Yulia Gurieva-Motlokhov v The Port Manager of The Port Authority of Antigua and Barbuda et Al
| Jurisdiction | Antigua and Barbuda |
| Judge | Henry JA |
| Judgment Date | 22 November 2023 |
| Neutral Citation | AG 2023 CA 8 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Year | 2023 |
| Docket Number | ANUHCVAP2023/0028 |
The Hon. Mde. Justice Vicki-Ann Ellis Justice of Appeal
The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.]
The Hon. Mde. Justice Esco L. Henry Justice of Appeal [Ag.]
ANUHCVAP2023/0028
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
Interlocutory appeal — Section 3 and 9 of the Constitution of Antigua and Barbuda — Constitutional challenge against compulsory acquisition of property without compensation — Appeal against judge's refusal to grant interim injunctive relief — Test for injunctive relief in public law — Whether the learned judge erred in holding that the Port Authority (Amendment) Act was presumptively constitutional — Whether the learned judge erred by determining that the appellant had delayed unnecessarily in launching her claim — Whether the learned judge erred by holding that the appellant could not rely on any sentimental value in the vessel — Whether the learned judge erred in ruling that the vessel would continue to pose a risk of environmental damage if an injunction was granted — Presumption of constitutionality — Costs
On 15 th June 2023, the appellant, Yulia Gurieva-Motlokhov filed a constitutional claim against the Port Manager, the Director of the Antigua and Barbuda Department of Marine Services and Merchant Shipping and the Honourable Attorney General in which she challenged the constitutionality of the Port Authority Amendment Act (‘the Act’). She also applied for interim injunctive relief to restrain the sale of a yacht, M/Y Alfa Nero (the vessel) and for associated interim declarations. The learned judge ruled that there was a serious issue to be tried as to whether the appellant holds a propriety interest in the vessel and artwork onboard and as to the constitutionality of the impugned provision of the Act. The learned judge did not grant the requested interim injunction and declaratory reliefs.
The appellant appealed, contending that, inter alia, the learned judge erred in holding that she had delayed unnecessarily in making the application and that the delay justified the denial of injunctive relief; by ruling that she could not rely on the vessel's acclaimed sentimental value because she did not show that she had an interest in it, and in holding that the Act was presumptively constitutional.
The respondents opposed the appeal, submitting that the learned judge properly exercised his discretion concerning the balance of convenience including delay, and by holding that damages was an adequate remedy, but counter-appealed on 20 th July 2023 challenging the learned judge's finding that there was a serious issue to be tried. They contended that he erred by failing to rule that the appellant was not entitled to launch a constitutional claim alleging a breach of her right to protection under the Constitution.
The issues raised in the appeal were (1) whether the learned judge erred in the exercise of his discretion by refusing to grant the interim injunction and, if not, whether he erred by refusing to make an order requiring the respondents to inform purchasers of the appellant's and the vessel owner's prior interest; and (2) whether the learned judge erred in holding that the impugned provision of the Act is presumptively unconstitutional.
Held: dismissing the appeal and affirming the order of the learned judge in its entirety, and dismissing the counter-appeal, with no order as to costs, that:
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1. An appeal on the exercise of judicial discretion by a judge will not be allowed unless the appellate court is satisfied that in exercising his or her discretion, the judge erred in principle either by failing to take into account or by giving too little or too much weight to relevant factors and considerations, or by taking into account or being influenced by irrelevant factors and considerations; and that as a result of the error or degree of the error in principle, the trial judge's decision exceeded the generous ambit with which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong.
Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 applied.
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2. To be successful, an applicant for an interim injunction must satisfy the judge of three things. Firstly, he must present a good arguable case by demonstrating that there is a serious issue to be tried between the parties. Secondly, the court will consider whether the balance of convenience favours granting or refusing injunctive relief pending trial and, thirdly, the court must be persuaded that an award of damages to the respondent will not be an adequate remedy if the injunctive relief is granted and the respondent prevails at the substantive hearing. The same approach is taken in public law cases with the appropriate modifications necessary. It is an exceptional course for the court to restrain a public authority from enforcing an apparently valid law. A court would take such a course where, having regard to all the circumstances of the case, the court is satisfied that the challenge to the validity of the law is prima facie based and adoption of such an exceptional course is justified.
American Cyanamid Co v Ethicon [1975] UKHL 1 applied; Beryl Isaac and others v Grenadian Hotel Limited GDAHCVAP2017/0002 (delivered 15th December 2017, unreported) followed.
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3. A review of the principles set down in Convoy Collateral Ltd v Broad Idea International Ltd and Bacci v Green illustrates that they do not introduce revolutionary developments on the test for interim injunctive relief. Rather, they affirm as being long established and settled the principles that the statutory test under section 24(1) of the Supreme Court Act for the grant of an injunction requires that there be ‘(i) an interest of the claimant which merited protection and (ii) a legal or equitable principle which justified exercising the power to order the defendant to do or not do something’. The new developments highlighted in those cases, (such as the practice of granting worldwide freezing injunctions) while exemplifying the principle that injunctive relief will be deployed in an appropriate case to protect the claimant's interest if it is justifiable by some legal or equitable principle, add nothing to the long-standing underlying application of the law and practice. Essentially, the court's power to grant injunctive relief had always been linked to whether the claimant has an interest that needs protection and whether a legal or equitable principle justified granting it in the particular case. This constitutes no recent development as suggested by the appellant.
Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24 considered; Bacci v Green [2022] EWCA Civ 1392 considered.
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4. Bearing the abovementioned principles in mind, Mrs. Gurieva-Motlokhov had advanced a good arguable case that section 38A of the Act, in breach of section 9 of the Constitution, could be construed as compulsorily taking away without compensation any proprietary interest that she may have in the vessel or artwork onboard. The learned judge overlooked no relevant matters in arriving at this determination and took no irrelevant factors into account. In view of his evaluative assessment, on the material before him, he had adequate factual and legal bases to conclude that the issue regarding the constitutionality of section 38A, as well as the asserted proprietary interest, constituted a serious issue to be tried. Given the affidavit evidence and the learned judge's express reasons for his conclusion on the balance of convenience issue, it is clear that he had considered that the removal of the vessel was necessary to forestall further environmental damage to the harbour. As to whether the appellant could be compensated in damages for any loss of interest in the vessel and artwork, the learned judge considered that, regardless of how unique or valuable, the vessel attracted a monetary value for insurance purposes, and this would suffice if compensation had to be quantified. Further, in relation to the appellant's inaction between March 2022 and April 2023, the learned judge evidently considered that equity imposes a duty on an applicant to approach the court without delay when applying for interim relief ahead of a trial. He was entitled to take all of those factors into account in arriving at his decision. The learned judge had regard to the relevant surrounding circumstances and applicable legal principles and did not factor in irrelevant considerations. Therefore, there is no factual or legal basis to find on the application for injunctive relief that the learned judge erred in principle and had regard to irrelevant matters and, as a result, made a determination that was plainly wrong that would justify this court's interference with his decision.
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5. The presumption of constitutionality has been explained as follows: ‘In some cases, it may be possible for a Court to decide from a mere perusal of an Act whether or not it was reasonably required. In other cases, the Act will not provide the answer to that question. In such cases, the proper approach is to presume, until the contrary appears or is shown, that all Acts’ passed by parliament were reasonably required.’ Arguably, a mere perusal of the impugned provisions in section 38A of the Act would be inadequate to determine whether the Port Manager's or Director's conduct was legally invalidated for unconstitutionality. Indeed, the issue of the appellant's avowed propriety interest in the vessel and artwork had not yet been decided and the respondents had not deployed their response to the claim. It would...
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