Court of Appeal allows challenge to 2022 election ruling

he Court of Appeal has given the green light for a failed 2022 election candidate to challenge a judge’s ruling on the general election. Phillip Nathaniel Catlyn, who ran for the Sovereignty Party in St Thomas, can now proceed with his appeal against a decision by Justice Cecily Chase.

The three-member panel of appellate judges comprising Chief Justice Leslie Haynes, retired Chief Justice Sir Patterson Cheltenham, and Justice Margaret Reifer, on Tuesday tossed out the State’s request for it to strike out the application that was filed on February 2, 2022, as an urgent appeal by Catlyn.

Catlyn, who was in court on Tuesday, had lodged the appeal against a ruling by Justice Cecily Chase. She had thrown out an earlier appeal calling for judicial review of the President’s decision to issue election writs before ensuring quarantined people could vote.

He claims that electors who were in quarantine during the COVID-19 pandemic were disenfranchised. The claimant argues that thousands of eligible voters under quarantine were dispossessed of their rights because the Electoral and Boundaries Commission made no provision for them to vote.

It was on October 11, 2022, that the respondents – President Dame Sandra Mason and Attorney General Dale Marshall – asked the apex court to strike out Catlyn’s appeal. That application was heard and concluded on April 26, 2023, with the court reserving judgment.

Justice Reifer, who read that judgment on Tuesday, first apologised for the delay, citing the death of colleague Jefferson Cumberbatch, one of the original justices of appeal that had reserved decision and the discovery of certain documents which needed to be dealt with before a decision could be handed down.

“Having taken into account, all the relevant circumstances, and having made a broad judgment after considering the available possibilities, the intrinsic justice of the case, and the overriding objective, we dismiss the respondents’ application to strike out the appeal against the oral judgment of Chase J,” Justice Reifer ruled in the 109 paragraph court decision.

The court also ordered that the costs of a preliminary or interim hearing be ‘costs in the cause’.This means that the costs of the preliminary hearing will be paid by the party that ultimately loses the cause.

In addressing the way forward, the Court of Appeal said when it considered the criteria relevant to an interlocutory appeal and the overriding objective, “We are of the view that this application within the appeal should fail.”

“The appeal itself, in our view, is a procedural appeal in accordance with CPR [Civil Procedures Rules] 62.10 (1), and should be progressed in accordance with the provisions of this rule, should the appellant consider it the better course of action strategically,” Justice Reifer declared.The judge also pointed out that the State’s application may have been misdirected, particularly considering that the substantive matter of the claimant’s original appeal was still pending.

“The substantive action remains alive and unchallenged. We however observe that the force of the applicant/respondent’s submissions, could have more usefully been directed at the substantive action in the court below. Had this been the approach taken, arguments as to the prospects of success of the substantive action, would accordingly have been more relevant.

“The scope of challenge,” the appellate judge added, “for dismissing a claim or defence is, in our opinion, wider than in a striking out (which is more concerned with form – how the case is pleaded – as opposed to substance), although there is a recognisable overlap of the two.”

The court was unfavourable in its ruling regarding the three grounds to strike out, jointly submitted by the State. One ground claims that Catlyn failed to comply with the procedural requirements of CPR (a broad and general ground), while a second ground contends that the amended notice of appeal discloses no reasonable ground of appeal (effectively a challenge to satisfying the procedural requirements of CPR, but with more particularity.

“In the matter before us, the general elections are behind us, but the issue of jurisdiction if not settled, is likely to arise again. We disagree with the submissions of counsel outlined…” Justice Reifer ruled.

Counsel for the President, Alrick Scott KC, had submitted that not only did the appellant’s amended notice of appeal not raise any issue of public law or public interest for this court to consider, he also submitted that the issue of whether an injunction should be granted to prohibit the holding of a general election “because persons are in quarantine during a pandemic, is not one which recurs.”

The court said it is of the view that there are in fact “issues of public law, statutory interpretation, constitutional interpretation inter alia, which are all matters of profound matters of public interest”. Jurisdictional and procedural issues, it said, are of general importance.

“We are confident that these will be recurrent issues that will influence the future conduct of litigation unless and until settled by an apex court. It would be more efficient to dispose of these issues rather than leave if to a further appeal in another case. Such an outcome would be incompatible with the overriding objective,” Justice Reifer declared.

The ruling means that Catlyn, who is represented by attorney Lalu Hanuman, can now proceed with his appeal against Justice Chase’s judgment, which is the substantive case.

Among the remedies being sought by Catlyn is a declaration that the President’s decision to dissolve Parliament and issue election writs without first ensuring that thousands of electors who were in quarantine during the COVID pandemic, are not disenfranchised.

The claimant, according to the judge, also wants the court to declare that the President’s actions were unreasonable, illegal, contrary to law, irrational, or arbitrary.

He is also seeking vindicatory damages which are a relatively rare remedy awarded to complainants of constitutional rights violations or other legal wrongs. The damages are intended to recognise the inherent value of the violated right, beyond any compensation for specific losses or damages.

Roger Forde KC is leading the legal team which represents the attorney general.

emmanueljoseph@barbadostoday.bb