 92. The Respondents argue that the definitions relied on by the Petitioners, both use the word 30 “includes” and that in each case they amount to a non-exhaustive list of concepts falling within 31 the definition. Counsel said that the Expressio Unius principle is only a starting point and that 32 the reason for express inclusion is not to limit the definition of laws to those instruments. The ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 27 of 59 1 express inclusion was to avoid confusion as to whether they qualified as laws. Counsel made 2 reference to the case of Appleby (Cayman) Ltd. v. Chief Immigration Officer23 in which the 3 Grand Court stated that the use of the word “includes” evidenced the non- exhaustive nature of 4 the listed items. The Court also stated that where the language of the statute is clear the words 5 are to be given their natural meaning. 6 7 93. The Respondents also point out that the definition in the Interpretation Act which is referenced 8 by the Petitioner is “Law includes any Order in Council”. This has a capital L and not law with 9 a lower case. Counsel for the Petitioners agreed that there was a lack of clarity as to whether 10 there was a distinction between the two. 11 EXTERNAL AIDS 12 94. The Petitioners submit that external aids assist in interpreting s.15 by reference to other 13 material. Counsel points to examples of statutory schemes under other laws which provide for 14 rights of appeal as detailed above and also that GCR O.55 which applies to all of those appeals 15 does not refer to the common law but relates to routes of appeal to the Grand Court which are 16 made by way of enactment. 17 18 95. Finally in terms of external aids, Counsel submitted that on both grammatical and informed 19 interpretation the legislature intended for a new law or section to be created to provide access 20 to the Court. Counsel said that when contrasted with all the other land related laws which have 21 a statutory right of access it would be questionable for judicial review to have been what was 22 intended in respect of such a serious interference with rights to property. 23 24 96. I did not consider that this argument stands up to scrutiny. It is correct to say that each of the 25 other laws relate to entirely different circumstances. For example the functions being 26 performed by the Registrar of Lands under the Registered Land Act in determining the precise 27 position of a boundary, priority interests, or the application or removal of a caution or 28 restriction, all have the potential to raise extensive factual issues for determination and are 29 visibly different in context. As are the circumstances of persons seeking a permit or a license 30 under the National Conservation Act or planning permission under the Development and 23 Cause No: G.0046/2016 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 28 of 59 1 Planning Act. The Land Adjudication Act provides the power to determine interests in land 2 upon claims being made. The Land Acquisition Act is perhaps the closest in context but refers 3 to land being acquired for unspecified public use and the reference to the Court by s.17 thereof 4 is in relation to the level of compensation which is similar to that in the Roads Act. 5 PRINCIPLES OF STATUTORY INTERPRETATION 6 97. The Petitioners also submit that if the Court is doubtful as to the grammatical and ordinary 7 meanings, the Court can consider a number of other principles of statutory interpretation to 8 assist in coming to a decision. The principles relied on are: 9 i. Principle of effectiveness 10 ii. Principle against absurdity 11 iii. Purposive interpretation 12 iv. Construction against evasion 13 v. Common sense interpretation 14 15 98. The summary submission is that the rights under the BoR are meant to be practical, effective, 16 and to have purpose, such as to achieve the intention of the legislator which is to provide a 17 remedy, which is an effective right of access to the Grand Court. It is argued that an argument 18 as to the applicability of judicial review or a petition not only amounts to straining the meaning 19 of the language but is also against commonsense and is not consistent with the generous 20 interpretive approach that the Court must have when assessing the meaning of the BoR. 21 PRINCIPLE OF EFFECTIVENESS 22 99. The Petitioners refer to the principle of effectiveness as a principle of general statutory 23 interpretation in Bennion, Bailey and Norbury on Statutory Interpretation: 24 “An enactment must be construed so as to implement, rather than defeat, the 25 legislative purpose.” 24 26 100. The legislative purpose in the instant case is said to be to ensure a clear and defined path to the 27 Grand Court with respect to the interference with land. The Petitioners say further that the 24 Section 11.8 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 29 of 59 1 contention of the Respondent, were it to stand, would defeat such a purpose because at best 2 judicial review provides a qualified right of access. It is not as effective as the statutory rights 3 in the various laws referred to and in the Roads Act in relation to compensation. Counsel gave 4 four reasons for it being a less effective remedy. 5 6 101. Firstly, that there is a leave stage that is not present in the other laws. One has to satisfy a Judge 7 that there is an arguable case. It is said that this is fatal to the Respondents’ arguments as to 8 effectiveness as it is inconsistent with the Constitutional provision which says a right of access. 9 10 102. Secondly, the remedy on a claim for judicial review is a discretionary one. A claimant can 11 establish that they have suffered a public law wrong and can still be denied a remedy by the 12 Court. 13 14 103. Thirdly, in response to the Respondents’ point that judicial review is more effective or provides 15 better access to the Court because it has a three month time limit rather than fourteen or twenty- 16 one days as in other laws, it is submitted that the test for whether one is in time to make a claim 17 for judicial review, is whether the application was made promptly. A claimant can be denied 18 judicial review on the basis that he did not act promptly even if he acted within three months. 19 20 104. Counsel’s fourth point which is said to be the most important is that the jurisdiction of the 21 Court in a judicial review claim does not include the establishing of new factual findings. It is 22 not a fact finding exercise or a re-hearing of the evidence. It is a review of the decision made 23 below on the basis of public law grounds. Whilst there may on very rare occasions be the 24 possibility for calling evidence, it is not an adversarial trial in the same way that a first instance 25 decision would normally be or a statutory appeal to the Grand Court can be. 26 27 105. With respect to the effectiveness of filing of a petition, the second contention of the 28 Respondents, the Petitioners argue that a petition provides no opportunity to revisit or challenge 29 any of the factual findings made at the hearing of the petition. The purpose of the petition under 30 the BoR, is to determine whether rights have been breached. It is not to determine whether it 31 was legal to interfere with the land. 32 33 106. The Respondents argue in response that judicial review and petitions are clear and defined 34 paths to the Grand Court and are more effective than most or all statutory appeals. They are ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 30 of 59 1 wider in scope in that they are not limited to appeals on points of law as are most statutory 2 rights of appeal. Counsel submits that it is wrong to state that the construction sought by the 3 Respondents would permit the government to defeat the legislative purpose. The section would 4 continue to be effective even more so than on the construction sought by the Petitioners. The 5 fact that judicial review is essentially where no other right of appeal exists or other rights have 6 been exhausted does not render it ineffective, as a right of access to the Grand Court. 7 8 107. As to the argument that the requirement to obtain leave to bring a claim for judicial review 9 renders this route less effective, Counsel submitted that the granting of leave is done by the 10 Grand Court itself and that it is not clear how the presence of the leave stage undermines the 11 right of access any more than the twenty eight day timelines under GCR Order 55, r.4 (2). 12 Furthermore all that an applicant has to show at the leave stage is that they have an arguable 13 case and sufficient interest in the matter,25 which is a very low bar. 14 15 108. Counsel submitted further that the fact that judicial review remedies are discretionary is not a 16 measure which reduces its effectiveness. The application of discretion is also the case in the 17 Petitioner’s route for statutory appeals, GCR O.55 r.7 (7), provides: 18 “The court shall not be bound to allow the appeal on the ground merely of 19 misdirection, or of the improper admission or rejection of evidence, unless in the 20 opinion of the Court substantial wrong or miscarriage has been thereby 21 occasioned.” 22 109. As to time lines Counsel for the Respondents submitted that the time frames for filing a claim 23 for judicial review and a petition are three months and one year respectively, both of which 24 time frames are considerably longer than the period for statutory appeals which is twenty eight 25 days as per GCR O.55 r.4 (2). Counsel also noted that the maximum time allowed for the first 26 named is also longer than the thirty days allowed under s.23 (1) of the Land Adjudication Act, 27 the same period of thirty days under s.147 (1) of the Registered Land Act, the six weeks, under 28 s.17 (2) of the Land Acquisition Act, fourteen days under s.48 (4) of the Development and 29 Planning Act, and the twenty-one days permitted under s.39 (3) of The National Conservation 30 Act. 31 25 GCR Order 53, r.3(7), ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 31 of 59 1 110. While it is conceded that judicial review applications should be filed promptly, it is said to be 2 rare indeed that such claims are dismissed as being out of time, when they are filed within the 3 three month limit. 4 5 111. In response to the Petitioners’ contention that judicial review cannot consider all the grounds, 6 the Respondents say that statutory appeals to the Grand Court are also limited often to certain 7 grounds and that includes the aforementioned s.48 (4) of the Development and Planning Act 8 and s.23 (1) of the Land Adjudication Act. Under those enactments there is also a limited 9 opportunity to call and test evidence. 10 11 112. While I note in considering these submissions that GCR O.55 r.3 provides that appeals to which 12 that Order applies shall be by way of re-hearing and by r.7 the Court has power to receive 13 evidence on questions of fact, the arguments of the Respondents appear to be strong ones. The 14 time frames are longer than for statutory appeals. There is no marked distinction with respect 15 to limitations on grounds and in the ability to call or test evidence in certain circumstances. The 16 discretionary test also applies. Considering the nature of the subject matter in the instant case, 17 any restrictions on the fact finding scope in one in contrast to the other does not appear as likely 18 to have significant implications for effectiveness. In summary, application of this principle 19 would not assist in coming to a decision in favour of the interpretation of the Petitioners. 20 21 PRESUMPTION AGAINST ABSURDITY 22 113. Under this heading, Counsel for the Petitioners referenced the general principle from Bennion, 23 Bailey and Norbury on Statutory Interpretation: 24 “The court seeks to avoid a construction that produces an absurd result, since this is 25 unlikely to have been intended. Here, the courts give a very wide meaning to the concept 26 of ‘absurdity’, using it to include virtually any result which is impossible, unworkable or 27 impracticable, inconvenient, anomalous.” 26 28 114. The submission is that if the Respondents are correct then the words ‘applicable to the 29 interference’ are rendered pointless. Counsel said that this would be an absurd result which 30 would have a corresponding effect for bespoke rights of access to the Grand Court under other 26 Chapter 13.1 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 32 of 59 1 laws, were it to be said that judicial review alone is a sufficient right of access in the instant 2 case. 3 4 115. The Respondents submit that the assertion that the construction would lead to an absurd result 5 as the government would then have the ability to repeal various laws which permit direct access 6 to the Grand Court is wrong. Reference is made to the case of R (on the application of Edison 7 First Power Ltd.) v. Central Valuation Officer27 in which the Court stated that the strength of 8 the presumption depends on the degree to which a particular construction produces an 9 unreasonable result. The more unreasonable the result the less likely it is that Parliament 10 intended it. The rule against absurdity comes into play when the consequences or result of the 11 enactment are futile or pointless which is not the case here. 12 13 116. It is also said that the Respondents’ interpretation likely gives affected persons greater rights 14 of access to the Grand Court and would not produce a result which is so objectionable, 15 unreasonable or unfair that it cannot have been the intent of the legislation. Thus in this case 16 the rule against absurdity does not outweigh the ordinary grammatical meaning. 17 18 PURPOSIVE INTERPRETATION 19 117. Counsel for the Petitioners’ argument under this heading is that the application of the purposive 20 approach would involve the recognition that the purpose or object of Parliament is usually to 21 provide an appropriate remedy for a mischief with which the Act deals. Additionally that the 22 Court should aim for a construction which furthers the aim of the legislator to provide a remedy 23 rather than one which attempts to circumvent it. 24 25 118. The Respondents argue that this rule does not advance the case for the Petitioners as the primary 26 and most reliable source of the legislative intention is the grammatical interpretation. 27 27 2003 4 All ER 209 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 33 of 59 1 119. The Respondents also say that their argument is not “making a ‘fortress of the dictionary’ as 2 the Petitioners appear to be doing by insisting that only a statutory right of an appeal could 3 meet the requirements of s.15(1)(c).” 4 PRESUMPTION AGAINST EVASION 5 120. The referenced principle as to the presumption against evasion is: 6 “A construction which advances the legislative aim of providing the remedy for the 7 mischief against which the enactment is directed is to be preferred to a 8 construction that attempts to find some way of circumventing it.”28 9 121. The argument is that the aim of s.15 (1) is to provide a remedy for a mischief against which the 10 enactment is directed, namely, the taking of the land illegally. The remedy is the right of access 11 to the Court. It is said that the Respondents construction is an attempt to find a way of 12 circumventing or evading the purpose of the statute. The Court’s attention was drawn to the 13 words of Lord Steyn, in the case of R v J29:- 14 “Parliament does not intend the plain meaning of its legislation to be evaded. And 15 it is the duty of the courts not to facilitate the circumvention of the parliamentary 16 intent.” 17 122. The Respondents argue that their interpretation would not enable the government to evade 18 challenges to declarations under the Roads Act because challenges may still be made by the 19 identified routes. The further argument of the Respondents is that the Petitioners appear to have 20 misconstrued the Rule of Construction against Evasion and that this particular rule of 21 construction is not relevant. It is submitted that the mischief that the first part of s.15 (c) (ii) 22 deals with is an unlawful interference by the State with property rights and the enactment would 23 seek to remedy this by allowing that interference to be questioned in the Grand Court. The 24 proposed construction therefore allows for the mischief to be remedied. 25 26 28 Bennion, Bailey and Norbury on Statutory Interpretation Paragraph 12.10 29 2004 UKHL 42 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 34 of 59 1 COMMON SENSE INTERPRETATION 2 123. The Petitioner’s final argument under this heading is that on a common sense interpretation of 3 the constitutional provision, recourse to a remedy of judicial review is not in keeping with the 4 intention of the drafters. An application for judicial review would require: 5 6 i. Citizens to meet the Wednesbury unreasonableness test for all appeals. 7 ii. The possible costs and delay associated with such a procedure where there 8 is no prior right to a reconsideration or quasi-judicial appeal. 9 iii. Such applications would have to be made without information as to the 10 merits of any such applications - the leave test. 11 iv. The absence of quasi-judicial proceedings would lead to significant delays 12 with the progress of applications and the NRA’s road building programme. 13 14 124. The Respondents made submissions on the common sense interpretation which are summarised 15 below: 16 17 i. There is no requirement that judicial review must be undertaken on 18 unreasonableness grounds, other grounds such as procedural unfairness 19 are available. 20 ii. The pre-action protocol for judicial review provides for a review of legal 21 and evidential arguments and disclosure of relevant documentation prior 22 to the commencement of proceedings. 23 iii. Requests for relevant documentation can be made under the Freedom of 24 Information Act and the Data Protection Act. 25 iv. Setting up a tribunal or other body to determine such matters would have 26 resource implications for the government and would be undemocratic 27 (Reference to judgment in the case of Alconbury v. Secretary of State for 28 the Environment). 29 v. Delay would apply irrespective of the forum for determining disputes. 30 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 35 of 59 1 125. It is also submitted by the Respondents that the CICA in the case of Chief Immigration Officer 2 of the Cayman Islands v. Ian Fernando Ellington30, has said that judicial review provides an 3 adequate review process as is required by s.13 (3)(c ) of the Immigration Act. It is argued that 4 as s.15 (1) expressly provides that access to the Grand Court can be direct or on appeal from 5 another body, it does not require that a specialist tribunal be set up to adjudicate on challenges 6 under the Roads Act. This means it is said that there is no barrier to the application of the 7 reasoning of the CICA to the present circumstances. 8 DISCUSSION 9 126. It is accepted that constitutional provisions are to be given a generous interpretation. Such 10 interpretation which while faithful to the language used, must be one that ensures that citizens 11 have the full measure of rights and freedoms to which they are entitled. In the cited case of 12 Day & Bush v. Governor of the Cayman Islands, the Appellate Court cautioned against 13 ignoring the clear meaning and effect of a constitutional provision. Similarly in the case of 14 BDO v. Governor of the Cayman Islands, the Grand Court said that the clearer the meaning 15 the slower the Court should be in adopting another meaning on the basis of an external aid. 16 17 127. Any application of interpretative principles must first begin with the grammatical meaning or 18 linguistic meaning of the words used. In this case the word ‘law’ is grammatically capable of 19 more than one meaning. As the cited cases suggest, it may or may not include the broader 20 concept of law which includes rules and principles. Ambiguity in the grammatical meaning is 21 informed by the application of interpretative factors including, the nature of words used before 22 and after, and the context in which the word is used. That context includes the context of the 23 provisions and of the wider document and any applicable definitions. 24 25 128. One example of the context in which the word is used is in s.7 (2): 26 27 “Everyone charged with a criminal offence has the following minimum rights – (a) to be 28 presumed innocent until proved guilty according to law.” 29 30 CICA 15/2020 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 36 of 59 1 129. In this context the word “law” plainly means not only statute law but applicable rules, principles 2 and procedures. In the context in which it is used in s.15 (1)(c) it is preceded by the word ‘a’. 3 4 130. Multiple sections within the BoR refer to “provision by a law” or to “nothing in any law or 5 done under its authority”. Both the words preceding and after it and the context in which it is 6 used in s.15 (1)(c) suggest that, used in this sense, it refers to an enactment. By the definition 7 given, ‘law’ is not limited to primary legislation, but also includes any instrument having the 8 force of law which is made in exercise of a power conferred by law. It therefore includes 9 regulations, rules or codes which are made pursuant to a power conferred by law. One example 10 of the latter mentioned is the Road Code made pursuant to the Traffic Act. 11 12 131. Additionally it appears to be correct, as the Respondents submitted, that the legislature could 13 have used the words “primary legislation” which is defined in s.28 of the BoR as meaning “a 14 Law enacted by the legislature”. Significantly in this definition the word “Law” is capitalized, 15 and in s.15 it is not. It is accepted that the use of the word “law” rather than “primary 16 legislation” which is defined in the same part of the BoR must mean that “law” is wider in 17 scope and is not limited to primary legislation. 18 19 132. Considering the legislative intention and purpose attendant upon the words, it must be that 20 provision is made for a right of appeal by way of an enactment, whether of primary or 21 secondary legislation which may apply to the interference with property rights. The 22 Respondents’ argument as to non-specificity appears to be correct. There is a distinct difference 23 between “a law” and “the law”. Indeed the Petitioners accept that the right of appeal as to the 24 legality of the interference need not specifically be in the Roads Act. 25 26 133. While it would be optimum for this to have been included in the Roads Act or other such 27 legislation, I accept the argument of the Respondents that there is the general right to bring a 28 petition under the Constitution itself, which would be applicable to any interference with 29 property rights. 30 31 134. There is, moreover, the remedy of judicial review. While this is a common law remedy and not 32 a statutory one, it continues to operate by virtue of GCR O.53. These are rules made pursuant 33 to s.19 of the Grand Court Act. By s.18 of the Grand Court Act, the jurisdiction of the Grand ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 37 of 59 1 Court is to be exercised in accordance with rules made under that Act or in accordance with 2 other Acts. 3 4 135. Practice Direction No. 4 of 201331 has been issued by the learned Chief Justice pursuant to that 5 Order. It is entitled Pre-action Protocol for Judicial Review and begins by stating: 6 7 1. “Judicial review allows people with a sufficient interest in a decision of action by a 8 public body to ask a judge to review the lawfulness of: 9 10 1.1 rules and regulations, or other subordinate legislation ; or 11 1.2 a decision, action or failure to act in relation to the exercise of a public function. 12 13 2. Judicial review may be used where there is no right of appeal or where all avenues of 14 appeal have been exhausted.” 15 16 136. Is judicial review an effective route to the Grand Court which would afford an affected person 17 the full measure of rights and protections to which he is entitled by virtue of s.15? I have 18 considered all the submissions on this. In my view the first fact of significance is the underlying 19 subject matter. This involves specific acts and decisions made by government officials in the 20 exercise of public functions. Much has been said about the development of judicial review 21 principles over many years and its efficacy in dealing with such matters. Lord Hoffman in the 22 case of R (Alconbury Developments Ltd. & Ors.) v. Secretary of State for the Environment, 23 Transport & the Regions noted that a relevant principle which must exist in a democratic 24 society is the rule of law and that the principles of judicial review (while having some 25 limitations) give effect to this rule by ensuring that administrative decisions are taken in 26 accordance therewith. The learned Judge stated: 27 “When ministers or officials make decisions affecting the rights of individuals, they must 28 do so in accordance with the law. The legality of what they do must be subject to review by 29 independent and impartial tribunals. This is reflected in the requirement in article 1 of the 30 First Protocol that a taking of property must be "subject to the conditions provided for by 31 law". 32 31 Dated 12th December 2013 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 38 of 59 1 The principles of judicial review give effect to the rule of law. They ensure that 2 administrative decisions will be taken rationally, in accordance with a fair procedure and 3 within the powers conferred by Parliament.” 4 5 6 137. Secondly, I thought it also noteworthy that while the Petitioners refer to the rules for inquiry 7 made under the Highways Act and other Acts dealing with compulsory acquisition in the 8 United Kingdom as evidencing the detailed nature of the consultation process which obtains, 9 those statutes provide for judicial review of the decision of the Secretary of State rather than 10 for an appeal on the facts. Lord Slynn of Hadley in his judgment stated: 11 12 “When exercising his powers under the Highways Act, the Secretary of State is given 13 power to acquire land compulsorily. The Acquisition of Land Act 1981 and the 14 Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1994 (SI 1994/3264) 15 provide for a public local inquiry to be held if an objection is received. The inspector 16 makes his conclusions and recommendations to the Secretary of State. If the latter 17 disagrees he is required once again to follow a procedure similar to that in rule 17(5) 18 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. 19 20 The various statutes provide for judicial review rather than for an appeal on the facts 21 or the merits of the decision. Thus in section 288 of the Town and Country Planning 22 Act 1990: 23 “Proceedings for questioning the validity of other orders, decisions and directions 24 288(1) If any person—(a) is aggrieved by any order to which this section applies and 25 wishes to question the validity of that order on the grounds —(i) that the order is not 26 within the powers of this Act, or (ii) that any of the relevant requirements have not 27 been complied with in relation to that order; or (b) is aggrieved by any action on the 28 part of the Secretary of State to which this section applies and wishes to question the 29 validity of that action on the grounds—(i) that the action is not within the powers of 30 this Act, or (ii) that any of the relevant requirements have not been complied with in 31 relation to that action, he may make an application to the High Court under this 32 section." 33 34 138. The point I take from this is that while given the force of statute under those enactments, the 35 scope of judicial review was considered appropriate to the circumstances. 36 37 139. Thirdly, I have considered the concern of the Petitioners as to the inability to establish or find 38 facts as reducing the effectiveness of this route. In this regard the Respondents have drawn my 39 attention to the Pre-Action protocol referenced above by which means an interested party may 40 seek information to include a request for a fuller explanation of the reasons for decisions and 41 for any details of any documents considered relevant and necessary. ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 39 of 59 1 140. I also note that under s.19(2) of the BoR, persons adversely affected by a decision of a public 2 official have the right to request and be given written reasons for that decision or act. 3 4 141. For the reasons set out above in paragraph 112, given the circumstances of this matter, and 5 considering the arguments as to effectiveness from both sides, accepting those of the 6 Respondents, there is nothing that would militate against this route as an effective right of 7 access to the Court. 8 9 142. Fourthly and most important to a conclusion on this aspect, I have considered the approach of 10 the Appellate Court in the cited case of The Chief Immigration Officer of the Cayman Islands 11 v. Ian Fernando Ellington CICA. 32 12 13 143. In that case the appellant appealed a decision declaring that s.82 of the Immigration Act (2015) 14 Revision and s.109 of the Customs and Border Control Act 2018 were incompatible with the 15 Cayman Islands BoR. Section 82 provided for an automatic designation of Prohibited 16 Immigrant where a person had been sentenced to a term of imprisonment in excess of 12 17 months. The Grand Court held that this automatic designation which afforded no opportunity 18 to consider the personal circumstances of the individual was incompatible with s.9 of the BoR, 19 the obligation imposed upon government to respect private and family life. 20 21 144. By s.13 (3)(c) of the BoR dealing with freedom of movement, a person in the position of the 22 Respondent was entitled to have his case reviewed by a competent authority prescribed by law. 23 No such provision for review had been made in the Immigration Act for persons designated as 24 Prohibited Immigrants to have their cases reviewed. This is the wording of that section: 25 “13. The requirements to be satisfied for the purposes of subsection (2)(d)(iii) are as 26 follows— 27 (a) the decision to expel that person is taken by an authority, in a manner and 28 on grounds prescribed by law; 29 (b) that person has the right to submit reasons against his or her expulsion to 30 a competent authority prescribed by law; 32 Civil Appeal No. 15 of 2020, 8th October 2010 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 40 of 59 1 (c) that person has the right, save where a court has recommended his or her 2 deportation, to have his or her case reviewed by a competent authority 3 prescribed by law; and 4 (d) that person has the right to be represented for the purposes of paragraphs 5 (b) and (c) before the competent authority or some other person or 6 authority designated by the competent authority; 7 but paragraphs (b), (c) and (d) shall not apply where the interests of defence, public safety 8 or public order so require.” 9 145. The Appellate Court considered whether despite the absence of such a provision in the 10 Immigration Act itself the option of judicial review was a satisfactory alternative. The Court 11 said that while judicial review would fall substantially short of the procedure followed by the 12 Immigration Board and or tribunal under s.14 and s.15 of the Act it would amount to a sufficient 13 independent review of a decision taken by the Chief Immigration Officer for the purposes of 14 s.13 (3)(c ). The Court stated: 15 “It is clear that under section 13(3)(c) someone in Mr. Ellington’s position is entitled to 16 have his case reviewed by a competent authority prescribed by law. As Mr. David on 17 behalf of the Respondent rightly pointed out, any review by way of judicial review would 18 fall substantially short of the sort of procedure followed by the Immigration Board and or 19 the Immigration Appeal Tribunal under sections 14 and 15 of the Law. However, that 20 having been said, judicial review would amount to an independent review of any decision 21 taken by the Immigration Officer and be bound to have regard to the Immigration Officer’s 22 respect, or otherwise, of Mr. Ellington’s section 9 rights. In my judgment, that would 23 amount to a sufficient independent review by a competent authority as required by section 24 13(3)(c).”33 25 146. Respectfully adopting the reasoning of the Appellate Court, to the instant case, although the 26 circumstances are different in some respects, by virtue of the Grand Court Act and Rules, 27 judicial review is available to the aggrieved persons and is applicable to the interference with 28 rights. 29 30 147. Counsel for the Petitioners accepted its applicability but questioned its generality. The 31 argument in summary is that they are guaranteed a right to a bespoke route and anything less 32 would be insufficient or ineffective in providing the full measure of rights. For my part I think 33 Ibid, paragraph 74 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 41 of 59 1 that argument would be a stronger one if on a detailed examination the route of judicial review 2 could be seen as substantially ineffective which it is not. 3 4 148. Where the provision itself is non-specific and where there is a clear route available which 5 allows for affected persons to approach the very same Court which would be considering an 6 appeal, with likely similar issues to be addressed in both, to conclude that there is breach of a 7 right in such circumstances may unduly disregard the substance of the matter. 8 9 149. That is not to say that a bespoke route is not desirable and that there is not a need for the 10 legislature to give specific consideration to providing for same but to answer the question 11 whether there has been a breach by the absence of a bespoke route must require an examination 12 as to other routes that are available. 13 14 150. Consequently I would answer the first issue, in the negative, that the Roads Act is not 15 incompatible with the Constitution by reason of the absence of provision for a right of access 16 to the Grand Court. Provision is made by other means which is what is required by s.15. I would 17 decline to make a declaration of incompatibility. 18 FAIR TRIAL RIGHTS 19 151. Both parties agree with the description of fair trial rights as provided for in s. 7(1) of the 20 Constitution as rights which hold such a prominent place in a democratic society that they 21 should be given a broad and purposive rather than restrictive interpretation.34 22 23 152. In argument on this aspect, both sides were concerned to describe the events leading up to the 24 making of the Declaration. There was some dispute as to what those events were. The 25 Respondent provided no affidavit evidence but sought to rely on a chronology of events which 26 was attached as a schedule to written submissions. This was in an effort to show that some 27 consultation had been undertaken prior to the Declaration being made. In response to a specific 28 inquiry from the Court as to whether the schedule was agreed, Counsel for the Petitioners 29 responded that, “the precise chronology is not accepted. While it is not being said that it is 30 wrong, it is not clear that it is fully correct.” 31 34 Lester, Pannick & Herberg 3rd Edition Chapter 4.6.1; Delcourt v. Belgium [1970] 1 EHRR 355 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 42 of 59 1 153. Counsel said that in any event any such consultation process is not underpinned by any law and 2 that even on the chronology provided which shows letters having been sent inviting comments 3 on the proposal before the Declarations were made, the process is inadequate. 4 THE PETITIONERS’ ARGUMENT 5 154. The Petitioners argue that the decisions made in this case relating as they do to the compulsory 6 acquisition of land by the State properly engage s.7 of the BoR and that s.7 supplements s.15 7 in that it provides important safeguards with respect to the right to a fair and public hearing. 8 9 155. Against that background, the primary submission is that there has been a breach of s.7 (1) in 10 that no fair and public hearing has taken place in this case with respect to the decision of the 11 Governor to make a Declaration. Thus it is said that the procedure under the Roads Act for the 12 compulsory acquisition of land from citizens where there has been no opportunity to be heard, 13 to present evidence or review the basis of the proposed Declaration, to challenge the findings 14 made and no written judgment even when taken with judicial review, does not satisfy the 15 requirements of s.7 (1). 16 17 156. It is submitted that s.7 (1) of the Constitution is in similar terms to Article 6 of the United 18 Kingdom’s Human Rights Act and that a procedure whereby civil rights are determined without 19 hearing the submissions of the parties is incompatible with the Article and with the section. 20 21 157. The Petitioners rely on the dicta of the Court in the case of R (on the application of Wright 22 and Others) v. Secretary of State for Health and another35 and argue that judicial review does 23 not provide a fair and public hearing in the instant case. 24 25 158. Counsel for the Petitioners highlights that in contrast to the detailed provisions for the 26 assessment of compensation, s.3 and s.6 of the Roads Act do not provide at the preliminary 27 stage for a procedure in the law that allows for challenge to the Governor’s decision in terms 28 of making representations, calling evidence, and being represented by an attorney. Counsel 29 said that the judicial review procedure does not allow for a re-investigation of the factual 35 2009 ( 2) ALL ER 129; 2009 UKHL 3, ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 43 of 59 1 findings, or for witnesses to be called and evidence to be challenged. It simply allows for a 2 review of the decision under the normal judicial review public law headings. 3 4 159. Counsel referred to the case of Alconbury v. Secretary of State for the Environment upon 5 which reliance is placed by the Respondents and submitted that while judicial review was 6 therein said to be sufficient, much will turn on the process by which the first instance decision 7 was arrived at. It is said that the distinguishing feature from the instant case is the very detailed 8 procedure which obtained at first instance under the Town and Planning Act and the Highways 9 Act in England and Wales. This is a different system from that which obtains under the Roads 10 Act. It includes provision for preliminary information to be supplied by the local planning 11 authority, procedures for pre-inquiry meetings between the local planning authority and other 12 parties that are affected, receipt of statements of case and for appearances at the inquiry. 13 Judicial review was therefore adequate in those circumstances, on an examination of the quality 14 of the decision making process. It was in considering the full system which was operative that 15 the combination of judicial review and that system was held to be compliant with Article 6. 16 17 160. Counsel highlighted the statement of the Appellate Court that: 18 “If there is a classic exercise of Administrative discretion, even though determinative of 19 civil rights and obligations and there are a number of safeguards to ensure that the 20 procedure is in fact both fair and impartial, then judicial review may be adequate to supply 21 the necessary access to the court even if there is no jurisdiction to examine the factual 22 merits of the case. The planning system is a classic example.” 23 161. The submission is that in the case of the Roads Act, there are no safe guards. Counsel points to 24 the absence of evidence as to the consultation process as to what happens to the letter of 25 invitation to provide comments which is sent to affected persons, how it is considered as well 26 as the process for the analysis of those representations and the procedure to make oral 27 representations or to call evidence on behalf of the Petitioners or the other party. Counsel said 28 that whilst it might be right that there was an invitation for comments, there was nothing close 29 to the Rules in the United Kingdom. Counsel argued that the present circumstances are akin to 30 that in the case of Wright, where care workers were placed on a list without the opportunity to 31 make representations rather than the case of Alconbury v. Secretary of State for the 32 Environment where the first instance approach was with respect to a different statutory scheme 33 than the present. ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 44 of 59 1 THE RESPONDENTS’ ARGUMENT 2 162. The Respondent’s principal argument in reply is that s.7 (1) of the BoR is not engaged because 3 the lex specialis in respect of interference with property rights is s.15 of the BoR. (Pretty v. 4 Solly36 ). 5 6 163. Counsel submitted that this was the approach taken by the CICA in the cited case of Deputy 7 Registrar & AG of the Cayman Islands v. Chantelle Day & Vicki Bodden Bush. In that case, 8 the Court considered the applicability of s.14 of the BoR and the general provisions in s.9 and 9 s.10 and concluded that s.14 was the applicable section. 10 11 164. The Respondents seek to distinguish the case of Wright by stating that it does not deal with 12 planning or compulsory acquisition matters but with matters of an entirely different nature than 13 the instant case. 14 15 165. The Respondents place significant reliance on the decision of the House of Lords in the case 16 of R (Alconbury Developments Ltd. & Ors.) v. Secretary of State for the Environment, 17 Transport & the Regions and drew the Court’s attention to a multiplicity of statements therein. 18 That case considered Article 6 rights under the European Convention of Human Rights. The 19 Court concluded that the availability of judicial review was sufficient to meet the requirements 20 under that Article: 21 22 “In the determination of his civil rights and obligations or of any criminal charge 23 against him, everyone is entitled to a fair and public hearing within a reasonable time 24 by an independent and impartial tribunal established by law. 25 26 Judgment shall be pronounced publicly but the press and public may be excluded from 27 all or part of the trial in the interests of morals, public order or national security in a 28 democratic society, where the interests of juveniles or the protection of the private life 29 of the parties so require, or to the extent strictly necessary in the opinion of the court in 30 special circumstances where publicity would prejudice the interests of justice.” 31 32 33 166. The submission of the Respondents is that decisions under the Roads Act are made by the 34 Governor in Cabinet and thus preserve the democratic principle in the manner required by the 35 Convention. The Governor is bound by s.19 of the BoR but does not have the constitutional 36 1859 26 Beav. 606 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 45 of 59 1 duties of a Court. The Cabinet is exercising a statutory function in a non-judicial manner. 2 Counsel stated that while the Petitioners seek to distinguish R (Alconbury Developments Ltd. 3 & Ors.) v. Secretary of State for the Environment on its facts, it was applied by the Privy 4 Council in the very factually different case of Meerabux v. the Attorney General of Belize37 5 and was also cited in the case of Wright. 6 7 167. Counsel also said that it is of note that in R (Alconbury Developments Ltd. & Ors.) v. Secretary 8 of State for the Environment the Court considered three cases. One of these was the case of 9 Legal and General Assurance Society Ltd. which is a very similar case to the present 10 proceedings in that it deals with a compulsory purchase in respect of roads and appears to be 11 directly on point. The facts as set out on the judgment are: 12 “Legal and General Assurance Society Ltd. These proceedings are brought by 13 the Secretary of State at the invitation of Legal and General Assurance Society 14 Ltd. The issue relates to an improvement scheme at junction 13 of the A34/M4 15 proposed by the Secretary of State through the Highways Agency. There are 16 complex details of a dual two-lane carriageway all-purpose road, 100 metres to 17 the west of the existing junction 13, together with connected slip and side 18 roads…”38 19 168. The Respondents argue that while in the cited case the Inquiry procedures were codified in 20 statutes, this need not necessarily be the case. Such could be set out by way of policies, 21 procedures, codes or other non-statutory instruments while still meeting the R (Alconbury 22 Developments Ltd. & Ors.) v. Secretary of State for the Environment, requirements when 23 considered alongside judicial review. There is no requirement that they must be set up in the 24 Roads Act itself. This is said to be particularly the case, where a broad definition of law is 25 adopted. 26 27 169. The concluding submission is that in the instant case the requirements for a broad scheme have 28 in fact been complied with for the following reasons: 29 i) A consultation process was undertaken by which the Petitioners were invited 30 to make submissions. 31 ii) A report was submitted following the consultation and it was considered by 32 the decision maker, the Governor in Cabinet. 37 2005 UKPC 12 38 Ibid, paragraph 8 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 46 of 59 1 170. Thus it is said that the fair trial requirements were met, which combined with the availability 2 of judicial review meet the requirements of s.7 (1), of the BoR when the overall framework 3 available to an aggrieved party is considered. It is noted that no evidence was provided as to 4 this report. 5 DISCUSSION AND REVIEW OF CASES 6 171. Section 7 of the BoR as with Article 6 of the Convention deals in part with the process for the 7 determination of civil rights as between the individual and the State. As to claims on the 8 compulsory acquisition of land, the referenced text states: 9 “The most significant of the rights so identified are the right to and associated with real 10 property (for example, claims concerning the expropriation of property and the application 11 of the planning laws have been held to be subject to the right to a fair hearing) and to 12 personal property (including decisions in relation to bankruptcy and patent rights).”39 13 172. The concern of Article 6 is that the process for determination of these rights must be 14 procedurally fair. A hallmark of procedural fairness is for affected persons to have the right to 15 be heard. By reference to a number of cases including the cited case of R (Wright) v. Secretary 16 of State, the text states: 17 “A procedure where civil rights are determined without ever hearing the parties 18 is moreover, plainly incompatible with the article.”40 19 173. However the jurisprudence appears to make a distinction between administrative acts taken by 20 the executive and the process before courts of the “classic kind”. With respect to the former the 21 decisive factor even where there is a breach of certain Article 6 rights is whether there exists a 22 right to challenge the decision before a judicial body. The text states:- 23 “Where a decision determinative of an individual’s civil rights and obligations is taken by 24 the executive, or by an adjudicatory body not complying with art 6(1), the article requires 25 (in accordance with the right of access to a court) that the state provide a right to challenge 26 the decision before a judicial body with full jurisdiction providing the guarantees of art 27 6(1). If such an appeal is provided, there will be no violation of the article. In contrast, 28 where ‘courts of the classic kind’ (rather than administrative tribunals) are concerned, art 39 Human Rights Law and Practice, Lester Pannick and Herberg 3rd Edition paragraph 4.6.10 40 Ibid para 4.6.16 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 47 of 59 1 6 must be fully complied with at the trial stage (although an appeal court may sometimes 2 ‘make reparation’ for a breach of the article at trial)”41. 3 174. The term full jurisdiction has been interpreted in the case of R (Alconbury Developments Ltd. 4 & Ors.) v. Secretary of State for the Environment, as meaning “full jurisdiction to deal with 5 the case as the nature of the decision requires.” 6 7 175. Counsel for the Respondents drew the Court’s attention to Meerabux v. AG of Belize42. The 8 appellant in that case challenged the holding of proceedings in camera by the Belize Advisory 9 Council. He asserted that his constitutional rights under s.6 (8) of the Belize Constitution which 10 required every court or other authority to sit in public when determining the existence of any 11 civil right or obligation. The Board held that this requirement did not extend to the Council 12 which was not part of the judiciary. Counsel highlighted the following: 13 “But the jurisprudence of the European court on this issue is based upon a narrow 14 interpretation of the term "civil rights and obligations" which is unfamiliar to an English 15 lawyer, as Lord Hoffmann explained in R (Alconbury Developments Ltd) v Secretary of 16 State for the Environment, Transport and the Regions [2003] 2 AC 295 , 327-328, paras 17 78 and 79. It excludes many rights which English law would treat as part of the civil rights 18 of the individual but which on the European continent are regarded as a matter for the 19 administrative courts. This interpretation is unsuited to a common law system such as that 20 of Belize. Their Lordships consider that the reason why section 6(8) has no application is 21 not because the appellant had no civil rights in respect of his office but because that 22 subsection applies only to courts and other authorities forming part of the judicial branch 23 of government. The BAC is not such an authority. The appellant has a right that it should 24 act fairly, but he does not have a right that it should comply with all the constitutional 25 duties of a court. 26 There remains then the common law rule that proceedings of the kind contemplated by 27 section 98(5) must be fair. In the context of the common law an oral hearing for the 28 resolution of disputes is not mandatory. Fairness does not always require such proceedings 29 to be held in public. The advantages of subjecting proceedings to public scrutiny are well 30 known. Where grave allegations are made, as was the case here, they ought, unless there 31 are compelling reasons to the contrary, be subjected to the test of public scrutiny. This 32 protects persons against whom allegations are made in secret from misunderstandings 33 based on suspicion and rumour. It makes the proceedings transparent by bringing them 34 out into the open for all to see. It reinforces the need for self-discipline in the conduct of 35 the proceedings by the decision maker and it contributes to public confidence. But the 36 common law does not go so far as to lay this down as a basic rule of procedural fairness. 37 As Professor Feldman ( English Public Law , para 15.04) has explained, the common law 38 requirements of procedural fairness are essentially twofold: the person affected has the 41 Ibid 4.6.23 42 2005 2 AC 513 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 48 of 59 1 right to prior notice and an effective opportunity to make representations before a decision 2 is made or implemented, and he has the right to an unbiased tribunal.”43 3 4 176. In R (on the application of Wright and others) v. Secretary of State for Health and another, 5 the English Courts were concerned with whether the manner in which the provisional 6 placement of care workers on a list of persons considered unsuitable to work with vulnerable 7 adults under a section of the Care Standards Act 2000 infringed their right to a fair hearing 8 under Article 6 of the Convention. 9 10 177. The House of Lords allowed the appeal of the care workers, restored the decision of the judge 11 at first instance holding that the procedure for provisional listing did not meet the requirements 12 of Article 6(1). It gave no opportunity for the workers to be heard prior to placement on the list 13 in circumstances where the detrimental effect of being listed was often irreversible and 14 incurable. The Court stated: 15 “The difficult question is how the requirements of article 6 apply in cases such as this. It 16 is a well-known principle that decisions which determine civil rights and obligations may 17 be made by the administrative authorities, provided that there is then access to an 18 independent and impartial tribunal which exercises “full jurisdiction”: Bryan v United 19 Kingdom (1995) 21 EHRR 342, applied domestically in R (Alconbury Developments Ltd) 20 v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 and 21 Runa Begum v Tower Hamlets London Borough Council (First Secretary of State 22 intervening) [2003] 2 AC 430. What amounts to “full jurisdiction” varies according to the 23 nature of the decision being made. It does not always require access to a court or tribunal 24 even for the determination of disputed issues of fact. Much depends upon the subject matter 25 of the decision and the quality of the initial decision-making process. If there is a “classic 26 exercise of administrative discretion”, even though determinative of civil rights and 27 obligations, and there are a number of safeguards to ensure that the procedure is in fact 28 both fair and impartial, then judicial review may be adequate to supply the necessary 29 access to a court, even if there is no jurisdiction to examine the factual merits of the case. 30 The planning system is a classic example (Alconbury v. Secretary of State for the 31 Environment);44” 32 178. The cited case of R (Alconbury v. Secretary of State for the Environment Ltd.) concerned 33 three appeals. In each case, decisions had been made by the Secretary of State for the 34 Environment, Transport and the Regions dealing with planning permissions and or compulsory 43 Ibid page 532, B to G. 44 Ibid paragraph 23 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 49 of 59 1 acquisition of land. His decisions were challenged in each case on the basis that they were 2 incompatible with Article 6(1) of the European Convention for the Protection of Human Rights 3 and Freedoms. In particular that given the role of the Secretary with respect to policy, decisions 4 made by him were inconsistent with the right to have civil rights and obligations determined 5 by an independent and impartial tribunal. 6 7 179. The third of the three appeals involved a proposed scheme for improvement of a major road 8 junction which required the compulsory acquisition of land from a company, Legal and General 9 Assurance Society Ltd. The process with respect to compulsory acquisition of land under the 10 Acquisition of Land Act 1981 and the Compulsory Purchase by Ministers Inquiries 11 Procedure Rules 1994 (SI 1994/3264) included provisions for the holding of a public local 12 inquiry if an objection is received. An inspector appointed to conduct the inquiry would provide 13 his conclusions and recommendations to the Secretary of State. The Highways Act 1980 (as 14 did the Transport and Works Act 1992 and the Acquisition of Land Act 1981) provided for 15 judicial review rather than for an appeal of the decision. 16 17 18 180. The Divisional Court at first instance held that the powers of the Secretary of State were 19 incompatible with the provisions of Article 6 (1). 20 21 181. The House of Lords held that all the disputes concerned civil rights within the meaning of 22 Article 6(1) and that although the Secretary of State was not an independent and impartial 23 tribunal, decisions taken by him were not incompatible with that Article provided that the 24 decisions were subject to review by an independent and impartial tribunal. The House held that 25 the power of the High Court to judicially review the legality of the decision and the procedures 26 followed was sufficient to ensure compatibility with Article 6(1). 27 28 182. In his judgment, Lord Slynn, having accepted that planning, compulsory purchase and other 29 such decisions affect civil rights, identified the first question as being whether the decision of 30 the Secretary of State which determined those rights constituted a fair and public hearing by an 31 impartial tribunal. It was noted that the Secretary of State had accepted before the House that 32 he both made and applied policy and that this prevented him from being an independent and 33 impartial tribunal. The learned Judge stated: ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 50 of 59 1 “But the many decisions of the European Court of Human Rights make it plain that one 2 does not stop there. A choice was recognised as early as Albert and Le Compte v Belgium 3 5 EHRR 533, para 29 that: 4 "either the jurisdictional organs themselves comply with the requirements of article 6(1) , 5 or they do not so comply but are subject to subsequent control by a judicial body that has 6 full jurisdiction and does provide the guarantees of article 6(1)." These judgments also 7 show that the test whether there is a sufficient jurisdictional control is not a mechanical 8 one. It depends on all the circumstances.” 9 183. The learned Judge also stated that the starting point was to have regard to the procedural 10 safeguards which existed in the decision making process. Of import was the fact of an inquiry 11 by an inspector which provided the opportunity for the applicant and objectors to be heard and 12 to call and cross-examine witnesses. The inspector then completed a report with his 13 recommendations to the Secretary of State. 14 15 184. Following a review of a number of decisions of the European Court, the learned Judge said that 16 sufficient judicial control to ensure a determination by an independent and impartial tribunal, 17 did not require that there be a full rehearing by a Court. What was required was a review of the 18 legality of the decision and the procedures which had been followed. The learned Judge 19 referred to grounds for judicial review: 20 “49 … The common law has developed specific grounds of review of 21 administrative acts and these have been reflected in the statutory provisions for 22 judicial review such as are provided for in the present cases. See as relatively 23 straightforward examples Ashbridge Investments Ltd v Minister of Housing and 24 Local Government [1965] 1 WLR 1320 and Stringer v Minister of Housing and 25 Local Government [1970] 1 WLR 1281. 26
It has long been established that if the Secretary of State misinterprets the 27 legislation under which he purports to act, or if he takes into account matters 28 irrelevant to his decision or refuses or fails to take account of matters relevant to 29 his decision, or reaches a perverse decision, the court may set his decision aside. 30 Even if he fails to follow necessary procedural steps—failing to give notice of a 31 hearing or to allow an opportunity for evidence to be called or cross- examined, 32 or for representations to be made or to take any step which fairness and natural 33 justice requires—the court may interfere. The legality of the decision and the 34 procedural steps must be subject to sufficient judicial control. But none of the 35 judgments before the European Court of Human Rights requires that the court 36 should have "full jurisdiction" to review policy or the overall merits of a planning 37 decision.” 38 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 51 of 59 1 185. It was concluded that: 2 “…there is in principle no violation of article 6 of the European Convention on Human 3 Rights as set out in Part I of Schedule 1 to the Human Rights Act 1998. The scope of review 4 is sufficient to comply with the standards set by the European Court of Human Rights. That 5 is my view even if proportionality and the review of material errors of fact are left out of 6 that account: they do, however, make the case even stronger.” 7 8 186. In his judgment, Lord Nolan identified the central question as being whether given the statutory 9 rights of appeal and supervision of the procedures by way of judicial review the procedures 10 were compatible with Article 6(1). In response to the contention that those remedies failed to 11 meet the criterion of the Article because they do not allow for a review of decisions taken on 12 their merits The learned judge stated: 13 “If this criticism is limited to the absence of a review of the decision on its planning merits 14 it is indisputable. But a review of the merits of the decision-making process is fundamental 15 to the courts' jurisdiction. The power of review may even extend to a decision on a question 16 of fact. As long ago as 1955 your Lordships' House, in Edwards v Bairstow [1956] AC 14, 17 a case in which an appeal (from general commissioners of income tax) could only be 18 brought on a question of law, upheld the right and duty of the appellate court to reverse a 19 finding of fact which had no justifiable basis.” 20 187. The learned Judge referred to the broad and generous interpretation with which the court’s 21 powers have been interpreted for example as extending to the rationality of the decision and 22 the fairness of the decision making process. 23 24 188. Lord Hoffman reviewed Article 1 of the Protocol to the Convention: 25 "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No 26 one shall be deprived of his possessions except in the public interest and subject to the 27 conditions provided for by law and by the general principles of international law. "The 28 preceding provisions shall not, however, in any way impair the right of a state to enforce 29 such laws as it deems necessary to control the use of property in accordance with the 30 general interest or to secure the payment of taxes or other contributions or penalties." 31 189. The learned Judge stated that the question of what the public interest requires for the purpose 32 of that Article should, be “determined according to the democratic principle—by elected local 33 or central bodies or by ministers accountable to them,” and that: 34 “There is no principle of human rights which requires such decisions to be made by 35 independent and impartial tribunals. There is however another relevant principle which 36 must exist in a democratic society. That is the rule of law.” ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 52 of 59 1 2 190. The learned Judge reviewed a number of decisions in the European Court before concluding 3 with a review of the decision in the case of Zumtobel v. Austria45. This dealt with an appeal 4 following the compulsory acquisition of land for the purpose of building a by-pass road. The 5 land owners appealed to the Commission and the European Court on the basis that the 6 administrative Court which had heard their appeal in the first instance “could not independently 7 assess the merits and facts of the case”, and thus that it did not have full jurisdiction within the 8 9 meaning of Albert and Le Compte v, Belgium 1983 5 EHRR 533.’’ The conclusion of the 10 European Court was summarised as follows: 11 “The European court said, at para 32, that its jurisdiction was sufficient in the 12 circumstances of the case, "Regard being had to the respect which must be accorded 13 to decisions taken by the administrative authorities on grounds of expediency and to 14 the nature of the complaints made by the Zumtobel partnership.” 15 191. The learned Judge conducted a detailed review of enforcements proceedings in English law 16 and of European cases on the English Planning system. This included a review of the case of 17 Bryan v. United Kingdom46 and as to whether or not there was a conclusion that the adequacy 18 of judicial review depended on the safeguards attendant upon the initial decision making 19 process. The learned Judge stated that contrary to the treatment of the case by the Divisional 20 Court this was not the conclusion where decisions had been taken in respect of matters of policy 21 or expediency. Safeguards are not relevant where the question is one of policy or expediency. 22 It was stated: 23 “The Divisional Court treated it as holding that, whatever the issues, the "safeguards" 24 which the court enumerated in, para 46, as attaching to the functions of the inspectors 25 were necessary before the existence of an appeal on a point of law or judicial review 26 would satisfy article 6. But this is the very opposite of what the court was at pains to 27 emphasise. It said, in para 45, in language echoing that of Mr. Bratza's opinion: 28 "in assessing the sufficiency of the review available to Mr. Bryan on appeal to the 29 High Court, it is necessary to have regard to matters such as the subject matter of the 30 decision appealed against, the manner in which that decision was arrived at, and the 31 content of the dispute, including the desired and actual grounds of appeal." 45 [1993] 17 EHRR 116 46 (1995) 21 EHRR 342 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 53 of 59 1 If, therefore, the question is one of policy or expediency, the "safeguards" are 2 irrelevant. No one expects the inspector to be independent or impartial in applying 3 the Secretary of State's policy and this was the reason why the court said that he was 4 not for all purposes an independent or impartial tribunal. In this respect his position 5 is no different from that of the Secretary of State himself. The reason why judicial 6 review is sufficient in both cases to satisfy article 6 has nothing to do with the 7 "safeguards" but depends upon the Zumtobel principle of respect for the decision of 8 an administrative authority on questions of expediency. It is only when one comes to 9 findings of fact, or the evaluation of facts, such as arise on the question of whether 10 there has been a breach of planning control, that the safeguards are essential for the 11 acceptance of a limited review of fact by the appellate tribunal.” 12 192. The learned Judge concluded the review with the following statement: 13 “As for decisions on questions of policy or expediency such as arise in these appeals, 14 whether made by an inspector or the Secretary of State, there has never been a single 15 voice in the Commission or the European court to suggest that our provisions for 16 judicial review are inadequate to satisfy article 6.” 17 193. With respect to the appeals before the Court the learned Judge stated his view that there was 18 no incompatibility with Convention rights; 19 “Equally, the fact that the Department of Transport has promoted the road 20 improvement scheme in the Legal and General case does not mean that judicial 21 review cannot satisfy article 6 unless the court can itself decide whether the scheme 22 is a good idea. Nor do I think it makes any difference that in the Alconbury case the 23 Ministry of Defence, another emanation of the Crown, has a financial interest in the 24 proposed development. Once again, this is something which might be significant if 25 the Secretary of State was claiming to be an impartial tribunal. But, as he is not, the 26 remedy available by way of judicial review to quash a decision on the ground that the 27 Secretary of State has taken irrelevant matters into account is sufficient to satisfy 28 article 6.” 29 194. With respect to the argument that Article 6 does not apply to administrative acts such as those 30 by a Secretary of State or Minister, the learned judge considered that at some stage the matter 31 involved the determination of civil rights and obligations. 32 33 195. On a reading of these cases, there is guidance which may be summarised as follows. 34 Administrative decisions of the executive may involve a determination of civil rights and 35 obligations. In contrast to the factual circumstances of the cited case of Meerabux, compulsory 36 acquisition of land and planning rights issues will involve the determination of civil rights. 37 38 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 54 of 59 1 196. As I understand what is being said in the cases it is that one has to consider the nature of the 2 subject matter in issue to determine the adequacy or not of what is said to satisfy Article 6. The 3 answer may not be the same from case to case. In the instant case, the Road Notices published 4 on behalf of Cabinet evidence clear policy decisions said to have been taken in the public 5 interest. They involve the widening of a road for the benefit of the public. They therefore fall 6 into the ambit of decisions made on the basis of expediency. They are decisions made in a 7 democratic society for which the executive is answerable to the public on behalf of whom they 8 purport to be acting. 9 10 197. On the basis of the reasoning of Lord Hoffman, in contrast to other learned Judges, where such 11 administrative decisions of the executive were taken in respect of matters or policy or 12 expediency, the safeguards are irrelevant, the essential requirement to satisfy Article 6 is access 13 to a court, an independent and impartial tribunal. That access can be obtained by way of judicial 14 review which is adequate to satisfy Article 6. I bear in mind however that the import of what 15 was being said was in relation to the independence of the Inspector and the Secretary of State 16 and that even where safeguards were said to be immaterial, this was against the background of 17 a scheme which included a detailed fact finding process by way of inquiry which gave an 18 opportunity to be heard to affected persons. 19 20 198. While there is some resonance to the argument of the Respondents that s.15 is the lex specialis 21 when dealing with property rights, the issue of procedural fairness in dealing with those rights 22 also falls to be considered. In my view the making of a Declaration as to the acquisition of 23 private property for the purpose of road construction does engage Article 6 or s.7 rights and 24 before any such decision is made affected persons ought to be given an opportunity to be heard. 25 26 199. In the instant case, prior notice and information as to the precise boundary details were 27 published as is required by the Roads Act. There does not appear to be a formal consultation 28 scheme much less a detailed one as in the United Kingdom. However there appears to have 29 been a broad scheme which gives an opportunity to affected persons to be heard. The 30 Petitioners challenge the extent and limited nature of any consultation. I take guidance from 31 the case detailed above in particular the statement which is repeated below that: 32 33 “Even if he fails to follow necessary procedural steps—failing to give notice of a 34 hearing or to allow an opportunity for evidence to be called or cross-examined, or ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 55 of 59 1 for representations to be made or to take any step which fairness and natural justice 2 requires—the court may interfere. The legality of the decision and the procedural 3 steps must be subject to sufficient judicial control.”(Emphasis added). 4 5 200. In this case, these are not actions by a court of the “classic kind.” These are administrative 6 acts in respect of which there is a right of challenge before a judicial body. Importantly this 7 includes a right to challenge the adequacy of the process which process would therefore be 8 subject to judicial control. I am satisfied given the nature of the subject matter, the broad 9 scheme which appears to exist, that it would be subject to “sufficient judicial control” by way 10 of judicial review such as to ensure compatibility with s.7 of the BoR. 11 12 REMEDIES - CONSTRUCTION OF THE ROADS ACT 13 201. The Petitioners argue that the Court has broad powers under s.5 and s.27 of the Order and 14 Constitution to remedy any breaches identified and rely on Day and Bush v. Governor of the 15 Cayman Islands and Others. The Court is invited to consider whether a modification of the 16 law is possible to provide a fair trial and a right of access to the Grand Court and if not what 17 other relief is appropriate. 18 19 202. The Petitioners submit that at minimum the Declaration should be quashed and an injunction 20 granted to prevent any further declarations being made until such time as the appropriate 21 safeguards are in place. The Respondents note with some force that in the Petition neither a 22 quashing order nor injunction on further declarations was sought and say that it is neither fair 23 nor in accordance with the overriding objective to seek same in the course of skeleton 24 arguments. 25 26 203. Counsel for the Respondents submits that the jurisprudence is to the effect that a Declaration 27 of Incompatibility should only be made as a measure of last resort and referred to the cited case 28 of Ellington which referred to the case of R. v. A. Counsel highlighted the following passage 29 in the judgment of the Court: 30 “Mr. Smith submitted that where the issue of compatibility is unclear or ambiguous, then 31 the duty is a strong one, far stronger than the duty to avoid absurdity. In so submitting, ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 56 of 59 1 Mr. Smith drew the Court’s attention to the speech of Lord Steyn in R v A [2001] UKHL 2 25 at paragraph 4, in which he said: 3 “…In the progress of the Bill through Parliament the Lord Chancellor observed 4 that ‘in 99 per cent of cases that will arise, there will be no need for judicial 5 declarations of incompatibility’ and the Home Secretary said, ‘We expect that, in 6 almost all cases, the courts will be able to interpret the legislation compatibility 7 with the Convention’. 8 … The techniques to be used will not only involve the reading down of the express 9 language in a statute but also the implication of provisions. A declaration of 10 incompatibility is a measure of last resort. It must be avoided unless it is plainly 11 impossible to do so.…””47 12 204. Counsel’s alternative submission is thus that if the Court is not satisfied as to the primary 13 arguments of the Respondents as to compatibility, there would at least be such uncertainty and 14 ambiguity that the strong interpretive duty under s.25 comes into effect. In support Counsel 15 highlighted the reference in the said judgment to the case of Re Canute Nairne, in which 16 Henderson J. stated: 17 “24. The obligation to attempt to read a challenged provision in a manner compatible 18 with the UK Human Rights Act has been described there as a “strong 19 ‘interpretative obligation’”. I accept that the courts of the Cayman Islands must 20 approach the interpretative obligation with equal vigour, but the occasion is 21 unlikely to occur as often because the Human Rights Act provision is expressed in 22 broader language than s.25; the former (in s.3 (1) sets down an obligation (“as 23 far as it is possible to do so”) which is not limited to “unclear or ambiguous” 24 cases.)”48 25 205. Counsel for the Respondent argued that if there is in fact some sort of consultation procedure, 26 it does bring the Roads Act itself into the realm of ambiguity and uncertainty and thus the 27 strong interpretative duty would apply and that by virtue of s. 25 of the BoR, this Court should 28 therefore read and give effect to the Roads Act in a way which is compatible with the BoR. 29 30 206. Counsel referred to s.20 (h) of the Roads Act which provides a power for the “The Governor 31 in Cabinet upon recommendation by the Roads Authority, to make regulations generally for 32 the better implementation of this Law”. The submission is that the existence of this power 33 means that the Roads Act, is capable of being interpreted compatibly with both s.7 (1) and s.15 47 Ibid para 61 48 Ibid para 60 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 57 of 59 1 (1)(c)(2) of the BoR. This because it would be possible under s.20 (h), to introduce regulations 2 and codify prior procedures and full statutory appeal rights which meet all of the Petitioners’ 3 requirements, all the Rules for inquiring into the facts, the right of access, the statutory appeal 4 to the Grand Court and further right of appeal to the Court of Appeal. This would mean said 5 Counsel, that the Act is not and cannot be incompatible with the BoR, notwithstanding that 6 those regulations are not yet in force. Consequently no declaration of incompatibility can or 7 should be made and that for those reasons, the Petitioner is not entitled to these claims or any 8 remedies and the Petition should be dismissed. 9 10 PETITIONER’S REPLY TO S. 20 (H) POINT 11 207. In response to the Respondents’ submissions as to s.20 (h) and the power to make Regulations 12 under the Roads Act, Counsel for the Petitioners submitted that no regulations have been made. 13 Counsel argued that an entire system of rules cannot be added to the Act by way of reading 14 down. This would go far beyond what the Court is able to do in relation to construing the 15 compatibility of an Act with the BoR. 16 17 208. Counsel also pointed to the cautionary position expressed by the CICA in the case of cited case 18 Ellington in respect of legislation. Counsel said that while a declaration of incompatibility is 19 the last resort, this must be the case where the circumstances warrant and that whilst the Court 20 has to attempt to construe laws compatibly with the BoR, it serves the public purpose in making 21 a declaration of incompatibility to identify for the Legislature where issues arise which require 22 a remedy. 23 24 CONCLUSION 25 209. In my view the Respondents’ arguments as to s.20 (h) would require the Court to effectively 26 legislate to add rules and regulations and is the very activity which the Appellate Court has 27 cautioned against. I do not consider that this would be appropriate. The Respondents argued 28 against the position taken by the Grand Court in the case of Day and Bush v. Governor of the 29 Cayman Islands and Others with respect to s.5 of the Order. This position in part relied on the ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 58 of 59 1 dicta in the case Roodal v. The State,49 which was stated to be that the power of modification 2 “extends to making substantial amendment to laws, either by deleting parts of them or making 3 additions to them to substitute new provisions for old.” The Petitioners argued in written 4 submissions in favour of the use of the s.5 powers as discussed by the Grand Court50 but 5 appeared to be less forceful on this in the course of oral arguments. The consensus which 6 emerged is that the interpretative obligation under s.25 applies, in circumstances where there 7 is lack of clarity or ambiguity. 8 9 210. I have considered the arguments in some detail particularly with respect to the s.7 issue 10 identified. I do consider that there is some ambiguity as the Respondents argued. If I am wrong 11 as to my conclusions with respect to the acceptability of a broad informal scheme, the 12 Petitioners have provided examples in the Registered Land Act (s.18 (2)) of the simple wording 13 which will suffice. I would have proposed that s.6 of the Roads Act be read and construed in 14 accordance with the Constitution so as to include after the word compensation, “and having 15 given all persons affected an opportunity of being heard.” 16 17 211. Having considered all the circumstances and the submissions made, I would answer the 18 questions raised by the issues in the negative as follows: 19 20 i) The Roads Act is not incompatible with the right of the Petitioners to 21 peaceful enjoyment of property as provided for by s.15 of the BoR in 22 that the right of access to the Grand Court is provided by other means. 23 24 ii) The right of the Petitioners to a fair trial as provided for by s.7 of the 25 BoR has not been infringed by failing to permit them a right of access 26 to the Grand Court whether direct or on appeal from any other 27 authority for the determination of the legality of the taking of 28 possession of the Petitioners’ lands. 29 49 2003 UKPC 78 50 Paragraphs 53 to 59 of submissions dated 27th February 2020 ____________________________________________________________________________________ Judgment. G163/2019. Crosby Collymore Ebanks and Ors. v. The Governor of the Cayman Islands et al. Coram Richards J. Q.C. – Date: 4th October 2021 Page 59 of 59 1 212. The Petition is therefore dismissed. Any party seeking to be heard on costs may provide written 2 submissions in respect thereof within 14 days of receipt of the perfected judgment. 3 Dated this the 4th day of October 2021 4 5 Honourable Justice Cheryll Richards Q.C. 6 Judge of the Grand Court