HMB Holdings Ltd v Cabinet of Antigua and Barbuda
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 05 June 2007 |
| Neutral Citation | [2007] UKPC 37 |
| Court | Privy Council |
| Docket Number | Appeal No 18 of 2006 |
| Date | 05 June 2007 |
[2007] UKPC 37
Present at the hearing:-
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Neuberger of Abbotsbury
Privy Council
[Delivered by Lord Hope of Craighead]
The appellant, HMB Holdings Limited ("HMB"), is the owner of property at Half Moon Bay in Antigua. This is one of the most beautiful bays in the island. Its white sand, crescent shaped beach has been described as one of the best beaches in the world. The shape of the bay and its secluded environment on the south-eastern corner of the island provide an unusual degree of privacy. For many years there has been a hotel there, known as the Half Moon Bay Hotel. HMB purchased the property in 1971. The quality of the amenities, which were enhanced under its management, made the resort particularly attractive to wealthy visitors from Europe and North America. It was described as a flagship of the Antiguan tourist industry. It made a significant contribution to the local economy.
In September 1995 Hurricane Luis struck Antigua and Barbuda, causing great damage to property. The Half Moon Bay Hotel was among the properties that were damaged by the hurricane. The damage was so severe that the hotel had to be closed and members of staff were sent home. For reasons which it will be necessary to describe later in more detail, the hotel has not re-opened since 1995. The Cabinet took the view that this was affecting the economy of the islands. In 1999 it decided that it was in the public interest that it should acquire the hotel compulsorily so that the hotel business there could be regenerated. HMB objected, and discussions took place between it and members of the government with a view to enabling HMB to attract the investment that it needed to carry out this process itself. But there were further delays, and in about November 2001 the Cabinet resolved that it should proceed with the acquisition.
On 12 February 2002 the House of Representatives approved a resolution that the Secretary of the Cabinet should cause a declaration to be made for the acquisition of HMB's lands for a public purpose
"namely, to create a fresh environment for investment in the defunct hotel business at Half Moon Bay with a view to facilitate the revival of the tourist industry and to provide jobs for the inhabitants of the Half Moon Bay and the surrounding villages."
The resolution was approved by the Senate on 21 February 2002. It was published in the Gazette on 7 and 14 March 2002.
HMB applied for judicial review of the Cabinet's decision to acquire its property and the approval of its decision by the legislature. On 16 March 2002 Mitchell J gave leave and ordered that a hearing be fixed for 7 May 2002. On 5 April 2002 HMB made a further application for constitutional relief. It asked that this application be heard at the same time as its application for judicial review. On 30 April 2002 the respondents applied for HMB's statement of claim to be struck out on the ground that it failed to disclose any reasonable grounds for the reliefs sought. The respondents' application for a strike out was heard on 8 July 2002. On 29 July 2002 Mitchell J dismissed this application. On 28 January 2003 the Court of Appeal of the Eastern Caribbean (Sir Dennis Byron CJ, Satrohan Singh and Albert Redhead JJA) allowed the respondents' appeal against the decision of Mitchell J, set it aside and struck out HMB's application. On 16 September 2003 the Court of Appeal gave final leave to appeal to their Lordships' Board.
The grounds on which HMB sought relief by way of judicial review were, in summary, that the Cabinet's decision was in violation of a legitimate expectation which HMB had formed that its land would not be acquired compulsorily, provided it embarked on a programme to refurbish the hotel in accordance with plans disclosed and approved at a meeting on 22 January 2001 with the Minister of Tourism and the Attorney General, that it was irrational and that the process adopted by the Cabinet was infected by bias and hostility to its principal officer Mrs Natalia Querard, amounting to an abuse of power. It sought constitutional relief on the ground that the declaration by the Cabinet and its approval by Parliament were in violation of its constitutional rights as protected by sections 3, 14, 18 and 19 of the Constitution of Antigua and Barbuda.
The legislation
Before describing the facts in more detail, their Lordships must first set out the statutory background. This is to be found in the Land Acquisition Act, cap 233, of 29 November 1958, a consolidating statute which confers powers of compulsory acquisition of land on the Cabinet with the approval of the Legislature, and in the Constitution of Antigua and Barbuda which contains the protective provisions on which HMB relies but makes an exception in the case of any law relating to deprivation of property that was in force immediately before 27 February 1967 when Antigua and Barbuda became a self-governing state within the Commonwealth.
Section 3(1) of the Land Acquisition Act provides:
"If the Cabinet considers that any land should be acquired for a public purpose they may, with the approval of the Legislature, cause a declaration to that effect to be made by the Secretary to the Cabinet in the manner provided by this section and the declaration shall be conclusive evidence that the land to which it relates is required for a public purpose."
Section 3(2) provides that every such declaration shall be published in two ordinary issues of the Gazette, and that in the declaration there shall be specified particulars relating to the land which is to be acquired including the public purpose for which the land is required. Section 3(3) provides that upon the second publication of the declaration in the Gazette the land shall vest absolutely in the Crown and that the authorized officer (defined by section 2 as meaning any person who may from time to time by appointed as such for the purposes of the Act by the Cabinet) and his agents, assistants and workmen may enter and take possession of the land accordingly.
Section 6(1) of the Act provides that as soon as any declaration has been published in accordance with the provisions of section 3, the authorized officer shall without delay enter into negotiations with its owner for the purchase of the land to which the declaration relates upon reasonable terms and conditions and by voluntary agreement. The Act provides for all questions and claims relating to the payment of compensation to be submitted to a Board of Assessment, for an appeal against a decision of the Board of Assessment to the Court of Appeal and for all amounts which have been awarded by way of compensation to be paid out of the Treasury. But it makes no provision for any appeal against, or for any other form of review of, the declaration by the Cabinet that the land is required for a public purpose. These are facts as to which the declaration itself is to be, as section 3(1) provides, conclusive evidence.
The Constitution of Antigua and Barbuda is set out in Schedule 1 to the Antigua and Barbuda Constitution Order 1981 ( SI 1981/1106). Article 3 of the 1981 Order provides:
"The Constitution of Antigua and Barbuda set out in Schedule 1 to this order shall come into effect in Antigua and Barbuda on 1 November 1981 subject to the transitional provisions set out in Schedule 2 to this Order."
Section 2 of the Constitution provides:
"This Constitution is the supreme law of Antigua and Barbuda and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."
Chapter II of the Constitution provides for the protection of fundamental rights and freedoms of the individual. Section 3 guarantees to every person in Antigua and Barbuda, among other rights, protection of his property and from deprivation of property without fair compensation. The protections which then follow include, in section 9, protection from the compulsory taking or acquisition of property except for public use and except in accordance with the provisions of a law applicable to the taking of possession or acquisition and for the payment of fair compensation within a reasonable time and, in section 14, protection from discrimination on grounds of race, place of origin, political opinions or affiliations, colour, creed or sex. Section 18 provides that any person who alleges that any of the provisions of sections 3 to 17 has been contravened in relation to him may apply to the High Court for redress. Section 19 provides:
"Except as otherwise expressly provided in this Constitution, no law may abrogate, abridge or infringe or authorise the abrogation or infringement of any of the fundamental rights and freedoms of the individual hereinbefore recognised and declared."
The Land Acquisition Act is an existing law relating to the right of the Crown to acquire land in Antigua and Barbuda. It must be read subject to paragraph 9 of Schedule 2 to the 1981 Order, which provides:
"Nothing in section 9 of the Constitution shall affect the operation of any law in force immediately before 27 February 1967, or any law made on or after that date that alters a law in force immediately before that date and does not –
(a) add to the kinds or property that may be taken possession of or the rights over and interests in property that may be acquired;
(b) make the conditions governing entitlement to compensation or the amount thereof less favourable to any person owing or having an interest in the property; or
(c) deprive any person of such right as is...
To continue reading
Request your trial
-
Gary Nelson Appellant v [1] Attorney General [2] Colin Derrick, Minister of Justice [3] The Police Service Commission Respondents [ECSC]
...of Civil Service Unions v Minister for the Civil Service [1985] AC 374 applied; HMB Holdings Ltd v Cabinet of Antigua and Barbuda (2007) 70 WIR 130 followed. 5. A claimant's right to substantive legitimate expectation will only be found to be established when there is a clear and unambiguo......
-
Attorney General Appellant v Kenny D. Anthony Respondent [ECSC]
...56 Decisions of the Cabinet are among the decisions of public authorities that are subject to judicial review: HMB Holdings Ltd v Cabinet of Antigua and Barbuda,6 a decision of the Privy Council on appeal from this Court concerning the decision of the Cabinet of Antigua and Barbuda to acqui......
-
Lennox Linton Claimant v Attorney General of Antigua and Barbuda Defendant [ECSC]
...on three grounds, namely: irrationality, illegality and procedural irregularity. See HMB Holdings v Cabinet of Antigua and Barbuda [2007] UKPC 37, (2002) 70 WIR 160. See also C O Williams Construction Ltd v Blackman et al (1994) 45 WIR 94 in which the Privy Council held that a decision of t......
-
Wendell Nichols v Attorney General Commissioner of Police
...held that the expectation ought not to be summarily disappointed.’ 57This concept was recently addressed again in HMB Holdings v. Attorney General of Antigua and Barbuda 30 by Lord Hope of Craighead para. 31– ‘Then there is legitimate expectation as an additional ground of review. As Lord F......