The Attorney-General v Cenitech Engineering Solutions Ltd; National Contracts Commission v Cenitech Engineering Solutions Ltd
| Jurisdiction | Jamaica |
| Judge | Mcdonald-Bishop JA,Edwards JA,Harris JA |
| Judgment Date | 20 December 2023 |
| Neutral Citation | JM 2023 CA 158 |
| Court | Court of Appeal (Jamaica) |
| Year | 2023 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2021CV00035 |
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[2023] JMCA Civ 52
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Edwards JA
THE HON Mrs Justice Harris JA
SUPREME COURT CIVIL APPEAL NO COA2021CV00035
SUPREME COURT CIVIL APPEAL NO COA2021CV00040
IN THE COURT OF APPEAL
Judicial Review — Vicarious liability of Attorney-General as the Crown's representative in judicial review proceedings — Whether Full Court was correct to order assessment of damages against Attorney-General for conduct of statutory body in judicial review proceedings — Sections 2(2) and 13 of the Crown Proceedings Act — Basis upon which damages can be granted in applications for administrative orders under Part 56 of the Civil Procedure Rules, 2002 (‘CPR’) — Whether an assessment of damages can be ordered in judicial review proceedings in the absence of a claim for breach of Constitution or cause of action in private law — Rules 56.1, 56.9 and 56.10 of the CPR — Section 48(g) of the Judicature (Supreme Court) Act
Costs — Bullock order — Whether the Full Court properly exercised its discretion to make an order that the costs of successful defendants be paid by unsuccessful defendants in judicial review proceedings
Louis Jean Hacker and Ms Kristen Fletcher instructed by the Director of State Proceedings for the Attorney-General
Ms Annaliesa Lindsay instructed by Lindsay Law Chambers for the National Contracts Commission
Ransford Braham KC and Neco Pagan instructed by Dabdoub Dabdoub and Co for Cenitech Engineering Solutions Limited
The Integrity Commission (formerly the Contractor-General) not appearing or represented
Before the court are two appeals emanating from a judgment of the Supreme Court (the Full Court) delivered on 26 March 2021. In its judgment, the Full Court granted relief on an application for judicial review brought by Cenitech Engineering Solutions Limited (‘Cenitech’) against the National Contracts Commission (‘the NCC’), the Integrity Commission (formerly the Contractor-General), the Minister of Agriculture and Fisheries (‘the Minister’) and the Attorney-General of Jamaica, who were named as the 1 st to 4 th respondents, respectively (collectively ‘the respondents’).
The first appeal (COA2021CV00035) is brought by the Attorney-General, and the second (COA2021CV00040) by the NCC. The Attorney-General and the NCC challenge the Full Court's orders that damages be assessed against them in favour of Cenitech, that a case management conference be listed for directions to be given in respect of the assessment of damages, and that they pay Cenitech, the Integrity Commission (formerly the Contractor-General) and the Minister's costs.
An insight into the identity of the parties, the events leading to the proceedings in the Full Court, and the shape of the case in the court below is necessary to contextualise and better appreciate the issues raised in the appeal. This will now be provided.
Cenitech is a limited liability company that principally engages in building construction, civil engineering works, pipe laying works, general road works and interior construction works.
The Attorney-General is the Crown's representative in civil proceedings, as provided by the Crown Proceedings Act, and the principal legal advisor to the Government.
As it relates to both the NCC and the Integrity Commission (formerly the Contractor-General), the Attorney-General has very helpfully provided a summary of the legislative changes that have impacted the legal status of those institutions in relation to these proceedings, which I gratefully adopt.
Firstly, as pertains to the NCC, at the time the proceedings were initiated in the Supreme Court, the NCC was a statutory body established under section 23B of the Contractor-General Act, with responsibility for, among other things, reviewing and approving applications for registration by prospective government contractors, and grading contractors in relation to the categories for which registration was obtained.
Over the course of 2018 and 2019, the Integrity Commission Act, the National Contracts Commission (Validity and Indemnity) Act, and the Public Procurement Act replaced the NCC with the Public Procurement Commission. They validated the conduct of the NCC from 11 February 1999 to the date the Public Procurement Act came into operation. There was, however, no need to substitute the NCC as a party in the proceedings in light of the extended validation of its conduct by the National Contracts Commission (Validity and Indemnity) Act and section 65 of the Public Procurement Act.
These statutes preserve the liability and legal status of the NCC for the purposes of proceedings against it.
Secondly, although the Integrity Commission is now a party to the proceedings, the Contractor-General originally stood in its place in the court below. When the proceedings were initiated in the Supreme Court, the Contractor-General was a Commission of Parliament established by section 3 of the Contractor-General Act, with the mandate to monitor the award and implementation of government contracts and the grant, suspension or revocation of government licenses. In February 2018, the Integrity Commission Act repealed several provisions of the Contractor-General Act and effectively replaced the Office of the Contractor-General with the Integrity Commission. The consequence of this change is that when Cenitech's application for judicial review was heard, the Office of Contractor-General ceased to exist in the same form it did when the application was initially filed. This resulted in the Contractor-General being substituted as a party in the proceedings below, with the Integrity Commission (formerly the Contractor-General) by order of the Full Court.
Although the Integrity Commission (formerly the Contractor-General) is named a party to both appeals, it has not participated in the proceedings before this court. However, given the role of the Contractor-General in the events that resulted in the proceedings in the Full Court, for the purpose of this judgment, reference will mostly be made to the Contractor-General in dealing with his standing in the proceedings in the court below as one of the original respondents. Reference will only be made to the Integrity Commission (formerly the Contractor-General) wherever the context requires reference to be made to it as a named party to the proceedings.
Lastly, the Minister is the cabinet minister responsible for agriculture and fisheries. The Ministry of Agriculture and Fisheries is a public body that, from time to time, enters into government contracts through, among other things, a tender process in accordance with the Contractor-General Act. In awarding contracts, the Ministry, like every other public body, must first comply with and administer a formal tender and procurement process. As is evident from the names of the parties to the appeal, although the Minister was a party in the judicial review application in the Full Court, he is not a party to these appeals.
Over the course of 2012 and 2013, Cenitech applied for and obtained a certificate of registration from the NCC as a government contractor in the following categories, with the following grades: building construction (grade 1), civil engineering works (grade 1); general road works (grade 1); interior construction works (grade 3); and pipe laying (grade 2).
Following Cenitech's registration in September 2013, the Ministry of Agriculture and Fisheries invited tenders from registered government contractors for the Barracks Relocation Project of the Sugar Transformation Programme, which involved the construction of houses in the parishes of Clarendon and Saint Thomas. Cenitech was one of the successful bidders for the project. The Ministry of Agriculture and Fisheries then made a recommendation to the Cabinet to award the relevant contracts to Cenitech, and on 2 December 2013, the Cabinet approved the recommendation.
Following this approval, on 3 December 2013, the Contractor-General wrote to the NCC, raising several concerns with Cenitech's registration with the NCC. Acting on the concerns raised by the Contractor-General, the NCC, by letter dated 12 December 2013, advised Cenitech of its decision to revoke its registration as a government contractor in all categories for which it was registered, with immediate effect. The letter advised Cenitech that the NCC's decision was “based on misrepresentations made on its application for registration… which were uncovered in an investigation exercise conducted by the Office of the Contractor-General”.
On 13 December 2013, the NCC advised the Cabinet Secretary of its revocation of Cenitech's registration. On 23 December 2013, the Cabinet decided to revoke its approval of awarding the contracts to Cenitech. The contracts previously approved to be awarded to Cenitech were subsequently awarded to at least one other contractor.
Cenitech was not provided with any details of the alleged misrepresentations to which the NCC's letter referred. Cenitech was also not afforded an opportunity to make representations in response to the allegations before the revocation of its registration. After Cenitech's registration was revoked, the Contractor-General held several hearings on several days in December 2013, at which questions were asked and answered by some of...
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