Jack and Armstrong v Minister of Public Works

• Jurisdiction: Bermuda
• Judgment Date: 13 December 2016
• Docket Number: Commercial Jurisdiction 2015 No 203
• Date: 13 December 2016
• Court: Supreme Court (Bermuda)

[2016] Bda LR 124

In The Supreme Court of Bermuda

Commercial Jurisdiction 2015 No 203

Between:

Graham Jack

and

Susan Armstrong

Plaintiffs

and

Minister of Public Works

Defendant

Mr A Potts for the Plaintiffs

Mr N MacDonald for the Defendant

The following cases were referred to in the judgment:

R v Secretary of State for India in Council, ex parte EzekielUNK [1941] 2 All ER 546

Imperial Oil Ltd v Grabarchuk [1974] CanLII 869

International Business Machines Corp v Printech Ribbons IncUNK [1994] 1 FCR 692

GMAC Leaseco Limited v 1348259 Ontario Inc [2004] CanLII 27849

Cross Canada Auto Body Supply (Windsor) Ltd Hyundai Auto Canada [2005] FC 1254

Everingham v Ontario [1991] CanLII 8322

In re JL Young Manufacturing Co LtdELR [1900] 2 Ch 753

Rossage v RossageWLR [1960] 1 WLR 249

Mehta and MFP-2000 LP v Viking River Cruises LtdBDLR [2014] Bda LR 99

Summary judgment — Admissions — Application to remove counsel as a potential witness — Overriding objective — Duty to conduct litigation in a proportionate manner — Court's duty to ensure parties are on an equal footing

RULING of Kawaley CJ

Introductory

1. The Plaintiffs issued a Specially Endorsed Writ of Summons on May 14, 2015. They jointly own a property known as “Banstead” (‘the Property’) which adjoins a portion of the Botanical Gardens for which the Defendant on July 4, 2012 obtained planning permission from the Development Applications Board (‘DAB’) to develop as an “industrial” base for the Department of Parks (‘the Site’). The Plaintiffs unsuccessfully objected to the grant of planning permission. Since then, they took various steps directed primarily at ensuring that developments at the Site complied with the conditions subject to which the planning permission was granted. In their present claim, they allege that the development activities at the Site constitute a nuisance and/or are unlawful.

2. In their Statement of Claim they make the following averment:

‘18. Further and in any event, the Minister did not, so far as the Plaintiffs are aware, comply with section 4 of the Bermuda National Parks Act 1986 by publishing notice in the Gazette of his Ministry's proposal for the construction of buildings or the change of use with respect to the Site so as to give an opportunity for and so as to take into account public comments before acting on such proposal. The Plaintiffs believe that, had such notice been given, the general public would have opposed the proposal…

25. Further or alternatively, the acts that have taken place at the Site between July 2012 and 5 July 2014, and which are continuing, are unlawful, being in breach of the Bermuda National Parks Act 1986 and/or the Bermuda National Parks Regulations 1988 and/or the Conditions and/or the 2008 Bermuda Plan, including the various provisions cited above.’ [Emphasis added]

3. In his Amended Defence, the Defendant makes the following responsive plea:

‘47. Paragraph 25 of the Statement of Claim does not indicate or refer to any specific acts that are alleged to have taken place at the Site between July 2012 and July 5, 2014 therefore the Defendant is not able to admit or deny that such alleged acts are continuing and unlawful as alleged in paragraph 25 of the Statement of Claim. In any event the Defendant asserts that none of its acts at the Maintenance Yard are unlawful as alleged in paragraph 25 of the Statement of Claim or at all.’

4. The Plaintiffs' case that section 4 of the Bermuda National Parks Act 1986 (‘the 1986 Act’) had been breached was first fleshed out in their interim injunction application which was granted by Order dated November 27, 2015 (‘the Interim Injunction’). In paragraphs 19 and 21 of my August 28, 2015 Ruling on this application and the Defendants' strike-out application1, I described the point as an ‘argument which appeared on its face to have considerable merit, assuming it was competent for the Plaintiffs to advance it… There is no suggestion in the evidence at this juncture that these statutory requirements were met’.

5. I declined to decide the ‘complicated’ issue of whether the Plaintiff lacked standing to seek relief in relation to the non-compliance at the strike-out stage (paragraph 31). This was in part to permit the Minister responsible for Planning to decide whether or not he wished to be separately represented before the Court, in part to permit the evidential position to be explored and in part because I felt the standing objection raised by the Defendant, although doubtful, required fuller argument. The Minister responsible for Planning subsequently agreed to be bound by any Orders made in these proceedings.

6. The first of the two Summonses under present consideration was issued by the Plaintiffs on April 20, 2016 seeking by way of substantive relief an Order that:

‘1. There be judgment for the Plaintiffs against the Defendant under RSC Order 27, rule 3, and/or under RSC Order 14, rule 1, on the Defendant's attorneys' letter dated 11 March 2016, that the Defendant has breached section 4 of the Bermuda National Parks Act 1986 with respect to the Defendant's development activities at the Site, as alleged at paragraphs 18 and 25 of the Plaintiff's Statement of Claim.

2. On the basis of the admissions and judgment referred to above, the Court shall make a final declaration that the Defendant's activities at the Site are, and have to date been, unlawful (as claimed at paragraph (2) of the Prayer of the Plaintiff's Statement of Claim), and the Court shall issue a permanent injunction restraining the Defendant from continuing with unlawful development activities at the Site.’

7. Directions were ordered on April 21, 20162 for the Plaintiffs to file their evidence by May 12, 2016 and for the Defendant to file his evidence by June 16, 2016 and for the Plaintiff to file any evidence in reply by June 30, 2016. The Plaintiffs' Summons was directed to be listed for hearing after July 7, 2016. These directions anticipated the Plaintiffs' reply evidence being filed as little as one week before the hearing of their Summons. The April 21 Order also resolved the Defendant's Summons dated April 18, 2016 seeking to vary the November 27, 2015 interim Injunction granted to the Plaintiffs by directing that:

‘5. For the avoidance of doubt, the Defendant's proposal to conduct public [consultations] at 169 South Road, the Site and/or such other venues as the Defendant deems appropriate, pursuant to section 4 of the Bermuda National Parks Act 1986 is not prohibited by this Court's injunction order of November 2015.’

8. The Third Affidavit of Graham Jack was sworn on May 10, 2016 in support of the Plaintiff's Summons. The Affidavits of Aideen Ratteray Pryse (Director of Planning) and Craig Burt (Parks Officer) were sworn on June 16, 2016 in answer. The Defendant also relied on the witness statement of Lisa Dawn Johnston dated May 4, 2016. On June 21, 2016 the Court issued a Notice of Hearing for November 21, 2016. The Plaintiffs' reply evidence was sworn (Fourth Affidavit of Graham Jack) on September 8, 2016. This was more than two months after the prescribed deadline but more than two months before the fixed hearing date. The Fifth Affidavit of Graham Jack was sworn on November 15, 2016 to update the Court on the public consultation foreshadowed by the Defendant in April 2016 but which actually commenced on or about November 9, 2016.

9. By a Summons issued on November 16 (but filed on November 9), 2016, the Defendant applied for an Order:

‘1. Removing Alex Potts and Sedgwick Chudleigh as counsel of record for the Plaintiffs, or alternatively, prohibiting them from appearing as counsel on the Plaintiff's application for summary judgment currently scheduled for November 21, 2016 and requiring the Plaintiffs to retain other counsel on that Application;

2. Striking out the “Jack Affidavits…”…;

3. Vacating the interlocutory injunction granted on November 27, 2015 and requiring the Plaintiffs to return the $30,000.00 paid to them by the Defendant pursuant to that order…’

10. I adjourned the Defendant's application to discharge the Interim Injunction to a date to be fixed for case management reasons. I indicated that I would decide on whether the Jack affidavits should be struck out together with the Plaintiff's summary judgment application. I dismissed the Defendant's application to remove the Plaintiffs' attorneys and indicated that I would give reasons for that decision in the present Judgment.

Reasons for refusing the application for an Order removing the Plaintiffs' attorneys from the record

11. I characterised the Defendant's application to remove the Plaintiffs' attorneys in the course...