Royal Caribbean Cruises Ltd and Another v Access to Information Appeal Tribunal

• Jurisdiction: Jamaica
• Judge: Brooks JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 24 June 2016
• Neutral Citation: JM 2016 CA 63
• Docket Number: APPLICATION NO 62/2016
• Court: Court of Appeal (Jamaica)
• Date: 24 June 2016

Between

Royal Caribbean Cruises Ltd

1st Applicant

Falmouth Jamaica Land Company Ltd

2nd Applicant

and

Access to Information Appeal Tribunal

Respondent

and

Port Authority of Jamaica

1st Interested Party

and

Jamaica Environment Trust

2nd Interested Party

[2016] JMCA App 19

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice P Williams JA (AG)

APPLICATION NO 62/2016

JAMAICA

IN THE COURT OF APPEAL

Hadrian Christie instructed by Patterson Mair Hamilton for the applicants

Mrs Sandra Minott-Phillips QC and Mrs Alexis Robinson instructed by Myers Fletcher & Gordon for the respondent

Dr Lloyd Barnett instructed by Miss Suzanne Lawrence for the 1 ^st interested party

Miss Natassia Robinson for the 2 ^nd interested party

Brooks JA

1 I have had the privilege of reading, in draft, the judgment of P Williams JA (Ag) and concur with the conclusion at which she has arrived, that the application for leave to appeal should be refused. I wish, however, to add a few words of my own. It will be sufficient for these purposes to rely on, and adopt as my own, the outline of the circumstances and the submissions that have been set out in the judgment of my learned sister.

2 Having considered the material and the submissions made by learned counsel for the parties, I agree with my learned sister that on an application of the provisions of the Interpretation Act to rule 56.4(12) of the Civil Procedure Rules (CPR), the applicants would have filed their claim out of time. I am, however, not convinced that it is necessary to venture outside of the CPR to resolve the issue in this case. I am, particularly, not prepared to accept at this time, that part 3 of the CPR, which deals with, among other things, the computation of time, has been excluded from application to part 56 of the CPR, which deals with judicial review.

3 My diffidence in this regard does not prevent me from agreeing with the conclusion reached by P Williams JA (Ag). I agree with the submissions of Mrs Minott-Phillips QC, that even with the application of the provisions of rules 3.2(2) and 3.2(3) of the CPR, the applicants would have filed their claim for judicial review out of time.

4 The relevant parts of the rules are, for completeness, both set out below. Firstly, rule 3.2, which deals with computation of time, states, in part:

• ‘(1) This rule shows how to calculate any period of time for doing any act which is fixed —

  • (a) by these Rules;

  • (b) by any practice direction; or

  • (c) by any judgment or order of the court.

• (2) All periods of time expressed as a number of days are to be computed as clear days.

• (3) In this rule ‘clear days’ means that in computing the number of days —

  • (a) the day on which the period begins; and

  • (b) if the end of the period is defined by reference to an event, the day on which that event occurs or should occur, are not included.’ (Emphasis supplied)

5 It is important to note that ‘the day on which that event occurs’, is not an unqualified statement, it depends on the words which precede it. In ascertaining what constitutes ‘clear days’ in any particular situation, a point to be ascertained is whether ‘the end of the period is defined by reference to an event’. Strictly by way of parenthesis, it may be said that rule 11.11(1)(b) is an example in the CPR where the end of a period is defined by reference to an event. Rule 11.11(1) states:

• ‘(1) The general rule is that a notice of an application must be served—

  • (a) as soon as practicable after the day on which it is issued; and

  • (b) at least 7 days before the court is to deal with the application. (Emphasis supplied)

In that rule, the end of the period is defined by an event, namely the hearing date. Both paragraphs (a) and (b) of rule 3.2(3) apply in that case.

6 Rule 3.2(3) goes on to give two examples of the way time is to be computed. Regrettably, the examples given do not assist in the examination of rule 56.4(12), which is set out below. Neither speaks to the doing of an action ‘within’ a particular period. An example given in the English Civil Procedure Rules, in this regard, is more helpful. Rule 2.8(1), rule 2.8(2) and rule 2.8(3) of those rules are in almost identical terms to the portion of rule 3.2 quoted above. The relevant example in the English Civil Procedure Rules is set out at rule 2.8(3)(iii) of those rules. It states as follows:

‘Particulars of claim must be served within 14 days of service of the claim form. The claim form is served on 2 October. The last day for service of the particulars of claim is 16 October.’ (Emphasis supplied)

It will be noted in that example, although using the standard of ‘clear days’, that the first day, 2 October, is not counted, and the 14th day is the day by which compliance is required.

7 Rule 56.4(12) is the second rule that is relevant to this case. It stipulates the time for filing the claim once leave to apply for judicial review is granted. The paragraph in the rule states:

‘Leave is conditional on the applicant making a claim for judicial review within 14 days of receipt of the order granting leave.’ (Emphasis supplied)

8 Using the terminology of rule 3.2(3), it is my view that the end of the period set by rule 56.4(12) of the CPR is not defined by reference to an event. The period is, instead, defined by the day on which the period begins. It is rule 3.2(3)(a) alone which is applicable to rule 56.4(12). Rule 3.2(3)(b) is excluded.

9 It is, therefore, apparent that, as the period in this case began with the grant of leave by an order made on 7 July 2015, and rule 56.4(12) required the approved claim to have been filed within 14 days of that date, it is the date of the grant that defines the period, not the date of the filing of the claim. The 14 days, when counted, would therefore exclude 7 July, as required by rule 3.2(3)(a). Starting the count on 8July, therefore, the 14 days would end on 21 July. It is plain, therefore, that 22 July would have been the 15th day and therefore outside of, and not ‘within’, the time allowed by rule 56.4(12). Reliance on the use of the term ‘clear days’ used in rules 3.2(2) and 3.2(3) cannot provide any refuge or relief for the applicants.

10 As stated above, I would also refuse the application with costs to the respondent.

Sinclair-Haynes JA (Dissenting)

11 I have had the privilege of reading the decisions of both Brooks JA and P Williams JA (Ag). I, however, cannot agree with their method of calculation. It is unnecessary for me to outline the facts and counsel's submissions as they have been adequately stated by P Williams JA (Ag).

12 I agree with Mr Christie's submission that the Interpretation Act is not applicable. The issues which confronted Panton P in Orett Bruce Golding and the Attorney General v Portia Simpson Miller SCCA No 3/2008, judgment delivered 11 April 2008, were different. His pronouncement in respect of the Interpretation Act is, in my view, therefore irrelevant to the instant matter. In the Golding and the Attorney General v Simpson Miller case, the issue was whether the court had the power to extend the time within which an applicant to whom conditional leave had been granted to make a claim for judicial review, had failed to make his claim within the prescribed time.

13 In that case, the applicant's application was filed in excess of a month outside of the stipulated 14 days. The method for the computation of the time in respect of rule 56.4(12) of the Civil Procedure Rules (CPR) was not an issue for the learned President's determination. By referring to the Interpretation Act, he endeavoured to demonstrate that the applicant's application in that case would have been made outside of the 14 days allotted by whatever method of calculation was applied.

14 In my view, the Interpretation Act is inapplicable to the computation of time in respect of judicial review matters. There is, as posited by Dr Barnett, no basis for resorting to the Interpretation Act, when the CPR specifically provides for the computation for these matters. Section 8(1) of the Interpretation Act reads:

‘In computing time for the purpose of any Act, unless the contrary intention appears —

• (a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day in which the event happens or the act or thing is done;

• (b) if the last day of the period is Sunday or a public holiday (which days are in his section referred to as excluded days) the period shall include the next following day, not being an excluded day;

• (c) when any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next following day, not being an excluded day;

• (d) when an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.’ (Emphasis supplied)

15 In the instant case, a contrary intention has been clearly demonstrated by Part 56 which has expressed in clear language that applications for judicial review are dealt with by the CPR. Dr Barnett also relied on section 12(1) of the Interpretation Act which states that:

‘Where expressions are defined in or for the purposes of any Act, such expressions shall have the meanings assigned to them, unless there is anything in the subject or context repugnant to, or inconsistent with, such meaning.’ (Emphasis supplied)

16 The language of the framers of the CPR makes it palpable that in computing time, judicial review matters are not exempt from the method of computation set out in rule 3.2 of the...