IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)

GRENADA

CLAIM NO. GDAHCV2021/0290

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW PURSUANT TO PART 56 OF THE CIVIL PROCEDURE RULES 2000 (AS AMENDED)

AND

IN THE MATTER OF THE PHYSICAL PLANNING AND DEVELOPMENT CONTROL ACT NO. 23 OF 2016

AND

IN THE MATTER OF THE DECISION OF THE PLANNING AND DEVELOPMENT AUTHORITY TO GRANT APPROVALS FOR DEVELOPMENTS AT LA SAGESSE IN THE PARISH OF ST. DAVID, LEVERA IN THE PARISH OF ST. PATRICK AND MT. HARTMAN IN THE PARISH OF ST. GEORGE

AND

IN THE MATTER OF THE PLANNING AND DEVELOPMENT AUTHORITY FAILING TO KEEP A PUBLICLY ACCESSIBLE REGISTER IN ACCORDANCE WITH THE PHYSICAL PLANNING AND DEVELOPMENT CONTROL ACT 2016

BETWEEN:

GRENADA LAND ACTORS INC.

Claimant

and

THE PLANNING AND DEVELOPMENT AUTHORITY

Defendant

SINGAPORE HENG SHENG GRENADA DEVELOPMENT PTE LTD
Interested Party

HARTMAN GROUP LIMITED
Interested Party

RANGE DEVELOPMENTS (GRENADA) LTD
Interested Party

Before:
The Hon. Mr. Justice Raulston L. A. Glasgow High Court Judge

Appearances:
Mr. Leslie Thomas, QC with him Ms. Rita Joseph-Olivetti for the Claimant
Ms. Dia Forrester, Attorney General, with her Mrs. Karen Reid-Ballantyne, Solicitor General, for the Defendant
Mr. John Carrington, QC with him Mrs. Sheila Harris and Ms. Donnika Maxwell for Singapore Heng Sheng (Grenada) Development Pte Ltd
Mr. B. St. Michael Hylton, QC with him Mrs. Daniella Williams-Mitchell and Mr. Sundiata Gibbs for Hartman Group Limited
Mr. Darshan Ramdhani, QC with him Mrs. Sabrita Khan-Ramdhani for Range Developments (Grenada) Limited

———————————————–
2021: November 19;
December 3;
2022: March 29.
————————————————

DECISION

[1] GLASGOW J.: There are three applications before the court for consideration, all of which challenge the locus standi of the claimant (hereafter “GLA”) to initiate judicial review proceedings, and seek orders that GLA’s claim is struck out. These applications were filed first on 13th May 2021 by the defendant (hereafter “PADA”), second on 30th September 2021 by the second named interested party, Hartman Group Limited (hereafter “Hartman”), and third on 11th October 2021 by the third named interested party, Range Developments (Grenada) Limited (hereafter “Range”) (hereafter collectively “the applicants”).

[2] The grounds of the applications are somewhat similar. They concern whether GLA has a sufficient interest to obtain relief, engaging the question of standing in a judicial review claim.

Case History

[3] On 26th March 2021, GLA filed a without notice application seeking leave to pursue judicial review proceedings against PADA for, among other things –

(1) the decision made by PADA to grant planning permission for the La Sagesse development in St. David;

(2) the Levera development in St. Patrick and the Mt. Hartman development in St. George;

(3) the alleged failure to have a publicly accessible register; and

(4) the alleged failure to make regulations.

[4] This application was supported by evidence on affidavit deposed to by Dr. Jody Daniel and Mr. Andre Joseph-Witzig, together with certificates of exhibits for each affidavit. The relief sought by GLA included declarations, orders of mandamus and orders of certiorari.

[5] Thereafter, on 30th March 2021, this court considered GLA’s application and ordered that leave is granted to GLA to apply for judicial review. In accordance with that order, on 14th April 2021, GLA filed a fixed date claim form seeking judicial review. The claim was supported by affidavits sworn by Reginald Joseph, Sandra Ferguson and a second affidavit of Andre Joseph-Witzig.

[6] On 20th April 2021, PADA was served with the above referenced documents, and on 23rd April 2021 the Attorney General’s Chambers filed an acknowledgment of service on its behalf.

[7] PADA then filed the notice of application which challenges whether GLA has sufficient standing to pursue its judicial review claim. GLA then filed a notice of objection on 26th May 2021, asserting that PADA’s challenge is premature and should not be considered at this stage.

[8] Thereafter the two other applications by Hartman and Range were filed. On 15th October 2021 the first named interested party, Singapore Heng Sheng (Grenada) Development PTE Ltd (hereafter “Singapore”) filed a notice of intention to assist PADA in its 13th May 2021 application.

[9] Submissions were filed by the parties in the following order –

(1) 9th June 2021 by PADA in support of its application;
(2) 18th June 2021 by GLA in response to PADA’s application;
(3) 21st June 2021 by PADA in reply to GLA’s submissions filed 18th June 2021 and notice of objection filed 26th May 2021;
(4) 10th November 2021 by GLA supplementing submissions filed on 18th June 2021;
(5) 16th November 2021 by Hartman in support of its application;
(6) 16th November 2021 by Singapore in support of PADA’s application;
(7) 17th November 2021 by PADA in reply to GLA’s submissions filed 10th November 2021; and
(8) 18th November 2021 by Range in support of its application.

The Applications

[10] In the first application, filed by PADA, PADA argues that GLA has failed to establish that –
(1) it has an interest, proprietary or otherwise, in the respective land for which planning permission was granted;
(2) the developments at the locations will adversely affect it or any of its members which members are said to be anonymous; and

(3) it is an entity that has a legally recognisable sufficient interest to pursue this judicial review claim.

[11] In the second application, filed by Hartman, Hartman contends that GLA has not established that it falls within any of the categories set out in rule 56.2(2), Civil Procedure Rules 2000 (“CPR”). Hartman also claims that GLA does not otherwise have any or any sufficient interest in the subject matter of these proceedings.

[12] In the third application, filed by Range, Range contends that GLA has failed to establish –

(1) its interest in the applicant’s land situate at La Sagesse;
(2) how the decision of PADA adversely affects GLA and its members who are unidentifiable and anonymous;
(3) that it has standing to bring this action since GLA has not satisfied the criteria set out in Part 56.2 of the CPR;
(4) how, if it at all, it has any or any sufficient interest in the subject matter of these proceedings.

[13] Range’s application also argues that GLA’s judicial review application ought to be dismissed and struck out for unreasonable delay in the making of the application. Range says that, in addition, GLA’s application if granted, would be detrimental to good administration .

Issues

Determination of Standing as a Preliminary Issue

[14] The first issue that falls for consideration is whether the court ought to determine the question of sufficient interest of an applicant for judicial review before the determination of the substantive claim.

[15] The applicants argue that it is proper for the court to determine the question of sufficient interest at this juncture of the proceedings. In support of this contention, the applicants, as well as Singapore, rely on John Mussington and another v Development Control Authority and others .

[16] In Mussington, the appellants applied for and were granted leave to file judicial review proceedings. The appellants thereafter made an application for an interim injunction which the judge refused. Dissatisfied with the judge’s refusal, the appellants appealed the judgment and order of the judge.

[17] All of the respondents opposed the appeal. The second respondent went further by filing a counter notice of appeal alleging that the judge erred by finding that the appellants had standing to apply for judicial review.

[18] At paragraph 8 of his judgment, Webster JA (Ag) stated:
“… The ABAA’s position is that the appellants do not have standing to bring judicial review proceedings and the entire claim should be struck out. This is a threshold issue and I will deal with it first.”

[19] Premised on this statement by the learned Justice of Appeal, the applicants’ position is that Mussington is authority for standing to be dealt with as a “threshold” issue before consideration of any other issues on the substantive claim. This was, as is in the present context, where –
(1) The court has granted leave to bring a judicial review claim;
(2) The applicants have not applied to set aside the grant of leave;
(3) The applicants have not filed a defence; and
(4) A date for a substantive hearing has not been set.

[20] The court agrees that standing is usually considered a threshold issue in a holistic analysis of a judicial review claim, but the court strenuously disagrees that these applications properly engage the court’s consideration of standing in the context as described above.

[21] In distinguishing Mussington from this case, it is important to pay regard to the circumstances in which the question of standing was raised before the Court of Appeal. As stated previously, the counter appeal challenged the judge’s finding that the appellants had standing to apply for judicial review. That counter appeal was, therefore, against the judge’s grant of leave.

[22] The applicants in this case do not take issue with the court’s order to grant leave to GLA to file judicial review proceedings. There is also no application before the court alleging that the court erred in finding that GLA had standing to apply for judicial review. It is expressly stated in submissions filed by Range that Range is not seeking any order to overturn an earlier order . The applicants specifically ask the court to determine the substantive question of standing as a preliminary issue, prior to the substantive hearing of the matter.

What do the authorities state?

[23] The authorities are clear that the court usually analyses standing at two stages in a judicial review claim:
(1) Supperstone, Goudie and Walker on Judicial Review :

“Instead, the question of standing is dealt with in two stages. At the permission stage the court should take a preliminary view as to whether or not the claimant has standing. If its preliminary view is in the claimant’s favour then permission to bring the claim should be granted. The purpose of the permission requirement is to identify hopeless cases: permission should be refused for want of standing only in circumstances where the lack of sufficient interest is very clear. Once permission has been granted, the question of standing can then be reconsidered at the full hearing in the light of all the evidence. There are very many examples of cases where the question of standing has been considered at the full hearing only after an extensive discussion of the merits of the case.”

[emphasis added]

(2) Judicial Review Handbook :
“There is certainly a threshold test at the permission stage to filter out cases brought by busybodies. But standing is not an isolated preliminary issue, is capable of being influenced by the substantive analysis, and so can be best viewed in the round at the substantive hearing in the context of whether to grant the remedy.”

[emphasis added]

(3) R v Monopolies & Mergers Commission ex p Argyll Group Plc :

“The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever, and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application.”

[emphasis added]

(4) R v Somerset County Council ex p Dixon :

“The threshold at the point of the application for leave is set only at the height necessary to prevent abuse. To have ‘no interest whatsoever’ is not the same as having no pecuniary or special personal interest. It is to interfere in something with which one has no legitimate concern at all; to be, in other words, a busybody. Beyond this point, the question of standing has no materiality at the leave stage.

At the substantive hearing the strength of the applicant’s interest is one of the factors to be weighed in the balance: that is to say that there may well be other factors which properly affect the evaluation of whether the applicant in the end has a ‘sufficient interest’ to maintain the challenge and – what may be a distinct question – to secure a remedy in one form rather than another.”

[emphasis added]

(5) Halsbury’s Laws of England :

“Claimants must show that they have a sufficient interest (also referred to as standing, or locus standi) in the matter to which the application relates, in order to bring proceedings for judicial review. The issue goes to jurisdiction which cannot be conferred by consent. The question of sufficient interest may arise at two stages.

At the permission stage it is only in obvious cases that the court may decide that the claimant lacks sufficient interest. A person who has a genuine interest in seeking a remedy will not generally be refused permission on grounds of lack of standing even if the particular ground of challenge relied upon is not one in which he has a personal interest.

In most cases, however, the question of standing is determined on the substantive application for judicial review. Save in simple or clear cases the question whether the claimant has a sufficient interest will not be determined at the threshold stage as a preliminary issue independent of a full consideration of the merits of the complaint.”

[emphasis added]

[24] Gathered from the above authorities, the first stage at which standing is considered is the permission stage. At that point in the proceedings, the court normally assesses and determines whether the applicant for leave has satisfied the court that it has a sufficient interest to bring the judicial review claim. The threshold at that stage is a very low one . The second stage is at the substantive hearing, where the court deliberates on standing as part of determining whether to grant the relief(s) sought by the claimant.

[25] The justification for this state of affairs is uncomplicated. Judicial review claims must be dealt with expeditiously. Engaging the court’s time and resources to address numerous applications and lengthy submissions only delays the court’s process and increases costs. Moreover, the taking of short cuts in legal proceedings is an act that is often protested and which ought to be avoided.

[26] Mussington, being a decision on an appeal concerning the contention that the learned judge erred in finding that the appellant had standing, does not, in my view, suggest that the court can or ought to determine standing after the preliminary stage on the grant of leave, and before the substantive hearing. Mussington, in my view, is not an authority on which parties can rely for the court to bifurcate a substantive judicial review hearing and try the issue of sufficient interest prior to the substantive hearing. In fact, the authorities establish that, at the substantive hearing, it may be proper for a court to decide whether the application for judicial review is well founded in substance even before determining the question of the applicant’s sufficiency of interest . R v Boundary Commission for England, ex p Foot , R v Secretary of State for the Environment, ex p Rose Theatre Trust Co. , R v Legal aid Board ex p Bateman , and R v Somerset County Council & Anr ex p Dixon are all demonstrative of this principle of law. In our own jurisprudence, the case of Attorney General v Martinus Francois is also enlightening. In that case, among other issues, the Court of Appeal, analyzed whether the respondent had a sufficient interest to give him the necessary locus standi to bring an administrative claim in which he asked for declaratory reliefs. At paragraph 144 of his judgment, Rawlins JA stated:
“Historically, locus standi has been a threshold issue that was determined before the substantive issue in public law cases. Recent years have seen inexorable changes that have sometimes resulted in the determination of substantive issues before locus standi is considered. This was the approach that this Court took in Re Blake (1994) 47 WIR 174. In this case, the Court canvassed the merits of an application that challenged the appointment of a Prime Minister after inconclusive general elections. It found that the application was unmeritorious. The Court therefore decided that it was unnecessary to consider whether the applicant had locus standi, either by way of sufficient interest or relevant interest, in the subject matter of the application.”

[emphasis not mine]

[27] His Lordship also noted that the same approach was adopted in the cases of Spencer v Attorney General of Antigua and Barbuda and Blackman v Attorney General . His Lordship observed that :
“The applications in Spencer were for declarations under the Constitution. However, it is my view that the approach that was used and recommended in that case is also referable to claims for judicial review and for declarations outside of the Constitution. Lord Denning, MR, applied it in Blackman v A.G.

[1971] 1 WLR 1037, in which a private citizen sought an order declaring that it was unconstitutional for the United Kingdom to submit to the Treaty of Rome. In that case he found that the claim was unmeritorious and did not therefore consider whether the applicant had locus standi.

“This approach that was recommended in Spencer accords with good law and reason. An applicant for a declaration can have no locus standi in an unmeritorious claim. On the other hand, in a meritorious case, it must be necessary to canvass the issues and the facts in order to determine whether there is sufficient nexus between an applicant and the subject matter of the claim to give him or her locus standi.”

[28] The foregoing reason can be applied to this case. Applicants for declarations, much like GLA in this case, can have no locus standi in an unmeritorious claim, while, on the other hand, in a meritorious case, it seems necessary to canvass the issues and the facts in order to determine whether there is sufficient nexus between GLA and the subject matter of this claim to give it locus standi. Clearly, this a marked distinction in approach as opposed to the one proposed to the court by the applicants.

What about the court’s powers under the CPR?

[29] In addition to Mussington , the applicants further relied on CPR 25.1(f) as a ground for their applications. They remind the court that in its duty to actively manage cases, it may decide the order in which issues are to be resolved. Additionally CPR 26.1(2)(e) empowers the court, as part of its case management powers, to order the separate trial of any issue.

[30] I observe though that the exercise of the court’s case management powers in this regard is not unfettered or at large. Indeed our Court of Appeal in Craig Reeves v Platinum Trading Management Limited provided useful guidance on the manner in which the court ought to proceed to try issues separately.

[31] As was the case in Craig Reeves, I am of the view that, in essence, what the applicants seek for the court to do is to separate the issue of whether GLA has sufficient interest to bring this claim for judicial review of the PADA’s decisions and determine that issue before the court conducts a substantive hearing of the claim. Barrow JA explained that “wasting rather than saving time, complicating rather than simplifying issues, and engaging in mini-trials with no true justification for doing so, are among the risks that require careful consideration before a court decides to order the trial of a preliminary issue”. His Lordship restated the following caution issued by Lord Roskill in the case of Allen v Gulf Oil Refining Ltd :
“The preliminary point procedure can in certain classes of case be invoked to achieve the desirable aim both of economy and simplicity. But cases in which such invocation is desirable are few. Sometimes a single issue of law can be isolated from the other issues in a particular case whether of fact or of law, and its decision may be finally determinative of the case as a whole. Sometimes facts can be agreed and the sole issue is one of law. But the present is not a case in which this procedure ought ever to have been adopted”

[32] His Lordship Roskill also observed that:
“My Lords, in common with all your Lordships, I agree that this should be treated as the question to be answered. But I hope that your Lordships’ agreement so to treat it will not encourage others to invoke the preliminary point procedure in unsuitable cases, or lead those whose task it is to decide whether or not the trial of preliminary points should be ordered, to be other than extremely cautious before acceding to pleas for the making of such orders as a result of attractively advanced submissions founded upon pleas of supposed economy .”

[33] It will be seen from the foregoing that the invocation of the court’s case management powers to separate and decide issues in a claim is a process that the learning suggests must be pursued in rare cases and with “extreme caution”. I note that the applicants have strongly urged the court to consider that much time and expense may be saved if it tries the issue of sufficient interest earlier than at the substantive hearing.

[34] My view is that in addition to the caution issued both in Craig Reeves and Allen v Gulf Oil Refining Ltd on how the court exercises its powers to separate issues and try them separately in a claim pursuant to CPR 25.1(f) and/or CPR 26.1(2)(e), this court is also guided by and constrained to follow the guidance on how it manages judicial review claims specifically. As our Court of Appeal elucidated in Richard Frederick et al v The Comptroller of Customs and the Attorney General :
“…CPR 2000 recognizes this peculiar specie of civil proceedings by providing a regime of rules in Part 56 which are applicable only to proceedings of this kind.”

[35] The learning as I have recited above in this judgment sets out the manner in which the court ought to determine the question of sufficient interest on a judicial review claim.
Disposal of the sufficient interest point

[36] The applicants have therefore failed to satisfy me that the issue of whether GLA has a sufficient interest may or ought to be revisited after the grant of leave but before the substantive hearing of the claim as a preliminary or separate issue. Accordingly, the applications to strike out the judicial review claim on the grounds that GLA has failed to show that it has sufficient interest are refused.

Delay

[37] Range, in its application, asks the court to strike out of GLA’s claim due to delay. However, as correctly put by Range in its submissions filed on 18th November 2021, cases such as Roland Browne v The Public Service Commission have posited that the issue of delay, much like the issue of standing, arises at two stages, being the permission stage and the stage of consideration of the granting of relief.

[38] The approach of this court in determining whether there was unreasonable delay in bringing an application for judicial review was helpfully summarised by Edwards JA at paragraph 22 of Roland Browne, wherein her Ladyship first cited R v Dairy Produce Quota Tribunal for England and Wales Ex p. Caswell stating:

“…The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay if it considers that the granting of relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

[emphasis added]

[39] Thereafter, at paragraph 24 of Roland Browne , her Ladyship stated:
“It would seem therefore from the authorities mentioned that at the hearing of the judicial review claim, apart from considering the merits of the claim (usually on the grounds of either illegality, irrationality, and or unfairness) the judge may revisit the issue of unreasonable delay where the claim has merit in determining whether to grant the relief sought…”

[emphasis added]

[40] This statement of law is a reflection of what is stated at CPR 56.5(1) –
“(1) In addition to any time limit imposed by any enactment, the judge may refuse leave or to grant relief in any case in which the judge considers that there has been unreasonable delay before making the application.”

[41] At the first hearing of the substantive claim in Roland Browne, the court, before considering the substance of the claim, heard arguments on, among other things, whether the applicant, Mr. Roland Browne, acting with promptitude in bringing his judicial review claim. After hearing arguments and considering a number of authorities on the question of delay, the learned judge found that there was unreasonable delay in bringing the claim. The learned judge then reversed her earlier grant of leave on the grounds that the applicant had unreasonably delayed in fling for leave for judicial review. The Court of Appeal reasoned that –
“At the first hearing which is for case management under the rules, the judge erroneously went behind her order granting leave. By striking out the claim, she was communicating that she was either wrong in granting leave to apply for judicial review, or that she had jurisdiction to review her earlier order granting leave, and effectively set it aside because of unreasonable delay by striking out the claim. That is not what CPR 56. 5 envisaged in my view. Striking out the claim for unreasonable delay in applying for judicial review is not the same thing as refusing the relief sought on a claim having merit on grounds of unreasonable delay or the reasons under CPR 56.5(2) ”.

[42] In consideration of the above, having granted leave, it seems wholly inappropriate for this court to strike out the claim at this juncture on the basis of delay. The applicants are nonetheless entitled to ask the court at the substantive hearing to refuse to grant the relief sought by GLA on the grounds that there has been delay in bringing the claim. This application is therefore also refused.

Extension of time to file Defence/Responses

[43] The applicants have applied, in the alternative, to be granted an opportunity to file a defence or response by an extension of time of 28 days from the date of this order.

[44] This is met with objection by GLA which contends that this extension will further delay proceedings.

[45] CPR 26.1(2)(k) empowers the court to extend the time for compliance with any rule. In granting or refusing an extension, the court has to regard the nature of the failure, the consequential effect, weighing the prejudice, the length of the delay and whether there is any good reason for the failure to comply which makes it excusable .

[46] The court accepts that if the applicants are refused an extension of time to file a response to the claim they will be prejudiced, especially in light of the refusal of their applications to strike out the claim. The court is mindful of the inordinate amount of time which has been spent on these applications. However, the court will grant the requests to extend time to file a defence or response by 28 days from the date of this ruling.

[47] At this issuance of this ruling, the applicants have all requested leave to appeal this ruling. The learned Attorney General on behalf of PADA has asked for a stay of the court’s ruling pending the determination of the appeal. These applications were all granted.

Conclusion

[48] For all these reasons, it is hereby ordered as follows:
(1) The applications filed by PADA on 13th May 2021, by Hartman Group Limited on 30th September 2021 and by Range Developments (Grenada) Limited on 11th October 2021 to strike out GLA’s claim for judicial review are refused.

(2) The applicants are permitted to file and serve any defence and/or response to the claim that they wish to file within 28 days of this ruling.

(3) GLA may respond to the documents filed and served by the applicants within 14 days of the receipt of the same.

(4) A further case management will take place on 30th June, 2022.

(5) The applicants are granted leave to appeal this ruling. The ruling is stayed pending the determination of the appeal;

(6) GLA is awarded costs of $2250.00. PADA, Hartman and Range are to pay the sum of $750.00 each to GLA in discharge of this order awarding costs of $2,250.00 to GLA.

Raulston L. A. Glasgow
High Court Judge

By the Court

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