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Lawyers given greenlight to pursue case against the state – Part III

Justice Rawlson Glasgow

The 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 the final part of the ruling as handed down by Justice Glasgow:-

(4) As in the Duke of Bedford case, it will be inappropriate, before the final judgement on the issues resolved in relation to the represented parties, for the Court to decide the issues or, indeed, to indicate in some obiter way what the answer may well be. That is simply because the Court will not have heard full argument and will only have unchallenged written evidence before it at that stage.

(5) Once it is clear that there is the same interest, the Court has a discretion whether to allow the relevant party to act or to continue to act in a representative capacity. Indeed, the Court retains a discretion even at and after the judgement to direct that a judgement is not binding or is not to be enforced. Thus, it is conceivable that, if in the judgement findings of fact or other law are such that it emerges that one or more of the represented persons does not have the same interest, the judge could well direct that the judgement is not to be enforced against them.

(6) The overriding objective must always play an important part in the exercise of the discretion. Thus the saving of cost and time to the parties, and indeed to the court, must be factors in appropriate cases to take into account.

(7) Limitation defences could be a factor to take into account depending obviously on when the representative character is sought to be imposed. In general, however, it would be open to a defendant to run a limitation defence in relation to represented parties who were not actual parties to the litigation. If such a defence was established against certain persons, it would be a wholly exceptional case in which the judge allowed the judgement to be enforced by a person who had not been a party to the claim and against whom the limitation defence had been established17.”

[27] Applying the foregoing guidelines to this application, I am constrained to disagree with the respondents. Notwithstanding the lucidity and eruditeness of the arguments presented by counsel for the respondents, the following points impel me to conclude that the GSA’s application must be granted –

(1) I am not required to expound on the underlying merits of the GSA’s claim. But as explained by Akenhead J in Millharbour, the threshold question of whether the

GBA shares the same or similar interest as the proposed class must be determined by reference to the facts present on the underlying claim for which a representative action is being sought.

(2) In respect of the GBA’s claim to share the same or similar interest with the proposed litigants, the respondents take the view “that the section 16 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 likely to be breached. “18 They have asked me “to consider as a threshold question whether the GBA has presented a case that any 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. In my view, this question amounts to an investigation of the GBA’s standing to bring its originating motion. I will elaborate on this issue a little more below but I am of considered opinion that questions of standing are better suited for the trial court.

(3) The furthest that this court ought to venture on this point is to form a preliminary view on the nature of the GSA’s interest and whether it shares the same or similar interest with the intended class of litigants. The respondents correctly concede that all litigants who come before the court have a vested interest in the sufficient funding of and adequate allocation of resources to the court. Therefore, it can be hardly be a stretch of logic from that posture to the conclusion that the alleged failure to provide sufficient funds or adequate resources has the potential to affect the effective, efficient and timely disposal of cases or more properly put, the failure to provide sufficient funds and adequate resources may affect the right to a fair trial secured by sections 8 (1) and (8) of the Constitution.

(4) If the foregoing is a correct assessment, then any or all litigants who have cases before the court may potentially be affected by the lack of adequate resources or sufficient funds and may be well placed to show, on the requisite facts, that the failure to provide adequate resources or sufficient funds has indeed led to a breach of or is likely to lead to a breach of his or her section 8 rights. In a word, the litigant in a proper case based on those circumstances may be able to proceed via section 16 of the constitution for relief. If then that is the case, then it can hardly be gainsaid that those individuals have a right to argue, either individually or as a class, that their fair trial rights have been breached or are likely to be breached;

(5) With respect to whether the GBA shares the same or similar interest with the proposed class, section 4 (b), (c), (f) and (h) of the LPA bears significance on this question. The section reads –

  1. The purposes of the Association are to-

(b) represent and protect the interests of the legal profession in Grenada;

(c) assist the public in Grenada in all matters relating to law;

(f) promote, maintain and support the administration of justice and the rule of law; and

(h) do all things incidental or conducive to the achievement of the purposes set out in this section.

(6) Without embarking on an excursion of expatiating on the issues in the GBA’s originating motion or deciding the points raised therein, it would seem to me that by the terms of section 4 of the LPA, the GBA is vested with a statutory interest in the proper and effective functioning of the courts in Grenada to which functioning, the provision of sufficient funds and adequate resources are obviously necessary ingredients. This statutory interest or responsibility as one may wish, in my view, confers a sufficient basis for the GBA to complain that insufficient funding or inadequate resourcing have led to or may likely lead to a breach of section 8 (1) and 8 (8) of the Constitution.

(7) It must be remembered that it matters not that the class is fluctuating or that an applicant for an order for representative action is incapable of producing a comprehensive list of each potential litigant. Lord Justice Mummery in Emerald Supplies 20 explained CPR 19.6, which is the equivalent to our CPR 21.2 thusly:

“The fundamental requirement for a representative action Is that those represented in the action have “the same interest” in it. At all stages of the proceedings, and not just at the date of judgment at the end, it must be possible to say of any particular person whether or not they qualify for membership of the represented class of persons by virtue of having “the same interest” as Emerald.

This does not mean that the membership of the group must remain constant and closed throughout. It may indeed fluctuate. It does not have to be possible to compile a complete list when the litigation begins as to who is in the class or group represented.”21 (Bold emphasis mine)

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(8) The fundamental question as advised in Duke of Bedford and in Emerald Supplies is that the class should be easily identified at every stage of the proceedings. In my view, the class as proposed by the GBA can be certainly precisely delineated in these terms “all persons who appear before the court and have had or are having or are likely to have their matters affected by the alleged insufficient funding and inadequate resourcing of the courts to such an extent that it can be said that their rights to a fair trial are being infringed or likely to be infringed.”

(9) It is again for the GBA to demonstrate to the trial court that the alleged issues facing the court are or are likely to affect the fair trial rights of the GBA and the persons whom they represent. It may not be the case that every person in the group is similarly affected but the authorities set out above clearly demonstrate that it is not necessary to show that a particular litigant is being affected or is likely to be affected. What matters is that when the matter comes before the trial judge, there is class of more than one person so affected or likely to be affected in their rights. It matters that they all have a common stake in the outcome and that the relief is beneficial to all of them. I cannot see how it can be said that the GBA and all litigants will be unaffected in the conduct of fair trials where it can be shown that courts are insufficiently funded or inadequately resourced. As was said of the rule at page 8 of the Duke of Bedford case-

“The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could “come at justice,” to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience: for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. To limit the rule to persons having a beneficial proprietary interest would be opposed to precedent, and not, I think, in accordance with common sense. (Bold emphasis mine}

(10} The authorities do not suggest that “each and every litigant” in a representative action must establish or contend that their “legal” or “proprietary” rights have been infringed as the respondents contend. The House of Lords in Duke of Bedford has elucidated that a class of proposed litigants is not confined to persons who have or claim some beneficial propriety interest in the matter, but all that is required is “a common interest and a common grievance and the relief sought is beneficial to all”

Respondents’ adequate alternative remedy argument
[28] The respondents go on to argue that even if the court finds that the GBA and the proposed class share a common interest, the court ought to dismiss the application because there are adequate alternative remedies available to the proposed litigants. I am somewhat diffident about considering this issue and the one following because I am hard pressed to see how they have any impact on the question of whether the GBA shares a similar or same interest with the proposed class of litigants. Indeed the singular question that the court is enjoined to determine pursuant to CPR 21 is whether or not the GSA shares the same or similar interests with the proposed class of litigants. Once this court finds that the GSA has so satisfied the court then the application ought to be granted.

These questions of the GBA’s standing to bring the originating motion or whether the court ought to exercise its powers to grant constitutional relief where adequate alternative remedies subsist seem, at first blush, better situated before the court hearing the originating motion.

[29] 1n case I am wrong about this, I am again constrained to disagree with the respondents.

They submit that there is no reason for the court to expend time and resources to hear the GSA’s originating motion when individual judges dealing with allegations of a breach of section 8 fair trial rights in individual cases retain the jurisdiction to adjudicate on such issues in those cases before them. As such the proposed litigants possess adequate alternative remedies to address their fair trial rights concerns. I cannot agree that the respondents’ suggested approach would redound to the effective and efficient allocation of the court’s time and resources. It would be seem to me that the GSA’s originating motion may serve as a one time, compendious and comprehensive approach to resolving the question of whether the courts in Grenada are being sufficiently funded and adequately resourced and if not, whether the litigants’ section 8 fair trial rights have been, are being or are likely to be infringed as a consequence. To insist that litigants who wish to complain of these matters should raise individual complaints before the court hearing their cases would appear to be a repetitive, time consuming and inefficient expending of the court’s time and resources. It would require a case-by-case interrogation and determination of this singular question in every instance where the allegation is raised.

Respondents’ argument on standing
[30) Finally, the respondents implore the court to consider whether conferring the GSA with standing “is a proper use of judicial resources and whether this claim is a proper and effective method of raising the issues in court.”24 They propose the tripartite approach extracted from the case of AG of Canada v Downtown Eastside Sex Workers United Against Violence Society and Others25 to wit 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.

[31] I find that all 3 factors weigh in favor of the court permitting the GSA to proceed. With respect to whether there is a serious question raised, I cannot see how either of the parties can dispute that the question of whether the courts are sufficiently funded and adequately resourced and if not, whether insufficient funding and inadequate resourcing amounts to a breach or potential breach of the fair trial rights of litigants is a serious question to be tried.

Secondly, I have already found that the GSA and the proposed litigants have a similar or same interest in the issues on the originating motion. They have a genuine interest and a real stake in those issues. Thirdly, I have found that the originating motion is a reasonable and effective way of disposing of the questions before the court rather than the approach commended by the respondents.

[32] As I have stated above, the GSA is clothed with the statutory powers of “caretakers”, or “watchpersons”, if you may, of those rights on behalf of the public and in furtherance of the administration of justice and the rule of law. Therefore the GSA is, in my view, properly and appropriately situated with a statutory stake in the conduct of fair trials. As such the GSA is clothed with sufficient standing not only to litigate this claim on its own behalf but on behalf of the proposed class of litigants it seeks to represent. In view of the issues to be resolved in this case, I cannot see a more apposite instance in which the GSA ought to stand both on its own merits as litigant and as litigant on behalf of the proposed class. They all have an equally solemn stake in the outcome of the originating motion.

Conclusion
[33] For reasons given above, the notice of application filed by the GBA on 31st October 2019 seeking to be appointed to represent itself and all litigants who appear before the Supreme Court whether in civil proceedings or as the accused in criminal proceedings, for ·the purpose of obtaining the opinion of the court on the constitutional issues raised in its originating motion, is hereby granted.

[34] There shall be no order as to costs. I thank both counsel for their scholarship both in oral and written presentations.

Raulston L.A. Glasgow
High Court Judge