State proceedings in the Commonwealth Caribbean

AuthorHugh A. Rawlins
PositionB.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
Pages497-533
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

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