Michael Levy v Attorney General of Jamaica and Another

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 14 June 2013
• Neutral Citation: JM 2013 CA 66
• Docket Number: MOTION NO 16/2012
• Court: Court of Appeal (Jamaica)
• Date: 14 June 2013

Between

Michael Levy

Applicant

and

Attorney General of Jamaica

1st Respondent

and

Jamaican Redevelopment Foundation Inc

2nd Respondent

[2013] JMCA App 11

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

MOTION NO 16/2012

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 126/2011

CIVIL PROCEDURE - Motion to appeal to Her Majesty in Council - Costs

Raphael Codlin , Miss Karen Scott and Miss Melissa Cunningham instructed by Raphael Codlin & Co for the applicant

Miss Carlene Larmond instructed by the Director of State Proceedings for the 1 ^st respondent

Mrs Sandra Minott-Phillips QC and Gavin Goffe instructed by Myers , Fletcher & Gordon for the 2 ^nd respondent

Morrison JA

Introduction

1 By notice of motion dated 30 October 2012, the applicant sought leave to appeal to Her Majesty in Council (“the Privy Council”) from a decision of this court given on 12 October 2012. The notice of motion was amended on 1 May 2013 to expand the basis of the application. On 27 May 2013, the court announced that the application for leave to appeal would be refused, with costs to the respondents, to be taxed if not agreed. These are the promised reasons for this decision.

2 The amended application was made pursuant to the provisions of section 110(1)(a), or, in the alternative, section 110(2)(a) of the Constitution of Jamaica (“the Constitution”). Section 110(1)(a) provides that an appeal shall lie from decisions of the Court of Appeal to the Privy Council, as of right, ‘where the matter in dispute on the appeal to Her Majesty in Council is of the value of one thousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of one thousand dollars or upwards, final decisions in any civil proceedings’. Section 110(2)(a) provides that an appeal shall lie to the Privy Council, with the leave of the Court of Appeal, ‘where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings’.

3 The issues that arise on this application, which was vigorously opposed on both grounds by both respondents, are therefore whether, in the first place, the case comes within section 110(1)(a), in which event the applicant is entitled to a grant of leave as of right; and secondly, if it does not, whether the matter is in the court's opinion one which ought to be submitted to the Privy Council, on the bases identified by the applicant, by reason of its great general or public importance.

Background

4 By way of background, we cannot improve on, and therefore gratefully adopt, the introductory paragraphs of Brooks JA's judgment (with which Panton P and Phillips JA agreed) in the matter from which leave to appeal is now sought ( Michael Levy v The Attorney General of Jamaica & Jamaican Redevelopment Foundation Inc [2012] JMCA Civ 47, paras [3]–[8]):

‘[3] In the 1990s, there was a devastating meltdown of a large portion of the island's financial sector. A number of the institutions, therein, failed. On 30 January 2002, Jamaican Redevelopment Foundation Inc (JRF) acquired the bad-debt portfolios, or at least portions thereof, of some of the financial institutions that had experienced financial difficulties.

[4] The Minister of Finance gave his blessings to the acquisition. On 25 June 2002, in demonstration of his approval, the minister granted JRF exemption from the provisions of the Moneylending Act (the Act). That exemption particularly allowed JRF, not only to charge interest rates above that which the Act sought to constrain, but also to charge compound interest. JRF was, thereby, in that regard, placed on equal footing with the institutions that it replaced. The Minister of Finance granted further exemptions annually, thereafter, to JRF, from 2003 through 2008.

[5] Mr Michael Levy was one of the 23,000 debtors affected by JRF's acquisitions. In November 2008, he filed a claim in the Supreme Court asking for judicial review of the exemption orders. He sought to have them quashed on the basis that they were unlawful. His main contention was that the exemption orders were not in the interest of the public and were, therefore, ultra vires the minister's remit under the Act.

[6] Mr Levy named the Attorney General of Jamaica as the respondent to the claim, however, the JRF was allowed to intervene as a party directly affected by the claim. Both resisted Mr Levy's claim.

[7] P.A. Williams J heard the application for judicial review and, on 6 October 2011, refused it. The learned judge ruled that the exemption order that affected Mr Levy was that granted on 25 June 2002. Accordingly, she ruled that his application had been made several years late. She found that he was not entitled to any relief by way of judicial review, as that would cause substantial hardship to JRF, which had relied on the validity of the order over the course of six years and had acted thereon.

[8] Mr Levy is aggrieved by that ruling and has appealed. The resolution of the appeal turns on the question of whether the annual exemption orders were by way of renewals of previous orders, or were in respect of transactions that were to have been conducted by JRF during the year for which each order was granted.’

5 Brooks JA resolved the matter in favour of the respondents, holding, in agreement with P.A. Williams J in the court below, that the exemption order that affected the applicant was that dated 25 June 2002. As a result, the application to claim judicial review, which was filed on 25 November 2008, was several years in excess of the three months allowed for the bringing of such claims by rule 56.6(1) of the Civil Procedure Rules 2002 (“the CPR”). Brooks JA concluded (at paras [54]–[55]) that the circumstances of the case justified the learned judge's approach:

‘[54] The situation is that for at least six years, up to the date of the filing of the claim, JRF had operated on the basis that the exemption orders were valid. There are some 23,000 debtors involved. Some of the debts must have been repaid. The properties of some debtors, such as Mr Levy, have been sold in an attempt to liquidate the debts. No further exemptions have been granted since 2008.

[55] It is patent, that even relatively minor relief, if relief were deserved, by way of a declaration that these exemption orders were invalid, would result in mammoth upheaval. It would most likely generate a tsunami of litigation that would engulf this country's already overburdened court system. Individuals who have been adversely affected over the past ten years, would sue seeking to recover money had and received or damages for the wrongful sale of their respective properties. The likely defendants would be JRF and the Minister of Finance. The resultant hardship and prejudice to those parties would be horrendous. The situation would cause substantial detriment to good administration. Those results would preclude the grant of any form of relief. In light of such calamitous consequences, why then would the court embark on a futile exercise of considering the merits of the claim? For these reasons, I find that Williams J was entitled to consider the effect of the delay to the exclusion of the merits of the substantial application.’

The basis of the application

6 The applicant's primary contention is that he is entitled to appeal to the Privy Council as of right, pursuant to section 110(1)(a) of the Constitution. In the affidavit originally filed in support of the notice of motion for leave to appeal to the Privy Council on 30 October 2012, the applicant offered no more than a brief rehearsal of the progress through the courts of his application for judicial review, before concluding (at para. 6) with the statement that, ‘having consulted my legal representatives I have been advised and do verily believe that I have a right of appeal to Her Majesty in Council as regards the judgment handed down by the Court of Appeal’.

7 However, in a further affidavit filed on 6 May 2013 at the suggestion of the court, the applicant provided additional detail in support of his primary contention that he had an appeal as of right. In it, he made reference to the loan which he had originally taken from Workers Savings and Loan Bank (“the bank”), its ‘alleged assignment’ to the 2 ^nd respondent, and to the fact that he was being charged interest on the loan by the 2 ^nd respondent at a rate of ‘50% per annum compounded at monthly rest’ [sic] (para. 2). He also referred to the fact that the 2 ^nd respondent had been allowed on the basis of the exemption from the provisions of the Moneylending Act granted to it by the minister to charge compound interest above the prescribed rates (para. 3), which resulted in ‘the monumental increase in the balance payable on the loan…[which]…eventually reached over one billion dollars’ (para. 4). The applicant exhibited a copy of a loan statement to demonstrate this point. Further, a property owned by him, which had been used as security for the original loan, had also been ‘purportedly assigned’ to the 2 ^nd respondent and sold by it at what he believed to be a gross undervalue (para. 5). Thus, the applicant concluded on the question of value, he had suffered ‘grave financial loss as a result of the exemptions and the resulting high interest rate…including the loss of my property’ (para. 6), he had claimed damages on his claim for judicial review, as he had been advised that he was entitled to do (para. 7) and, since those damages ‘far exceeds [sic] one thousand dollars’, he is entitled to appeal to the Privy Council as of right (para. 8). The applicant exhibited to his...