National Contractors Ltd Applicant/Plaintiff v National Development Corporation Respondent/Defendant [ECSC]

JurisdictionSt Lucia
JudgeHariprashad-Charles J.
Judgment Date19 April 2000
Judgment citation (vLex)[2000] ECSC J0419-3
CourtHigh Court (Saint Lucia)
Docket NumberCIVIL SUIT NO.02 OF 1996
Date19 April 2000
[2000] ECSC J0419-3

IN THE HIGH COURT OF JUSTICE

CIVIL SUIT NO.02 OF 1996

Between:
National Contractors Limited
Applicant/Plaintiff
and
National Development Corporation
Respondent/Defendant
1

Hariprashad-Charles J.[Ag.] On 4th day of January 1996, the Applicant/ Plaintiff filed an application for leave to apply for Judicial Review in accordance with Order 44 of the Rules of the Supreme Court 1970.

Hariprashad-Charles J.
2

On 15th day of January 1996, d'Auvergne J. granted leave to file and serve writs of certiorari and mandamus.

3

By way of Originating Summons filed on 2 3rd day of May 1996, the Plaintiff applied for:

  • (a) an order of Certiorari to remove into the High Court for the purpose of it being quashed a decision made by the National Development Corporation whereby it decided to accept the tender presented by Quarry Products Limited, and or Left co Limited in place of the Applicants' for the Construction of Access Roads and Drainage Facilities — La Tourney Phase IV Extension — Vieux Fort;

  • (b) an order of Mandamus directed to the National Development Corporation, a statutory body, to require the said Corporation to hear and determine according to proper procedures, and in accordance with the rules of natural justice and in accordance with proper tender practices, that sufficient weight be given to the Applicant's tender presented to the said Corporation, the said tender being the best available to the Corporation under all the circumstances;

  • (c) such further or other relief in the terms set out in the Notice of Application as amended served herewith; and

  • (d) costs of and occasioned by this motion be awarded to the Applicant.

4

Prior to the hearing of the Originating Motion, the Respondent/Defendant filed a Notice of Motion under Order 8 Rule 3 and Order 33 Rule 4 for an order that the following question or issue be tried separately as a preliminary issue before the trial of other questions or issues in this action namely:

"Whether the Defendant's acceptance or rejection of a tender for works and the Defendant's decision in regard thereto are private acts and matters governed by the private law of contract or are public acts and matters governed by public law and as such susceptible to judicial review capable of resulting in the remedies by way of the prerogative orders of certiorari and mandamus."

5

Put a simpler way, the preliminary issue to be determined is whether the Defendant's acceptance or rejection of at ender for works and the Defendant's decision in regard thereto are private acts and are governed by private law or are public acts and are governed by public law.

THE RESPONDENT/DEFENDANT'S SUBMISSIONS
6

Counsel for the Defendant, Mrs Brenda Floissac-Fleming commenced her arguments by stating that the remedies by way of judicial review (including the remedies by way of the prerogative orders of certiorari, mandamus and prohibition) are appropriate and available only in respect of decisions and administrative actions made or taken in the exercise of or pursuant to public powers and duties (i.e. constitutional, statutory, prerogative and common or civil law powers and duties derived from and governed by public law). According to her, these remedies are not appropriate or available in respect of decisions and administrative actions made or taken in the exercise of or pursuant to private powers and duties (i.e contractual and other powers and duties derived from and governed by private law).

7

The order of mandamus is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.

8

Lord Scarman inIRC v National Federation of Self-Employed and Small Businesses Ltd. [1981] All E R 93 at page 111 had this to say:

"Mandamus is the most elusive of the prerogative writs and orders. The nature of the interest an applicant must show, the nature of the duty which is available to enforce, and the persons or bodies to whom it may issue have varied from time to time in its development. It is, of course, a judicial remedy; it is equally clear that it is a remedy to compel performance of a public legal duty, that it does not go to the Crown itself and that it is available only if the applicant shows a sufficient interest."

9

Counsel submitted that if, as in the instant case, the Applicant/ Plaintiff is applying for judicial review, the corollary is that the Respondent/ Defendant must be acting in the performance of a public legal duty. In this regard, Counsel alluded to thecase of R. v Industrial Court, Ex parte A.S.S.E.T. [1964] 3 All E.R. 130. At page 136, Lord Parker said thus:

"It has been urged on us that really this arbitral tribunal is not a private arbitral tribunal, but that, in effect, it is undertaking a public duty or a quasi-public duty and, as such, is amenable to an order of mandamus. For my part, I am unable to come to that conclusion. It is abundantly clear that they had no duty to undertake the reference. If they had refused to undertake the reference they could not be compelled to do so. I do not think that the position is in any way different once they have undertaken the reference. They are clearly doing something which they were not under any public duty to do, and in those circumstances, I see no jurisdiction in this court to issue an order of mandamus to the Industrial Court."

10

In similar vein, Counsel referred to the cases ofLaw v National Greyhound Racing Club Ltd. [1983] 3 All ER 300 and Davy v Spelthorne Borough Council [1983] 3 All ER 278. In the former case, it was held that since the stewards' authority to suspend the plaintiff's licence derived solely from a contract between him and the defendants there was no public element in their jurisdiction as such (although the public might be affected) and therefore their decision was reviewable by prerogative order. It followed that it was not open to the plaintiff to seek the relief by way of judicial review and, conversely, that it was open to him to seek a declaration in the ordinary way. At page 305, Fox L.J. said:

"Accordingly, in my view, the authority of the stewards to suspend the licence of the plaintiff derives wholly from a contract between him and the defendants. I see nothing to suggest that the defendants have rights or duties relating to members of the public as such. What the defendants do in relation to the control of greyhound racing may affect the public, or a section of it, but the defendants' powers in relation to the matters with which this case is concerned are contractual. Apart from the alteration of the Rules of the Supreme Court in 1978 and the provisions of the Supreme Court Act 1981 the prerogative orders would not, in my view, lie to the tribunal set up by the defendants because the powers of such a tribunal derive from contract only. I do not think that the authorities leave scope for any real doubt as to that. InR v Criminal Injuries Compensation Board, ex p. Lain [1967] 1 All ER 770 at page 778 Lord Parker CJ said:

"The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned.'"

11

InDavy v Spelthorne Borough Council [1983] 3 All ER 278 at page 283, Lord Wilberforce had this to say:

"The present proceedings, so far as they consist of a claim for damages for negligence, appear to me to be simply an ordinary action for tort. They do not raise any issue of public law as a live issue. I cannot improve on the words of Fox LJ in the Court of Appeal when he said:

'…I do not think that the negligence claim is concerned with "the infringement of rights to which [the plaintiff] was entitled to protection under public law", to use Lord Diplock's words inO'Reilly v Mackman. The claim, in my opinion, is concerned with the alleged infringement of the plaintiffs rights at common law. Those rights are not even peripheral to a public law claim. They are the essence of the entire claim (so far as negligence is concerned).' "

12

Learned Counsel submitted that the line of authorities [supra] are establishing that the nature of the applicant's cause of action is the true test for determining whether an administrative decision or action is subject to or amenable to judicial review or not.

13

She stated that if the alleged cause of action is an illegal, irrational or procedurally improper administrative decision which does not amount to a tort or a breach of contract or any common law cause of action, the administrative decision can only be governed by Public law. But if the cause of action is an administrative decision which amounts to at ort or breach of contract, the administrative decision is governed by private law. In my opinion, this represents a fair pronouncement of the law.

14

Counsel strenuously argued that in the instant matter, the Plaintiff's cause of action is in the realm of contract law as is evident in paragraph 9 of his application filed on 23rd day of May 1996 which reads as follows:

"By reason of the matters aforesaid NDC have wrongfully and in breach of all tender practices, decided to grant to Quarry Products Limited and or Leftco Limited the said contract, in place and instead of the Plaintiff."

15

The Plaintiff is aggrieved by a decision of the Defendant to award the contract to other contractors and not to the Plaintiff. The Plaintiff's contention is based on the following particulars:

  • (1) The Plaintiff presented the best tender in all the circumstances.

  • (2) NDC failed and or refused to and or neglected to give the Plaintiff an opportunity to be heard and or to give them a fair hearing...

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