(1) Malcolm Caplan (2) Irene Caplan both of Soufriere, but presently Residing at Baker & McKenzie, Caracas, Venezuela. Plaintiffs v (1) Michael Du Boulay; (2) Michelle Du Boulay; (3) David DuBoulay; (4) DuBoulay Estates Company Ltd all of Soufriere; (5) The Attorney-General of Saint Lucia Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Barrow, J. |
| Judgment Date | 01 June 2001 |
| Judgment citation (vLex) | [2001] ECSC J0601-3 |
| Court | High Court (Saint Lucia) |
| Docket Number | SUIT No. 29 of 1999 |
| Date | 01 June 2001 |
IN THE HIGH COURT OF JUSTICE
(Civil)
SUIT No. 29 of 1999
Barrow, J.(Ag.) Almost three hundred years ago the King of France gave a decision in a legal dispute between two inhabitants of Guadeloupe on the subject of the King's Chain that has significant implications for the present dispute. The Queen's Chain is that expanse of land running 186.5 feet inland from the high water mark.
In the settlement of St. Lucia there was always reserved a strip of land around the island to enable the establishment of towns, parishes, forts, entrenchments, batteries and other public and necessary works, as much for decoration as for defence. In the areas where towns, fortresses and batteries were established, it served for that use. In the rest of the island the owners of the land above it obtained from the Lords, Governors and Stewards of the King, permission to clear the lands, which enabled them to procure facilities for the exploitation of their plantations. It was always the understanding that those lands, which came to be called the King's or Queen's Chain, according to the gender of the reigning monarch, could be reclaimed when needed for the service of the King or the public. Thatstatement of the law appears as part of the Ancient French Law contained in Appendix II to volume VI of the Laws of St. Lucia and is the subject of a Ministerial Dispatch from the King's Court at Versailles, dated 3rd December 1757.
In the present dispute a portion of the Queen's Chain that lies between the sea and the adjoining lands of the plaintiffs was leased to the fourth defendant. The plaintiffs are the proprietors of Block 0031B Parcel 15 comprising 17 acres. Until they were interrupted by the actions that gave rise to this suit the plaintiffs enjoyed what they claim is a right of way over the adjoining Parcel 12, which is registered in the name of the first defendant. Until similarly interrupted the plaintiffs enjoyed what they claim are the customary and proprietary rights in the Queen's Chain designated as Parcels 28, 29 and 30 and claim to have been in actual occupation and possession of the same.
The first defendant's Parcel 12 consists of 0.05 hectares and may include what was originally a portion of the Queen's Chain. In front of that parcel, facing the sea and apparently running down to the sea, lies Parcel 13, which is therefore also a portion of the Queen's Chain. That parcel, consisting of 0.14 hectares, was leased by the Government to the fourth defendant in 1995. Beside Parcel 13 as opposed to in front of it lies Parcel 29. In fact Parcel 29 lies in front of the plaintiffs' lands. This is the beachfront portion of the Queen's Chain that the Government leased to the fourth defendant on the 18th December 1998. It consists of 39,154 square feet. Parcel 28 is a buffer portion of the Queen's Chain that lies between the plaintiffs' Parcel 15 and the last mentioned Parcel 29.
The fourth defendant plans to expand the hotel that it operates on Parcel 13 by building a number of hotel units on Parcel 29. This will have the effect of possibly destroying the excellent view from the plaintiffs' residence of Soufriere Bay and the two peaks known as The Pitons that are St. Lucia's national landmarks, according to the unchallenged evidence. There was also no challenge to the evidence that such a result would reduce the value of the plaintiffs' property by sixty percent. The plaintiffs' property, on which sits a house designed by a famous New York architect, is said to value $2.85 million.
What gave rise to the present suit were the actions of the defendants in December 1998 and January 1999. For convenience I will call the first four named defendants "the defendants" and I will call the fifth named defendant "the Government". According to the Statement of Agreed Facts filed in this suit and the evidence of Cynthia James, the plaintiffs' caretaker, on or about the 15th December the defendants or some of them entered the area of the Queen's Chain in the actual occupation of the plaintiffs and cut down fruit trees and 21 coconut trees. On that day the first defendant brought onto the lands occupied by the plaintiffs some old tyres, placed them some 20 feet away from the plaintiffs' house and set them afire. The smoke went into the plaintiffs' house and caused a tremendous nuisance and the fire department had to be called to extinguish the blaze. Around that same period the defendants began excavating and digging on Parcel 29 and Parcel 28. The steps from the plaintiffs' house leading down to the beach ended on Parcel 28 and the plaintiffs also had erected on the Queen's Chain a shed made of pine, a soak away and a water tank. I understand that these things were demolished.
On 12th January the defendants continued the excavation with backhoe, excavator and dump trucks. At about this same time the defendants demolished the motorable driveway that led from the plaintiffs' property where it passed across the first defendant's Parcel 12. The defendants excavated the driveway to a depth of 20 feet and for a distance of 50 feet. On 18th January the defendants ripped out electrical wiring and garden lights appurtenant to the plaintiffs' property.
There were fears that the excavation by the defendants, because of the proximity to the plaintiffs' house, would undermine the structural integrity of the house. Cynthia James, who resides in the house, said that she felt like a prisoner in the house and felt unsafe and frightened in the house while all the heavy equipment was working. The first plaintiff, a 68 year old lawyer, who works and lives in Venezuela and would visit about three or four times a year, testified that he has not been back to the home since 1998. He and his wife bought the property because they fell in love with the peacefulness and tranquility of the Soufriere area. He has not been back because as a result of the defendants' actions he felt "raped", he testified.
On the 23rd January 1999 the plaintiffs obtained an ex parte injunction before suit was filed. That injunction was continued until trial after an inter partes hearing. When the writ was issued on 28th January 1999 the Government was not then a party. The action was then principally for a declaration that the plaintiffs were entitled to a right of way along the existing driveway over Parcel 12, an injunction to restrain the defendants from trespassing on land in the actual occupation of the plaintiffs being Parcels 28, 29 and 30, a mandatory injunction to restore the driveway and restore the excavation on the Queen's Chain, and damages for trespass. These remain the substance of the plaintiffs' claim as against the defendants.
The Defence denies the plaintiffs' entitlement to any right of way and pleads that by a lease dated 18th December 1998 and registered on 4th January 1999 the Government let Parcel 29 to the fourth defendant for a term of 22 years from the 22nd March 1995. This drove the plaintiffs to challenge the lease.
The plaintiffs obtained leave to add the Government and to amend the writ by order made on the 12th July 2000. As against the Government the plaintiffs claim that the grant of the lease was wrongful and ought to be revoked on the grounds that the action of the Government was illegal, irrational and in violation of proper procedure. The plaintiffs ask for various declarations and orders which would really amount to quashing the decision of Cabinet to grant the lease to the fourth defendant and declaring the said lease to be invalid.
At the beginning of the hearing the Government raised an objection in limine on which I will now rule. The objection is that the plaintiffs are indirectly seeking judicial review and must not be allowed to bypass the procedural requirements set out in Order 44 of the Rules of the Supreme Court including the necessity to apply for leave. The Government relied on the words of Lord Diplock inO'Reilly and others v. Mackman [1982] 3 All ER 1124 at 1134 that:
" …it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Ord 53 for the protection of such authorities."
The earlier decision inHeywood v. Hull prison Board of Visitors [1980] 3 All ER 594 at 598 had set out in detail the considerations that justified the opinion that where a plaintiff was in fact indirectly seeking judicial review it was undesirable that he should seek relief by ordinary action begun by writ rather than by application for judicial review. In that case the plaintiff was a prisoner and sought to challenge the findings against him and the penalties imposed on him arising from charges brought against him for breaches of discipline. In Cocks v. Thanet District Co [1982] 3 All ER 1135 the House of Lords comprising the very same Lords who gave the decision in O'Reilly applied the general rule stated in that last mentioned decision and also reiterated the exception — that the validity of a public law decision may come into question collaterally in an ordinary action. The issue in Cocks was between a homeless person and the District Council that decided that he became homeless intentionally and involved the...
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