Tropical Distributors Company Ltd v Permanent Secretary in the Ministry of Finance
| Jurisdiction | Anguilla |
| Judge | Blenman JA |
| Judgment Date | 15 April 2019 |
| Judgment citation (vLex) | [2019] ECSC J0415-2 |
| Court | Court of Appeal (Anguilla) |
| Date | 15 April 2019 |
| Docket Number | AXAHCVAP2018/0007 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Dame Janice Pereira, DBE Chief Justice
The Hon. Mde. Louise Esther Blenman Justice of Appeal
The Hon. Mr. Paul Webster Justice of Appeal [Ag.]
AXAHCVAP2018/0007
Mrs. Tana'ania Small-Davis and Ms. Navine Fleming for Appellant
Mr. Ivor Greene, Senior Crown Counsel for the Respondent
Interlocutory appeal — Application for leave to apply for judicial review — Discretionary bar — Unreasonable Delay — Whether learned judge erred in refusing leave to bring a judicial review claim on the basis of unreasonable day
The appellant, Tropical Distributors Company Limited (“Tropical”), is a company engaged in the distribution business in Anguilla. It has grown over the years to represent major international wines and spirits brands. Tropical heard a rumour that International Wines & Spirits Limited (“IWAS”), a distribution company operating in St. Maarten, intended to enter the Anguillan market. Having so heard, two of Tropical's directors enquired from the Chief Minister/Minister of Finance the process for granting business licences and raised issues affecting the company operating in that sector generally and, specifically, the prospects of facing a major competitor who was essentially seeking to consolidate the St. Maarten/Martin and Anguilla market. Tropical says that it was assured that no business licence was granted to IWAS by the respondent, the Permanent Secretary in the Ministry of Finance (the “Permanent Secretary”). The enquiry was followed by a meeting with the President of the Anguilla Chamber of Commerce and the Minister of Finance, where it was discussed that the Chamber of Commerce and affected stakeholders should be given the opportunity to weigh in on all business licence applications that are submitted to the Permanent Secretary. Tropical says that, the Minister and the Permanent Secretary again assured the parties that IWAS had not been granted a business licence nor were they aware of any such application.
Tropical received communications from two of their major brands that they would be moving their brands to IWAS who was the distributor in St. Maarten, as it made sense to consolidate since they were now operating in Anguilla. One of Tropical's representatives once more contacted the Permanent Secretary informing him of what he was told by his brand managers namely, that IWAS had been granted a business licence. Tropical says that the Permanent Secretary then confirmed that a business licence had been granted, but neither he nor the Minister of Finance had any knowledge of it. As a result, members of the Chamber of Commerce and some of Tropical's directors met with the Minister of Finance and the Principal Assistant Secretary who told them that the matter would be investigated and the licence would be revoked or suspended in the meantime. The business licence was apparently initially granted by the Principal Assistant Secretary.
Subsequently, Tropical was informed by the Minister of Finance that the business licence was reinstated by the Permanent Secretary on the advice of the Attorney General. Tropical then sought leave to institute judicial review proceedings of the Permanent Secretary's decision granting the licence to IWAS on several grounds.
The learned judge, having heard the application for leave to bring judicial review proceedings, found that only one ground argued before him presented a realistic prospect of success. That is, that the grant of a business licence to IWAS by the Principal Assistant Secretary is null and void and of no legal effect as the Trades, Businesses, Occupations, and Professions Licensing Act specifically provides for the Permanent Secretary to grant business licences. The learned judge, nonetheless, refused Tropical's application for leave to file judicial review proceedings because there had been an unreasonable delay of six months in seeking leave and thus applied the discretionary bar in refusing leave.
Tropical, being dissatisfied with the learned judge's decision, appealed. The critical issue arising for this Court's determination is whether the learned judge erred in the exercise of his discretion in relation to unreasonable delay such as to bar Tropical from pursuing a judicial review claim.
Held: dismissing the appeal and making no order as to costs, that:
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1. On an application for leave to bring a judicial review claim, the judge is obliged to consider the issue of delay in determining whether to grant leave even where the claim has merit. A finding of unreasonable delay in pursuing an application for leave to institute judicial review proceedings may prevent an applicant from pursuing an arguable ground for judicial review even though the ground may have a realistic prospect of success.
Rule 56.5 of the Civil Procedure Rules 2000 applied; Sharma v Brown-Antoine [2007] 1 WLR 780 applied.
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2. The Civil Procedure Rules 2000 does not provide any time limit for the filing of an application for leave to file a judicial review claim. However, there is a duty to act promptly. In determining whether there has been unreasonable delay in pursuing judicial review proceedings, the court must consider the issue of promptness and it will be an identifiable question of law, namely, when did the grounds for the judicial review claim first arise.
Fishermen and Friends of the Sea v Environmental Management Authority and others [2018] UKPC 24 applied; In the Matter of An Application by Robert and Sonia Burkett [2000] EWCA Civ 321 applied.
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3. In determining whether there has been unreasonable delay, the learned judge should also consider whether the granting of leave would be likely to be detrimental to good administration or cause substantial hardship to or substantially prejudice the rights of any person. The learned judge correctly concluded that there had been an unreasonable delay in filing the application for leave to bring a judicial review claim as the consequences of revoking IWAS' business licence six months into the operation of its business would cause substantial hardship to the business. Further, seeking to unravel the Permanent Secretary's decision at that late stage would no doubt be detrimental to the good administration. There would also be substantial hardship and substantial prejudice to IWAS. In view of the totality of the circumstances, the learned judge correctly exercised his discretion in relying on the delay as a discretionary bar to prevent Tropical from obtaining leave to bring a judicial review claim. Accordingly, there is no discernible error of law in the learned judge's reasoning and his conclusion cannot be impugned.
Rule 56.5 of the Civil Procedure Rules 2000 applied; Roland Browne v The Attorney General and the Public Service Commission SLUHCVAP2010/0023 (delivered 15th December 2010, unreported) followed; R v Dairy Produce Quota Tribunal for England and Wales Ex p. Caswell [1990] 2 AC 738 applied.
On 18 th January 2019, we dismissed Tropical Distributors Company Limited's (“Tropical”) appeal against the decision of Belle J refusing Tropical's application for leave to file a judicial review claim against the decision of the respondent, the Permanent Secretary in the Ministry of Finance (the “Permanent Secretary”), granting a business licence to International Wines & Spirits Limited (“IWAS”). At the hearing of the appeal, we gave an oral decision dismissing the application and indicated that we would provide our reasons at a subsequent date. We do so now.
We will now briefly set out the background to the appeal in order to provide the necessary context.
Tropical, a company operating in Anguilla, has been engaged in the distribution business there since 1983. It has grown over the years to represent major international wine and spirit brands. In May 2016, Tropical heard a rumour that IWAS, a distribution company operating in St. Maarten, intended to enter the Anguillan market. Having so heard, two of Tropical's directors enquired from the Chief Minister/Minister of Finance the process for granting business licences and raised issues affecting the company operating in that sector generally and, specifically, the prospects of facing a major competitor who was essentially seeking to consolidate the St. Maarten/Martin and Anguilla market. Tropical says that it was assured that no licence was granted to IWAS. The enquiry was followed by a meeting with the President of the Anguilla Chamber of Commerce and the Minister of Finance where discussions were held that the Chamber of Commerce and affected stakeholders should be given the opportunity to weigh in on all business licence applications that are submitted to the Permanent Secretary in the Ministry of Finance. Tropical says that, the Minister and the Permanent Secretary again assured the parties that IWAS had not been granted any licence nor were they aware of any such application.
Tropical received communication in early September 2016 from two of their major brands that they would be moving their brands to IWAS who was the distributor in St. Maarten, as it made sense to consolidate since they were now operating in Anguilla. One of Tropical's representatives once more contacted the Permanent Secretary informing him of what he was told by his brand managers namely, that IWAS had been granted a licence. Tropical says that the Permanent Secretary then confirmed that the licence had been granted, but neither he nor the Minister of Finance had any knowledge of it. On 9 th September 2016, members of the Chamber of Commerce and some of Tropical's directors met with the Minister of Finance and Mr. Wycliffe Fahie, the Principal Assistant Secretary in the Ministry of...
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