Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN Cause No. 62 of 2013 BETWEEN: (1) ALICE MAE COE (2) ANNIE MULTON (3) EZMIE SMITH (4) BETTY EBANKS Plaintiffs AND: (1) THE GOVERNOR OF THE CAYMAN ISLANDS (2) THE ATTORNEY GENERAL OF THE CAYMAN ISLANDS (3) MINISTER FOR FINANCE, DISTRICT ADMINISTRATION, WORKS, LANDS & AGRICULTURE (4) NATIONAL ROADS AUTHORITY (NRA) (5) DART REALTY (CAYMAN) LTD. Defendants Appearances: Mr. Anthony Akiwumi of Stuarts Walker Hersant instructed by Mr. Irvin Banks, Attorney-at-Law for the Plaintiffs Mr. Richard Keen Q.C. instructed by Ms. Reshma Sharma & Ms. Jenny Catran of the Attorney General’s Chambers for the 1st to 4th Defendants Lord Goldsmith Q.C. instructed by Mr. Mac Imrie & Mr. Adam Huckle of Maples and Calder for the 5th Defendant Before: Hon. Justice Henderson Heard: December 9, 10 & 11, 2013 JUDGMENT The claims advanced in this writ action are aimed at overturning a decision by government to close a portion of the West Bay road. In response, the defendants say the action is brought too late and amounts to an abuse of process. Facts
The material facts have been agreed. No witnesses were called. The four plaintiffs are Caymanians who reside here. They are members of a civic action group known as the Concerned Citizens Group; the first Plaintiff is the Group’s chairwoman. The First to Fourth Defendants are government officials and entities involved in one capacity or another with the impugned decision. The Fifth Defendant, Dart Realty (Cayman) Ltd. ("DRCL"), is a private sector developer which has developed a number of substantial projects on Grand Cayman.
The Cayman Islands Government ("the CIG") and DRCL have entered into a broad agreement known as the "FCIA" which is intended to stimulate the economy and create employment and development opportunities in the Cayman Islands. The heads of terms forming the basis of the FCIA were signed by the CIG and DRCL on April 12, 2011. A press conference on June 15, 2011 and subsequent media reporting brought the existence of the agreement to the public’s attention.
One of the goals of the FCIA is embodied in an agreement known as the "NRA Agreement" which is intended to facilitate the development of a new hotel on Seven Mile Beach, an extension of the Esterley Tibbetts Highway to West Bay, and other related projects. One aspect of the NRA Agreement requires the closure of a section of the West Bay Road which runs along a portion of Seven Mile Beach ("the Affected Road"). Most of the parcels of land adjacent to the Affected Road are owned by subsidiaries of DRCL although a few are owned by independent parties. The NRA Agreement provides for the land underneath the Affected Road to be added to the adjacent parcels.
The plaintiffs and the general public have been using the Affected Road for over 50 years. The West Bay road (of which the Affected Road is a part) was designated a public road in the Official Gazette on January 31, 1977 in accordance with the Roads Law (1974 Revision). For generations, the public in the Cayman Islands has had access to Seven Mile Beach from various places on the Affected Road. The beach has been used for fishing, bathing and recreation. While driving along the Affected Road (which is approximately 3,900 feet long) one can enjoy a view of the sea.
The NRA Agreement has been publicized in the media in over 200 pages of press articles. CIG representatives and employees of DRCL have made themselves available to the media for interviews on the subject. A variety of documents relating to the FCIA initiative, including documents about the closure of the Affected Road, have been available on the FCIA website since January 10, 2012. The first and second plaintiffs appeared as guests on a television show on June 27, 2011 and expressed their opposition to the closure of the Affected Road. It is clear from what was said during the interview that they were well informed on the proposal. Public meetings for the discussion of the NRA Agreement were held on August 4 and 30, 2011. The plaintiffs, CIG officials, and DRCL representatives attended.
The plaintiffs and the Concerned Citizens Group communicated their opposition to the closure of the Affected Road to the Governor, to the Premier, and to others during 2011 and 2012. On August 30, 2011 the First Plaintiff advised the Governor that a petition was being prepared, to be signed by persons objecting to the road closure. It was provided to the Governor on December 12, 2011. There were over 4,000 signatures on the petition. The First Plaintiff engaged in correspondence on the subject with the Premier and with the United Kingdom Minister for the Overseas Territories. Members of the Concerned Citizens Group also met with DRCL representatives in 2011 to express their opposition to the development.
The NRA Agreement was executed by DRCL, by CIG officials and by the Fourth Defendant (the National Roads Authority) on December 15, 2011. The Agreement has been amended on two subsequent occasions but no party has suggested that these amendments are material to the decision I have to make.
Since the execution of the NRA Agreement, construction work has been continuing. The planned extension to the Esterley Tibbetts Highway has been completed; it facilitates travel between West Bay and George Town, a route which used to require travel on the Affected Road. Some of the rush hour traffic congestion previously experienced in West Bay has been alleviated by the new highway.
The NRA Agreement requires that the Affected Road be closed in accordance with the procedure set out in section 14 of the Roads Law. By agreement of the parties to the NRA Agreement this is now to be done in two phases, the second of which has not yet been implemented. The phase I road closure occurred on March 13, 2013 by virtue of a notice in Extraordinary Gazette no. 22/2013 in accordance with section 14 of the Roads Law. The phase I closure affects approximately 1,600 feet of the roadway.
An independent review of the business case by PwC Corporate Finance & Recovery (Cayman) Limited has recommended that the CIG proceed to implement the NRA Agreement. The National Roads Authority itself reviewed and commented on the NRA Agreement before it was signed.
In 2003 the Chief Surveyor prepared a report to government entitled "Beach Access: 'A way forward'" which identified six beach access points running across property adjacent to the Affected Road which is owned by DRCL subsidiaries. Although the Chief Surveyor recommended "legal recognition" under the Roads Law of some of these beach access points, such recognition has never been extended. The current design includes a network of bicycles paths and pedestrian walkways following the approximate route of the Affected Road and crossing two of the beach access points.
Included within these six beach access points are two registered twelve-foot public pedestrian rights of way from the Affected Road to Seven Mile Beach: one within each of the phase I and phase II areas. Under the NRA Agreement, CIG has agreed to implement a statutory mechanism to allow for public rights of way, including these two rights of way, to be extinguished in consideration for a transfer by DRCL to CIG of land in the same area of equivalent value. However, the Agreed Statement of Facts says also (at para. 8.14) that these two rights of way "will be connected from the beach to the public promenade" to be constructed in the approximate location of the Affected Road. Overall, the plaintiffs believe that the network of bicycle paths and pedestrian walkways will not compensate for what they expect will be a loss of the sort of access to the Seven Mile Beach area which they enjoyed previously.
The Cayman Islands Development Plan (1997) provides for the protection of certain areas by classifying them as public open space, mangrove buffer, scenic coastline or historic overlay zones. The public beach is designated as public open space. Parcels adjacent to the Affected Road are classified variously as tourism development, neighbourhood commercial and low density residential zones. The Statement of Agreed Facts explains that DRCL "consulted" with the Department of the Environment on various aspects of the construction to be carried out under the NRA Agreement. There is no reference in the agreed facts to any formal environmental impact study.
DRCL has now done an extensive amount of construction work in pursuit of its entitlements and in fulfilment of its obligations under the NRA Agreement. A very significant amount of money has been expended by DRCL on the assumption that the CIG was permitted by law to enter into the NRA Agreement. The Issues
For the plaintiffs, Mr. Akiwumi began by saying that the claim amounts to a "focused attack" on the decision made under the Roads Law by the CIG defendants to close the Affected Road. He says that the decision taken under section 14 of the Roads Law was unconstitutional and, in any event, that all of section 14 is incompatible with the Bill of Rights. The incompatibility becomes manifest by a consideration of sections 15, 18 and 19 of the Constitution.
Mr. Akiwumi placed heavy reliance upon the case of Shonleigh Nominees Ltd v AG (1974) 27 P & CR 407 (HL). He said the Highways Act of 1835 provided for notice to the public of impending road closures in a reasonable (i.e., constitutional) way. He argued that the absence of some similar provision in our Roads Law is now, in light of the new Bill of Rights, a fatal defect which renders the legislation incompatible with the Constitution. He identified the following deficiencies in the Roads Law: 1) it does not provide for prior notification of a road closure to the public; 2) it does not set out any specific process by which aggrieved members of the public can challenge a road closure; 3) the only "affected persons" are the owners of adjacent land, not members of the general public; 4) there is no obligation to give reasons for a decision under section 14; and 5) there is no possibility of an appeal to the Grand Court (or elsewhere) from such a decision.
Mr. Akiwumi made reference to the Governor (Vesting of Lands) Law as an example of Cayman legislation which provides a framework for the alienation of Crown land which is consistent with the Constitution.
The First to Fourth Defendants have argued that the action as presently constituted amounts to an abuse of the process of the Court. They say that the entire claim is essentially a challenge to the CIG's decision to agree to a closure of the Affected Road. The decision was taken by the state and the challenge to it is grounded upon an assertion of rights which are essentially public in nature.
The defendants also say that the action has not been commenced within the permitted time period for challenges to governmental decisions. I note that Quin, J. in Ackerman v. Government of the Cayman Islands and the National Roads Authority (unreported) April 24, 2013 determined from the evidence before him that an application for leave to apply for judicial review of this same road closure decision initiated on March 11, 2013 was in violation of the 90-day time limitation for judicial review found in the Grand Court Rules.
This action was commenced on February 25, 2013. The closure of the Affected Road was announced in the Official Gazette on March 13, 2013. The plaintiffs say that is the date upon which the decision to close the road took effect. The time within which that decision may be challenged started to run on March 13, 2013. Section 26(4) of the Constitution provides that constitutional claims under section 26(1) must be commenced within one year of "the decision or act that is claimed to breach the Bill of Rights." The plaintiffs say that while the decision to close the road may have been the subject of governmental deliberation more than one year prior to the date upon which this action was commenced, the actual decision to close the road was taken less than one year before the writ was filed. Indeed, if Mr. Akiwumi is correct, the action was commenced before the impugned decision became final. The Amended Statement of Claim refers to the road "to be closed". The Principle of Exclusivity
The action has been commenced by writ of summons. The Prayer for Relief ("the Prayer") asks for: (a) A declaration that the Plaintiffs together with the people of the Cayman Islands enjoy a common law prescriptive right of way and right of passage over the Road and its beach access points by way of dedication by grant to the people of the Cayman Islands, and/or by the doctrine of Lost Modern Grant. (b) A declaration that the Plaintiffs and the people of the Cayman Islands enjoy a prescriptive easement i.e. a right of way and/or right of passage over the Road to be closed either by (i) virtue of the Prescription Law (1997 Revision), (ii) unregistered equitable easement under Section 70 (a) and (f) of the Registered Land Law (2004 Revision). (c) A declaration that the Agreement between Cabinet (represented by the Third Defendant), DRCL and the Fourth Defendant as described above in the body of the claim which calls for the closure and Disposition of the Road to DRCL is ultra vires and void under sections 19 and 24 of the Constitution for the statutory and constitutional reasons given above in the body of the claim, namely inter alia the illegal fettering of the Agreement by the Fourth Defendant and the non-adherence to the Crown Lands Law and PMF Law by the Governor in Cabinet and Third Defendant; (d) A declaration that the First Defendant and/or Governor in Cabinet has acted in breach of sections 18, 19 and 31 of the Constitution, and the Third and Fourth Defendant [sic] has acted in breach of Section 19 of the Constitution as defined above in the body of the claim; (e) A declaration under Section 23 and 25 Cayman Islands Constitution Order 2009 that Section 10(3)(a)(b) of the Governor (Vesting of Lands) Law (2005 Revision) is incompatible with Sections 18, 19 and 24 as it ignores the importance of transparency and fiscal responsibility in the disposing of Crown Land and the interests of good governance. Likewise a declaration that the requirements of Section 14 Roads Law as currently drafted is also incompatible with the Constitution as defined in sections 23 and 25 of the Constitution. (f) A declaration that any disposition of Crown Land to DRCL under the Agreement by way of the Governor in Cabinet approving the transfer under Section 9 of the Governor (Vesting of Lands) Law (2005 Revision) is void if in fact the requirements of Sections 10 (1) and (2) and (3) of that law are not followed, and that any disposition sought under the Roads Law Section 14 is likewise void unless the requirements of Section 10(1) and (2) are followed; (g) A declaration that the Second Defendant reaffirm publicly his support for the legality of the Independent Report and by extension, the Agreement, as soon as possible; [and certain other relief not material here].
The claims advanced in this action are public law claims seeking the enforcement of public rights. The allegation that the plaintiffs "together with the people of the Cayman Islands" enjoy a common law prescriptive right of way and right of passage over the Affected Road, the argument that the road closure is *ultra vires*, the argument that it is in breach of various sections of the Constitution, and the argument that any disposition of the Affected Road is void all give rise to considerations which are essentially public not private.
There is a possible exception in paragraph (b) of the Prayer which seeks a declaration that the plaintiffs enjoy a prescriptive easement or an unregistered equitable easement over the affected road. An easement is a private law interest in property and thus would be the appropriate subject of a writ action but there is no evidence before me directed at proving the essential elements of an easement. None of the plaintiffs is alleged to be the owner of an interest in land adjacent to the Affected Road or even near to it. They cannot, therefore, claim to be the owners of an easement. To establish such a claim they would need to plead and prove ownership of a dominant tenement and demonstrate that the easement "accommodates and serves" it and is "reasonably necessary for the better enjoyment" of it: In Re Ellenborough Park [1956] 1 Ch131, 170 (CA). Megarry and Wade, in The Law of Real Property, 8th Edition, at para. 27-009 say that "The servient tenement must be close enough to the dominant tenement to confer a practical benefit on it". The evidence does not begin to address these requirements. In any event, paragraph (b) of the Prayer is really aimed at establishing a public law right because it seeks a declaration that "the Plaintiffs and the people of the Cayman Islands" enjoy the alleged easement.
The result is that this writ action seeking to overturn a government decision and establish a public law right is, at least arguably, improperly founded. Such claims are best brought under the provisions of Order 53 of the Grand Court Rules as a judicial review of administrative action. The First to Fourth Defendants have argued that the claim should be struck out for just this reason. They point out that the Court has jurisdiction to strike a claim even after a trial (see Summers v Fairclough Homes Ltd. [2012] 1 WLR 2004 (Supreme Court)), and that the so called "exclusivity principle" set out in O'Reilly v Mackman [1983] 2 AC 237 and confirmed in subsequent decisions supports their contention. In essence, the principle of exclusivity requires that challenges to governmental acts and decisions be advanced by way of judicial review; to pursue such a claim in a writ action is tantamount to an abuse of process. For further elaboration of this principle, see Trim v North Dorset District Council [2010] EWCA Civ 446; Clark v University of Lincolnshire [2000] 1 WLR 1988; Bahamas Telecommunications Company Ltd. v Public Utilities Commission [2008] UKPC 10; and Stancliffe Stone Co. Ltd. v Peak District National Park Authority [2005] EWCA Civ 747 (CA).
I am satisfied that the principle of exclusivity is part of the legal system in the Cayman Islands. It is open to this Court to view a writ action which challenges the validity of a governmental act or decision and does not assert any private law right, or in which the assertion of a private law right is a transparent fiction adopted for the sole purpose of avoiding the judicial review process, as an abuse of the process of the Court. However, the force of the exclusivity principle has been somewhat eroded by the adoption of our new Constitution and the catalogue of rights found within it. Section 26(1) of the Constitution enlarges the jurisdiction of this Court as it permits applications to the Grand Court where it is claimed that a governmental act or decision has breached a personal right or freedom.
Where the act or decision complained of is capable of grounding a claim (including an application for judicial review) under the law of the Cayman Islands as it was before the Bill of Rights took effect, the claim should ordinarily be advanced in the traditional manner. Nevertheless, there has now been some relaxation of the exclusivity principle (as is illustrated by the authorities mentioned below) and the fact that a writ action invokes constitutional protections and seeks to challenge a governmental act or decision will not necessarily or automatically mean that the action must be brought by way of judicial review. The law is in an undeveloped state at present. It is clear that some constitutional claims can be brought by a writ action in the ordinary way but this should not be permitted to become a "general substitute for the normal procedures for invoking judicial control of administrative action": Harrikisson v Attorney General of Trinidad and Tobago [1980] AC 265 (PC); also see D et al. v Home Office [2005] EWCA Civ 38 (CA). Just where the line should be drawn is unclear; some guidance has been provided in Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15 where the Privy Council said (at 25): "... where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriated to take that course. As a general rule there must be some feature which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a misuse, or abuse, of the court's process. A typical, but by no means exclusive, example of a special feature would be a case where there has been an arbitrary use of state power." The Limitation Period
The debate before me really centers on the question of the limitation period for challenging the decision to close the Affected Road. Our rules for judicial review, like those in the United Kingdom, specify that any challenge to a decision must be brought within three months: Grand Court Rules O. 53 r. 4(1). Claims advanced under section 26(1) of the Constitution enjoy a significantly more liberal time limitation as they must be commenced within one year of the decision or act complained of: Constitution, section 26(4). Under both the judicial review rules and the Constitution, the Court has jurisdiction to extend time if that would be in the interests of justice.
I need not come to a settled conclusion as to whether the action as presently constituted amounts to an abuse of process because it violates the exclusivity principle. I am satisfied that whether it does or not this challenge to the decision to close the Affected Road is brought too late to be considered on its merits.
The action was commenced on February 25, 2013. Even assuming that it is properly brought as a constitutional action under section 26(1) rather than in the form of a judicial review, the Court is permitted to consider only governmental decisions made on or after February 26, 2012. While the publication of the notice in the Official Gazette on March 13, 2013 may constitute in law and in fact the closure of the road, that is not the date on which the decision to close it was taken. I agree with Mr. Akiwumi's argument that the taking of this decision was to some extent a continuous process which commenced around the time the heads of terms were executed in April, 2011 and continued through various discussions, public consultations, and studies throughout the latter part of 2011. I cannot accept his contention that the decision was made only when the notice in the Gazette was published. At the very latest, the impugned decision had been taken by the time the NRA Agreement was executed on December 15, 2011. It is clear from the agreed facts that the plaintiffs would have known that the decision had been made within hours of the NRA Agreement being signed. The NRA Agreement contains a commitment by government to close the Affected Road. Publication of the notice in the Official Gazette is notice to the world of the road closure. Had the intention to close the road been kept secret until March 13, 2013 the publication in the Gazette would be of considerable significance as it would provide the starting point for the limitation period calculation. Given the widespread publicity about the intended road closure throughout 2011, the Gazette notice in this case amounts to nothing more than compliance with a necessary legal formality (publication is required by section 14(1) of the Roads Law (2005 Revision)). I am satisfied that the decision to close the road and thus the real gravamen of this case occurred at the latest on December 15, 2011. The decision may have been taken earlier.
The plaintiffs have not asked for any extension of time under section 26(4) of the Constitution. I am satisfied that this is for good reason: any such request would fail. The plaintiffs have always been well informed about the proposed road closure and can be taken to have possessed all the information necessary to advance the present claim a few days after December 15, 2011 at the latest. There is nothing before me which justifies or even explains the 14-month delay before this action was started.
For these reasons, I find that the claim, insofar as it is a challenge to the decision to close the Affected Road, is barred by the limitation period in section 26(4) of the Constitution and must be dismissed. Declaration of Incompatibility
In addition to the attack on the decision to close the Affected Road, the plaintiffs have sought to argue that the Roads Law is incompatible with their constitutional rights. The argument (referred to in paragraph (e) of the Prayer) that s. 10(3)(a)(b) of the Governor (Vesting of Lands) Law (2005 Revision) is incompatible with the Constitution was abandoned during the hearing.
A declaration of incompatibility is made under section 23(1) of the Constitution but that section does not confer a free-standing cause of action. It is only within the confines of a claim under section 26(1) of the Constitution – that is, an assertion by a claimant that "government has breached or threatened his or her rights and freedoms" – that a question of compatibility may be considered and a declaration made. As a consequence, this challenge to the compatibility of the Roads Law falls away and must also be dismissed in light of the conclusion I have reached above. Dated this 17th day of February, 2014 Henderson, J. Judge of the Grand Court