Mitchell et Al v Melidor et Al

• Jurisdiction: Bahamas
• Judge: Dame Anita Allen. P,Crane-Scott, JA,The Honourable Dame Anita Allen, P,The Honourable Mr. Justice Isaacs, JA,The Honourable Ms. Justice Crane-Scott, JA
• Judgment Date: 14 August 2017
• Neutral Citation: BS 2017 CA 79
• Docket Number: SCCivApp. No. 267 of 2015
• Court: Court of Appeal (Bahamas)
• Date: 14 August 2017

IN THE COURT OF APPEAL

Before:

The Honourable Dame Anita Allen, President

The Honourable Mr. Justice Isaacs, JA

The Honourable Ms. Justice Crane-Scott, JA

SCCivApp. No. 267 of 2015

Between

The Hon. Frederick Mitchell

Minister of Foreign Affairs and Immigration of The Commonwealth of The Bahamas

First Appellant

and

The Hon. Jerome K. Fitzgerald

Minister of Education of The Commonwealth of The Bahamas

Second Appellant

and

The School Board of Columbus Primary School

Third Appellant

and

The Hon. Dr. Perry Gomez

Minister of Health of The Commonwealth of The Bahamas

Fourth Appellant

and

The Administrator of Fleming Street Community Clinic

Fifth Appellant

and

Ex Parte Widlyne Melidor

First Respondent

Petroun Benz Chery

(a minor, by Widlyne Melidor his mother and next friend)

Second Respondent

Appearances:

Mrs. Kayla Green-Smith with Ms. Alecia Gibson, Counsel for the Appellants

Mr. Frederick Smith, QC withMr. Dawson MaloneandMr. Crispin Hall, Counsel for the Respondents

Belize Alliance of Conservation Non-Governmental Organisations v. Department of the Environment [2004] UKPC 6 mentioned

Finucane's (Geraldine) Application [2013] NIQB 45 mentioned

R (Quark Fishing Ltd) v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 mentioned

R v. IRC, ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722 considered

R v. Lancashire County Council ex parte Huddleston [1986] 2 All ER 941 mentioned

( R v. Secretary of State for Health, ex parte Hackney Borough Council unreported English Court of Appeal 24th July, 1994) mentioned

R v. Secretary of State for the Home Department, ex parte Fayed [1998] 1 WLR 763 mentioned

Rafidain Bank v. Agom Universal Sugar Trading Co. Ltd [1987] 1 WLR 1606 mentioned

Save Guana Cay Reef Association Ltd v. The Queen et al [2009] UKPC 44 mentioned

Taylor v. Anderton [1995] 1 WLR 447 mentioned

The Queen (on the application of Al-Sweady et al) v. The Secretary of State for the Defence [2009] EWHC 2387 (Admin) mentioned

Tweed v. Parades Commission for Northern Ireland [2006] UKHL 53 applied

Wallace Smith Trust Co. Ltd (in liquidation) v. Deloitte Haskins & Sells 9 (A firm) [1997] 1 WLR 257 mentioned

Legislation:

Rules of the Supreme Court O. 24, r. 10, 11, 13

Court of Appeal Rules R. 24

Civil appeal - Application for discovery of documents — Rules of the Supreme Court Order 24 Rules 10, 11 and 13 — Discovery in judicial review proceedings — Production for inspection — Judicial Review — Interlocutory appeal — Whether the order for discovery was properly considered?

Civil Practice and Procedure - Discovery — production for inspection — Judicial Review — Interlocutory appeal — Whether order for discovery was properly considered — Appeal allowed

The respondents commenced judicial review proceedings challenging various decisions by one or the other of the appellants. Before the judicial review hearing an application was made by the respondents for discovery of documents, namely, the first respondent's clinic appointment card and all relevant documents including but not limited to letters, policy papers, internal memoranda, minutes, reports, directives in relation to the initiatives implemented on 1 November 2014. Discovery was ordered by the trial judge pursuant to the Rules of the Supreme Court (RSC) Order 24 Rule 3(1) and the appellants now appeal the order for discovery.

Held (Crane-Scott, JA concurring): Appeal allowed; orders of discovery set aside. Summons for discovery remitted to the Supreme Court for proper consideration and disposal. Costs of the appeal and in the court below to the appellants, to be taxed if not agreed.

per Allen, P: Discovery and inspection of documents are provided for by the RSC Order 24 which encompasses a total of 17 rules which apply according to what is being sought in each case. Consequently, it is incumbent on an applicant seeking discovery and/or production of documents for inspection in any action, cause, or matter, to choose, and clearly identify, the rule of Order 24 which is applicable to his case.

Counsel for the respondents failed to identify, in his summons, which rule of Order 24 his application was being made pursuant to. Thereafter, the learned judge, erroneously, disposed of the application pursuant to rule 3 however, the proper rule, based on what the respondent was seeking was rule 11.

The old restrictive rule that it was improper to allow disclosure in judicial review proceedings unless there was some prima facie case for suggesting that the evidence relied on by the challenged public authority was either incorrect or inadequate, should give way to the more liberal approach to disclosure which judges the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances. As such, while there is now a more liberal regime for discovery in judicial review proceedings it is incumbent on a judge hearing such an application, to consider all the relevant facts and circumstances.

However, in the present case, the learned judge did not indicate why the particular documents sought would show the decision making process of the appellants; or why such documents were relevant and necessary for either disposing fairly of the cause or matter, or for saving costs. The learned judge simply adopted the respondent's submission, and decided the issue on the basis that they had applied for discovery of particular documents. She did not critically examine the request to determine specifically what documents were included in the category; whether they existed; whether they were, or had been in the possession custody or power of the appellant; whether they were relevant; and, as provided by rule 13(1), whether they were necessary to assist the Court in fairly disposing of the issues in the proceedings. Regrettably, the judge simply regurgitated the evidence, the submissions, and the authorities, but did no analysis of the particular circumstances of the case before determining that the requested documents were necessary to assist in fairly disposing of the issues.

Belize Alliance of Conservation Non-Governmental Organisations v Department of the

Environment of Belize (No. 2) [2003] 2 AC 411 mentioned

O'Reilly v Mackman [1983] 2 AC 237 mentioned

R v IRC ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617 mentioned

R v Secretary of State for the Home Department, ex parte Fayed [1997] 1 All ER 228 mentioned

Rafidan Bank v Agom Universal Sugar Trading Co. Ltd (1987) 1 WLR 1609 mentioned

Save Guana Cay Reef Association v The Queen and others 2009 UKPC 44 applied

Tweed v Parades Commission for Northern Ireland (2006) UKHL 53 , [2007] 1 A.C. 650 applied

per Crane-Scott, JA: The application before the learned Judge was one for “production for inspection” of specific documents under Order 24 r. 11(1) and not an application for “discovery by a list of documents” under Order 24 r.3 (1). Despite the applicants' failure to clearly identify in the Discovery Summons the specific rule under Order 24 pursuant to which the application was made, it goes almost without saying that is also prudent and good practice for any judge who is about to embark on the hearing of an application pursuant to the RSC to ensure that the application is placed on the proper procedural footing and that the specific rule under which the application is made is clearly established. As this appeal amply demonstrates, unless the Court's jurisdiction is properly invoked and there is clarity as to the specific application before the Court, a veritable minefield lies ahead for the unwary

It is therefore incumbent on every applicant seeking to invoke the court's jurisdiction under the Rules of the Supreme Court to clearly identify both the Order and the specific rule pursuant to which the application is made as this may avoid confusion and obviate errors of the type disclosed on this appeal.

Without a proper appreciation of the specific jurisdiction under Order 24 which was being invoked, the purported exercise of the learned judge's discretion under Order 24 r. 3(1) instead of under Order 24 r. 11(1)(b) was plainly wrong. Consequently, any orders made in pursuance of that jurisdiction, are flawed and liable to be set aside.

Order 24 rules 10, 11 and 13 are intended to operate in conjunction with each other. They govern, inter alia, the process by which any party to a cause or matter may obtain: (i) an order from the Supreme Court under rule 11(1), requiring “production for inspection” of specific documents referred to either in the pleadings or affidavits of any other party; or (ii) an order pursuant to rule 11(2), requiring specific documents believed to be in the possession, custody or power of the other party and which relate to a matter in question in the cause or matter to be “inspected” by the party applying for such inspection.

Regrettably, apart from the judge's finding that the first respondent's appointment card was necessary to resolve the dispute on the facts in the affidavits in relation to whether the Head Nurse had in fact signed the back of the card which she handed to the First Respondent on 23 March 2015 to facilitate her being registered at the clinic on 26 March 2015, the Ruling contains no analysis of the evidence. Nor does the Ruling discuss the legal issues raised in the substantive proceedings or consider whether, despite the factual dispute about the whereabouts of the card, an order for “production for inspection” of the card was absolutely necessary for disposing fairly of the issues raised in the judicial review proceedings. Nevertheless, what has to be considered for the proper exercise of discretion pursuant to rule 13(1), is whether the order for “production for inspection”...