Neville Pole d/b/a PL Consultancy v The Licensing Magistrate

• Jurisdiction: British Virgin Islands
• Judge: Ellis J.
• Judgment Date: 27 March 2018
• Judgment citation (vLex): [2018] ECSC J0327-6
• Court: High Court (British Virgin Islands)
• Docket Number: Claim No. BVIHCV 2015/0141
• Date: 27 March 2018

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. BVIHCV 2015/0141

In the Matter of the Liquor Licence Ordinance (Cap. 106)

and

In the Matter of an Application by Neville Pole d/b/a PL Consultancy for Leave to Apply for an Order for Judicial Review Quashing Unlawful Acts Under the Said Act

Between:

(1) Neville Pole d/b/a PL Consultancy

(2) Alfred Christopher

(3) d/b/a Castle Maria Hotel

Claimants

and

The Licensing Magistrate

Respondent

Appearances:

Mr. Jamal Smith, Counsel for the Claimants

Mrs. Jo-Ann Williams-Roberts, Solicitor General, Counsel for the Respondent

Ellis J.

1 This claim for Judicial Review is brought by the First Claimant, a former tax inspector who was employed with the Inland Revenue Department for 21 years. He asserts that he has also served as a tax consultant for several businesses including persons seeking to obtain or renew liquor licences under the Liquor Licence Ordinance Cap 106 of the Laws of the Virgin Islands (the Ordinance). On that basis he claims to possess expertise in relation to the operation of the Ordinance and in bringing this suit, he also contends that he is acting on behalf of his clients who have sought to obtain or renew a liquor licence.

2 The Second Claimant is a client of the First Claimant and the holder of a liquor licence issued under the Ordinance. In October 2014, he was the holder of a liquor licence issued under the Ordinance Pursuant to an Order of the Court granting them leave to apply for judicial review on the grounds of illegality and want of procedural fairness/ breach of natural justice, the Claimants filed a Fixed Date Claim Form in which they challenge the Notice issued by the Respondent in October 2014 advising of a Special Sitting of the Magistrate's Court to be convened on 1 ^st December 2014 for the purpose of hearing and determining applications for licences for the sale of intoxicating liquor (“the Notice”). The Claimants contend that they are directly affected by the decision to issue the Notice and seek the following relief:

• 1. A declaration that the Notice and its contents are ultra vires and that the Respondent exceeded her authority in issuing the same.

• 2. A declaration that the revised Forms issued by the Respondent in relation to the Notice are ultra vires.

• 3. A writ of mandamus requiring the Respondent to revert to the use of the previous forms until such time as the Legislative Assembly amends the Ordinance.

3 The Claimants complain that the Notice and the Forms are ultra vires because the Respondent thereby purported to:

• 1. Revise the statutorily prescribed Form in excess of her powers under the Ordinance;

• 2. Require applications for licences to be served on the Commissioner of Police, the Commissioner of Inland Revenue, the BVI Fire and Rescue Department, the Environmental Health Division, the Department of Trade and Consumer Affairs and Town and Country Planning Department;

• 3. Require new applicants to be in possession of valid trade licence;

• 4. Require new applicants to obtain development planning permission to operate at the location from which they propose to operate and the premises to be inspected by the BVI Fire and Rescue Department; and

• 5. Require objections to be served on the Commissioner of Police and the Commissioner of Inland Revenue.

4 The Claimants also claim that the matters complained of are in the public interest and deserve to be ventilated because it not only affects the Claimants but all persons who may seek to obtain or renew a liquor licence under the Ordinance.

5 The Respondent disputes that the Claimants are directly affected by the Notice or that the matters raised are of public interest. The Respondent also disputes that she acted without lawful authority in issuing the Notice or in mandating the use of the new forms which purport to prescribe the several new requirements.

6 The Parties both agree that the following issues arise for the Court's consideration:

• 1. Whether the Claimants have the relevant locus standi to bring the Claim?

• 2. Whether the Respondent acted ultra vires her prescribed statutory powers in issuing the Notice and the Forms by which she purported to:

  • i. Revise the application forms in excess of her powers under the Ordinance;

  • ii. Require applications for licences to be served on the Commissioner of Police, the Commissioner of Inland Revenue, the BVI Fire and Rescue Department, the Environmental Health Division, the Department of Trade and Consumer Affairs and Town and Country Planning Department;

  • iii. Require new applicants to be in possession of valid trade licence;

  • iv. Require new applicants to obtain development planning permission to operate at the location from which they propose to operate and the premises to be inspected by the BVI Fire and Rescue Department; and

  • v. Require objections to be served on the Commissioner of Police and the Commissioner of Inland Revenue.

DO THE CLAIMANTS HAVE THE RELEVANT LOCUS STANDI TO BRING THIS CLAIM?

7 It is now settled law that the person or entity launching a judicial review action must have sufficient standing or interest in the matter to justify the courts intervening on their behalf with respect to the decision of a public body. Courts will not allow mere busybodies to bring proceedings to question the decisions of public bodies. This position is now crystalized in Part 56.2 of the Eastern Caribbean Civil Procedure Rules which prescribes the persons who may apply for judicial review. It provides that:

“56.2 (1) An application for judicial review may be made by any person, group or body which has sufficient interest in the subject matter of the application.

(2) This includes –

• (a) any person who has been adversely affected by the decision which is the subject of the application;

• (b) anybody or group acting at the request of a person or persons who would be entitled to apply under paragraph (a);

• (c) anybody or group that represents the views of its members who may have been adversely affected by the decision which is the subject of the application;

• (d) anybody or group that can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application;

• (e) any statutory body where the subject matters falls within its statutory limit; or

• (f) any other person or body who has a right to be heard under the terms of any relevant enactment or Constitution.”

8 The Defendant submits that the Claimants are not persons who can bring this claim for juridical review because they do not fall within the category of persons listed in subparagraphs (a) – (f) of Part 56.2 (2). With respect to the First Claimant, the Defendant submits that based on the evidence before this Court, he only has a mere interest in the subject matter of this Claim. Counsel for the Defendant based this submission on the First Claimant's evidence which discloses his career history; the description of his clientele; the relationship between himself and his clients and the remuneration; and his level of expertise in acting as their agent.

9 Counsel for the Defendant submitted that in examining an alleged breach of statutory duty or an excess of power or other public error, the Court must look at the relevant legislation to ascertain whether it gives the Claimants the right to the relief sought. Counsel argued that the purpose of the relevant Ordinance is to prohibit the sale of spirits without a licence and to regulate licencing and renewal procedures and licence holders. Having reviewed the relevant legislative provisions, Counsel for the Defendant submitted that the Ordinance is not one in which the ordinary citizen would have a sufficient interest in to entitle him to obtain relief unless he was a licence holder or an applicant for a licence at the relevant time.

10 Counsel submitted that had the Notice been related to objections made by members of the public to licences being granted after the notice of intention to apply for a licence was published in a newspaper in the Territory, the situation would have been different.

11 It is common ground between the Parties that there are cases in which courts have decided that sufficient standing can be ascribed to a public spirited citizen whose only association with the claim is to raise a serious issue of public importance. Counsel for the Defendant noted that CPR Part 56.3 (3) (i) provides that if applicant for leave is not personally or directly affected, the applicant must state what public or other interest he or she has in the matter; In such cases, the public spirited citizen would have standing without the need to demonstrate that the decision has any greater impact on him than any other member of the public.

12 At paragraph 94 of Walton v Scottish Ministers 1:

“In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority's violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.” Emphasis mine

13 Relying on the judgment of R v Secretary of State for the Environment ex parte Rose Theatre Company 2 Counsel for the Defendant submitted that the Ordinance does not give the Claimants expressly of impliedly a greater right or expectation than any other citizen to have the decision to issue the Notice reviewed. Counsel submitted that in any event, the level of an...