In a judgment dated July 19, 2024, for the King (On The Application Of Lurlane Berry And Others) versus the Public Lands Commission Cayman Islands and the Cayman Islands Attorney General, the Honourable Justice Jalil Asif KC granted beach vendors the extension of time that they need to complete the filing of their notice of motion for judicial review proceedings and to serve it. The judge explained that where there is a breach of GCR O.53. r.5(2) by the beach vendors to file documents for judicial review proceedings on time, this was an irregularity and did not make the proceedings null or void, as argued by the Attorney General’s Chambers. The judge further indicated that where Cayman Grand Court Rules contain provisions different from other jurisdictions, including Jamaica, the Cayman Grand Court Rules should be applied rather than importing non-Cayman rules, which could lead to a different outcome.
The details of the case
For persons unfamiliar with the beach vendors’ matter, the judge explained:
The Applicants are various persons who have been involved in operating businesses at Public Beach on Seven Mile Beach, Grand Cayman, for periods ranging from 2-19 years.
During 2023, the Public Lands Commission brought into effect a new regime for licensing those who wish to trade on Public Beach. Each of the Applicants applied for a licence and was refused.
Each of the Applicants was sent a letter dated 15 January 2024 notifying them of the decision and requiring that they cease trading and vacate the site by 14 February 2024.
On 12 February 2024, the Applicants filed a joint application for leave to commence judicial review proceedings and their supporting affidavits.
The judge added:
The matter came before me in Chambers on Tuesday 13 February 2024 on an ex parte application but on informal notice to the Respondents. The Respondents did not attend.
Having heard counsel for the Applicants, I granted leave to move. In addition, I directed that each Applicant should file further evidence by Friday 23 February 2024 giving further particulars of representations regarding their licences, which they allege were made to them by officials from the Public Lands Commission and on which they relied in support of their claim.
Finally, I stayed the requirement that the Applicants should cease trading and vacate Public Beach until the judicial review has been determined.
The judge continued:
My order confirming the grant of leave was signed, filed and sealed on 13 February 2024.
It is common ground that, having obtained leave on 13 February 2024, the Applicants did not file and serve their Notice of Originating Motion within the 7 days specified in GCR O.53, r.5(2).
The Attorney General’s Chambers complained that the time for the beach vendors to serve the Notice of Originating Motion expired and asked that the proceedings be struck out.
The grounds relied on by the Attorney General’s Chambers were:
- The grant of leave was conditional on compliance with GCR O.53, r.5(2)
- The Applicants failed to comply with the 7-day time limit specified in GCR O.53, r.5(2)
- The leave therefore lapsed as a result of the Applicants’ failure
- The proceedings are therefore a nullity and should be struck out pursuant to GCR O.18, r.19(a) or (d) or the inherent jurisdiction.
The judge added that the Attorney General’s Chambers relied on the case of Anderson v Utility Regulation and Competition Office and “the underlying substantive arguments that were advanced in Anderson,” where Gregg Anderson, the former Executive Director, Energy & Utilities at the Utility Regulation and Competition Office (“OfReg”), lost his grant of leave to proceed to judicial review against OfReg because of a failure to file Court documents on time.
The judge highlighted that the Attorney General’s Chambers also appeared to rely on “the underlying substantive arguments that were advanced in Anderson, and which were accepted by Carter J.”
Concerning the above, the judge pointed out that Carter J’s attention was not drawn to the Cayman case of Cayman Islands Urgent Care Ltd v HM Director of Customs [2021] and suggested that too much emphasis was placed on Jamaican Civil Procedure Rules, cases from Jamaica and the Eastern Caribbean Supreme Court (ECSC) when Cayman Grand Court Rules had different provisions.
He added that one of the cases relied upon took into account “a specific provision in the Jamaican Civil Procedure Rules that does not appear in the Grand Court Rules.”
Elucidating, the judge said:
With respect to Carter J, I agree with Mr Wheeler that it seems that she elided the public policy applicable across most common-law based jurisdictions of requiring judicial review claims to be determined speedily, and significantly more speedily than other kinds of civil claim, with the particular considerations in Jamaica and the ECSC circuit which are founded on the specific wording of their respective Civil Procedure Rules.
In my view, these should not be considered to be generally applicable public law principles and do not have general application across or transferability between common-law based jurisdictions where the applicable procedural rules are differently framed.
If they were generally applicable public law principles, then there would be no need for the Jamaica and the ECSC Civil Procedure Rules expressly to provide for the grant of leave to be conditional, nor for the Rules of the Court of Judicature in Northern Ireland to state that a grant of leave lapses if proceedings are not commenced in time.”
He emphasized:
In my judgment, the terms of GCR O.53 are significantly different from the equivalent provisions in Jamaica and the ECSC.
In both of those jurisdictions, the procedural rules expressly state that the grant of leave is conditional.
There is no equivalent language in GCR O.53, and I do not consider it is legitimate to imply that conditionality requirement into GCR O.53, r.5(2) simply because the rule says that the documents commencing the claim “shall” be served within 7 days. That is a non sequitur.
He concluded:
Having regard to the submissions on this point made by Mr Wheeler and by Mr Gayle, I conclude that I should grant the Applicants the extension of time that they need in order to complete the filing of their notice of motion and to serve it.
GCR O.53 is not a self-contained procedural code and the other rules within the Grand Court.
Rules apply to proceedings within GCR O.53 so far as they are relevant except where clearly excluded.
In particular, GCR O.2, r.1 and O.3, r.5 apply to judicial review proceedings.
GCR O.53. r.5(2) does impose a time limit for serving the prescribed documents that applicants should comply with. However, a failure to comply does not have the consequence that the leave lapses and does not render the judicial review proceedings a nullity or otherwise invalid.
Where there is a breach of GCR O.53. r.5(2), that is an irregularity. The applicant must apply under GCR O.3, r.5 for an extension of time. The applicant must put forward a cogent explanation for the breach, and the court will bear in mind the requirement in judicial review cases of expedition and speedy certainty as part of its determination of what is just in all the circumstances.
In this case, “the delay is short, there is a reasonable explanation for it, there is no prejudice to the Respondents and there is no evidence before me of prejudice to any third parties.” Accordingly, the extension of time required by the beach vendors was granted.
The beach vendors were represented by Mr Rupert Wheeler, who Caymanian attorney H Phillip Ebanks instructed.
The outcome is significant for other cases. For example, it may now be open to Gregg Anderson to appeal his “out of time” ruling in his case against OfReg and be considered for a grant of leave to proceed to judicial review against OfReg.
