July 5, 2020

Ackermon loses Judicial Review over Dart West Bay Road closure

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Dart-WB-Rd-project-wont-create-traffic-picIn a Judicial Review (JR) Case heard before Justice Charles Quin filed by local Architect, Rupert Ackermon, on 24th April 2013, against the Government of the Cayman Islands (GCI) and the National Roads Authority (NRA), the Judge dismissed the application.

Ackermon was seeking the following relief:

i.   A Declaration   that the aforesaid decisions   and any consequential actions are void, erroneous   in law, unconstitutional, unreasonable and for contrary to the principles of Natural Justice:

ii.   An Order of Certiorari to quash the decision of the Respondents to enter into and for implement the Agreement, to close the public roads vesting land in DRCL as therein set out and for to approve, adopt, lay out and maintain as public roads the planned rights of way therein set out and for to grant certain tax or other concessions   to DRCL, its affiliates and assigns as also therein set out:

iii.   An Order of Mandamus requiring the Respondents to keep open and maintain the West Bay Road and those other roads referred to in the Agreement purportedly to be legally closed as public roads;

iv.  An Order prohibiting the Respondents from implementing the said Agreement or otherwise vesting in DRCL the land referred to in the Agreement or alternatively staying its implementation and such vesting.

On the 13″‘ March 2013 Justice Henderson delivered a Ruling in this matter as follows:

“I have refused to grant leave on the ex parte application because of what seems (on the papers) to be excessive delay on the part of the Applicant. My intention is that the Applicant may, if so advised, apply for leave inter partes in open Court. The Respondents will then have a full opportunity to address the merits plus the issues of delay and standing.”

On the 18th March 2013 the Applicant filed his notice of intention to renew his

Application for JR and filed two further Affidavits.

945130_542404179144074_246644101_nAckermon was represented by Mr. Neil Timms Q.C. and GCI and NRA by Ms. Resbma Sharma. Also present was Lord Goldsmith Q.C, who was acting for Dart Realty (Cayman) Ltd (DRCL) as an “interested party”.

The Applicant (Ackermon) submitted that he and the Truly 4 Cayman (T4C) that incorporates the West Bay Action Committee, Concerned Citizens Group, Save Cayman, the Coalition to Keep Bodden Town Dump Free, and “the interests of a broad and significant group of individuals” could show good reason for the three-month period to be extended.

Ackermon submitted that the Respondents (GCI and NRA) unlawfully abdicated or fettered their inalienable discretion. They acted in a procedurally improper manner and in breach of principles of natural justice in depriving those affected of any meaningful opportunity to make representations. The Respondents acted without consultation and prevented information from being disclosed, frustrating the bodies such as T4C [et al]. The Applicant contends that this represents a very significant number of concerned citizens.

Ackermon submitted there was various amendments made to the DRCL Agreement but complained that he was unable to provide the Court with the dates of the various amendments because the information has been deliberately withheld.

He submitted he and his supporters took prompt and cooperative steps to avert unnecessary litigation. Therefore he submitted that it could not legitimately be said that he had not acted promptly in making his application to apply for leave to apply for JR.

He also submitted that if leave is refused on the basis of delay the Respondents will have succeeded in their strategy of starving the public of information until they and DRCL are in a position to take irrevocable steps to implement the Agreement. His evidence is that he has tried, without success, to discover what the current position is, because he possesses only part of the information.

Cayman Islands Grand Court Justice Charles Quin on Friday rejected an application for Judicial Review of the closure of the West Bay Road, saying local activist Rupert Ackermon had delayed too long to challenge plans by the Dart Realty-government partnership.

Justice Quin did not agree and scolded Ackermon, saying, “there were so many compelling reasons to apply promptly and urgently for leave to apply for Judicial Review. They failed to take the one necessary step, which was to file the application for leave, promptly.”

Justice Quin said, “The court has no difficulty in finding as it has, that the applicant has failed to file his application for leave to apply for JR promptly”. He gave as examples the complexities of ongoing construction, a variety of contracts among builders, suppliers, employees and developers.

The Judge said the information required Ackermon to file his application when the partnership closed access points on the Esterley Tibbetts Highway, then again two months later when DRCL announced closure of the northern end of the highway, then again in December when the partners initialed the formal agreement.

Justice Quin pointed out that T4C had retained Lord Gifford Q.C. in early June 2012.

“It is clear to me,” he said, “that sufficient funds were raised for members of T4C to travel to Jamaica and spend three days with Lord Gifford setting out their complaints and seeking advice as to the question of legal redress. It must be remembered that T4C first considered an application for JR on the 23′” February 2012, but, after considering it, the idea was dismissed because, “it was not practicable to pursue a JR at that stage.” Furthermore, on the 13th April 2012 T4C reviewed its decision to pursue an application for JR.  At that time, which is some 12 months ago, the Applicant candidly recognised that it was apparent that T4C would not be able to make progress without legal action. Yet, for some unaccountable reason nothing came of T4C’s review of its decision to pursue an application for leave for JR.

“On the 21″ July 2012 T4C and the Applicant received the written legal opinion from Lord Gifford, which the Applicant again candidly confirmed, advised that there were serious issues, which were judicially reviewable by the Cayman Court.

“The Applicant has not provided the Court with T4C’s instructions to Lord Gifford or any brief to counsel. Lord Gifford’s advice was not put before the Court. All the Court knows is that Lord Gifford provided advice and that he stated there were issues for review by this Court.

He said the Applicant maintained the T4C was comprised of a broad and significant group of individuals and he therefore found it “extremely unlikely no member of the group asked the question when should the application be made and are there any time limits?”

“Furthermore, given the serious attention that was given to the whole question of JR by the Applicant and T4C, it is inconceivable that during T4C’s meetings with Lord Gifford the questions of promptness and the 90-day deadline for the leave application did not arise.”

Judge Quin said, “The Court does not fully understand the Applicant’s statement that the leaking of Lord Gifford’s advice presented a serious problem with regard to confidentiality and the integrity of T4C’s internal process. If anything, the fact that Lord Gifford’s advice was leaked should have spurred T4C into urgent and immediate action to apply for leave to judicially review the serious issues, which Lord Gifford advised them were reviewable.

“In any event, the evidence is that members of T4C were not able to raise funds to pursue JR and, and after experiencing further difficulties with fundraising and finding Cayman resident attorneys, “the campaign was closed.” This decision effectively removed any possibility that the Applicant or T4C could meet the primary requirement of promptness which is a requirement in all JR applications.

“As DRCLs’ counsel submits, T4C and the Applicant spent approximately one year considering whether or not to apply for Judicial Review and/or issue other legal proceedings. DRCL submits that it is not open for the Applicant and T4C to watch these developments taking place at the site make a conscious decision not to issue legal proceedings, wait for approximately 12 mouths, change their mind to then apply for legal aid and obtain legal representation.

“It is clear from the evidence that JR was considered by the Applicant and T4C for many months, and, on different occasions, they decided not to make the necessary application for leave to apply. Accordingly, for the aforesaid reasons I reject the inability to find legal representation and to obtain legal aid as good enough reasons to grant an extension of time.”

“I find that if the relief sought by the applicant were granted, at this very late stage, it would cause substantial hardship and prejudice to the respondents {Dart Realty and government], and would be detrimental to good administration,” Justice Quin said.

In dismissing Ackerman’s application Justice Quin finally said, “In light of my decision on the requirement for promptness, and the Applicant’s delay, it is not necessary for me to consider the questions of sufficient interest or standing.”

 

 

 

 

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