Chadwick P, Mottley JA, Vos JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
APPEAL NO 10 OF 2009
BETWEEN:
CARLOS POWELL AND ADRIAN ROWE
APPELLANTS
and
ATTORNEY GENERAL OF THE CAYMAN ISLANDS
(FOR AND ON BEHALF OF THE PUBLIC WORKS DEPARTMENT AND THE ROYAL CAYMAN ISLANDS POLICE DEPARTMENT)
RESPONDENT
BEFORE: THE RT. HON. SIR JOHN CHADWICK, P.
THE HON. MR. JUSTICE MOTTLEY, J.A.
THE HON. MR. JUSTICE VOS, J.A.
REASONS FOR JUDGMENT DELIVERED ORALLY ON SEPTEMBER 9, 2009
APPEARANCES:
On behalf of the Appellants: (no representation)
On behalf of the Respondent: Ms. V. Ellis
PROCEEDINGS COMMENCED ON WEDNESDAY, SEPTEMBER 9TH 2009 AT 10:04 A.M.
CHADWICK, President: Call Powell and Rowe and call outside to see if there is anyone for Powell and Rowe.
THE CLERK: Application 16 of 2008 in the matter of Powell and Rowe v Attorney General. Shall I send the marshal to check outside?
CHADWICK, President: Yes please.
MS. ELLIS: I appear on behalf of the Attorney General -- Vicki Ann Ellis from the Government Legal Department on behalf of the Solicitor General.
CHADWICK, President: Thank you. Ms. Ellis you probably know we have listed this matter with a direction that unless cause be shown why it should not be struck out as an abuse of process then it will be struck out.
MS. ELLIS: My Lord I'm aware of that.
CHADWICK, President: Is there anything you want to say to us on that?
MS. ELLIS: My Lord I can just simply confirm what it is that I had indicated to the Registrar in our letter of the 3rd of September.
CHADWICK, President: Yes we've read that.
MS. ELLIS: Thank you very much.
CHADWICK, President: The problem for the Crown is that the work of the Public Works Department is undoubtedly hampered --
MS. ELLIS: That is it exactly, My Lord.
CHADWICK, President: -- whether these employees have to be reinstated or not.
MS. ELLIS: We are suffering great prejudice. In fact we have -- they are presently on required leave on full pay and because of the nature of the work that they do we were compelled to employ other persons to replace them, who are also on full pay, and this situation -- this circumstance has continued for --
CHADWICK, President: Nearly 18 months.
MS. ELLIS: -- for almost one year.
CHADWICK, President: These employee are on full pay.
MS. ELLIS: They are on full pay.
CHADWICK, President: That perhaps explains why they don't want this matter heard.
MS. ELLIS: That is my concern. We have brought that to the attention of the attorney with no response. The way in which she has proceeded with the matter has essentially hampered us because we have not been able to approach the courts in any other manner than by letter.
CHADWICK, President: You are here now and the Court is taking its own step.
MS. ELLIS: I'm very grateful for that, My Lord.
CHADWICK, President: No reply to the Court?
THE USHER: No, My Lord.
CHADWICK, President: Thank you Ms. Ellis.
MS. ELLIS: Thank you.
CHADWICK, President: Notice of appeal in this matter was filed in this Court on the 29th December 2008. In the circumstances which I shall describe, we directed that the matter be listed before us this morning for the applicants to show cause why the appeal should not be struck out as an abuse of process.
There has been no appearance on behalf of the appellant, although there is a letter from their attorney dated the 8th September 2009 indicating that she is not able to attend the hearing because she is sick.
I shall now give our reasons for the order which we shall make:
The appellants were employees of the Cayman Islands Public Works Department. They were dismissed from that employment in 2008. The director of the Public Works Department decided not to reinstate them. He conveyed that decision by a letter dated 15th of July 2008.
There was a subsequent meeting between the appellants and the director on the 4th of September 2008, and on the 21st of September 2007, the Department had provided material to the police in support of obtaining search warrants.
On the 30th of October 2008, the appellants filed an application for leave to apply for a judicial review of the decision of 15th July 2008 of the decision not to provide the appellants with a transcript of the hearing of the meeting on the 4th of September 2008 and of the decision not to provide copies of the affidavits in support of obtaining a search
warrant.
Since the middle of 2008, the appellants have been, in effect, suspended on full pay. The Attorney General was named as a respondent to the proposed judicial review proceedings. The application for leave to apply for judicial review was made ex parte, as the rules provide. It came before Mr. Justice Foster on the 3rd of December 2008. The Attorney General's office had become aware of the application and they applied for leave to be heard on it. It is clear that they wished to put before the Judge some point which as they thought would make it inevitable that a judicial review process would fail.
At a hearing on the 3rd of December 2008, the Judge granted permission to the Attorney General to be heard on the ex parte application. It became, therefore, an application made ex parte but to be heard on notice. The Judge adjourned the application for hearing on notice on the 12th of December, 2008.
It is that order giving permission to the Attorney General to be heard on the ex parte application and adjourning it for that purpose which the appellants now seek to appeal by the notice dated 29th December 2008.
It seems that when the matter came before the Judge on the 12th of December, 2008 for hearing on notice, the attorney for the appellants indicated that she wished to appeal the order of the 3rd of December and she persuaded the Judge to give her leave for that purpose.
The Attorney General, conscious of the potential for delay that would arise on such an appeal, indicated that rather than take the matter to appeal, he would withdraw his application to be heard and be content with the application for leave to proceed ex parte without submissions by the Attorney General. Of course, whatever submissions the Attorney General might wish to make if leave were granted could be made on the substantive hearing of the judicial review proceeding.
On the 15th of December, 2008, the Deputy Solicitor General Ms. Ellis wrote to Mrs. Margeta Facey-Clarke, the attorney for the appellants, who indicated that as the Judge had been told the attorney wished to withdraw the application to make representations at the hearing on the application for leave. In the premises, she said, we are happy for you to list the application for leave to be heard ex parte.
Since the 15th of December, 2008 there has been no response to this appeal. The attorney is content that the application for leave should proceed without his representations.
That letter of the 15th of December, 2008 was followed by a letter to Mrs. Facey-Clarke of the 12th of January 2009 from the Deputy Solicitor General. She asked for an indication within 14 days whether the application for leave was to be listed for an ex parte hearing. There seems to have been no reply from that request.
In an email dated the 9th of February, 2009, the Registrar of the Court of Appeal wrote to Mrs. Facey-Clarke asking whether she wished to withdraw the appeal now that the Attorney General had agreed for the matter to be heard ex parte. The response to that on the 10th of February was in these terms:
"The Honourable Justice Foster has already explained to Crown Counsel Ms. Vicki Ellis after he gave judgment that she could not just decide at that time to withdraw her application that the matter be heard inter partes. The Honourable Judge had already made his ruling and I had already given my verbal notice of appeal.
My clients would like to proceed with the appeal.
Please let me know your earliest available dates for this appeal. It should take about 1/2 day."
On a further request for clarification made by the Registrar, Mrs. Facey-Clarke wrote back by email dated 10th February 2009:
"We had a full hearing before the Judge which lasted over a period of 2 days. At the end of the Crown[']s application the Judge made a formal ruling. The matter now needs to be appealed to reverse that ruling."
On that basis the Judge was asked, much to
his surprise, to provide reasons for the ruling which he had made. In circumstances that, as he pointed out, there was no possible purpose in an appeal for that ruling, he wrote by email dated the 13th of February to the Registrar in these terms:
"I simply do not understand this.
The Crown have now said they abandon or concede their application and no longer seek to be heard so there is no need for any appeal to reverse the formal ruling; it is pointless and a waste of the Court of Appeal's time.
Can you please reiterate that to Mrs. Facey-Clarke in emphatic terms, with a copy to Mrs. Vicki Ellis. If Mrs. Facey-Clarke persists, then please let me have the file and I will write some brief reasons. In that case, how do we get the Crown's recent letter and your correspondence with Mrs. Facey-Clarke before the Court of Appeal because they should see it?"
Indeed they should.
On the 9th of April, 2009 Ms. Ellis, Deputy Solicitor General, wrote to the Court of Appeal to ask for an indication as to where the captioned appeal stood and she noted that it hadn't been set down at the last sitting of the Court of Appeal -- that would have been the sitting in March and April 2009 -- and she pointed out that although the Attorney General was aware that the notice of appeal had been filed, they had never been served with a copy of that notice and went on to say that the Public Works Department had been advised to stay any action pending the outcome of this matter, but the prolonged delay continues to affect the Department's ability to effectively and efficiently carry out its work.
As Ms. Ellis explained to us this morning, these two appellants are on leave with full pay and two others have had to be hired to replace them on full pay in the meantime. But the department is simply not able to get on with its proper business because it does not know whether it may eventually be ordered to reinstate these employees.
That underlies the need in a case of this nature for judicial review proceedings to be heard promptly. It also underlies the motive which these appellants have in stringing out these proceedings while they continue to enjoy a period of suspension on full pay.
On the 22nd of April, the Registrar wrote back to the Deputy Solicitor General with a copy to Mrs. Margeta Facey-Clarke indicating that Mrs. Facey-Clarke had undertaken to file a notice of withdrawal and that the Court was regarding the appeal as having been abandoned.
On the 5th of June, 2009, the Judge delivered full reasons for the decision which he had made on the 3rd of December.
I may say at once that those reasons fully vindicate that decision; an appeal against that decision would be hopeless as well as pointless. The Judge quite properly took the view that he was entitled on an ex parte application to seek assistance from the proposed respondent if he thought he needed it. The purpose of the rule that these applications be made ex parte is to avoid the need for unnecessary costs and the possibility of duplication of argument; first on the leave application and second on the substantive application. But there are circumstances and the Judge took a view that this was one in which he would be assisted in deciding whether or not to grant leave by a fuller understanding of what the issues would be if the matter was fought out. That was a course that was plainly open to him and his reasons could not be faulted.
On the 11th of August, 2009, the Registrar wrote again to Mrs. Facey-Clarke indicating that reasons had been released on the 5th of June and granting her to file her grounds of appeal and to provide a time estimate for the appeal and dates not available in the session of the Court which would begin on the 23rd of August.
On the 12th of August, those dates were supplied by Mrs. Facey-Clarke and they included today's date. Still, no Notice of Appeal had been served on the proposed respondent to the appeal, the Attorney General.
On the 28th of August, the Attorney General wrote to the Registrar, with a copy to Mrs. Facey-Clarke, to point out that despite
the directions of the 11th of August 2009, no further progress seems to have been made in the matter. She said:
"Despite our repeated exhortations we have yet to be served with a Notice of Appeal and Counsel for the apparent Appellant appears to have ignored your direction in respect of the submissions."
She went on to say that the "dilatory conduct of this matter has continued to cause the Government much prejudice" and asked that it be dealt with and that it be referred to the members of this Court for a direction.
Still no Notice of Appeal has been served, as appears from a further email of the 2nd of September from the Deputy Solicitor General to the Registrar.
The correspondence then culminated with a formal letter of the 3rd of September 2009 from the Attorney General's Chambers to the Registrar asking for the Court's directions.
It was on the receipt of that letter of the 3rd of September 2009 that we directed that the matter be listed for today.
In response to that letter, we have a letter dated the 8th of September 2009 from Mrs. Facey-Clarke indicating, as I said, that she would not be able to attend the hearing today. She then set out what was said to be the brief facts of the case, including the allegation that the Judge had told the Attorney General that they couldn't simply withdraw their application because he had already made a formal ruling and that it would be up to the plaintiffs and the defendants to decide how to proceed. It is plain that that is not the position of the Judge and never has been. His position is that this appeal is a perfectly pointless appeal in the circumstances that he and the parties are content to proceed with the hearing of the application for leave to bring judicial review proceedings without hearing the Attorney General on that matter.
The letter of the 8th of September asks that this appeal be put over for hearing during the November session. To do that would mean that this application for leave to bring judicial proceedings has been held up for almost one year on an appeal which is both pointless and hopeless and that the point of suspension, which began in the summer of last year, would have continued for some 15 months. That position is simply unacceptable.
The process of the Court is being abused. It is being abused in two ways; first the Court is being asked to hear an appeal for which there is no practical need at all, and secondly the appellants, through their attorney, are failing to comply with the procedural requirements that they serve notice of the appeal on the Attorney General and provide their skeleton arguments and submissions so that an appeal, if it were to be heard, could be heard in the ordinary way.
There being no excuse for either of those elements and in particular no excuse in the letter of the 8th of September, the appeal will be struck out.
MS. ELLIS: My Lords, thank you very much. If I may just clarify one point at the beginning much your ruling? The appellants have not in fact been terminated, My Lord. They have not been terminated, they were never dismissed. Essentially the point where we were at before this went off into a ditch as it were was that the concerns of the appointing officer was being put to them and they were asked to simply give the explanation as to why they took certain decisions. They have not been dismissed. They were placed on required leave, I believe, as of the 15th of July 2007, and they have remained there for that entire period.
CHADWICK, President: I will correct that when I come to look at the transcript.
MS. ELLIS: Thank you very much, My Lord.
CHADWICK, President: They have not been dismissed, but they have been suspended?
MS. ELLIS: Well, it's "required leave". We don't like to call it "suspension". We don't like to call it suspension because no decision -- it's not a disciplinary action. Essentially they have been put on leave while the investigations progress.
CHADWICK, President: Very well, I will make that clear.
MS. ELLIS: Thank you very much, My Lord.
CHADWICK, President: They are on required leave, rather than suspension and they
haven't been dismissed.
VOS, J.A.: From the 15th of July 2007.
MS. ELLIS: Yes, My Lord.
VOS, J.A.: Over two years?
MS. ELLIS: Yes, My Lord.
CHADWICK, President: 2007?
MS. ELLIS: Yes, My Lord, they have been on required leave. Just let me clarify.
CHADWICK, President: I see so it's a coincidence that the letter refusing to reinstate is 15th of July 2008?
MS. ELLIS: Pardon me, My Lord?
CHADWICK, President: I'm looking at the Judge's reasons.
MS. ELLIS: Yes, My Lord.
CHADWICK, President: Have you got those?
MS. ELLIS: Yes, My Lord, I do have those in front of me.
CHADWICK, President: In paragraph 2 of the Judge's reasons he refers to a letter refusing to reinstate dated 15th July 2008. Is that the correct date or the wrong date?
MS. ELLIS: My Lord, I am not aware of that letter to be quite frank. I'm not aware of a letter dated the 15th of July 2008 and there was no question of a reinstatement.
CHADWICK, President: That's the decision which is subject to judicial review. If the decision was in fact 15th of July 2007, the judicial review proceedings would be utterly hopeless. It would be well out of time.
MS. ELLIS: My Lord, this is precisely the point and in fact that was one of the very knock out points which we intended to put before His Lordship Justice Foster when the matter was heard.
MOTTLEY, J.A.: Obviously the other point was that the Attorney General was not a proper party to those proceedings.
MS. ELLIS: Yes, My Lord, this was the very point we brought to the attention of the attorney even before the matter was -- even before she contemplated actually filing the application for leave for judicial review.
My Lord, I'm sorry, he has been on required leave since the 15th of September 2007. What happened by the letter in 2008 essentially was commencing the judicial review proceedings because he was put on required leave -- they were put on required leave
pending the criminal investigation. In 2008 the criminal investigation indicated that there were no criminal charges that could be laid, but in 2008 the appointing officer took a decision that they were going to proceed with the disciplinary charges. So this is how the matter has.
CHADWICK, President: So there was a letter in 2008?
MS. ELLIS: In 2008, yes.
CHADWICK, President: It's just a coincidence that they both happen to be the 15th of July?
MS. ELLIS: Yes, My Lord.
CHADWICK, President: Thank you very much. If I have a copy of the transcript I will pick up those points.
MS. ELLIS: I'm grateful, My Lord. My Lord, I know that we have not been served, but I have to make an application in respect of the way this matter has progressed, whether or not Your Lordships are minded to make an order for costs in respect of this matter?
CHADWICK, President: Ms. Ellis, I understand why you make the application, but this actually is a hearing directed by the Court and if we now make an order for costs I think it would simply give rise for more trouble.
MS. ELLIS: I think you are quite right about it, My Lord.
CHADWICK, President: We are striking out the appeal.
MS. ELLIS: Thank you, My Lord. No order for costs.
CHADWICK, President: Although we are striking out the appeal, the transcript of what I have said will make it quite clear that this Court finds no fault in the Judge's approach to the problem.
MS. ELLIS: Yes, I think that's abundantly clear. Thank you very much, My Lord.
CHADWICK, President: I will add this; the effect of striking out the appeal does not, of course, affect the pending application for leave to bring judicial review proceedings, but the delay that has taken place since the 12th of December, 2008 delay for which on the history that I have recited is wholly attributable to the conduct of the appellants
and their attorney, it is essential that the application be heard as speedily as possible.
Do you want us to give a direction as to time?
MS. ELLIS: Yes, My Lord, I was about to rise to ask for that in the circumstances. Although we maintain our position that she be at liberty to proceed on an ex parte basis, we would appreciate if some directions could be given in respect to the time frame.
CHADWICK, President: Well, sadly, the effect of your concession, which it would appear was made in order to avoid delay, there seems to have been very little purpose in the concession, but nothing we say prevents you from asking the Judge again if you want to. It may be better not to stir that pot.
MS. ELLIS: No.
CHADWICK, President: Would you like us to say that the application is to be listed within 14 days? Let me ask the Registrar. Is that going to give rise to difficulty in the Grand Court?
MS. ELLIS: I think so.
THE CLERK: We would have to ask the listing officer to be present to --
MOTTLEY, J.A.: Not heard but listed.
THE REGISTRAR: Listed.
MS. ELLIS: In other words, the actual listing not the actual hearing date.
THE CLERK: Okay.
CHADWICK, President: It is the hearing that I am concerned about. What I would propose is that we direct that -- insofar as the list can accommodate it -- this application should be heard within the next 14 days. If the list cannot accommodate it, the listing officer will have to list it as soon as possible.
MS. ELLIS: For the first available date, yes.
CHADWICK, President: Yes. And that in listing the matter for hearing, the convenience of the appellants' counsel is not a factor to be taken into account.
Thank you. Is there anything else?
MS. ELLIS: No, My Lord, I believe that's it. Thank you very much.
(PROCEEDINGS CONCLUDED AT 10:40 A.M.)