The court battle between former Cabinet Secretary Darrel Montrope and the Government over his removal from the position of Cabinet Secretary to Permanent Secretary Department of Labour in January 2017 continues, despite an Appeals Court ruling earlier this month.
According to court documents, Montrope’s removal came out of a decision of the Governor-General, acting on the advice of the Public Service Commission.
“As a consequence of the Governor General’s decision, on 14th June 2017, Mr. Montrope issued a fixed date claim by way of originating motion in the High Court against the Public Service Commission and the Attorney General. He alleged that his removal from the post of Cabinet Secretary and his transfer to the post of Permanent Secretary was unconstitutional, in excess of jurisdiction and otherwise unlawful on several grounds,” the court documents stated.
Government responded to Montrope’s motion on 31st July 2017 by filing an application under rules 9.7 and 9.7A of the Civil Procedure Rules 2000 declaring that the court had no jurisdiction to try Montrope’s claim and for the originating motion to be struck out, either in its entirety or against the Attorney General. Government also asserted that it was wrongly made a party to the proceedings and that the proceedings were an abuse of the process of the court.
Subsequently, on 12th September 2017, a notice of hearing for 21st September 2017 was issued by the High Court office. According to the Appeals Court the notice of hearing failed to indicate whether it related to the originating motion or to the application to strike or to both.
On 21st September 2017, the matter came up for hearing before the High Court which gave directions on the application to strike and on Montrope’s application. The judge adjourned the hearing to a subsequent date, however on 28th November 2017, Montrope, without seeking the leave of the court, amended his originating motion, which he revised and refiled on18th December 2017.
The matter again came up for hearing on 27th April 2018. Government, at the hearing, raised a preliminary objection to Montrope’s amendments to his originating motion.
According to the Appeals Court “The crux of the preliminary objection was that Mr. Montrope required leave to amend his pleadings and no such leave had been obtained. At paragraph 3 of the (High Court) judgment, the learned judge characterized the limbs of the Attorney General’s preliminary objection as follows: “Distilled to their essence, the Attorney General’s (Government) preliminary objections were that: (1) under CPR 20.1, Mr. Montrope could only amend his statement of case once without leave at any time before the date on which the matter is fixed for case management; (2) since the statement of case was amended after the date fixed for case management, leave to amend was therefore required to amend; (3) no leave was applied for and, in any event, this was not a proper case for the court to exercise its discretion to grant leave to amend; (4) even if the statement of case had not been previously amended and no date for case management had been fixed, once an application to strike out a party’s statement of case is before the court, that statement of case cannot be amended without leave of the court; (5) the effect of the Attorney General’s application to strike, made pursuant to CPR 9.7, is to stay all proceedings pending the determination of the application and to take precedence over any other application since its determination in favour of the Attorney General could result in the matter being brought to an end; that being the case, any application for leave to amend the pleadings would have to come after the determination of the application to strike under Part 9.7.”
Government contended that for the purposes of determining the application to strike, the amendments made without leave should be disregarded and the matter should be determined on the pleadings as originally filed by Montrope. Montrope, in response, contended that no leave was required to amend the originating motion as no date had been fixed for case management of the matter. He further contended that even if leave were required to amend, the court ought to be satisfied in the circumstances that the amendments should be permitted. On that basis, he made an oral request at the hearing for leave to amend.
After several submissions by both parties and for reasons outlined by the Appeals Court Chief Justice Dame Janice Pereira who wrote the judgment, to which justices Gertel Thom and Paul Webster concurred, the Government’s appeal was allowed and the High Court’s judge ruling dated 4 May 2018 was set aside.
Pereira further disallowed the amendments made by Montrope to his originating motion and struck out his amended originating motion which was revised and refiled on 18 December 2017. She also remitted the matter to the High Court for the hearing of Government’s CPR 9.7 application to strike and for the High Court to fix a date for the hearing of the application. She made no order as to costs in the matter.
Government was represented by Garth Patterson (QC), Mark Maragh and Rene Williams while Montrope was represented by Anthony Astaphan (SC), Dr Kenny Anthony and Kendrick Kentish. Vern Gill appeared for the Public Service.