| BAHAMAS, THE—Practice—Pleading—Striking out—Respondents issuing generally endorsed writ alleging contravention of constitution—Appellants seeking order striking out parts of endorsement as disclosing no reasonable cause of action—Whether Supreme Court having jurisdiction to strike out constitutional proceedings—RSC Ord 18, r 19
Ingraham and others v Glinton and another [2006] UKPC 40
PC: Lord Rodger of Earlsferry, Lord Steyn, Lord Walker of Gestingthorpe, Lord Carswell and Lord Brown of Eaton-under-Heywood: 24 July 2006
The Supreme Court of the Commonwealth of The Bahamas had jurisdiction to strike out proceedings brought by way of an application under art 28 of the Constitution of The Bahamas alleging a contravention of the Constitution on the basis that it disclosed no reasonable cause of action.
The Privy Council so stated allowing an appeal by the appellants, Hubert Ingraham MP (the Prime Minister of The Bahamas, sued in his official and in a representative capacity), Sir William Allen MP (Minister of Finance sued in his official and in a representative capacity), the Compliance Commission, the Inspector of Financial and Corporate Services and the Attorney General, from the decision of the Court of Appeal of The Bahamas allowing the appeal of the respondents, Maurice Glinton and Leandra Esfakis, from the decision of Sir Burton Hall CJ who had ordered that paras 1–13 of the general endorsement of the writ be struck out on grounds that they disclosed no reasonable cause of action.
Following a G7 meeting in 1989 a financial action task force was established with responsibility amongst other things for making recommendations as to the labelling and blacklisting of jurisdictions “non-cooperative in the fight against money-laundering”. In June 2000 the task force produced a report identifying “serious deficiencies in the counter money-laundering systems of the Commonwealth of The Bahamas”, recording that “the counter money-laundering regime embodied in the legal, supervisory, and regulatory systems of The Bahamas suffer from serious systemic problems”, and including The Bahamas in the list of uncooperative jurisdictions in relation to the prevention of money-laundering. The first appellant then set in train the preparation and enactment of a raft of legislation, both primary and secondary, based on measures recommended by the Organisation for Economic Co-operation and Development. The legislation included the Financial Transactions Reporting Act 2000 and the Financial and Corporate Service Providers Act 2000. The respondents were both barristers who strongly objected to the legislation, particularly as it affected them. The first respondent in June 2001 registered under the Financial Transactions Reporting Act 2000 and in July 2001 applied for a licence under the Financial and Corporate Service Providers Act 2000, in each case under protest. The respondents issued a generally endorsed writ. Paragraphs 1 to 26 sought declarations, paras 27 and 28 wide-ranging orders, and para 29 “such orders, writs or directions pursuant to article 28 of the Constitution” as might seem appropriate to the court. The appellants sought an order under RSC Ord 18, r 19 that paras 1 to 13 of the writ be struck out on the grounds that they disclosed no reasonable cause of action or were scandalous, frivolous and vexatious.
LORD BROWN OF EATON-UNDER-HEYWOOD, giving the judgment of the Board, said that present case was a most unusual appeal, unusual in the issue arising for the Board’s determination and unusual too (perhaps unique) in the Board’s decision to dispose of the appeal without an oral hearing, although with the benefit of the appellants’ written argument, the respondents having chosen not to resist it. The substantive issue arising was whether the Supreme Court had jurisdiction to strike out proceedings brought by way of an application under art 28 of the Constitution of The Bahamas alleging a contravention of the Constitution on the basis that it disclosed no reasonable cause of action. Essentially, the Court of Appeal decided that because at common law a constitutional challenge was not available, it could not be a cause of action and ex hypothesi could not fall for consideration as to whether it was “reasonable” or not under Ord 18, r 19(1)(a). Their Lordships had difficulty with the reasoning. It could be said equally of actions for breach of statutory duty that they too did not arise at common law. But surely no one doubted that those causes of action were amenable to the courts’ strike-out jurisdiction. Of course, the Court of Appeal was right to direct itself that claims should only be struck out in plain and obvious cases and, of course, courts should look with particular care at constitutional claims, constitutional rights emanating from a higher order law. But constitutional claims could not be impervious to the strike-out jurisdiction and it would be most unfortunate if they were. It could not be right that anyone issuing proceedings under art 28 of the Constitution was guaranteed a full hearing of his claim irrespective of how ill-founded, hopeless, abusive or vexatious it might be. Sir Burton Hall CJ was surely right to characterise the disputed paras of the claim as he did. They were argumentative and political and quite incapable of giving rise to the legal declarations sought. The case for a strike-out was in their Lordships’ view perfectly plain and obvious. If ever a claim were foredoomed to fail the present case was it. In short, their Lordships concluded that Ord 18, r 19(1)(a) applied to constitutional proceedings as to any others, that there is no need to look to the Constitution itself for specific power to summarily dismiss a claim for constitutional relief, and that the Chief Justice was right to have struck out the disputed paras of the particular claim.
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