Robert Rainford v Sir Patrick Allen and Others

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: McIntosh JA
• Judgment Date: 12 August 2014
• Neutral Citation: JM 2014 CA 82
• Docket Number: CIVIL APPEAL NO 55/2014 APPLICATION NO 106/2014
• Date: 12 August 2014

[2014] JMCA App 26

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

CIVIL APPEAL NO 55/2014

APPLICATION NO 106/2014

Between

Robert Rainford

Applicant

and

His Excellency the Most Honourable Sir Patrick Allen

1st Respondent

and

The Public Service Commission

2nd Respondent

and

The Chief Personnel Officer

3rd Respondent

Douglas Leys QC and Duane Thomas instructed by Duane O Thomas & Co for the applicant

Mrs Nicole Foster-Pusey QC and Miss Monique Harrison instructed by the Director of State Proceedings for the respondents

CIVIL PROCEDURE - Stay of execution of judgment - Application for - Court of Appeal Rules 2002, Rule 2.11(b)

IN CHAMBERS

McIntosh JA

1 In a notice headed ‘Notice of Application for Court Orders for Stay of Execution of Judgment and/or Stay of Further Proceedings’ filed on 24 June 2014, the applicant sought the following orders:

• ‘1. A stay of execution of the Judgment of the Honourable Mr Justice Batts J [sic] dated June 6, 2014 pending the appeal of the said decision.

• 2. A stay of all further proceedings consequent on the said Judgment of the Honourable Mr Justice Batts J [sic] which the 1 ^st , 2 ^nd and/or 3 ^rd Respondents/ Defendants may institute in particular:

  • a. Effecting any suspension of the Appellant/Claimant;

  • b. Any further proceedings before the Privy Council considering the recommendation of the Public Service Commission concerning the dismissal of the Appellant/Claimant pending the determination of this appeal.’

2 At the very outset, the learned Solicitor General, Queen's Counsel for the respondents, raised as a preliminary issue, the appropriateness of this application in light of the declaratory nature of the judgment of Batts J and decisions emanating from this court to the effect that declaratory judgments ought not to be the subject of a stay of execution. The learned Solicitor General in her written submissions highlighted the second and third orders of Batts J which were as follows:

• ‘(b) A Declaration that the Claimant is entitled to an opportunity to consider whether he wishes the matter referred to the Privy Council as per the advice contained in the letter dated 25 ^th September 2013.

• (c) That time for the purpose of computing the relevant 14 day period mentioned in the letter dated 25 ^th September 2013 shall commence to run from the date of delivery of this Judgment.’

It was against this order that the applicant filed his notice of application, but, submitted the learned Solicitor General, the orders he sought at 2a and 2b of his application (as set out at para [1] above) were not matters addressed in the judgment of Batts J for which an order for a stay could properly be granted.

3 The learned Solicitor General submitted that it was clear from the applicant's supporting affidavit that there is nothing in the issues of concern which directs a party to take any particular step or to carry out any particular action. All that the orders do that the applicant seeks to stay, are to declare a right which he would be free to decide whether to carry it out or not. The judgment was therefore in essence a declaratory judgment, she submitted and the Court of Appeal has long established that a stay of execution is inapplicable to declaratory judgments.

4 To bolster this submission the learned Solicitor General cited the cases of Norman Washington Manley Bowen v Shahine Robinson and Anor [2010] JMCA App 27 and Carmen Farrell et al v Lascelle Reid and Ors [2012] JMCA App 16. She made particular reference to paragraph [10] of the Bowen case, where Morrison JA highlighted the distinction between an executory judgment, which orders a party to act in a particular way such as an order to pay damages and, a declaratory judgment, which makes a pronouncement in regard to a party's status (approving and applying the distinction in Zamir & Woolf's Declaratory Judgment 2 ^nd edn para 1.02). In the instant case she submitted that all that the judgment of Batts J did was to make it clear that the applicant was entitled to make an application to the Privy Council and that he has done, within the time limited for the application. It was not an order enforceable against any of the respondents, the learned Solicitor General pointed out in her written submissions, but rather a declaration that the applicant's right to have the matter referred to the Privy Council remained. Having become aware of this application the Privy Council has indicated in a letter addressed to the applicant's instructing counsel and copied to the learned Solicitor General that it will not proceed with the reference pending the outcome of the applicant's application for a stay. In sum therefore the second order of Batts 3 is declaratory and there is no basis for a stay.

5 Mr Leys, QC contended that by virtue of rule 2.11(b) of the Court of Appeal Rules 2002 (“the CAR”) a single judge of the court is empowered to grant ‘a stay of execution of any judgment or order against which an appeal has been made pending the determination of the appeal’. Thus, argued learned Queen's Counsel, this rule confers a wide discretion on the court as to the circumstances in which a stay will be granted. He conceded, however, that the stay of execution aspect of the application was not appropriate as the learned Solicitor General's submissions were correct that declaratory judgments are not subject to the grant of a stay of execution and the judgment of Batts J was a declaratory judgment.

6 He nevertheless submitted that a distinction is to be made between a stay of execution of a judgment and a stay of proceedings and it is this aspect of the application that the applicant is pursuing. Those are the proceedings before the Privy Council and the need for a stay of those proceedings pending the outcome of the applicant's appeal, filed on 19 June 2014, is bolstered by the letter issuing from the...