Edgecombe v The Premier and the Attorney General

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Carrington JA
• Judgment Date: 27 October 2014
• Neutral Citation: MS 2014 CA 1
• Docket Number: MNIHCVAP 3 of 2013
• Date: 27 October 2014

Court of Appeal

Pereira, C.J.; Baptists, J.A.; Carrington, J.A. [Ag.]

MNIHCVAP 3 of 2013

Edgecombe

and

The Premier and the Attorney General

Appearances:

Dr. David Dorsett for the applicant.

Ms. K. Reid and Ms. Amelia Daley for the respondents.

Judicial review - Appeal — Leave to apply for judicial review — Refusal of leave — Process for the selection of a national song — Arguable case — Oral hearing — Not a minitrial — Threshold for leave to claim judicial review — Realistic process of success — Promptness of claim — Doctrine of legislative expectation — Delay must be considered with all relevant circumstances — Prejudice to the person — Leave granted — Rule 62.2A of the Civil Procedure Rules.

Sometime in the early 1990s the Government of Montserrat commissioned competition for the selection of a national song. The applicant composed a song titled “Montserrat My Country” and entered it into the competition. The applicant's song w s selected as the winner of the competition sometime in late 1994 or early 199 Following his song's selection, the applicant believed that his song was the nation I song; however, the applicant's song had never been ratified by the Government of Montserrat as the national song.

In 2011, the applicant became aware that the Government of Montserrat was trying to recommence a search for a national song. In 2013, the Government set up a committee for a national song search; however, the applicant did not submit his song for the consideration of the committee. In July 2013, the committee selected another song called “Motherland” as the national song.

The applicant later applied for leave to bring judicial review proceedings against the Government of Montserrat seeking interim and substantive relief on the grounds that inter alia the applicant's song “Montserrat My Country” was already selected as the national song and that he had a legitimate expectation that his composition would be ratified as such. The application was heard inter partes on 25th September 2013 by a judge in the court below. The learned judge refused to grant the applicant leave on the grounds of delay and that there was no issue to be tried. The applicant subsequently applied for leave to appeal the learned judge's decision.

Held: granting leave to apply for judicial review in respect of some but not all of the grounds set out in the application to the court below; setting aside the decision of the court below and ordering that costs of the application be costs in the proceedings below, that:

• 1. Where the court below directs that there be an oral hearing to take place on notice for an application for leave to seek judicial review, it is not expected that there be a mini-trial of the issue whether leave should be granted. The judge should always bear in mind that it is only the matter of leave that is involved. Accordingly, legal submissions should be directed only to whether the threshold requirements of leave have been met.

• Treasure Bay (St. Lucia) Limited v. Cage St. Lucia Limited et al SLUHCVAP2011/45 (delivered 23rd January 2012, unreported) followed; R (on the application of Davey) v. Aylesbury Vale DC [2007] E.W.C.A. Civ. 1166 applied.

• 2. The determination whether the threshold for leave to apply for judicial review has been met is ultimately a question of law. The test is whether there is an arguable ground for judicial review with a real prospect of success and the application is not subject to a discretionary bar such as delay or an alternative remedy.

• Sharma v. Brown-Antoine [2006] U.K.P.C. 57 followed.

• 3. A legitimate expectation arises when, based on a decision of a public authority, a person has an interest in an ultimate benefit which he hopes to attain, which interest is protected by an obligation on the part of the public authority to act with procedural fairness towards the person. In the present case the applicant has raised the issue which has a real prospect of success; namely, he had an legitimate expectation that his song would have been ratified as the national song after it was selected in 1995 and the applicant May be entitled to a declaration to record any administrative wrong committed on the part of the public authorities in their treatment of him after the selection of his song in 1995.

• R v. Devon CC ex parte Baker [1995] 1 All E.R. 73 applied; Antigua Power Co. Ltd. v Attorney General of Antigua and Barbuda [2013] U.K.P.C. 23 referred.

• 4. When the court is addressing the question of delay, the matter must be considered against the background of all the relevant circumstances brought before the court and of the relief being sought. Accordingly, in the instant case, the question of delay is approached differently if the applicant is seeking a declaration that he had a legitimate expectation that his song would have been confirmed as the national song, from if the applicant were seeking a stay of the ratification of the newly selected song or mandamus to compel the public authorities to make a decision on ratification of his song. Any issue Of detriment to good administration or substantial hardship or prejudice in the face of delay, can only arise where there is evidence of such and it is unlikely that this evidence will be led at the leave stage.

• R v. Dairy Produce Quota Tribunal for England and Wales ex parte Caswell [1990] 2 A.C. 738 referred.

1 Carrington JA [AG.]: This is a tale of two songs.

2 The applicant seeks permission to appeal the decision of Mr. Justice Redhead in the High Court dated 25th September 2013, in which the learned judge refused to grant him leave to bring proceedings for judicial review in respect of the process for the selection of a national song for Montserrat, which he claims was due to culminate in a vote of the legislative assembly for the Territory on the ratification of a song called “Motherland” as the national song. The basis of his case is that his song, “Montserrat My Country” had already been selected as the national song of Montserrat. The application for permission to appeal is grounded on the alleged errors of the court below in (i) refusing leave where there was an arguable case that the applicant's legitimate expectation that his composition, “Montserrat My Country”, would be the national song of Montserrat was being frustrated by the respondents and (ii) finding that there had been delay in making the application.

3 The application for permission to appeal is made under the recently introduced rule 62.2A of the Civil Procedure Rules, 2000 (“CPR 2000”) which permits an application to be made to this Court for permission to appeal against the refusal of leave to bring judicial review proceedings by the court below and allows this Court either to grant permission to appeal or grant leave to the applicant to bring judicial review proceedings.

4 before the court below, the applicant applied for leave to bring judicial review proceedings in which he would seek both interim and substantive relief. These included (i) a stay of the selection process for the national song including ratification; (ii) declarations that his song is the national song, that the refusal to recognize his song as the national song was an abuse of power of the Premier, that the Premier's refusal to acknowledge his song was unreasonable and irrational, and that he had a legitimate expectation that his song would be ratified as the national song. He also sought a declaration that the selection of the song “Motherland” was void and an order for damages and various heads of consequential relief.

5 In the court below, the applicant relied on the following grounds, namely: (i) that his song had already been selected as the national song; and (ii) that he had a legitimate expectation that his song would be officially launched and promoted publicly and taught in schools as the national song as promised in 1996; (iii) that he had a legitimate expectation that his composition would be ratified; and (iv) that the Premier in refusing to recognise and/or ratify the song acted unfairly, arbitrarily and/or irrationally and unreasonably.

6 The applicant's evidence, which for the purposes of this application and out of courtesy to him because he represented himself in the court below, will be treated as including his submissions to the judge below, is that in the early 1990s the then Chief Minister (now current Premier) of Montserrat spearheaded the search for a national song for the Territory. The applicant composed a song called “Montserrat My Country” between 1992 and 1994 and entered it in the competition for the national song and in 1995 that song was selected as the national song. In support of this he produced a newspaper report from the Montserrat Reporter newspaper which he stated to have been published on 30th June 1995 and which reports somewhat cryptically ‘Denzil Edgecombe's “Montserrat - My Country” was declared the National Song of Montserrat.’

7 He then goes on to state that ‘[s]ince then the song was always recognised as the national song of Montserrat until recently when the 1st respondent announced that the Government was recommencing the process for selecting a national song. [Affidavit of notice of Denzil Edgecombe pursuant to CPR 17.3 and 56.3 and affidavit of sufficiency (filed 18th September 2013), pars 7]

8 His evidence before the court below was further that his song, although selected in 1995, was never ratified by the local parliament because volcanic activity started in 1995 and (as a result) the priorities of the government shifted. He understood, however, that once the volcanic activity subsided the official launching process of the national song would resume. The basis of this understanding was not made clear in the evidence.

9 The other key evidence was that the Premier had launched a major fund raising initiative in which the national song was to be...