FBO 2000 Antigua Ltd v Eastern Caribbean Civil Aviation Authority and Permanent Secretary in the Ministry of Aviation

JurisdictionAntigua and Barbuda
CourtHigh Court
JudgeHenry, J.
Judgment Date24 September 2014
Neutral CitationAG 2014 HC 21
Docket NumberANUHCV 2014/00274
Date24 September 2014

High Court

Henry, J.

ANUHCV 2014/00274

FBO 2000 Antigua Limited
and
Eastern Caribbean Civil Aviation Authority and Permanent Secretary in the Ministry of Aviation
Appearances:

Mr. Kendrickson Kentish of Lake and Kentish for the applicant.

Ms. Kamilah Roberts of Roberts & Company for the first respondent.

Ms. Carla Harris and Ms. Rose-Ann Kim for the second respondent.

Judicial Review - Application for leave to make a claim for judicial review — Whether the application for leave was res judicata in that some parts of the application were identical to relief sought in a previous application which was dismissed — Whether the application amounted to an abuse of process — Whether the applicant has a realistic prospect of success — Legitimate expectation.

Henry, J.
1

By its Second Amended Notice of Application, the Applicant (FBO) seeks an order that it be granted leave to file a claim for Judicial Review against the Respondents for the following relief:

  • a) A Prerogative Writ of Certiorari be issued quashing the decision of the First Respondent to prevent aircraft which have been provided services by FBO from departing Antigua until arrangements satisfactory to the First Respondent have been made for the payment of all air navigation and communication fees owed by Port Services Ltd.

  • b) A Declaration that the decision of the First Respondent to prevent aircraft which have been provided services by FBO from departing Antigua until arrangements satisfactory to the First Respondent have been made for the payment of all air navigation and communication fees owed by Port Services Ltd is illegal null and void

  • c) A Declaration that FBO had a legitimate expectation that it would continue to pay air navigation and communication fees into the Treasury of Antigua and Barbuda

  • d) Further or alternatively to (c), a Declaration that FBO had a legitimate expectation that it would be given an opportunity to make representations before being ordered by the Second Respondent to pay air navigation and communication fees directly to the First Respondent

  • e) Damages for losses suffered by FBO arising from the decision of the First Respondent to prevent aircraft which have been provided services by FBO from departing Antigua until arrangements satisfactory to the First Respondent have been made for the payment of all air navigation and communication fees owed by Port Services Ltd

  • f) An Order of Certiorari be issued quashing the decision of the Second Respondent to order FBO to pay all air navigation and communication fees directly to the First Respondent for want of procedural fairness

  • g) A final Injunction restraining the First Respondent, whether by itself, its servants or agents from preventing aircraft which have been provided FBO services by the Claimant from departing Antigua until arrangements satisfactory to the First Respondent have been made for the payment of all air navigation and communication fees owed by Port Services Ltd

  • h) An Interim injunction be granted FBO restraining the First Respondent, whether by itself, its servants or agents from preventing aircraft which have been provided FBO services by the Claimant from departing Antigua until arrangements satisfactory to the First Respondent have been made for the payment of all air navigation and communication fees owed by Port Services Ltd, until further order

  • i) An order of Certiorari be issued quashing the decision of the First and Second Respondents on or about 18 th December 2013 to refuse to consider/ grant the request of the applicant for a 30 day grace period for payment of Nav/Comm Fees

  • j) The Respondents do pay the costs of and incidental to these proceedings.

2

On 19 th December 2012 in Claim No ANUHCV2012/0833, FBO filed an application for leave to make a claim for judicial review against the First Respondent (ECCAA). The claim sought relief in relation to an alleged decision by ECCAA to prevent aircraft which had been provided services by FBO from departing Antigua until arrangements have been made for the payment of NAV/COM fees, owed by an affiliate company, Port Services Ltd (PSL). The application for leave was heard on 21 st January 2013 and a decision was delivered on 26 th March 2013 dismissing the application for leave. FBO filed an appeal but later discontinued same. FBO has now initiated a new application for leave to make a claim for judicial review against ECCAA. In addition, a claim has been added against the Second Respondent. Paragraphs 1(a), 1(b), 1(e), 1(g), and 1 (h) of the current application seek the same relief as in the previous application.

The Intended Claim against ECCAA
3

ECCAA submits that; (1) the application for leave is res judicata; in that the relief set out in paragraphs 1 (a), 1 (b), 1 (e), 1 (g), and 1(h) of the instant application is identical to the relief sought in the 2012 application, which was dismissed; and the application fails to disclose an arguable ground for judicial review with a realistic prospect of success.

4

ECCAA refers the court to the case of Thomas v The Attorney General of Trinidad and Tobago (No. 2)1 where it was stated that the principle of res judicata applies not only where the remedy sought and the grounds thereof are the same in the second action as in the first, but also where the subject matter of the two actions being the same, it is sought to raise in the second action matters of fact or law directly related to the subject matter which could have been, but were not raised in the first action.

5

On the issue of res judicata, FBO submits that no order made on an application for leave is final. Therefore the decision of Lanns, J. did not determine the matter in its finality. Counsel refers the court to the case of Regina v Secretary of State for the Environment Ex p Hackney2. FBO does not dispute that the court has the jurisdiction to dismiss the matter if it finds that this application is an abuse of its process. Counsel invites the court to find that res judicata is inapplicable and that these proceedings are not an abuse of process.

The Issue of Res Judicata
6

In Reg. v. Humphreys [1977] A.C. 1 , the doctrine of issue estoppels in civil proceedings was stated as follows:

“A party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of legal consequences of fact, the correctness of which is an essential element in his cause of action or defence, if the same assertion, whether of fact or of the legal consequences of fact, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.”

7

The Court of Appeal in Ex p. Hackney, expressed the view that it was in agreement with the Divisional Court that the doctrine of issue estoppel cannot be relied on in applications for judicial review, however, the court has an inherent jurisdiction as a matter of discretion in the interest of

finality not to allow a particular issue, which has already been litigated, to be re-opened. According to Dunn L. J, this depends on the special nature of judicial review which is different from both the ordinary civil litigation and from criminal proceedings.
8

The authorities submitted by ECCAA, although in the area of public law, all involve matters where there have been full trials in the first instance. No authority has been submitted where a court has applied res judicata to an application for leave to make a claim for judicial review. The court is of the view that res judicata is not applicable to such an application and that the more appropriate method of dealing with the issue of finality in respect of subsequent applications for leave, is by determining whether the subsequent application is oppressive or an abuse of the process of the court.

Abuse of the Process
9

There is no doubt that a court has the power to stop abuse of its own process. The issue of abuse of the process of the court was recently addressed by the UK Court of Appeal in the case of Konodyba v Kensington and Chelsea Royal London Borough Council3. Longmore LJ writing for the court stated that one of the most obvious forms of abuse is to attempt to relitigate matters which have already been disposed of by a final judgment which is unappealed.

10

A decision on an application for leave to make a claim for judicial review is not considered a final judgment. Given the fact that additional issues have been raised and given the nature of the subsequent events which form a part of this application, the court finds that the current application does not amount to an abuse of the process of the court nor is it oppressive.

The Intended Claim against the Second Respondent
11

The Second Respondent was not a party to the first action. Further, the facts pleaded in regard to this party transpired after the decision of Lanns, J, therefore there is little doubt that res judicata does not apply to the action against the...

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