The Grenada Bar Association (GBA) has failed in its efforts to get the Court of Appeal to rule in its favour in a matter that was brought against the former Keith Mitchell-led New National Party (NNP) government.
The local bar on July 11, 2019 applied to the High Court by originating motion under section 16 of the Constitution, for a number of declarations stating, in effect, that the Government of Grenada has failed to properly fund and administer the 2 courts in Grenada, in breach of Section 8(8) of the Constitution. Section 8(8) enshrines the right to a fair trial.
High court judge, Justice Raulston Glasgow heard the matter and ruled in favour of GBA which prompted the Attorney General Chambers to file an appeal.
The GBA also sought orders mandating the Minister of Finance to provide adequate funds to the courts and to meet all outstanding sums of money due to the Eastern Caribbean Supreme Court.
On 17th July 2019, the GBA applied under rule 21.2 of the Civil Procedure Rules 2000 (“the CPR”) for an order that it be appointed to represent itself and all litigants who appear before the Supreme Court of Grenada in civil or criminal proceedings, to obtain the opinion of the court on the constitutional issues raised in the proceedings.
The grounds of the application were that the GBA has a sufficient interest in the proceedings and that the local bar and the litigants before the Supreme Court have the same or similar interest in the proceedings.
The State opposed the representation application and averred that it had no grounding as it sought to represent all litigants including those accused before the court.
“Such litigants are having their matters heard by the courts and therefore do not share any interest with other litigants and/or the GBA.” the AG Chambers said, adding that, “the motion does not request a declaration that any accused person’s rights have been, are being, or are likely to be infringed by the alleged state of the court system.”
A 3-member Panel of Court of Appeal Justices heard the matter and ruled in favour of the State against the local lawyers.
As a public service, THE NEW TODAY reproduces the decision that was handed down by the Court of Appeal in the matter:
On 11th July 2019, the Grenada Bar Association (“the GBA”) applied to the High Court by originating motion under section 16 of the Constitution, for a number of declarations stating, in effect, that the Government of Grenada has failed to properly fund and administer thecourts in Grenada, in breach of Section 8(8) of the Constitution. Section 8(8) enshrines the right to a fair trial. The GBA also sought orders mandating the Minister of Finance to provide adequate funds to the courts and to meet all outstanding sums of money due to the Eastern Caribbean Supreme Court.
On 17th July 2019, the GBA applied under rule 21.2 of the Civil Procedure Rules 2000 (“the CPR”) for an order that it be appointed to represent itself and all litigants who appear before the Supreme Court of Grenada in civil or criminal proceedings, to obtain the opinion of the court on the constitutional issues raised in the proceedings. The grounds of the application were that the GBA has a sufficient interest in the proceedings and that the GBA and the litigants before the Supreme Court have the same or similar interest in the proceedings. The appellants opposed the representation application and averred that it had no grounding as it sought to represent all litigants including those accused before the court. Such litigants are having their matters heard by the courts and therefore do not share any interest with other litigants and/or the GBA. Further, the motion does not request a declaration that any accused person’s rights have been, are being, or are likely to be infringed by the alleged state of the court system.
The Judge considered the evidence and the authorities that were cited to him and concluded that: (i) the GBA has a statutory interest in the proper and effective functioning of the courts in Grenada; (ii) litigants appearing before the courts constitute a sufficiently defined class of persons; (iii) the alleged failure to provide sufficient funds and adequate resources had the potential to affect the effective, efficient and timely disposal of cases thereby affecting the right to a fair trial secured by section 8 of the Constitution; and (iv) the GBA and litigants have a common interest and a common grievance in the funding and administration of the courts, and the relief sought would be beneficial to all.
Being dissatisfied with his decision, the appellants have appealed to this Court. The main issues that arose for determination were: (a) the GBA’s standing to apply for relief under the Constitution; (b) CPR part 21 and the interests of the GBA and the litigants; (c) the identification of the class of persons to be represented; (d) the alternative remedies available to the litigants; and € the exercise of discretion under CPR part 21.
Held: allowing the appeal and setting aside the Judge’s order with no order as to costs, that:
- The GBA has a sufficient prima facie interest in the courts of Grenada to raise issues that may affect the constitutional right to a fair trial within a reasonable time for its members and litigants before the courts. The Judge correctly left the final determination of standing to be resolved at the trial. The real issue in this appeal is whether that right includes the right to represent persons who have trials in the courts.
Section 4 of the Legal Profession Act Cap. 167A of the Laws of Grenada applied.
- The GBA and the litigants have a common interest, namely, the proper funding and administration of the courts in Grenada. In individual cases, litigants’ needs and expectations may be addressed because their cases are progressing through the courts satisfactorily. But that does not mean that they do not have the same interests as other litigants whose needs and expectations are not being addressed. The interest is present in all litigants as soon as they become involved in a matter before the courts. Therefore, the threshold issue in CPR 21.1 of having the “same or similar interest” is satisfied.
Rule 21.1(2) of the Civil Procedure Rules 2000 applied; Millharbour Management Ltd and others v Weston Homes Ltd and another [2011] EWHC 661 applied; John v Rees [1970] Ch 345 applied; Duke of Bedford v Ellis and others [1901] AC 1 considered.
- The persons who comprise a represented class must be identifiable. The common interest between the GBA and the litigants existed at the time when the claim was filed in July 2019, and though the membership of the represented group fluctuates it can be ascertained from time to time by, for example, checking the courts’ lists. Membership of the class is attained once a person becomes a litigant and does not depend on the result of the proceedings. Therefore, the represented class of litigants is sufficiently defined for the purposes of CPR part 21.
Emerald Supplies Ltd v British Airways plc [2010] EWCA Civ 1284 applied; John v Rees [1970] Ch 345 applied; Markt & Co. Limited v Knight Steamship Company Limited and others [1910] 2 K.B. 1021 considered.
- It is not disputed that an alternative remedy exists, namely, to file individual constitutional claims in the High Court alleging that a litigant’s constitutional right to a fair trial within a reasonable time protected by section 8 of the Constitution has been breached or is likely to be breached. However, the availability of an alternative remedy is not an absolute bar to bringing a constitutional motion. The wording of section 16 of the Constitution is discretionary.
Akim Monah v The Queen GDAHCRAP2021/0015 (delivered 23rd February 2022, unreported) applied; Attorney General v Ramanoop [2005] UKPC 15 applied.
- A representation order would not necessarily strengthen a litigant’s rights in these proceedings nor any future claims for constitutional relief. Neither will the order create an estoppel between the State and individual litigants. Any application by a litigant for a declaration that his right to a fair trial within a reasonable time has been infringed will depend on the facts of the case that he presents to the court. He cannot use a declaration of unconstitutionality in these proceedings to claim that his rights have been infringed in other proceedings. There is no utility in continuing the representation order as the GBA can pursue the substantive claim without such an order.
Akim Monah v The Queen GDAHCRAP2021/0015 (delivered 23rd February 2022, unreported) applied.
JUDGMENT
[1] WEBSTER JA [AG.]: This is an appeal against the judgment of the learned trial judge (“the Judge”) dated 4th June 2021 in a constitutional claim brought by the Grenada Bar Association (“the GBA”). The Judge granted the GBA a representation order in the constitutional claim to represent itself and litigants who appear before the Supreme Court of Grenada, whether in civil proceedings or in criminal proceedings.
Background
[2] The GBA is a non-profit organisation continued under the provisions of the Companies Act1 with a membership of approximately 125 practising lawyers. Being dissatisfied with the way that the courts in Grenada were being funded and administered, the GBA applied to the High Court by originating motion on 11th July 2019 for the following relief:
(i) A declaration that the failure by the Government of Grenada to provide any or any adequate courts and associated accommodation is in breach of the GBA’s fundamental right to a fair trial enshrined in section 8(8) of the Constitution;
(ii) A declaration that the Government of Grenada’s failure to provide sufficient court administrative staff to ensure the timely production of trial transcripts is a breach of the GBA’s fundamental right to a fair trial enshrined in section 8(8) of the Constitution;
(iii) A declaration that the Government of Grenada’s failure to fund the Eastern Caribbean Supreme Court under its obligations so to do is a breach of the GBA’s fundamental right to a fair trial enshrined in section 8(8) of the Constitution;
(iv) An order that the Minister of Finance do forthwith provide adequate funds to enable the provision of adequate courts and associated accommodation;
(v) An order that the Minister of Finance do forthwith meet all outstanding sums of money due to the Eastern Caribbean Supreme Court in accordance with its obligations so to do;
(vi) An order that the costs of and incidental to the application be paid by the appellants (the respondents in the court below).
[3] The motion does not seek declaratory or other relief for any of the members of the GBA nor any of the litigants that it seeks to represent. Apart from the mandatory orders sought in sub-paragraphs (iv) and (v) against the Minister of Finance, its aim is to get declarations from the court on certain constitutional issues regarding the courts and the court system in Grenada.
[4] The motion is made under section 16 of the Constitution of Grenada2 (“the Constitution”) alleging breaches of section 8(8). Section 8(8) deals with the establishment of independent and impartial courts for determining civil rights and obligations and for persons instituting proceedings under the section to be given a fair hearing within a reasonable time. The motion was amended to include alleged breaches of section 8(1) which provides similar rights to persons charged with criminal offences. The sections read –
Section 8(8) –
“Any court or other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.”
Section 8(1) –
“If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
The provision for enforcing rights under section 8 and other sections of the constitution is Section 16(1) which reads –
“If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.”
[5] The motion is supported by the 1st affidavit of Lisa Taylor, the then president of the GBA. Her affidavit details the many challenges facing the courts and administrative staff in Grenada, the physical deterioration and lack of repairs of the buildings used as courthouses and as the registry, the backlog of cases, and the delays in the production of trial transcripts. She fears that this state of affairs will continue unless the court intervenes.
[6] On 17th July 2019 the GBA applied under rule 21.2 of the Civil Procedure Rules 2000 (“CPR”) for an order that it be appointed to represent itself and litigants who appear before the Supreme Court of Grenada in civil or criminal proceedings to obtain the opinion of the Court on the constitutional issues raised in the proceedings (“the representation application”). The GBA relied on the 1st affidavit of Ms. Lisa Taylor filed on 11th July 2019 in support of the application. The grounds of the application are that the GBA has a sufficient interest in the proceedings and the GBA and litigants before the Supreme Court have the same or similar interest in the proceedings.
[7] On 8th August 2019 Ms. Xiomara Forsyth, acting Registrar of the Supreme Court, filed an affidavit opposing the motion in which she denied or explained the deficiencies of the court system detailed in Ms. Taylor’s affidavit, and outlined the details of the Government’s attempts to ameliorate the situation regarding the state of the courts and the operating systems.
[8] On 29th January 2021 Ms. Forsyth filed her 2nd affidavit. This affidavit opposed the representation application and responded to Ms Taylor’s affidavit filed on 11th July 2019. She relied on her 1st affidavit filed on 8th August 2019 and averred that the representation application has no grounding in the originating motion as it seeks to represent all litigants including those accused before the court. Such litigants are having their matters heard by the courts and therefore do not share any interest with other litigants and/or the GBA. Further, the motion does not request a declaration that any accused person’s rights have been, are being, or are likely to be infringed by the alleged state of the court system.
[9] The central issue before the Judge was whether the GBA and litigants before the Supreme Court have the same or similar interest in the issues raised by the constitutional motion, namely, whether the State’s management and administration of the facilities for conducting trials amount to a breach or potential breach of the rights of persons appearing before the Supreme Court to a fair trial within a reasonable time guaranteed by section 8 of the Constitution. The Judge considered the evidence and the authorities that were cited to him and concluded that the GBA and the litigants have the same or similar interests in the constitutional proceedings and granted the representation order.
[10] The Judge’s approach to the issue of the same or similar interests cannot be faulted. He examined the evidence in the constitutional claim, as he was bound to do for the representation application, to determine the similarity of the issues between the GBA and the litigants. He found that the GBA has a statutory interest in the proper and effective functioning of the courts in Grenada; that litigants appearing before the courts constitute a sufficiently defined class of persons; that the alleged failure to provide sufficient funds and adequate resources had the potential to affect the effective, efficient and timely disposal of cases thereby affecting the right to a fair trial secured by section 8 of the Constitution; and that the GBA and litigants have a common interest and a common grievance in the funding and administration of the courts, and the relief sought would be beneficial to all. The Judge did not make findings on the standing of the GBA to represent litigants and alternative remedies, noting that these matters are better suited to the trial of the claim. He therefore granted the relief sought in the representative application.
(TO BE CONTINUED)