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Lawyers given greenlight to pursue case against the state: Part II

Attorney-at-law Lisa Taylor – was in charge of the local bar when the case was filed in court

Lawyers given greenlight to pursue case against the state: Part IIThe way is now clear for the local high court to hear a case on the administration of justice in Grenada that can prove to be rather embarrassing to the Keith Mitchell-led ruling New National Party (NNP) government.

The Grenada Bar Association (GBA) has been given the green light by high court, Justice Raulston Glasgow to proceed with the case, which is seeking to get the regime in St. George’s to properly fund the courts in Grenada and to provide the necessary tools for the proper administration of justice.

In its case, the bar cited the lack of transcripts from the high court to file matters before the Court of Appeal and the lack of sufficient personnel to properly man the legal system.

GBA is seeking to move the court to issue an order for the Minister of Finance, Gregory Bowen to forthwith provide adequate funds to enable the provision of adequate courts and associated accommodation.

The association also wants the judge to grant an order for the Minister of Finance to “forthwith meet all outstanding sums of money due to the Eastern Caribbean Supreme Court in accordance with its obligations so to do”.

The arguments were put forward for GBA by newly decorated Queen’s Counsel, James “Jimmy” Bristol while another newly installed QC, Darshan Ramdhani, the former Attorney General presented the case on behalf of the state.

Following is part II of the ruling as handed down by Justice Glasgow:-

[13] Counsel concludes that the representative action application meets all the prongs required to bring an action as a represented body of persons. Counsel says that the action is a request for declaratory relief for a described group, which consists of individuals within both civil and criminal jurisdictions who share the same interest in the administration of justice, namely the provision of adequate courts in Grenada, funding for the same and the provision of sufficient court administrative staff for its effective functioning. The members of this group all share a common grievance as it consists of persons whose fair trial rights as guaranteed by the Constitution, have been breached. The relief sought to order the funding of the court systems will be beneficial to every person in the represented group whether or not presently identified.

Case for the respondents
[14] The case for the respondents is comprehensively set out in submissions filed on 191h February 2021 and 30th April 2021. The essence of the respondents’ answer focuses on the provisions of sections 8 (1) and (2) and 16 (1) and (2) of the Constitution which sections read –

” 8 (I) 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.

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.

16.-(1) 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.

(2) The High Court shall have original jurisdiction-

  • to hear and determine any application made by any person in pursuance of subsection (1) of this section; and
  • to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section and may make such declarations or orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 2 to 15 (inclusive) of this Constitution:

Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.”

[15] Counsel for the respondents submits that whilst the CPR 2000 does not expressly state that each person in the group which is sought to be represented should possess the same interest, the learning found in the English case law are applicable to expounding on the provisions of CPR 21 .2 and section 16 of the Constitution. The respondents explain that the cases suggest that “each of the proposed group must possess the same or substantially the same interests in the proceedings”.

[16] Counsel for the respondents relies on Emerald Supplies Ltd. v British Airways plc7 and the dictum of Ackenhead J in Mill harbor Management Ltd. and others v Weston Homes Ltd and anothers. Applying these authorities to the present application, counsel says that the GBA must first show that it has the same interest as each member of that group it is seeking to represent. Counsel accepts that the GBA represents its members. However, counsel disputes whether the GBA has shown whether any litigant’s right to a fair trial in any particular case has been breached or is likely to be breached.

[17] Further, counsel argues that even if the GBA passes the first hurdle, it must show that each and every litigant before the court or who may come before the court has the same interest which are relevant to and grounded in the declarations that his or her right to a fair trial has been breached or is likely to be breached. Counsel asks whether a court can make such a declaration that the GBA’s right is breached and that must mean that every other single litigant to ever grace the doors of the court also has had his or her right to a fair trial breached. Counsel questions whether the GBA can maintain that the represented parties in effect have a common grievance and that the relief being sought is beneficial to all.

[18] Counsel notes that, unlike English Law, in order for a claimant to invoke section 16 of the Constitution, he must show that his right to a fair trial has been breached, is being breached or is likely to be breached. Counsel submits that the provisions of section 8(8) only relate to the determination of civil rights, however, the GBA is seeking to also represent defendants in the criminal courts.

The GSA’s claim is grounded in the argument that its own right to a fair trial along with that of its members is being breached. Counsel submits that this is an issue of liability which must be based on the formulation found in section 16: “has been, is being or is likely to be breached.” Therefore Counsel maintains that for each litigant presently before the court or who may come before the court, to share an interest in a section 16 claim, they must be at least contending their right to a fair trial has been, is being or is likely to be breached.

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[19] In further submissions filed on 30th April 2021, the respondents explain that the section constitutional provisions cannot be rendered meaningless by allowing anyone to claim remedies unless it is clear that the claimant’s rights have been, are being or are likely to be breached. In this regard, the court is asked to consider as a threshold question whether the GBA has presented a case that any of its rights or that of its constituent members or any one of the proposed litigants’ rights has been, is being or likely to be breached. The respondents point out that the present application is being conducted in a court and as such there are courts in Grenada. The respondents ask “has the claimant filed any case in court with regards to which it is contending that its section 8 rights have been contravened?” The respondents answer that no such case has been filed.

[20] The respondents contend that it is absurd to conclude that “all persons have some common grievance against the State with regards to which section 16 of the Constitution provides a remedy.” The respondents opine that the court ought to adopt the required approach of assessing the pleadings to ascertain the interests which are being asserted by the GBA and then go on to consider whether each and every litigant has the same or substantially the same interest and a common grievance and the relief sought is in its nature beneficial to all. The respondents posit that if this approach is adopted, the court will find it impossible to find that each and every litigant’s right to a fair trial has been infringed, is being infringed or likely to be infringed.

[21]The respondents present the case of Bell v DPP11 to make the point that the assessment of the relevant factors as they affect the conduct of each case would vary from “jurisdiction to jurisdiction and case to case12.” The point being made by counsel for the respondents is that where breaches of a section 8 right to fair trial case are being pursued, the court is enjoined to review the circumstances of each individual case. The long and short of the point being made by the respondents is that the GBA could not be complaining of a lack of court resources when on a closer examination it is apparent that cases are being heard and determined on a daily basis. The respondents take the view that there is therefore hardly any merit in the claim for relief being pursued by the GBA.

[22] The respondents conclude their argument by positing that even if the GBA has some basis to bring the claim, the court still retains the discretion pursuant to section 16(2) to refuse relief where it finds that adequate alternative remedies are available to the GBA. In this regard, the respondents advert to the long history of the court’s refusal to exercise its constitutional jurisdiction where adequate alternative remedies avail a claimant. Counsel posits that there are adequate powers available for a court to address breaches of fair trial rights in individual cases.

[23] The respondents also urge the court to consider whether conferring anyone with standing “in the context of this case is a proper use judicial resources and whether this claim is a proper and effective method of raising issues in court.”13 The court was urged to consider the Canadian case of AG of Canada v Downtown Eastside Sex Workers United Against Violence Society and Others.14

[24] The court is urged to consider several factors as elucidated in that case –

(1) The court should ask itself 3 questions: firstly, whether there was a serious justiciable question raised, whether the plaintiff had a real stake or genuine interest in it and whether, in all the circumstances, the proposed suit was a reasonable and effective way to bring the issue before the courts. Counsel says the genuine interest element must be tied to section 16 of the constitution;

(2) The foregoing factors must be weighed cumulatively and not as free standing or hard and fast;

(3) The court ought to take a purposive approach to deciding whether a particular means of bringing a case to court is “reasonable and effective” and an “economical use of judicial resources”. The respondents find it ironic that the GBA laments the lack of resources for the courts but yet it files this claim that “is slated to take up much of those resources”;

(4) By merely bringing this claim, the GBA pursues the interests and the rights of all the other proposed litigants. The court is also reminded of the previously made point that the issues in this claim can be addressed by any court in an individual claim. There is no need for a representative action;

(5) The court must be concerned to resolve issues in reasonable and effective manner. What is effective and effective is a matter of proportionality. The court must be prepared to seize control of its processes and “ensure that practical and sensible limitations are placed on unnecessary litigation seeking to make points for public consumption rather than to really seek effective remedies.”

Discussion and Analysis
[25] CPR 21.1 is of significance to this discourse. The relevant provisions read –

21.1 (1) This rule applies to any proceedings, other than proceedings falling within rule 21.4, in which 5 or more persons have the same or a similar interest. (Bold emphasis).

(2)The court may appoint –

(a) a body having a sufficient interest in the proceedings; or

(b) one or more of those persons; to represent all or some of the persons with the same or similar interest.

[26] Counsel for the respondents properly concedes that the English cases offer some guidance on the application of our CPR 21. Akenhead J in Millharbour Management Limited & Ors. v Weston Homes Limited & Anor summarized the guiding principles in relation to representative actions in this manner:

“(1) To enable a party to claim, or be claimed against, in a representative capacity for other parties, that party must have the same interest in the claim in question as those who are to be represented. That is a threshold point, which must be established by reference to the facts so far as it is possible to ascertain the facts at the time when the court considers the representative capacity of any party. It is legitimate to proceed by reference to the proposed or actual pleadings to ascertain at least what the facts are assumed to be.

(2) It must be possible at any stage during the proceedings to ascertain whether any given person qualifies for membership of the represented class of persons as having the same interest as the party which seeks to represent them.

(3) The question of whether and the extent to which parties have the same interest can only be answered by reference to the facts of the particular case, albeit that it will be necessary to determine, amongst other things, whether the representing party and the represented parties in effect have the same cause of action or liability as the case may be, subject of course to the relevant facts ultimately being found.

TO BE CONTINUED