Dion Staple v The Public Accountancy Board

• Jurisdiction: Jamaica
• Judge: Carr, J
• Judgment Date: 12 February 2021
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2021CV00054

Dion Staple

Applicant

and

The Public Accountancy Board

Respondent

[2021] JMSC Civ. 27

CLAIM NO. SU2021CV00054

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Application for Interim Injunction - Whether an ordinary claim is really a claim for judicial review — Is there a serious question to be tried.

IN CHAMBERS

Ms. Tavia Dunn and Mr. Marlon C. Bennett instructed by Marlon C. Bennett of Counsel for the Applicant

Mr. Emile Leiba and Ms. Chantal Bennett instructed by Dunn Cox for the Respondent

Carr, J (ag.)

Background

1 The Applicant, Mr. Dion Staple, is a registered public accountant. A complaint was made against him to the Public Accountancy Board (PAB) by two companies Simber Production Limited and SMS Productions Limited. The Board after a meeting with the Applicant and the complainant found that there was a prima facie case that warranted a hearing in accordance with the Public Accountancy Act. A date was scheduled for the hearing and the Applicant was notified by letter. In response the attorney at law on behalf of the Applicant wrote to the PAB requesting that the matter be stayed, this request was refused.

2 On the 5 ^th of January 2021 the Applicant filed a fixed date claim form seeking the following relief:

• a. A declaration that the actions of the Public Accountancy Board are in breach of the Applicant's constitutional right to a fair hearing by an independent and impartial tribunal by its refusal to provide the applicant with documentary evidence in support of the charges as framed by the Public Accountancy Board.

• b. A declaration that the Public Accountancy Board acted ultra vires in particularizing grounds in support of the charges against the Applicant when it was the Complainant who should do so in writing.

• c. A declaration that the Public Accountancy Board acted in breach of the principles of natural justice.

• d. An interim injunction restraining the Public Accountancy Board from embarking on any enquiry in respect of charges framed out by the Public Accountancy Board against the Applicant until the documentary evidence to support these charges are provided, which includes all documents to support the claim that a prima facie case has been established against the Applicant.

3 The Applicant also filed a notice of application seeking an interim injunction restraining the PAB from embarking on an enquiry. The date given by the court for the application to be heard was subsequent to the date set by the PAB for the hearing and so by way of a further amended Notice of Application for court orders filed on the 25 ^th of January 2021 the Applicant revised the relief sought as follows:

• a. An interim injunction restraining the Public Accountancy Board from embarking on any further enquiry, meetings, and issuing any decision in respect of charges framed out by the Public Accountancy Board in a complaint brought against the Applicant until the substantive claim filed herein is determined.

4 On the date of the hearing of the application counsel for the Respondents raised a preliminary objection. It was submitted that the court has no jurisdiction to grant interim relief against a statutory body restraining the exercise of its statutory function in the absence of an application for permission to commence judicial review proceedings or a substantive claim for judicial review being before the court.

5 The claim it was argued, was seeking to restrain a public body lawfully exercising its statutory function in a case where there was no claim in public law. The issues raised by the fixed date claim form and the relief sought all relate to public law remedies and there is in fact no private law claim to be determined.

Submissions on behalf of the Applicant and Respondent on the preliminary objection

6 The submission of Counsel for the Respondent focused on the fact that this matter was brought by way of an ordinary claim when it is really a claim in public law. The claim, he suggested, is in reality a claim for judicial review and therefore not properly before the court since the Applicant is required to first obtain leave. The court therefore ought not to make an order for an interim injunction since the proper procedure was not followed.

7 In response to these submissions Counsel for the Applicant relied on the Privy Council authority of The Honourable Attorney General v. Isaac 1. The case highlighted the position in English law. The basic principle, it was held, is that it would be an abuse of process of the court for a Claimant to bring an ordinary action where what was being sought was redress for the infringement of public law rights.

Counsel however sought to make the point that the Privy Council made a distinction between the English law position and that of Antigua & Barbuda (where the case originated), and posited that the very same distinction would apply to Jamaica. This she said was because of the codification of the procedure to be adopted in filing public law claims as set out in the Civil Procedure Rules

8 Although the Board accepted that in some cases it may be necessary to look carefully at the substance of the application rather than the form in which it is cast the first step is to look at the remedies sought. The Applicant in this case, it was argued, is seeking declarations and an interim injunction. There is no request for an order of mandamus, certiorari or prohibition. Although the list of remedies by way of judicial review is not closed, it affords the court a basis upon which to determine whether the applicant is in fact seeking a remedy which can only arise after judicial review. There being no request for any of the aforementioned orders, the preliminary objection according to counsel must fail.

Discussion and Analysis

The Preliminary Objection

9 The Civil Procedure Rules (CPR) makes provision for applications for a declaration or an interim declaration in which a party is the State, a court, a tribunal or any other public body. 2 The rule protects the right of Applicants who seek declaratory relief in circumstances where they do not want to invoke the Courts' power to make any orders pursuant to judicial review.

10 The Judicature (Supreme Court) Act gives the court the discretion to grant an injunction.

“A mandamus or an injunction may be granted or a receiver appointed, by an interlocutory order of the Court, in all cases in which it appears to the Court to be just or convenient that such an order be

made either unconditionally or upon such terms and conditions as the Court thinks just.” 3

Additionally, the CPR provides,

“In addition to or instead of an administrative order the court may, without requiring the issue of any further proceedings, grant –

(a) An injunction.” 4

Based on these two provisions it is pellucid that the court has the jurisdiction to grant injunctions for matters which are brought by ordinary claim as well as matters of an administrative nature.

11 This action was brought as an ordinary claim. Whether it is a claim of an administrative nature or not, this should not prevent the Applicant from having his application heard on its merits. The courts have over the years moved beyond striking out matters that are brought improperly. A more liberal approach has been adopted especially towards claims that are brought under administrative law. In light of the fact that the rules provide for a matter that ought to be a claim in judicial review to be dealt with as such, in cases where it was brought as an ordinary claim 5, I cannot agree with Counsel for the Respondent that the court does not have the jurisdiction to make an order for an interim injunction. The claim presently before the court is an ordinary one, even if I were to find that it is properly a claim for judicial review an interim injunction can still be granted. The preliminary objection therefore has no merit.

The Substantive Application

12 Both Counsel for the Applicant and the Respondent made submissions in writing and orally. I am grateful for their industry and arguments. However, I will only make reference to their submissions where applicable in the discussion of the issues.

The Law

What are the legal principles applicable to the granting of an interim injunction?

13 The test as laid down in American Cyanamid Co. v. Ethicon Ltd. 6 is well known and is summarized as follows:

It is only where there is uncertainty as to the first two limbs that the court should seek to determine the balance of convenience. The overarching principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other.

• a) Is there a serious question or issue to be tried?

• b) Whether damages is an adequate remedy?

• c) Where does the balance of convenience lie?

Analysis and Discussion

Is there a serious question to be tried?

14 Lord Diplock in American Cyanamid at page 510 of the judgment explained the principle in this way:

“The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words that there is a serious question to be tried. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”

In essence can the Applicant establish, based on affidavit evidence, that he would be successful in obtaining a permanent injunction at the trial of this matter? If the answer to this question is in the negative then an interlocutory injunction should not be granted.

15 There are two main issues which fall for discussion under this principle. Firstly, whether the claim was properly brought before the court and secondly, whether...