JIPFA Investments Ltd Claimant v The Minister of Physical Planning Defendant v Alred Frett Natalie Brewley The Intervenors

JurisdictionBritish Virgin Islands
Judgment Date31 October 2011
Neutral CitationVG 2011 HC 23,[2011] ECSC J1031-1
Date31 October 2011
Docket NumberClaim No. BVIHCV2011/0040
CourtHigh Court (British Virgin Islands)
[2011] ECSC J1031-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Claim No. BVIHCV2011/0040

JIPFA Investments Limited
Claimant
and
The Minister of Physical Planning 1
Defendant
and
Alred Frett
Natalie Brewley
The Intervenors
Appearances:

Mr. Gerard St. C. Farara QC and Ms. Tamara Cameron of Farara Kerins for the Claimant

Ms. Vareen Vanterpool, Senior Crown Counsel and Ms. Maya Barry, Crown Counsel for the Defendant

Mr. Frank Walwyn and Ms. Astra Penn of Dancia Penn & Co. for the Intervenors

Judicial Review - affidavit in support of claim for judicial review - application to strike out certain parts of affidavit - whether CPR 30.5 applies to judicial review - whether portions of affidavit contain hearsay or expert opinion or legal opinion-

The claimant company seeks to have the planning permission issued by the defendant to the intervenors declared invalid. The claimant, through one of its directors, submitted a 23-paragraph affidavit in support of its application for judicial review. The defendant filed a Notice of Application pursuant to CPR 30 in which he seeks to strike out certain parts of the affidavit on the grounds that they contain statements which are either hearsay, opinion evidence, legal arguments and conclusions or are wholly irrelevant to these proceedings.

HELD:

  • 1. Whilst the requirements of CPR 56 are paramount, CPR 30 is applicable to affidavit evidence in a claim for judicial review: Richard Frederick v Comptroller of Customs St. Lucia HCVAP 2008/0037 [Judgment 6 July 2009] considered; NH International (Caribbean) Limited v Urban Development Corporation of Trinidad and Tobago Ltd Trinidad and Tobago HCA Cv 3181 of 2004 (Stollmeyer J), Ruling 9 th May 2005 followed.

  • 2. The Court should not exclude "relevant background information" which is material to resolving the dispute before the court. Paragraphs 7 and 9 contain pertinent background information relevant to the claimant's claim: R v Humberside CC ex p Bogdal (No. 1) [1991] COD 66, R v Humberside CC ex p Bogdal (No. 2) [1992] COD 467; R v Humberside CC ex p Bogdal (No. 1) Court of Appeal, 6 December 1996 followed.

  • 3. Witnesses should not give evidence as to inferences which they believe can be drawn from the facts. Paragraphs 8, 10, and 18 in their entirety, and portions of paragraphs 11, 16, 19, 20 and 21 contain statements which constitute commentary on the facts, unnecessary opinion, or submissions better left for trial. These are not facts which the deponent is able to prove from his own knowledge and are hereby struck out: Director of Corporate Enforcement v Baily and Anor [2007] IEHC 365 followed.

  • 4. In paragraphs 13, 14 and 15, the claimant surpasses what is necessary to set out as the grounds of its challenge. The said paragraphs contain statements which are legal arguments and conclusions that ought to be properly struck out: Sierra Club of Canada v The Minister of Finance of Canada and others Federal Court T-85-97 (Hagrave, John A - Prothonotary) Decision 10 November 1998 considered; National Insurance Corporation v Rochamel Development Company Limited SLUHCV 2006/0638 (Edwards J), Judgment 26 September 2008, Anthony Eugene v Joseph Jn Pierre SLUHCV 2004/0097 (Edwards J), Judgment 21 February 2007 followed.

RULING
Introduction
1

The defendant, the Premier and Minister of Finance and Tourism ("the Minister") seeks to strike out all or parts of the first affidavit of Dr. Joseph S. Archibald QC ("the deponent") in support of the claim by the claimant, JIPFA Investments Limited ("JIPFA"), for judicial review on the grounds that they contain statements which are either hearsay, opinion evidence, legal arguments and conclusions or are wholly irrelevant to these proceedings.

The Parties
2

The Minister granted planning permission to the Intervenors, Mrs. Natalie Brewley, Mr. Alred Frett, and their company B & F Medical Complex (collectively "the Developers") to construct a 24-bed medical complex on Parcel 21 of Block 2938 Road Town Registration Section ("Parcel 21").

3

JIPFA is the proprietor of the adjoining Parcel 22 of Block 2938 Road Town Registration Section ("Parcel 22"). The Developers and JIPFA are thus neighbors. The deponent is a director of JIPFA.

Procedural History
4

JIPFA's property contains a single-residential/dwelling house. The Developers' land abuts JIPFA's western border and a 12-foot right of way over the Developers' land provides the only access to JIPFA's land. Until recently, the Developers' land also contained a single residential / dwelling house.

5

The Developers submitted an application dated 14 July 2009 for construction of a medical complex on Parcel 21. Both the Planning Authority and the Planning Appeals Tribunal rejected this application ("the first application"). The Developers submitted an application dated 24 August 2010 for construction of a medical complex on Parcel 21 ("the second application"). This application bypassed the Authority and the Appeals Tribunal and was approved directly by the Premier on 14 January 2011.

6

Sometime during 2010/2011, the Developers commenced demolition of the dwelling house, excavation and other preparatory works on the site. JIPFA, aggrieved by the impending change of land use on what was previously a single-residential house lot, initiated a claim for judicial review of the Minister's decision to grant planning permission for the development.

7

On 23 February 2011, JIPFA applied for leave to apply for Judicial Review. The application for leave was supported by an affidavit of the deponent. Leave was granted on 28 February 2011. The substantive application was filed with substantially the same affidavit in support on 1 March 2011.

8

On 4 April 2011, the Minister applied to the Court pursuant to Part 30 of the Civil Procedure Rules 2000 (the "CPR") to strike out certain parts of the deponent's affidavit in advance of filing his affidavit in reply. It is argued on behalf of the Minister that eleven of the twenty-three paragraphs in the affidavit are so improperly drafted that they fall afoul of the general requirements for affidavits spelled out in CPR 30.3. Thus, the impugned paragraphs should be struck out, either in part or in their entirety on the grounds that they contain statements which (a) the deponent cannot prove from his own knowledge, (b) are statements of information or belief where no sources are identified and are hearsay; (c) are opinion evidence of the deponent which he is unqualified to make; and (d) are legal arguments and conclusions. Alternatively, that the whole or parts of the impugned paragraphs be struck out on the ground that they contain scandalous, irrelevant or otherwise oppressive matter. The Minister also seeks leave to file his affidavit in reply outside of the prescribed stipulated time.

9

The Developers have made no application of their own but piggybacked on the Minister's application, commenting specifically upon an additional three paragraphs, which were not referred to in the application. The Developers' position also is that, with the exception of paragraphs 1 to 6, the entire affidavit is defective in that nearly every paragraph contains a statement or statements, which offend some principle of pleading or some principle of evidence, and should properly be struck out.

10

In response, JIPFA contends that CPR 30 does not apply to affidavits in support of applications for judicial review and even if it did, the deponent's affidavit does not fall afoul of CPR 30.

The issues
11

The two issues that fall for determination are as follows:

  • 1. Whether CPR 30 applies to affidavits filed in support of applications for judicial review?

  • 2. Whether the whole or parts of the impugned paragraphs (7, 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20 and 21) should be struck out on the basis that they are (i) irrelevant, (ii) opinion, (iii) legal argument, (iv) hearsay or (v) otherwise contain scandalous, irrelevant or otherwise oppressive matter?

CPR 30 and its applicability (if any) to Judicial Review
12

CPR 30 governs the content and form of affidavits to be used in civil proceedings generally. CPR 30.3 provides as follows:

  • (1) "The general rule is that an affidavit may contain only such facts as the deponent is able to prove from his or her own knowledge.

  • (2) An affidavit may contain statements of information and belief -

    • (a) if any of these Rules so allows; and

    • (b) if the affidavit is for use in an application for summary judgment under Part 15 or any procedural or interlocutory application, provided that the affidavit indicates -

      • (i) which of the statements in it are made from the deponent's own knowledge and which are matters of information or belief; and

      • (ii) the source of any matters of information and belief.

  • (3) The court may order that any scandalous, irrelevant or otherwise oppressive matter be struck out of any affidavit."

13

Learned Senior Crown Counsel, Ms. Vanterpool and Mr. Walwyn, learned Counsel for the Developers submit that while it has been decided that an application for leave to seek judicial review is an interlocutory proceeding, the actual application for judicial review is not an interlocutory proceeding. 2 Therefore, even though an affidavit in support of an application for leave to apply for judicial review may contain statements of information or belief, provided that the sources are identified, 3 the actual affidavit in support of the application for judicial review must conform to the ordinary rules of affidavit evidence as prescribed by CPR 30.3.

14

Learned Queen's Counsel, Mr. Farara QC submits that CPR 30.3 does not apply to an affidavit in support of an application for judicial review. Says, Mr. Farara QC, the only rules that apply are those set out in CPR 56. According to Mr. Farara QC, the pleadings in judicial review matters are somewhat peculiar and different...

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