Robert Daley and Thermutis Grant-Cunningham v China Motors Ltd

• Jurisdiction: Jamaica
• Judge: Panton P,Phillips JA,Brooks JA
• Judgment Date: 12 October 2012
• Neutral Citation: JM 2012 CA 91
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 126/2011
• Date: 12 October 2012

[2012] JMCA Civ 47

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips Ja

The Hon Mr Justice Brooks Ja

SUPREME COURT CIVIL APPEAL NO 126/2011

Between

Michael Levy

Appellant

and

The Attorney General of Jamaica

1st Respondent

and

Jamaican Redevelopment Foundation Inc

Party Directly Affected/2nd Respondent

Raphael Codlin and Miss Melissa Cunningham instructed by Raphael Codlin & Co for the appellant

Lackston Robinson and Miss Alicia McIntosh instructed by the Director of State Proceedings for the 1 ^st respondent

Mrs Sandra Minott-Phillips QC and Gavin Goffe instructed by Myers Fletcher and Gordon for the party directly affected/2 ^nd respondent

JUDICIAL REVIEW - Exemption orders - Whether exemption orders granted to JRF allowing them to charge compound interest on debts was unlwful - Whether the exemption orders were in the interest of the public - Whether exemption orders ultra vires

Panton P

1 I have read, in draft, the judgment of Brooks JA and agree with him that this appeal ought to be dismissed. I have nothing to add to what he has written.

Phillips JA

2 I too have read the draft judgment of Brooks JA. I entirely agree with his reasoning and conclusion.

Brooks JA

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 blessing 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.

The grounds of appeal

9 Learned counsel for Mr Levy argued six grounds of appeal. They are:

• ‘(a) The learned trial Judge erred, in law in allowing [JRF] to make use of and rely on Affidavits and exhibits which were handed to her ladyship at the hearing despite the Order of the Honourable Mrs. Justice N. McIntosh [as she then was] dated December 3, 2009 which gave [JRF] a right to make oral submissions when the matter came on for trial but bestowed on it no right to file documents in the proceedings. This was prejudicial to the other parties who had no opportunity to respond to the documents and Affidavits.

• (b) The learned judge erred in finding that only the 2002 Exemption Order affected the Appellant in circumstances where it is clear from the wording of the exemption and the subsequent actions of both [JRF] and the Minister that the clear intention was for each exemption to span the course of one year…

• (c) The learned judge erred when she found that [the order] in referring to ^loans made or acquired' sufficiently specified the loans to satisfy the requirements of section 14 of the Act which confers on the Minister a duty to specify the loan or contract that is being exempted in the Order granting the exemption….

• (d) The learned judge erred in making a finding that there was undue delay in bringing the application for which no good reason for doing so was shown….

• (e) The learned judge erred in concluding that only the 2002 exemption applied to the Appellant and that there was undue delay in bringing the application….

• (f) That the learned judge in evaluating the evidence before her failed to take into account important and unchallenged evidence that would have invariably lead [sic] to a conclusion contrary to the findings of the learned judge.’

As grounds (b) and (e) overlap, those will be considered together.

Ground (a) — Allowing JRF to use affidavits and exhibits

10 The essence of the complaint made by this ground is that whereas rule 56.13(2) of the Civil Procedure Rules 2002 (CPR) allows an interested party to either make submissions by a written brief or make oral submissions, Williams J, in disregard of the rule, allowed JRF to both rely on affidavits filed in the claim and make submissions. Mr Levy further complains that the use of the affidavits was in breach of rule 39.1(6) of the CPR. That rule stipulates the contents of the bundle that a claimant is to prepare for use by the judge at a trial.

11 Rule 56.13 speaks to the procedure to be utilised at the first hearing of fixed date claims in claims for judicial review. In addressing the procedure concerning interested parties, the relevant portions of the rule state:

‘56.13 (1) At the first hearing the judge must give any directions that may be required to ensure the expeditious and just trial of the claim and the provisions of Parts 25 to 27 of these Rules apply .

(2) In particular the judge may -

• (a) make orders for -

  • (i) witness statements or affidavits to be served;

  • (ii) cross-examination of witnesses;

  • (iii) disclosure of documents; and

  • (iv) service of skeleton arguments;

• (b) …

• (c) allow any person or body appearing to have sufficient interest in the subject matter of the claim to be heard whether or not served with the claim form;

• (d) direct whether any person or body having such interest-

  • (i) is to make submissions by way of written brief; or

  • (ii) may make oral submissions at the hearing; and…’ (Emphasis supplied)

12 Parts 25 through 27, referred to in rule 56.13, include the procedure relating to first hearings. The relevant powers granted to the court in these parts, include the power to make such orders as are necessary to ensure ‘full disclosure of all relevant facts prior to the [hearing of the fixed date claim]’ (rule 25.1(m)). Rule 27.2(7) stipulates that, ‘[a]t the first hearing, in addition to any other powers that the court may have, the court shall have all the powers of a case management conference’. Those latter powers are detailed in part 26. Of particular relevance, in this regard, is rule 26.1(v), which allows the court, as part of its case management powers, to ‘take any other step, give any other direction or make any other order for the purpose of managing the case and furthering the overriding objective’. It will be seen from this selection of the rules, that the Supreme Court has wide powers in managing fixed date claims in preparation for the final hearing.

13 It is in this context that the orders made, as case management orders, must now be examined. On 3 December 2009, N.E. McIntosh J (as she then was) granted JRF permission to participate at the hearing of the fixed date claim. Her Ladyship went on to order as follows:

‘7. [JRF] to make oral submissions at the hearing.

8. [JRF] to seek to be heard on its application dated December 3, 2009 before the Judge hearing the judicial review.’ (Emphasis supplied)

Mr Codlin, on behalf of Mr Levy, laid great stress on the fact that oral submissions were authorised. In light of rule 56.13, learned counsel argued that this authorisation precluded the tendering of affidavits and written submissions.

14 Mr Codlin's submissions do not, however, take into account that other orders were made by way of case management. Rattray J, on 25 January 2010, among other orders, granted JRF permission to file and serve affidavits and written submissions in advance of the hearing of the fixed date claim. The relevant orders are:

‘2. Permission granted to [JRF] and Kenneth Tomlinson [the receiver appointed by JRF in respect of Mr Levy's property] to take part in [sic] Application.

3. Permission granted to [the Attorney General] and to [JRF] and Kenneth Tomlinson to file and serve Affidavits herein if necessary on or before 29 ^th January 2010, by 3:00 pm.

4. …

5. Written submissions together with list of authorities being relied on to be filed and served on or before February 5 ^th 2010 by 3:00 p.m.’

15 These orders amply demonstrate that JRF was entitled to make written submissions and to adduce evidence at the hearing of the fixed date claim. Mrs Minott-Phillips QC, for JRF, has also correctly pointed out that rule 56.15(1) and (2) of the...