Golding (Orrett Bruce) and Attorney General of Jamaica v Portia Simpson Miller

• Jurisdiction: Jamaica
• Judge: PANTON, P. , SMITH, J.A.: , HARRIS, J.A.
• Judgment Date: 11 April 2008
• Neutral Citation: JM 2008 CA 22
• Judgment citation (vLex): [2008] 4 JJC 1102
• Court: Court of Appeal (Jamaica)
• Date: 11 April 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MR. JUSTICE SMITH, J. A THE HON. MRS. JUSTICE HARRIS, J.A

BETWEEN

ORRETT BRUCE GOLDING

THE ATTORNEY GENERAL OF JAMAICA

APPELLANTS

AND

PORTIA SIMPSON MILLER

RESPONDENT

R. N. A. Henriques, Q.C., Richard Small, Allan Wood, and Miss Daniella Gentles, instructed by Livingston, Alexander and Levy, for the appellants

Ms. Akilah Anderson and Franklin Halliburton, instructed by Linton Walters &Co. for the respondent

JUDICIAL REVIEW - Public Service Commission - Removal of members from office - Application for stay of proceedings - Whether the trial judge erred in extending time to file fixed date claim form

PANTON, P.

1 On March 4, 2008, we allowed the appeal herein, and set aside the order of Donald McIntosh, J. made on January 10, 2008, extending time to apply for judicial review consequent on the order of Miss Justice Beckford, made on December 13, 2007. We also awarded costs of the appeal to the appellants.

2 The decision of McIntosh, J., fell to be considered against the background of the earlier proceedings before Beckford, J. The latter had granted leave to the respondent to apply for judicial review, and had ordered a stay of all proceedings connected with the application until January 10, 2008, the date of the next hearing. Miss Justice Beckford had also ordered that the relevant documents be served in accordance with the Civil Procedure Rules.

3 The application before Beckford, J., stemmed from a disagreement between the first appellant, who is Prime Minister of Jamaica, and the respondent, who is Leader of the Opposition in respect of the intended removal from office of the members of the Public Service Commission. The record of appeal indicates that by the time the matter was called on before Beckford, J., King's House had already issued a news release that His Excellency the Governor General had issued the instruments of revocation, and they had been served on the members of the Commission.

4 As indicated earlier, the respondent was nevertheless given leave to apply for judicial review, with the hearing date fixed for January 10, 2008. The granting of leave was in accordance with the provisions of Part 56 of the Civil Procedure Rules which came into force in 2003. Rule 56.2 lists the persons who may apply for judicial review, whereas rule 56.3 states the method of application and the details that must be given when an application is made. Rule 56.4 deals with the hearing of the application, stating what the judge may or must do. Rule 56.4 (12) is of great importance for the purposes of this appeal, and so must be quoted:

"Leave is conditional on the applicant making a claim for judicial review within 14 days of receipt of the order granting leave".

This provision required the respondent to file and serve certain documents on the appellants within fourteen days of December 13, 2007, that is, by December 27, 2007. Among these documents would have been a fixed date claim form. The record indicates that the respondent did not comply with this requirement, although her attorneys-at-law were reminded of this failure by the appellants' attorneys-at-law by virtue of a printed form served on them on December 20, 2007.

5 On January 10, 2008, the parties appeared before Donald Mcintosh, J. This appearance ought to have been for the hearing of the application for judicial review. However, this was not to be. Instead the respondent placed before the learned judge a "notice of application for court orders". The orders sought were:

The record indicates that this application had been filed and served on that very day! In making this application, the respondent relied on an affidavit filed by Miss Akilah Anderson who appears on behalf of the respondent in this appeal. Miss Anderson is an attorney-at-law of the law firm of Knight, Junor&Samuels. Her affidavit states, incorrectly it seems, that that firm was on record as attorneys-at-law for the respondent. She was on leave from her chambers and out of the jurisdiction at the time of the granting of leave to apply for judicial review. She assumed conduct of the matter on Christmas Eve, 2007, and on January 9, 2008, while preparing for the hearing scheduled for the 10 ^th January, she realized that the December 13 order of the Court had not been complied with — hence, the application before Mcintosh, J.

• "1. That the time for making the application for judicial review as granted on December 13, 2007 by this Honourable Court be extended until the date of the making of this order;

• 2. Liberty to apply;

• 3. That time for service be abridged."

6 Having heard submissions from the attorneys-at-law for the appellants and respondent, Mcintosh, J., ordered thus:

• "1. This Court extends time for a period of fourteen (14) days for the Claimant to apply for Judicial Review.

• 2. Application to be served on Respondent.

• 3. Leave to appeal granted generally."

It will be noted that the application that was before the learned judge was for time to be extended from December 13, 2007, until the date of the making of this order, that is January 10, 2008; and for the time for service to be abridged, that is, shortened or cancelled. Learned Queen's Counsel, Mr. Henriques, felt compelled to pen a letter to the learned judge seeking clarification of the order as there was an "element of ambiguity in the order". Mcintosh, J., replied expressing his regret that the learned Queen's Counsel had found his orders ambiguous. He continued:

"The claimant was granted fourteen (14) days in which to file a Fixed Date Claim Form for Judicial Review.

The fact that I granted leave generally for the parties to appeal any of my orders or the orders of Beckford J., pursuant to these proceedings should have removed any misunderstanding."

If it was the intention of the learned judge to have made an order in terms of the contents of paragraph 1 of his letter, this would not have been in conformity with paragraph 1 of the order that he made at the hearing.

Grounds of Appeal

7 The appellants filed six grounds of appeal. They read thus:

• "(a) The learned Judge was wrong in law in extending the time within which the Respondent was to file a Fixed Date Claim Form as the grant of leave to the Respondent to apply for Judicial Review was conditional on the Respondent making a claim for Judicial Review pursuant to Rule 56.4 (12) of the Civil Procedure Rules 2002 within fourteen (14) days of the grant of leave and as the time had expired without the Respondent making a claim for Judicial Review and it was incumbent on the Respondent to re-apply for leave.

• (b) The learned Judge erred as a matter of law as he failed to appreciate that once the Respondent had not filed a Claim Form for Judicial Review within fourteen (14) days of receipt of the Order granting leave to apply for Judicial Review, the leave lapsed and/or had expired and in accordance with the Practice Direction, issued on the 30 ^th May 2006 effective on the 1 ^st June 2006, the Respondent ought to have made a new application for leave to apply for Judicial Review in the same proceedings and the Respondent failed to give any or any reasonable basis for departing from the requirements of the Practice Direction.

• (c ) The learned Judge was wrong in law in extending the time to apply for Judicial Review based on Rule 56.6(2) of the Civil Procedure Rules 2002 as this rule refers to applications for leave to apply for Judicial Review and not applications for Judicial Review after leave has been granted and was therefore inconsistent with the requirements of the Practice Direction and Rule 56.4 (12) that leave was conditional upon the filing of a Fixed Date Claim Form within fourteen (14) days and upon the failure to do so, an application for leave had to be renewed in the same proceedings.

• (d) If the learned Judge had a discretion to extend time for the filing of the application for Judicial Review by the filing of a Fixed Date Claim Form the learned Judge wrongly exercised the discretion in circumstances where the orders and relief being sought had been overtaken by the dismissal of the members of the Public Service Commission and the appointment of a new Public Service Commission.

• (e) If the learned Judge had a discretion to extend time for the filing of the application for Judicial Review by the filing of a Fixed Date Claim Form, the learned Judge wrongly exercised the discretion as there was no material or no sufficient material before him explaining the failure to file the application upon which he ought to have exercised such a discretion.

• (f) The learned Judge failed to give adequate or any reasons for his decision."

8 Learned Queen's Counsel submitted that judicial review proceedings are different from ordinary civil proceedings, and it is important that the procedures specified be followed. He said that the failure to comply with the order of Beckford, J., in keeping with Rule 56.4 (12) was fatal, as the leave to apply for judicial review had lapsed on December 27, 2007, by which date the Fixed Date Claim Form should have been filed. In support of this point, he cited the case Re: Board of Governors of the Jonathan Grant High School ex parte Castel Gordon (1997) 34 J.L.R. 592, with particular reference to page 594 C-F. Indeed, he combed the entire Part 56 of the Civil Procedure Rules in his effort to show that the respondent was not entitled to an order extending time. Mr. Henriques also cited the following cases: Beverley Levy v. Ken Sales&Marketing Ltd. (P.C. App. No. 87 of 2006), Flannery v Halifax Estate Agencies Ltd [2000] 1 W.LR. 377, and English v Emery Reimbold [2002] 3 All ER 385.

9 Miss Anderson, for the respondent, submitted that although claims must be brought and pursued expeditiously, the Court is more flexible...