A controversial figure who was given a diplomatic appointment under the Keith Mitchell-led New National Party (NNP) administration is EC$60, 000.00 richer based on a high court ruling in his favour in St George’s.
Oleg Firer was denied entry into Grenada by the Congress government of Prime Minister Dickon Mitchell, prompting him to institute legal proceedings against the nearly two-year old administration.
An attorney for the ex-diplomat argued that he was never informed about the allegations made during the NNP rule of Dr. Keith Mitchel that resulted in the revocation of his ambassadorial appointment.
In his ruling in the case, high court judge Justice Glasgow said:-
*Mr. Firer’s claims for constitutional relief on the grounds that he was at the material time a citizen of Grenada are refused.
I have however found that Mr. Firer’s common law right to procedural fairness was breached in that he was not informed of the specific allegations against him which influenced his recall as ambassador prior to his recall and given an opportunity to respond to those allegations.
It is therefore ordered as follows:
(1) The prayers for declarations in the originating motion on the grounds that Mr. Firer was at all times a citizen of Grenada are all refused;
(2) It is declared that the decision to recall Mr. Firer as ambassador of Grenada without informing him of the specific allegations of impropriety against him and allowing him an opportunity to make representations prior to his recall breached his right to procedural fairness;
(3) Mr. Firer is awarded the sum of $50, 000.00 as damages for the breach of his right to be informed of the specific allegations of impropriety against him and allowing him an opportunity to make representations prior to his recall;
(4) No order is made for exemplary and/or aggravated damages; and
(5) Prescribed costs are payable to Mr. Firer in the sum of $10,000.00.
As a public service, THE NEW TODAY reproduces in full the Justice Raulston Glasgow ruling on the Oleg Firer case:-
“On the face of it, nothing could be clearer than that the sudden revocation of a person’s foreign posting on grounds of suspected criminality without the person concerned being told of the allegation and given an opportunity to respond – without, indeed, any reason whatever being given for the decision… until after the commencement of judicial review proceedings – is unfair.”
[71] Factually, when probed by the court as to whether these allegations were specifically put to Mr. Firer prior to his recall, the OAG submits that Mr. Firer was uncooperative with the Ministry of Foreign Affairs both before and after being notified of his recall. Accordingly, the OAG says that there was no opportunity to dispatch the allegations to him. After some discussion with the court on the matter, Mrs. McLeish – Hutchinson stated that she mentioned the issues to Mr. Firer previously, but she could present no documentary evidence of her having done so. What she presented was evidence of a general request addressed to all heads of missions, reminding of the need to submit financial information about the operations of the embassies, which I have addressed above. This missed the point of the law in totality. All in all, neither the OAG nor Mrs. McLeish – Hutchinson were able to substantiate the claim that Mr. Firer was specifically told of these allegations or given an opportunity to respond to these allegations prior to his recall.
[72] Mr. Firer in his evidence indicates that he did in fact send information about the finances of his operations to the defendants, and attached an email addressed to Mrs. McLeish – Hutchinson, which he says are the financials which were requested. It is clear that he was not aware about the concerns about his handling of the affairs of the missions until the answer to this claim was filed by the defendants. In particular, I find that he was certainly not aware of the charges by the Russian Government about the allegedly exorbitant rents that were due and unpaid in respect of the embassy in Russia. Indeed, as I have found above, the letters received by him in May, 2022 made no such assertions or allegations against him. I therefore find that Mr. Firer’s recall without being told of these allegations or being afforded the opportunity to be heard was unfair and unlawful in the circumstances of this particular case, on the basis that the recall was done without the required procedural fairness.
[73] The foregoing discourse raises the query of what sort of remedy should be given for this breach. For the reasons to appear, this question is directly relevant to the issue of whether Mr. Firer was properly removed from Grenada on the day in question. On his originating motion, Mr. Firer requests several declarations, orders for damages, costs and interests. He has not asked for any of the decisions of the executive to be quashed or for any mandatory orders directing the defendants to take any steps. Particularly, in paragraph (ii) of his originating motion, Mr. Firer seeks –
“A declaration that the decision of the Defendants to remove the Claimant from Grenada is arbitrary, irrational and ultra vires the powers of the Defendants under the Immigration Act, CAP 145 of the 2010 Continuous Revised Edition of the Laws of Grenada.”
[74] It is by now quite trite that on administrative claims, the remedies are discretionary. Indeed, the CPR 56.11(3) gives the court the discretion to “…grant any relief that appears to be justified by the facts proved before the judge, whether or not such relief should have been sought by an application for an administrative order.” In considering the appropriate relief, which remains in the court’s discretion, I am inclined to follow the approach of the court in Chief Constable of North Wales v Evans where their Lordships found that the grant of a quashing order or mandamus were unwarranted. In that case, the claimant did not request damages and as such none was ordered. In Permanent Secretary, Minister of Foreign Affairs and Manning (prime Minister) v Ramjohn, the Court of Appeal of Trinidad set aside the trial judge’s order to quash a decision made by the Prime Minister, even though acknowledging that the decision was made without affording procedural fairness to the person affected. The Court of Appeal also set aside orders as to damages. The Privy Council concurred with the Court of Appeal that,in the circumstances, a declaration that the right to procedural fairness was breached was an appropriate remedy.
[75] I am of the view that a declaratory order in Mr. Firer’s favour is quite appropriate on the facts of this case. This discourse so far has highlighted the fact that matters of appointment and recall of ambassadors are deeply imbued with political colourations and considerations with which a court ought not to concern itself. In Evans, the court endorsed a speech made by Lord Evershed, as set out below, that courts should avoid the danger of usurpation of power under the pretext of having regard to the principles of natural justice –
“I do observe again that it is not the decision as such which is liable to review, it is only the circumstances in which the decision is reached, and particularly in such a case as the present the need for giving to the party dismissed an opportunity for putting his case… Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.
[76] Equally, it is also beyond trite as well, that the court will not lightly interfere with the state’s decision unless there is a lack of jurisdiction or other ultra vires acts or omissions. In those circumstances, it would seem to me that the quashing of the decision to recall Mr. Firer from office for failure to afford him an opportunity to be heard would be tantamount to this court interfering with the executive functions of the state to determine who should hold diplomatic offices or be recalled from such offices. This is since the effect of such a quashing order would have the effect of nullifying the decision to recall Mr. Firer. The implication of that, in turn, would be that Mr. Firer is still in fact holding the post, until properly removed therefrom. Such an outcome would be patently untenable since it would directly implicate powers that ought to be exercised entirely by the state. Such an outcome would be exacerbated on the particular facts of this case where the executive has made it clear by its action in February 2022 that it no longer wishes to be represented by Mr. Firer in its foreign affairs. Accordingly, Mr. Firer is granted a declaration that the decision to recall him as ambassador without putting specific allegations of alleged impropriety to him and without affording him an opportunity to be heard or respond to those allegations was unfair and in breach of his right to procedural fairness.
WHETHER MR. FIRER COULD BE DECLARED AN UNDESIRABLE VISITOR, AND IF SO WHETHER MR. FIRER WAS ENTITLED TO ANY DUE PROCESS BEFORE HE WAS DECLARED AN UNDESIRABLE VISITOR?
[77] Mr. Firer initially submitted that as a citizen of Grenada, there was no jurisdiction given to any authority to deny him entry into or remove him from Grenada. I have already found that Mr. Firer is not a citizen of Grenada, but an alien. As an alien, under the Immigration Act, the Chief Immigration Officer and the Minister of Immigration could properly have deemed Mr. Firer to be an undesirable visitor under section 4(1)(f) of the Immigration Act, if the requirements of subsection (1)(f) were satisfied.
[78] Moreover, the OAG submits that the Immigration Act also provides that any determinations made about undesirable visitors are not reviewable by the court, especially in cases of national security risks. I do accept that Mrs. McLeish – Hutchinson made reference in her evidence, to the Minister’s finding that Mr. Firer was a threat to national security. Mr. Firer avers that he could not be seen to be a national security risk, and that he was entitled to due process before this decision was taken.
[79] Where a decision to deem a person a prohibited alien or undesirable visitor on the grounds of national security concerns are being challenged, the case law suggests that the court will only intervene to review such decisions in certain limited circumstances. Where procedural fairness is concerned in such circumstances, the case law also suggests that persons are not entitled to the right to be given reasons prior to being determined a prohibited alien.
[80] Guidance for this proposition has been provided in the case of Council for Civil Service Unions et ors v Minister for Civil Service, where the court held that issues of national security were for the executive and not the courts to decide in any particular case. In such instances, the requirements of national security may outweigh those of fairness. Lord Scarman explained that:
“…Where a question as to the interest of national security arises in judicial proceedings the court has to act on evidence. In some cases, a judge or jury is required by law to be satisfied that the interest is proved to exist; in others, the interest is a factor to be considered in the review of the exercise of an executive discretionary power. Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the court will accept the opinion of the State or its responsible officer as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the State could in the circumstances reasonably have held. There is no abdication of the judicial function, but there is a commonsense limitation recognised by the judges as to what is justiciable; and the limitation is entirely consistent with the general development of the modern case law of judicial review.”
Lord Diplock equally reasoned in Council for Civil Service Unions that:
“National security is the responsibility of the executive government; what action is needed to protect its interests is … established and itself dictates, a matter upon which those whom the responsibility rests, and not the courts of justice must have the last word. It is par excellence a non – justiciable question. The judicial process is totally inept to deal with the sort of problems it involves. The executive government likewise decided… that the interests of national security required that no notice should be given of the decision before administrative action had been taken to give effect to it. (Bold emphases mine)
[81] In R (XH) v Secretary of State for the Home Department, it was stated:
“The question of whether something is in the interest of national security is not a question of law. It is a matter of judgment and policy. Whether something is or is not in the interest of national security is not a matter of judicial decision. They are entrusted to the executive.”
[82] Further in The Minister of Immigration et ors v Sharon Nettlefield et ors, Redhead JA in finding that court’s powers of review are limited under the Immigration Act of Grenada, and should only be utilized to review a decision to correct excess or abuse of power found that:
“If …the Minister deems an alien to be an undesirable inhabitant from information received from another government or diplomatic channels, the Minister may in order to maintain good diplomatic relationship with the government or diplomatic channels providing him with the information, wish to keep the information confidential… In this regard the learned judge would not be in a position to know the information the Minister acted on… If that is so then, of course the learned judge cannot interfere with the exercise of that power unless it is shown that he exceeded the power given to him under the Act.” (Bold emphasis mine)
[83] Where national security implications arise, the courts have determined that these are questions to be considered by the executive, and are not for the consideration or review of the court except in the limited instances that I have stated above. This is because the ministers and other arms of the executive are best placed to receive classified and confidential information to determine what decisions to make. In Mrs. McLeish – Hutchinson’s evidence, she recounts that Mr. Firer’s acts referenced above, were some of the considerations by the Minister which informed that Mr. Firer should be refused entry.
[84] From the evidence and law recited above, I find that it was open to the Minister to find that to allow Mr. Firer entry may have presented a national security risk, and as such no prior consultation was necessary, before he was deemed an undesirable visitor. In The Attorney General of Grenada v Muhammed Ehsan it was accepted that national security requirements are recognized as bases on which procedural fairness may be displaced. There does not exist in this case, any evidence of excess or abuse of power by the Chief Immigration Officer or the Minister of Immigration which requires correction or review.
[85] However, this is not the end of the discourse in this case. Mr. Firer alleges that he was an ambassador in the service of the government on the date in question. Section 7 of the Immigration Act frontally addresses whether such persons could be deemed a prohibited immigrant. From the evidence, Mr. Firer was recalled in February, 2022, and he attempted to enter the state of Grenada a year later in February, 2023. As I have found above, by that time, he cannot be said have been in service of the Government of Grenada, as he was clearly recalled at that date.
[86] The evidence presented by Ms. Purcell is that Mr. Firer used his diplomatic passport when he left London to travel to Grenada. Mr. Firer did not challenge this allegation, and I have found that he was aware of his recall by that date. Accordingly, he ought not to have used the diplomatic passport in light of that recall. I find that Mr. Firer remained an alien on 22nd February, 2023, as he was not in the service of the Government of Grenada. There therefore could not be any substantive or procedural legitimate expectation that he would not be refused entry into Grenada. I also find that he was properly refused entry into the state of Grenada on national security grounds. For the reasons stated above, Mr. Firer was not entitled to be provided with reasons for his removal or an opportunity to be heard on this issue.
WHETHER MR. FIRER IS ENTITLED TO THE RELIEF SOUGHT?
[87] As Mr. Firer was not found to have Grenadian citizenship, I decline to order any of the declarations sought in his originating motion on the grounds that he was a citizen on the day that he attempted to enter Grenada. I have already addressed the reasons why he will only be granted a declaration that the decision to recall him as ambassador without giving him the reasons for his recall and without affording him an opportunity to be heard was unfair and in breach of his right to procedural fairness.
[88] During the trial of this matter on April 16th, 2024, the court enquired of counsel for Mr. Firer what relief Mr. Firer wanted to seek, in light of the finding of the breach of Mr. Firer’s right to procedural fairness. Counsel for Mr. Firer rightly pointed out that an order that Mr. Firer be returned to his ambassadorial office would not be prudent, as it would operate to force Mr. Firer on the executive, who clearly wanted him recalled. Counsel therefore submitted orally that compensation would be the most appropriate in the circumstances.
[89] In view of the fact that Mr. Firer has specifically requested an award of damages in his originating motion, I invited counsel for both parties to file submissions within 7 days on whether compensation should be awarded, and the extent of the requested award for compensation. See CPR 56.6(2) which empowers the court to grant, among other reliefs, an award of damages where the claimant seeks an award on the claim for administrative relief. The OAG filed submissions and authorities on 24th April, 2024 which were supplemented on 6th May, 2024. Counsel for Mr. Firer filed submissions and authorities on 3rd May, 2024.
[90] On the issue of compensation, in its initial submissions filed on 24th April, 2024 the OAG submitted that Mr. Firer is not entitled to damages for the breach of his right to procedural fairness, as this issue was not pleaded, and none of the declarations sought in the originating motion ought to be granted. The OAG further submitted that it is only if the court is granting all or any of the declarations sought or an amendment is made to Mr. Firer’s pleadings, that the issue of damages could arise.
[91] These submissions by the OAG miss the specific provisions of CPR 56.6 (2) which states:
“In particular the court may, on a claim for judicial review or for relief under the Constitution award – (a) damages; (b) restitution; or (c) an order for return of property to the claimant; if the claimant has included in the claim form a claim for any such remedy arising out of any matter to which the claim for an administrative order relates; or (ii) facts set out in the evidence or statement of case justify the granting of such remedy or relief; and (iii) court is satisfied that, at the time when the application was made the claimant could have issued a claim for such remedy.”
[92] It is clear to me that Mr. Firer has included a request for damages in the claim form, and that in any event, on the facts, he could have issued a claim for damages for breach of the right to procedural fairness. The evidence suggests that Mr. Firer was not even aware that his right to procedural fairness had been breached until his claim was filed, and an answer put in by the defendants. I have also found that the facts as set out in this case justify a grant of damages as an appropriate means of vindicating the breach of his right46 to be informed of the reasons for his recall due to the allegations of impropriety and to be given an opportunity to be heard as to why he should not be recalled.
[93] On the issue of the quantum to be awarded, counsel for Mr. Firer submits that Mr. Firer ought to be awarded compensation, split into pecuniary and non – pecuniary damages, for what occurred on 22nd February, 2023 when Mr. Firer was refused entry. This submission is premised on counsel for Mr. Firer arguing that Mr. Firer was in service to the Government on the date that he was refused entry into Grenada and removed therefrom. I have already addressed why this is not so.
[94] What I do find however, is that Mr. Firer’s recall as an ambassador was in breach of procedural fairness. Consistent with CPR 56.6.(2), if sufficient facts are shown on his claim to justify such an award, damages can be awarded to Mr. Firer for his recall as ambassador in breach of procedural fairness. As counsel for Mr. Firer’s submissions are premised on compensation for Mr. Firer’s unlawful removal from Grenada, no award is made under this head of damages.
[95] As noted above, counsel for Mr. Firer did not explore damages for breach of procedural fairness which resulted in Mr. Firer’s recall from office, nor his claim for exemplary damages as requested on the originating motion. On the issues of aggravated/exemplary damages, the OAG submits that Mr. Firer has not satisfied the test as set out in Rookes v Bernard that there were oppressive actions, conduct calculated to make a profit or that statute provided for such an award. I agree with the OAG on the issue of aggravated/exemplary damages. Clearly this is a case where the State should have given Mr. Firer an opportunity to respond to the concerns that it held about him before he was recalled from his diplomatic post, but he has not shown that there was any political ill will, mischief or highhandedness involved in his recall. As such an award of aggravated/exemplary damages is not warranted and I make no such award.
[96] The OAG also submits that if the court is minded to make an order for Mr. Firer’s recall from his ambassadorial post, the defendants would suggest, without conceding that damages ought to be awarded, that a nominal sum of $6, 000.00 be awarded, as Mr. Firer has not proven loss or damage. With respect to damages, I find that they ought to reflect or vindicate the breach of his right to procedural fairness, and I do find that an award is warranted.
[97] As stated in The Prime Minister and Samuel v Sir Gerald Watt,
“the trial judge should not have been hesitant to find the claim for substantial as compared to nominal damages to have been made out in the circumstances, where there was the breach of a right which bore the nature of a constitutional right, even though not entrenched in the Constitution”.
[98] If nothing else, I find that the breach of Mr. Firer’s procedural right ought to be vindicated, as I am sure he would have suffered loss of reputation and possible public odium by his recall for the reasons that have emerged. The award in my view ought to reflect a sum that indicates the seriousness of the right engaged and egregiousness of the breach of that right. I am of the view that the sum of $50,000.00 is a fair award.
COSTS
[99] On the issue of costs, counsel for Mr. Firer submits that as the matter went to trial, the applicable costs regime is that of prescribed costs, and Mr. Firer is entitled to100% of the costs as calculated. Counsel for Mr. Firer submits that costs ought to be awarded calculated cumulatively as $44, 881. 26 XCD, but this calculation was based on counsel’s calculation of damages in the sum of $250,000.00 for Mr. Firer’s unlawful removal from the state. The OAG did not address the issue of costs. Having determined that the appropriate compensation is $50,000.00 as aforesaid, and Mr. Firer’s partial success in this claim, I will award him the prescribed costs on that amount in the sum of $10,000.00
CONCLUSION
[100] I note in parting that Mr. Firer did not purse the claim in respect of the CIBC relief and as such I make no pronouncements on the matter. For the aforementioned reasons, Mr. Firer’s claims for constitutional relief on the grounds that he was at the material time a citizen of Grenada are refused. I have however found that Mr. Firer’s common law right to procedural fairness was breached in that he was not informed of the specific allegations against him which influenced his recall as ambassador prior to his recall and given an opportunity to respond to those allegations. It is therefore ordered as follows:
(1) The prayers for declarations in the originating motion on the grounds that Mr. Firer was at all times a citizen of Grenada are all refused;
(2) It is declared that the decision to recall Mr. Firer as ambassador of Grenada without informing him of the specific allegations of impropriety against him and allowing him an opportunity to make representations prior to his recall breached his right to procedural fairness;
(3) Mr. Firer is awarded the sum of $50, 000.00 as damages for the breach of his right to be informed of the specific allegations of impropriety against him and allowing him an opportunity to make representations prior to his recall;
(4) No order is made for exemplary and/or aggravated damages; and
(5) Prescribed costs are payable to Mr. Firer in the sum of $10,000.00.
[101] I thank counsel for the parties for their helpful submissions and their patience in awaiting a ruling on the issues.
Raulston L.A. Glasgow
High Court Judge
By the Court