The High Court has dismissed the case brought by a lawyer and an opposition senator seeking review of the decision by the government to bar lawyers and restrict Members of Parliament (MPs) parking in the Courthouse yard in Kingstown, as they had been doing for decades.
Attorney Jemalie John and opposition senator Shevern Lewis-John brought the case, which was argued on their behalf by lawyer Jomo Thomas and Shirlan “Zita” Barnwell.
Cerepha Harper-Joseph of the Attorney General’s Chambers appeared on behalf of the respondents, Prime Minister Ralph Gonsalves (Cabinet) and Registrar of the High Court, Andrea Young.
Last week, Justice M.E. Birnie Stephenson handed down her Sept. 25 judgment, dismissing the case and denying permission to file for judicial review of the government’s decision.
“… the claimants have failed to establish that they have a good an arguable case with a reasonable prospect of
success as is required,” the judge ruled.
“It is therefore not necessary to proceed to consider the substantive application for judicial review which in reality is not likely to succeed. This court makes no order as to costs,” she further wrote in the judgment.
The claimants had asked the court to declare that the Cabinet’s decision to prohibit members of the private bar (lawyers who do not work for the government) from using the Courthouse yard and restrict its use by MPs without providing them an opportunity to be heard was procedurally in breach of the principles of natural justice.
John and Lewis-John were also seeking a declaration that members of the private bar and MPs had a legitimate expectation to be heard if the decision to prohibit or restrict their use of the courthouse yard for parking was contemplated.
They were further seeking a declaration that the Cabinet’s decision to restrict parking in the Courthouse yard without granting lawyers and MPs an opportunity to be heard was violative of their legitimate expectation and unlawful.
Further, the claimants had asked the court to declare that the act of the registrar to convey the decision by way of letter conveyed by email dated Nov. 18, 2022 was ultra vires and unlawful
Additionally, John and Lewis-John had asked the court to quash the impugned decision by the registrar to to convey the decision of the Cabinet by way of a Nov. 18, 2022.
They also wanted the court to quash the decision of the Cabinet to prohibit members of the private bar from using the courthouse yard and restrict the use of the courthouse yard by the MPs for the parking of their vehicles.
“This court asks the question, ‘Was there a clear unambiguous unequivocal promise made to the
claimants to allow the to park in the Courtyard?'” the judge said in her decision.
“Was there detrimental reliance on any promise made by the claimants in the case at bar or a case made out by them in their evidence showing both a reliance and detriment?”
Justice Stephenson said that where there is a substantive legitimate expectation, it is expected that an authority makes a lawful representation that an individual will receive or continue to receive some kind of substantive benefit.
“Based on the facts adduced in the application before the court this most certainly does not arise and there is no likelihood that the claimant can pursue this arm or even have a chance of succeeding on such a claim,” she ruled.
She said that the way in which the Cabinet decided to deny parking in the Courtyard, without any prior consultation with the claimants, cannot be characterised as being so unfair as to amount to an abuse of power on the part of the Cabinet.
“However, pressing the inconvenience may be, there was no overriding public interest which had precluded any consultation or justified the lack of any consultation,” the judge said,
“It is in this court’s respectful view wholly unreasonable for Cabinet to be expected to seek out the views or give a hearing to persons who utilise the court yard for parking regarding their proposed decision…”
John and Lewis-John had filed affidavits in support of their claim, while Attorney General Grenville Williams filed on behalf of the Cabinet and Andrea Young filed one in her defence.
The judge said that having reviewed the affidavits, “the court accepts that the claimants’ contention that the process adopted by cabinet to make the impugned decision as contained in the Cabinet minutes which have been exhibited cannot succeed as a ground for the procedural impropriety so as to cause the impugned decision to be brought to the High Court and duly quashed”.
Justice Stephenson ruled that on the facts put in evidence the court considered that the application for judicial review would not succeed “in that the application to this court’s respectful view and mind is misconceived and accordingly the claimants have failed to meet to the test for leave to be granted to them to file judicial review.
“Their application is therefore dismissed in its entirety.”
The claimant had argued that the registrar, in disseminating the information as she was directed to do, acted contrary to law because she should only act upon the direction of the chief justice or the chief registrar.
They further argued that in the circumstances of the case, the registrar should have sought directions from either the chief justice or the chief registrar on directives received from Cabinet.
The court however concluded that the claimants’ arguments in this regard were “misconceived”.
“[Young] wears a number of hats simultaneously and being the Registrar of the High Court is only one of them,” the judge said.
She noted that pursuant to the Finance and Administration Act, the registrar is also an accounting officer and a public officer designated as such, with the responsibilities as an accountable officer to Cabinet to discharge her responsibilities with diligence and honesty subject to discipline under the applicable law for failing to do so.
The judge noted that in her affidavit, the registrar averred that she as the accounting officer for the Registry and High Court Office had cause to attend the Annual Cabinet Consultation on the Budget where she was informed of the impugned decision.
Young further averred that she was in receipt of a Cabinet memorandum under the hand of the cabinet secretary informing her of the impugned decision.
She further averred that it was the usual practice that she informs members of the general bar, the Clerk of the House of Assembly and the Director of Public Prosecutions inter alia of administrative matters at the Registry and this is done by email.
The court did not agree that the registrar ought to have informed the chief justice or the chief registrar of the impugned decision and receive from them directions as to its dissemination.
“This is clearly a misconceived submission on the part of the claimants as the decision taken regarded the building which the Court occupies a part. The decision does not in any way impact on or is in consideration of the administration of justice or operation of the court with which the Chief Justice and or Chief Registrar is concerned,” the judge said.
“Upon careful review of the affidavits and submissions to this court by both sides, this court is of the view that the claimants have failed to satisfy the legal requirements for leave to be granted and accordingly their claim is dismissed in its entirety,” Justice Stephenson ruled.
“Also there can be no proper contention that the first named defendant acted unreasonably in arriving at its decision therefore in all the circumstances of this case it would be impossible for the claimants to establish illegality, irrationality on the part of the [Cabinet] or the [registrar] who was doing exactly what she is enjoined to do by virtue of her role as head of the Registry Department that provides various services under her supervision and no solely as Registrar of the High Court requiring her to obtain the direction and or approval of the Learned Chief Justice or Chief Registrar to disseminate the directive of Cabinet.”