State proceedings in the Commonwealth Caribbean

• Author: Hugh A. Rawlins
• Position: B.A., LL.B., LL.M., Barrister and Solicitor, Lecturer in Law, University of the West Indies, and formerly Solicitor General of St. Christopher (St. Kitts) and Nevis, West Indies
• Pages: 497-533

STATE PROCEEDINGS IN THE

COMMONWEALTH CARIBBEAN*

HUGH

A.

RAWLINS**

My initial contact with this subject left me in some disquiet as to its

public law

pedigree.

To my mind, it appeared to fit more easily into the

sphere of private

law.1

One may think

that there was good ground for that

initial disquiet, if reference is made

to the

passage

in Bradley

and Ewing,

which indicates that there is no separate law of administrative liability for

wrongful acts because, in principle, public authorities in English law are

subject to the same rules of liability in tort and contract, which apply to

This is a revised version of a paper which was presented at the Regional

Administrative Law

Workshop,

sponsored by the Commonwealth Secretariat

and the Government of Barbados.

The

Workshop was held in Barbados, July

29-

1

August, 1996.

B.A., LL.B., LL.M., Barrister and Solicitor, Lecturer in Law, University of

the West

Indies,

and formerly Solicitor General of

St.

Christopher (St. Kitts)

and Nevis, West Indies. I hereby thank Mr. Richard Nzerem, Assistant

Director, Legal and Constitutional Affairs Division of the Commonwealth

Secretariat, for inviting me to present this paper and to participate in this

very important

Workshop.

In this regard I also acknowledge the part played

by Dr. the Hon. Justice

N.J.O.

Liverpool, formerly Dean of the Faculty of

Law of the University of the West Indies and Justice of the Court of Appeal

of the Eastern Caribbean States and presently a Justice of Appeal of the

Courts of Appeal of the Bahamas and Belize; Dr. A.K. Fiadjoe, my

colleague and former Dean of

the

Faculty of Law, and Mrs. Maureen Crane-

Scott, the local coordinator of the

Workshop.

The encouragement given by

Mr. A.D. Burgess, presently Dean of

the

Faculty; the secretarial assistance

of

Ms.

Waveney Webster and Mrs. Tamara Best, and the assistance of

Mrs.

Sylvia Moss and Ms. Erene Headley of the Law Library are also gratefully

appreciated.

1 It is doubtful, however, that this consideration may have influenced the

placing of this subject at the very end of their work by some text writers. See

e.g.Bradley&Ewing,

Wade

and

Bradley's

Constitutional and Administrative

Law (11th edn. 1993), Chap.

31;

P.P. Craig, Administrative Law (3rd edn.

1994).

There are other works, however, in which the subject is not taken in

the last chapter. See

e.g.

Bailey, Jones and Mowbray, Cases and Materials

on Administrative Law (2nd edn. 1992) Chapter 13. The work contains 16

chapters. Sir William Wade and C. Forsyth, Administrative Law (7th edn.

1994) address the subject in chapters 20 and 21. The work contains 24

chapters.

private individuals

and

companies.2

The same authors point out, however,3

that public authorities are given special powers and protection by

legislation, and that, additionally, the courts recognize that they should be

treated differently from private individuals, inasmuch as they are required

to perform certain critical functions in the public interest.4

This paper considers aspects of Crown or State proceedings in the

Commonwealth Caribbean5 in the context of civil liability, against the

background of the special powers and protection or immunities which the

law affords to that entity.6 Civil liability here does not refer to actions

under the ultra vires doctrine or actions which challenge the procedural

propriety of administrative actions. Rather, the focal point is the civil

liability of State in tort or

contract,

including the recovery of compensation

and

chattels,

as well as property

matters.

These are usually, substantially

private law matters. However, the subject has important public law

dimensions. In the first place, it is concerned with the liability of public

bodies. In the second

place,

the historical antecedents of the powers of the

State and the immunities which it enjoys in this area of

the

law are deeply

rooted in public law fictions, which are premised on the substantive legal

2 Supra, n. 1, at p. 731. Here, the authors appear to use the term "public

authorities "in a wide sense to include the Crown as well as public

authorities strictly so called. They make the distinction later in their

discussion of the liabilities of these bodies. Note also that Wade and

Forsyth,

supra,

n.

1,

Chapter

21

deal specifically with "Crown Proceedings",

while in Chapter 20 they consider "Liability of Public Authorities". On the

other hand, Bailey, Jones and Mowbray, supra, n. I, deal more generally

with the civil liability of public authorities.

3

Ibid.

4 These functions, according to the authors, encompass the maintenance of

public services and the performance of

the

regulatory functions which have

been entrusted to them, which usually require that there is power, in the

public interest, to override private rights which the operation of those

functions may adversely affect.

5 In this paper, the term "Commonwealth Caribbean" refers to the independent

countries in the Caribbean which are former colonies of the United Kingdom,

and is used interchangeably with the term "Caribbean".

6 There are variations in the legal rules which relate to the civil liabilities of

the State and the legal rules which relate to the civil liabilities of public

authorities. As far as civil liability in tort is concerned, we are reminded by

Bradley and Ewing, supra, n, 1, at pp.732-736, that it was established in

Mersey

Docks

and

Harbour

Board Trustees

v.

Gibbs, [1866] L.R.

1

H.L. 93

that a public authority is vicariously liable for the wrongful acts of its

servants or agents committed in the course of their employment, in the same

manner as a private trading company, but that the immunity of the Crown

from civil liability at common law was more rigid.

rule that the Sovereign can

do

no wrong, as well as the procedural rule that

the Sovereign cannot be sued in his own courts. These rules found their

way into

the

jurisprudence of

the

English colonies in the Caribbean, at a

time when colonial Governors, Ministers of Government and civil servants

were Crown servants who acted on behalf or at the behest of the Crown.7

Legislation in the United Kingdom in 19478 was intended to subject

the Crown to the ordinary laws of the land in civil proceedings, and to

alleviate the hardships which the legal fictions caused to the litigant who

was wronged by an act of the Crown.

The

United Kingdom legislation was

subsequently reproduced in Caribbean countries.9 Notwithstanding the

7

See Lewis

v.

Minister of Labour and National Insurance and Others (1966)

9 W.I.R. 457 at p. 461E-G. Seealso Macbeath v. Halinand (1786) 1 T.R.

172,

in which the Governor of Quebec, acting as agent for the Crown,

promised to meet the cost for supplies for the Army in Canada. He was sued

on the promise. It was held that he had contracted as agent for the Crown

and therefore could not be sued. See also the decision of the Court of Appeal

of Trinidad and Tobago in Scrutton, Sons & Co, v. A.G. of Trinidad and

Tobago

(1919) 4 T.&T.L.R. 1. All of these cases exemplify the notion that

the Crown could not be sued in its own Courts.

8 The Crown Proceedings Act, 1947(U.K.) c. 44, herein referred to as "the

U.K. Act". The Bill was actually introduced in 1939, but was only advanced

when the plight of

the

subject suing the Crown was brought to a head in the

cases of Adams

v.

Naylor

[1946]

A.C. 543 and Royster

v.

Cavey

[ 1947]

K.B.

204.

9 The Crown Proceedings Act, 1962 Rev. (Antigua), Cap. 24, herein referred

to as "the Antigua

Act";

The Crown Proceedings Act, 1987 Rev. (Bahamas),

Cap.

57, herein referred to as "the Bahamas Act"; The Crown Proceedings

Act, 1971 Rev. (Barbados), Cap. 197, herein referred to as "the Barbados

Act"; The Crown Proceedings Act, 1990 Rev. (Belize), Cap. 129, herein

referred to as "the Belize Act"; The State Proceedings Act, 1990 Rev.

(Dominica), Cap. 7:80, herein referred to as "the Dominica Act"; The Crown

Proceedings Act, 1992 Rev. (Grenada), Cap. 74, herein referred to as "the

Grenada Act"; The Crown Proceedings Act, 1973 Rev.(Jamaica), Vol. 4,

herein referred to as "the Jamaica Act"; The Crown Proceedings Act, 1957

Rev. (St. Lucia), Cap. 13, herein referred to as "the St. Lucia Act"; The

Crown Proceedings Act, 1961 Rev. (St. Christopher and Nevis), Cap. 22,

herein referred to as "the St. Kitts and Nevis Act"; The Crown Proceedings

Act

1952,

(Act

No.

37), 1990

Rev.

(St Vincent and the Grenadines) Cap. 85,

herein referred to as "the St. Vincent Act"; The State Liability and

Proceedings Act, 1980 Rev. (Trinidad and Tobago), Cap. 8:02, herein

referred to as "the Trinidad Act". This last named Act was The Crown

Liability and Proceedings Act, 1966 (No. 17 of 1966), but was renamed in

the 1980 Rev. (No. 214 of

1980).

They are collectively referred to herein as

"the Acts". See further, The Crown Proceedings Act, 1991 Rev. (The

British Virgin Islands), Cap. 21; The Crown Proceedings Act, 1962 Rev.

(Montserrat),

Cap.

22, and

The

Crown Proceedings Ordinance, 1987 (No. 12