Quorum Island (BVI) Ltd; Attorney General v Virgin Islands Environmental Council

• Jurisdiction: British Virgin Islands
• Judge: BARROW, J.A.,Justice of Appeal,Justice of Appeal [Ag.],Denys Barrow, SC,Ola Mae Edwards,Michael Gordon, QC
• Judgment Date: 27 October 2008
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: HCVAP 2008/004
• Date: 27 October 2008

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Ms. Ola Mae Edwards Justice of Appeal [Ag.]

The Hon. Mr. Michael Gordon, QC Justice of Appeal [Ag.]

HCVAP 2008/004

BETWEEN

Quorum Island (BVI) Limited

Appellant/Interested Party

The Attorney General

Appellant/Defendant

and

Virgin Islands Environmental Council

Respondent/Claimant

Appearances:

Mr. Gerard Farara QC and Ms. Tana'ania Small Davis for Quorum Island (BVI) Ltd.

Ms. Vereen Vanterpool for the Attorney General

Mr. Stephen Hockman QC and Ms. Megan Thomas for the Virgin Islands Environmental Council

Civil appeal — Judicial Review — limitation period — whether an application to the court constitutes a ‘proceeding’— Public Authorities Protection Act Cap. 62. — Interpretation Act Cap. 136 — Eastern Caribbean Supreme Court (Virgin Islands) Act Cap. 80 — Part 56 of the Civil Procedure Rules 2000

The respondent (the Council) applied to the High Court for leave to apply for judicial review of a decision of the Government. This application was filed on the last day of the six-month period limited by the Public Authorities Protection Act (the Act) for the bringing of proceedings. The judge granted leave and the Council thereafter filed its Fixed Date Claim Form. The appellants objected contending that the judicial review claim had been brought after the expiration of the limitation period. They argued that the judicial review claim was commenced only upon the filing of the claim and not upon the making of the application for leave, which was not an ‘action’, ‘claim’ or ‘proceeding’ within the meaning of the Act. The judge rejected this contention, against which decision the appellants have appealed.

Held: dismissing the appeal, awarding prescribed costs of the appeal to the respondent and affirming the costs order in the court below:

• (1) ‘Proceeding’ is a word of the greatest possible scope in that it includes, but is not limited to, action, cause or matter. An application to the court is a proceeding and is commenced when the application is filed.

• (2) An application for leave to apply for judicial review is therefore a proceeding within the meaning of section 2(a) of the Act.

• (3) Section 2(a) of the Act does not require that an ‘action’ be commenced, but simply requires that whatever is the manner prescribed by rules of court for a person to commence proceedings to obtain the court order that he seeks, the proceeding must be commenced within the specified time. The application for leave to apply for judicial review, having been filed within the six-month limitation period, was commenced in time, as required by that section.

BARROW, J.A.

1 This appeal is by the Interested Party (Quorum) and the Attorney General against the decision of Joseph-Olivetti J in which she rejected their contention that the respondent (the Council) had brought proceedings for judicial review after the expiration of the relevant limitation period.

2 There is no dispute as to the facts. The Council applied to the High Court for leave to apply for judicial review of a decision of the Government granting planning approval to Quorum for the establishment of a resort on 432 acres on Beef Island that would include an 18-hole golf course and marina. The Council filed its application on the last day of the six-month period limited by the Public Authorities Protection Act1 (the Act) for bringing proceedings to challenge a decision by the Government. The judge granted leave and the

Council filed its Fixed Date Claim form a little more than a month after it had filed its application for leave and, therefore, after the six-month period had passed.

3 The Attorney General and then Quorum objected that the Council's claim for judicial review fell foul of section 2(a) of the Act, which states:

‘Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Ordinance, or of any public duty or authority or of any alleged neglect or default in the execution of any such act, duty, or authority, the following provisions shall have effect ----

• (a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of…’

4 The core of the appellants' argument was that under rule 56.3(1) of the Civil Procedure Rules 2000 (CPR 2000) a claim for judicial review can only be made after an applicant first applies for and obtains leave to make the claim. It is only after leave is obtained from the court that a person can commence a claim for judicial review. Before the claim form is filed there is no claim, Quorum argued. Counsel further argued that by virtue of section 42 of the Interpretation Act2 (as amended 3) a claim is an action because ‘action’ is defined as meaning:

‘a civil proceeding commenced in such manner as may be prescribed by rules of court and includes a claim under the Eastern Caribbean Civil Procedure Rules, 2000,…’

The appellants argued that no claim and hence no action was brought before the expiration of the limitation period under the Act, therefore the Council is barred from making a claim for judicial review.

5 In a written decision the judge concluded, 4 after a full examination of the rival arguments, ‘that an application for leave is to be regarded as the commencement of the action for the purposes of section 2(a) of...