C.O. Williams Construction Ltd v Blackman et Al

• Jurisdiction: Barbados
• Judge: Williams, C.J.
• Judgment Date: 27 February 1989
• Neutral Citation: BB 1989 HC 86
• Court: High Court (Barbados)
• Docket Number: 1033 of 1988
• Date: 27 February 1989

High Court

Williams, C.J.

1033 of 1988

C.O. Williams Construction Limited

and

Blackman et al

Appearances:

Mr. H.B. St. John, Q.C. in association with Mr. David Simmons, Q.C. and instructed by R.G. Mandeville & Co, for the applicant.

Mr. Asquith Phillips, Q.C. in association with Mr. C.A. Williams and Mrs. Crane-Scott for the respondents.

Civil practice and procedure - Application for striking out leave to file originating notice of motion — Pleadings — Whether proceedings disclosed no reasonable cause of action — Parties — Whether the Attorney General was a proper party to the proceedings.

Williams, C.J.

1 This is an adjourned summons taken out by the respondents, Donald George Blackman, Minister of Transport and Works, and the Attorney General who seek orders –

1

striking out the ex parte order made on July 27, 1988 whereby the applicant, C.O. Williams Construction Ltd. was given leave to file the originating notice of motion now pending; [2] striking out portions of the affidavits of Charles Othneil Williams and Peter McDonald Scott that were filed in support of the ex parte application; [3] consequential upon the orders sought at [1] and [2] above or either of them, that the action be dismissed either generally or as against the first respondent or the second respondent; [4] that the Attorney General cease to be a party in the action and that his name be struck out of the affidavits and the originating notice of motion and all subsequent proceedings in the action on the ground that he has been improperly and/or unnecessarily joined as a party in that the Administrative Justice Act 1980 does not bind the Crown and the relief claimed by the applicant is not available under Order 53. [5] under the inherent jurisdiction of the Court that the proceedings in the action be struck out as disclosing no reasonable cause of action and/or as frivolous and vexatious and/or as an abuse of the process of the Court; and [6] (depending upon the nature of the order or orders made) that the applicant pay the costs of the action or the costs of and incidental to the respondents' application.

THE BACKGROUND TO THE SUMMONS:

2 The first step in the action was taken on July 26, 1988 when the applicant filed a statement pursuant to Order 53, rule 1(2) and two affidavits, one sworn by Williams and the other by Scott. These documents, and all documents subsequently filed by the applicant, were headed in the following manner:–

“In the Matter of the Administrative Justice Act, 1980-63 In the Matter of Order 53 of the Rules of the Supreme Court 1982;

And in the Matter of an application by C.O. Williams Construction Limited for relief against an administrative act or decision of Donald G. Blackman, Minister of Transport and Works and/or the Cabinet of Barbados jointly and/or severally;

And in the Matter of the award or the recommendation for the award of a contract by the Government of Barbados for the rehabilitation of Highway 2A in this Island;

And in the Matter of the Constitution of Barbados.”

3 The Amended Statement filed on July 27 sets out the basis on which the respondents are sued, the relief sought and the grounds as follows:–

• “1(a) ………

  • (b) The first respondent is sued in his. capacity as a Minister of, the Crown to wit, Minister of Transport and Works at the relevant time in connection with an administrative act or decision regarding the award or the recommendation of the award of a public contract for the construction and/or rehabilitation of Highway 2A, a public highway in Barbados.

  • (c) The second respondent is sued by virtue of the provisions of the Crown Proceedings Act, Cap. 197 and pursuant to Order 53 of the Rules of the Supreme Court and to the provisions of the Administrative Justice Act 1980-63 of Barbados. The Departments of Government affected by these proceedings are the Ministry of Transport and Works and the Cabinet. The said second respondent is sued in relation to the award of the said contract referred to in paragraph 1(b) hereof in that the said first respondent and/or the Cabinet of Barbados awarded or recommended the award of the said contract.

  • (d) The first and second respondents are sued jointly and/or severally.

• 2. The relief sought is:

  • (a) A declaration that, in the events which have happened, a decision or administrative act by Donald G. Blackman, Minister of Transport and Works and/or the Cabinet of Barbados jointly and/or severally in recommending the award of and/or awarding a certain contract for the rehabilitation of Highway 2A in this Island was invalid or ultra vires and/or void or contrary to law.

  • (b) An award or order of damages in money in such amount as this Honourable Court may deem just and reasonable.

• 3. The grounds upon which the said relief is sought are:

  • (a) that the said decision or administrative act was and is contrary to law;

  • (b) that the said decision or administrative act was in breach of the principles of natural justice or was otherwise unfair;

  • (c) that the said decision or administrative act was and is unreasonable or irregular or was an altogether improper exercise of discretion;

  • (d) that the said decision or administrative act was an abuse of power;

  • (e) that in making the said decision, recommendation or administrative act the said Donald G. Blackman and/or the Cabinet of Barbados, jointly and/or severally, were actuated by bad faith or improper purposes or took into account irrelevant considerations.”

4 On July 27 leave was granted to the applicant to apply for the relief sought and it was further ordered that the applicant and the respondents be at liberty to file such affidavits or additional affidavits as they may be advised and that the costs of the application be costs in the cause.

5 The originating notice of motion was filed on July 28 for hearing on September 30 or as soon thereafter as counsel on behalf of the applicant could that be heard and the respondents were given notice/upon the hearing of the motion the applicant would use the affidavits of Williams and Scott of July 26 and the documents therein exhibited and such other affidavits as may be filed in the matter pursuant to the order made by the Court on July 27.

6 The notice of motion was not heard on September 30 and on October 11 ‘the applicant, pursuant to Section 7 of the Administrative Justice Act, took out a summons for discovery and inspection.

7 On October 14 the respondents took out the present summons to set aside the ex parte order and for the other relief earlier stated. On November 10 the applicant took out a summons for an order for interrogatories.

8 Hearing of the respondents' summons to set aside the ex parte order and for other relief commenced on November 25 and was concluded on November 29.

RULES GOVERNING THE AWARD OF GOVERNMENT CONTRACTS:

9 The provisions governing the award of Government contracts are contained in the Financial Administrative and Audit Financial Rules 1971.

10 Rule 129(1) establishes a Tenders Committee for the purpose of Part XII (which deals with Government Contracts) and rule 129(2) provides that where funds to be expended by Government are borrowed from an international financial institution a special Tenders Committee shall be constituted consisting of the members of the Tenders Committee and such other persons, not exceeding 5, as the Director of Finance and Planning may, having regard to the obligations of Barbados under tie agreement relating to the loan, with the approval of the Minister of Finance, appoint.

11 Rules 148 and 152 provide that the Tenders Committee or the Special Tenders Committee, as the case may be, shall send the tenders and its recommendation thereon to the head of department who shall submit the recommendation to the Minister of Finance for acceptance [“Minister” means the Minister of Finance see section 2 of the Financial Administration and Audit Act, Cap. 5 and section 32(a) of the Interpretation Act Cap. 1]; and if the Minister of Finance does not accept the recommendation of the Committee, the matter shall be submitted to the Cabinet for final decision.

12 So that the statutory procedure for the award of Government contracts in which funds to be expended by Government are borrowed from an international financial institution is this: the Special Tenders Committee sends the tenders and its recommendation to the Minister of Finance for acceptance and, where the decision of the Minister of Finance is not in accordance with the recommendation of the Committee, the matter goes to Cabinet for final decision.

PARLIAMENTARY PRIVILEGE

13 The Parliament (Privileges, Immunities and Powers) Act, Cap. 9 is, according to its long title, an Act, inter alia, to determine and regulate the powers, privileges and immunities of both Houses of Parliament and, of the members thereof. The provisions of the Act that are relevant to this case are sections 4, 15 and 18.

14 Section 4 enacts:

“4. No civil or criminal proceedings may be instituted against any member –

• (a) in respect of words spoken before; or

• (b) in respect of words written in a report to; or

• (c) by reason of any matter or thing brought by petition, bill, motion or otherwise, before the House to which he belongs, or to a committee thereof, or a joint committee.”

15 In Church of Scientology of California v. Johnson-Smith [1972] 1 Q.B. 522 the plaintiffs brought an action in England for libel against the defendant, a member of Parliament, who pleaded fair comment. The plaintiffs sought to bring evidence of what had taken place in Parliament in order to prove malice and rebut the plea of fair comment. The question was whether such evidence would infringe the privileges of Parliament and Browne, J., excluding the evidence of the proceedings in Parliament, held that the scope of Parliamentary privilege was not limited to the exclusion of any cause of...