Next Level Engineering Ltd Claimant v Attorney General First Defendant Antigua Public Utilities Authority Second Defendant Wilmoth Daniel, Minister Responsible for Public Utilities Third Defendant Antigua Power Company Ltd Fourth Defendant [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | Thomas J |
| Judgment Date | 18 June 2007 |
| Judgment citation (vLex) | [2007] ECSC J0618-1 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO: ANUHCV 2006/0283 |
| Date | 18 June 2007 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO: ANUHCV 2006/0283
Mr. Anthony Astaphan, SC and with him Mr. John Fuller for the Claimant
Mr. Justin Simon, Q.C. and with him Ms. Alicia Aska for the First Defendant and Third Defendant
Mr. Gerald Watt, Q.C. and with him Dr. David Dorsett for the Second Defendant
Mr. Dane Hamilton for the Fourth Defendant
On 9 th June 2006 Next Level Engineering Limited, the Applicant, filed notice of application seeking various orders that are centered on the matter of the supply of electricity generating equipment to the Second Defendant.
On the hearing of the application in Chambers the learned judge ordered that the application be served on all the intended Defendants forthwith together with a copy of the order made then. A date was also fixed for the hearing of the application in open Court. And on that date, being 12 th June 2006, it was ordered as follows: 1. The Applicant is granted leave to file and serve a supplementary affidavit within 4 days of today's date. 2. The Defendant's are granted leave to file and serve affidavits in answer within 10 days thereafter. 3. All documents to be relied on to be exhibited to the affidavits. 4. The Applicant is granted 5 days thereafter to file and serve affidavit in reply. 5. The Respondents to file and serve written submissions on or before the 30 th June 2006 and the Applicant to file and serve further submissions, if necessary on or before the 7 th July 2006. The matter is adjourned for hearing on the 18 th July 2006 at 9:00 am.
On the aforementioned adjourned date the trial date was vacated. It was further ordered that the trial date is to be determined by the Court Office. However, the matter was again adjourned to 26 th September 2006. On this date it was ordered that skeleton arguments be filed and exchanged and the trial date set for 23 rd November 2006. At this hearing in open Court the Court, differently constituted, determined that the application and the substantive matter, if necessary, will be heard at the same time.
The Application is made pursuant to Part 56 of CPR 2000. In this instance Parts 56.2 (1), 56.3 (1) and (2) and 56.4 (1) – (4) are relevant and are in these terms:
"56.2 (1) An application for judicial review may be made by any person, group or body which has a sufficient interest in the subject matter of the application.
56.3 (1) A person wishing to apply for judicial review must first obtain leave.
(2) An application for leave may be made without notice.
56.4 (1) An application for leave to make a claim for judicial review must be considered forthwith by a judge of High Court.
(2) The judge may give leave without hearing the applicant.
(3) However, if —
(a) it appears that a hearing is desirable in the interest of justice;
(b) the application includes a claim for immediate interim relief, or
(c) the judge is minded to refuse the application;
the judge must direct that a hearing in open court be fixed".
The provisions of Part 56.4 (3) of CPR 2000 prescribe the matters that must be considered by the judge in ordering a hearing in open Court. However, the application was never heard or determined.
In a series of affidavits in support of the application for judicial review, Mr. Edward Hadeed, on behalf of the Claimant, gives an outline of the facts and circumstances which gave rise to these proceedings.
The basic outline is as follows. Sometime in November 2005 there was a discussion between the Third Defendant, Wilmoth Daniel, Minister responsible for Public Utilities, and the said Edward Hadeed. The discussion centered on the need to upgrade or increase the supply of electricity in Antigua and Barbuda against the backdrop of the then short falls. This led to the Claimant's officers meeting with the Electricity Manager of the Second Defendant on the said issue. The sequel to this meeting is that the Manager requested the Claimant and others to supply quotations for the supply of generators to the Second Defendant.
Quotations were duly provided by the suppliers, including the Claimant. Based on further meetings between the General Manager, other officers, of the Second Defendant and the Claimant, it is the latter's contention that representations were made to it that there would be a recommendation that its quotation be accepted and the contract be awarded to it. In the final analysis, however, the Claimant's quotations were not accepted and therefore no contract was awarded to it.
It is therefore in this broad context that the question of the application for leave to make a claim for judicial review must be examined.
It is said that in this context the question of standing is a two stage process. "On the application for leave (stage one) the test is designed to turn away hopeless and meddlesome applications only. But when the matter comes to be argued (stage two) the test is whether the applicant can show a strong enough case on the merits, judged in relation to his own concern with it." 1
Therefore, in terms of the leave stage as far as the Court is concerned there are no legal impediments. In any event, in these circumstances it is academic at this stage. However the wider question of "sufficient interest in the subject matter of the application" as prescribed by Part 56.2 (1) of CPR must be addressed as the final episode.
Pursuant to the directions of the Court given on 16 th October 2006 a fixed date claim form was filed on 6 th November 2006. In it the Claimant, Next Level Engineering Limited, claims against the Defendants, being the Attorney General of Antigua and Barbuda, the Antigua Public Utilities Authority, Wilmoth Daniel, Minister responsible for Public utilities and Antigua Power Company Ltd, declarations, orders for certiorari and prohibition, administrative orders and injunctions, jointly and severally under Part 56 of CPR 2000.
The claim is in respect of the following:
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(i) The invitation for tenders and award or contract to supply power plants to the Second Defendant.
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(ii) The Claimant's tender, which was the lowest, was accepted by officers of the Second Defendant as among other things the Claimant was able to meet the deadline of 31 st December 2006 set by the Second Defendant.
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(iii) The Claimant's rights created by the request for quotations, presentations and tenders by officers of the Second Defendant, and the submission of the same by the Claimant to the Second Defendant at considerable cost and expense.
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(iv) The Claimants rights and/or legitimate expectations of a substantive benefit namely the award of the tender and contract created by the course of conduct
between the Claimant and General Manager and other officers of the Second Defendant. -
(v) The Claimant rights and/or legitimate expectations of a substantive benefit namely the award of the tender and contract created by the clear and unambiguous representations made to the Claimant by the said General Manager and/or other officers of the Second Defendant and Third Defendant in relation to the process and award or contract to supply power plants to the Second Defendant.
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(vi) The representations made by the General Manager of the Second defendant included a representation that the tender and/or contract would be awarded to the Claimant and that the Second Defendant would apply to the Tenders Board for the tender and/or contract to be exempted from the Tenders Board Act Cap. 424A.
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(vii) The representations made by the Third Defendant included the representation that he was, for a number of reasons, not going to get involved in the selection process and that he was leaving the decision on the tender to be made by the Second Defendant's General Manager and his technical team.
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(viii) The purported interference and/or directions by the Third Defendant to the Second Defendant not to proceed with the award of a tender or contract to the Claimant to supply power plants in accordance with the representations made by the Second and Third Defendants and the laws of Antigua and Barbuda.
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(ix) The unilateral alteration or repudiation of the terms and tender process by the Second and/or Third Defendant and the consideration and/or award or intended award of a tender or contract to the Fourth Defendant (who was not one of the parties invited to supply quotations or bid) on materially different terms and conditions.
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(x) The unilateral alteration or repudiation of the representations made to the Claimant by the Second and Third Defendants and upon which it relied to its detriment.
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(xi) The purported direction or instructions by the Third Defendant to the Second Defendant to award a tender or contract to the Fourth Defendant (who was not one of the parties invited to supply quotations or bid) in violation of the Claimant's rights and/or legitimate expectations of the Claimant and the laws of Antigua and Barbuda.
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(xii) The purported award or intended award of a tender or contract to the Fourth Defendant, Antigua Power Company Limited, by the Second Defendant to supply power plants in violation of the Claimant's rights and or legitimate expectations and laws of Antigua and Barbuda.
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(xiii) The purported award or intended award of a tender or contract to the Fourth Defendant is unlawful.
The grounds upon which the claim is based are as follows:
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1. The course of conduct and/or representations made by the Second and/or Third Defendants promises and or representations gave rise to an implied contract between...
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