[2018] CCJ 8 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF GUYANA

CCJ Appeal No GYCV2018/001

GY Civil Appeal No 125/2017

BETWEEN

THE MEDICAL COUNCIL OF GUYANA APPLICANT

AND

JOSE OCAMPO TRUEBA RESPONDENT

Before The Honourables Mr. Justice Adrian Saunders

Mr. Justice Jacob Wit
Mr. Justice David Hayton
Mme. Justice Maureen Rajnauth-Lee
Mr. Justice Denys Barrow

Appearances:
Mr. Kamal Ramkarran for the Applicant.
Mr. Ian N. Chang S.C. with Mr. Sanjeev Datadin and Mr. Robin Hunte for the
Respondent.

REASONS FOR DECISION

of
The Honourable Justices Saunders, Wit, Hayton, Rajnauth-Lee and Barrow

Delivered by
The Honourable Mr. Justice Barrow
on the 6th day of April, 2018
 [2018] CCJ 8 (AJ)

[1] At the end of the hearing of the application by the Medical Council of Guyana (the
Council) for special leave to appeal which the Court had directed was to be treated
as the substantive appeal if leave was granted, we allowed the appeal, thereby
restoring the decision of the High Court (Acting Chief Justice George) to dismiss the
claim for judicial review that had been brought by Dr Jose Ocampo Trueba (Dr
Ocampo). Counsel urged that full reasons for our decision be given because they
agreed that there was great need for this Court to resolve the deep uncertainty
whether, and to what extent, the Civil Procedure Rules 2016 (the CPR) applied to
judicial review claims, as it was standard in Guyana for the Crown Office Rules 1906
of England and its local accretions, to be applied to such claims. Thus, the application
which was before the High Court, that resulted in the dismissal of the claim, was an
application for orders nisi for certiorari and mandamus, which are orders unknown
to the CPR.

The underlying proceedings

[2] On 14 September 2017, counsel for Dr Ocampo filed an urgent, without notice
application in the High Court seeking interim orders or rules nisi of mandamus and
certiorari and writs of certiorari and mandamus against the decision of the Council
refusing him full registration as a medical practitioner, for which he had applied on
17 July 2017. In 2013 he had been granted institutional registration as a medical
practitioner, which permitted him to practice medicine only at the institutions stated
in the licence. Dr Ocampo deposed in his supporting affidavit that prior to the refusal
of his application for full registration, the Council did not inform him, and he was
unaware, of any relevant facts or circumstances that could have militated against the
approval of the application and that he was not given an opportunity to be heard
before the Council made its decision. He therefore contended the decision was made
unlawfully, unreasonably, unfairly, in bad faith, without or in excess of jurisdiction,
in breach of the rules of natural justice and was therefore null and void and of no
legal effect. He asked for the orders nisi to be granted and that thereafter the Council
should show cause why the orders should not be made absolute.

[3] On October 19, 2017, George CJ (ag) refused the without notice application. She
said that -
 [2018] CCJ 8 (AJ)

Having reviewed the authorities, more particularly, those that are directly
binding on the court – Medical Council of Guyana v Sooknanan (2014) 85
WIR 394 at p 397 a decision of the Caribbean Court of Justice, Medical
Council of Guyana v Hafiz (2010) 77 WIR 277 at p. 286 Guyana Court of
Appeal, as well as the Bahamian case of Shanmugavel v Bahamas Medical
Council (2011) 80 WIR 11 in which the aggrieved medical practitioner
appealed a decision not to register him as provided by the Medical Act Cap.
224 where no reasons were given by that territory’s Medical Council, I have
concluded that the prerogative writ procedure cannot be employed where
the legislation-in this case s.19 of the Medical Practitioners Act, Chapter
32:02 has provided an alternative mechanism to challenge a decision of the
Medical Council, to wit a statutory right of appeal. The applicant should
have filed an appeal pursuant to section 19 of the said Act.

[4] Dr Ocampo appealed to the Court of Appeal which allowed his appeal and remitted
the claim to the High Court for it to consider whether to exercise its discretion to
grant judicial review. The court decided that the Chief Justice had proceeded on the
premise that because there was available the statutory right of appeal this precluded
the grant of judicial review but, the court held, it was not inevitable that a right of
appeal barred an applicant from seeking judicial review; rather, a court should
consider whether, in the particular circumstances of a given claim, judicial review
was the appropriate recourse.

The intervention of the Council.

[5] The Council was ignorant of the proceedings in the High Court and only became
aware that there had been proceedings when it received in the mail, on 29 November
2017, a copy of the Chief Justice’s order. The Council was not served with the Notice
of Appeal but counsel obtained a copy from the Registry. On 8 December 2017 it
received notice of the hearing of the appeal on 21 December 2017, which counsel
attended, and he was permitted to make submissions.

[6] It was not until the Council applied to this Court for special leave to appeal, pursuant
to section 8 of the Caribbean Court of Justice Act 2004, that the Council got the
 [2018] CCJ 8 (AJ)

opportunity to participate fully in the claim against it. It was submitted, however, on
behalf of Dr Ocampo, that the Council should have awaited the hearing in the High
Court of the remitted claim and it was only if the orders nisi had been granted and
served on the Council that the Council should have been able to participate in the
proceedings by showing cause against the orders being made absolute.

[7] The objection by counsel for Dr Ocampo to the grant of special leave was on the
basis that the decision of the Court of Appeal was neither a final nor an interlocutory
order but a provisional one and, relying on this Court’s decision in Robin Singh v AG
of Guyana,1 no leave could be granted. It was difficult to follow this submission
because that case was concerned with whether an appeal lay to the Court of Appeal
under a provision of the Court of Appeal Act on which the appellant had mistakenly
relied. In this claim, Dr Ocampo successfully appealed to the Court of Appeal and
the issues which were considered in Singh simply did not arise in this application to
this Court for special leave to appeal. As this Court most recently re-stated in AG of
Guyana v Dipcon Engineering Ltd2, it will grant special leave to appeal pursuant to
section 8 of the Caribbean Court of Justice Act 2004, where it appears there is need
to prevent a miscarriage of justice. As set out immediately below, the facts placed
before this Court by the Council fully convinced the Court that it should grant special
leave to appeal to prevent a serious miscarriage of justice.

[8] The Council’s participation had a major impact, because of the facts stated in the
affidavit of its secretary, Ms Juanita Johnson, sworn on 10 January 2018 in support
of its application for special leave to appeal to the CCJ. The Secretary deposed that
Dr Ocampo had been practising medicine in breach of the terms of his institutional
registration, which permitted him to practise only at a single institution, because he
had been practising also at a different facility. The Council had written to Dr Ocampo
about this breach twice; on 19 June 2017 and 21 July 2017. He did not reply to these
letters and continued to practise medicine in breach of his registration.

[9] Both letters were exhibited and they are in strong terms. The letter of June 19th
warned Dr Ocampo that he should desist from practising at the different facility and

1
[2012] CCJ 2 (AJ).
2
[2017] CCJ 17 (AJ).
 [2018] CCJ 8 (AJ)

that if he failed to obey the directive his current licence would be withdrawn with
immediate effect. The letter of July 21st was written four days after Dr Ocampo’s
application for full registration. It referred to the earlier letter and the fact that Dr
Ocampo had continued to practise in breach of his licence. It identified the provision
in the applicable legislation which empowered the Council, in the event of
professional misconduct or malpractice, to take disciplinary measures including
suspension or revocation of licence. The letter made clear the Council was
considering the evidence and investigating whether he was guilty of professional
misconduct or malpractice and required him to offer any comments he wished to
make within 7 days. It warned that if he did not respond the Council would proceed
to determine the issue and make findings adverse to his interest, without further input
from him. Dr Ocampo did not respond.

[10] In addition, the Council published an advertisement daily, alternatively in two

newspapers of wide circulation in Guyana, between November 23 and 27, 2017
notifying the public that Dr Ocampo was licensed to practice medicine only at a
stated hospital.

[11] In her affidavit, the Secretary also detailed steps she had taken to personally confirm
the facility where Dr Ocampo was unlawfully practising, the office hours when he
worked there, which she was told, and what were his charges for sessions of dialysis.
She stated she had visited the facility on 10 January 2018 and took 3 photographs of
signs showing Dr Ocampo’s name as offering medical services. She also made a
purchase to show the date and time she visited. Copies of the photographs and receipt
were attached to her affidavit in support of the application.

[12] Dr Ocampo filed an affidavit in opposition, on 25 January 2018, some 15 days after
the Secretary’s affidavit. He said not a word in response to challenge the matters set
out in the letters of June 19th and July 21, 2017 and confirmed by the Secretary’s
affidavit. We, therefore, accept as entirely true the evidence given on behalf of the
Council.

[13] Based on this evidence we conclude that it was highly improper that Dr Ocampo
concealed those very material facts from the High Court, in making his without
 [2018] CCJ 8 (AJ)

notice application. It was outright dishonesty for him to have sworn, as he did, that
he had “never been the subject of any disciplinary proceedings either in Guyana or
Cuba or elsewhere”; that the Council before making its decision not to grant his
application “never informed me of any relevant fact or circumstance which could
have militated against the grant of its approval”; that the Council did not afford him
any opportunity of being heard before it made its decision; and that he was “unaware
of any relevant fact or circumstance which could have militated against the grant of
its approval”. We shall return to this egregious conduct.

Without notice and Order nisi

[14] The deception that Dr Ocampo perpetrated makes it even more necessary that this
Court should examine the without-notice and order-nisi procedure that allowed him
such scope. As to that procedure, the Council submitted that before the CPR were
introduced in February 2017, there were no explicit Guyanese procedural provisions
in the High Court rules regarding judicial review. In the absence of written rules, a
practice developed whereby the courts would grant ex parte orders nisi against a
respondent. The respondent thereafter had to show cause why the orders should not
be made absolute.3 The Council submitted that a completely new civil procedure
system now exists and Part 56 of the CPR contains detailed provisions on obtaining
administrative orders. There is also a Judicial Review Act Chapter 3:06 which was
passed by the National Assembly, assented to by the President in 2010 and published
in the revised volumes of the Laws of Guyana. However, this Act has not yet been
brought into force.

[15] The Council submitted that Part 56 of the CPR must be used by litigants seeking
judicial review and, therefore, every other form of practice formerly applicable, such
as the practice of obtaining ex parte orders nisi with the need for the respondent to
show cause against making the orders absolute, is by implication excluded. The CPR
now requires that such cases be commenced by a Statement of Claim (except where
Fixed Date Applications are permitted). Commencing the claim in this way means
that the full spectrum of procedural tools such as discovery, case management

3
A helpful discussion of the former practice was given by Bernard C (as she then was) in AG v Jardim
(2003) 67 WIR 100 at 105.
 [2018] CCJ 8 (AJ)

conferences, pre-trial review and oral evidence at trial, are now available to the
parties. We interject to note that there is no provision in the CPR, which exists in
some jurisdictions, mandating that an applicant for judicial review must first obtain
permission to apply for judicial review and the Act does not include such a
requirement.

[16] The Council also submitted that the terms of the ex parte order nisi, sought by Dr
Ocampo and which was traditionally granted by the courts under the pre-CPR
practice, was inconsistent with CPR 17.01(4) which provides that an interim order
expires within 14 days unless a further order is made. The obvious intention of the
new rules is to severely limit orders made in the absence of representations from the
opposing party. The prior regime, under the old prerogative writ system, where
orders were granted without notice at the beginning of the proceedings and could
only be displaced if the opposite party showed cause against it being made absolute,
operated to shift the burden to the opposing party. The new rules abolished that
position.

[17] Additionally, counsel for the Council submitted, even if it was possible for Dr
Ocampo to commence the claim in the manner that he did, he did not satisfy the test
for the granting of interim orders without notice, under the CPR. Rule 17.01(3)
required that he should have satisfied the court that (a) there was good reason for not
giving notice or (b) in the case of urgency, it was not reasonably possible to give
notice or (c) giving notice would have defeated the purpose of the application. The
Council submitted that Dr Ocampo had no good reason for not giving notice and if
notice had been given, that would not have adversely affected his claim. Furthermore,
the matter was not urgent as Dr Ocampo continued to be institutionally licensed to
practice medicine for more than 5 months after the Council refused his application.
His registration did not expire until January 26, 2018.

[18] In response to the Council’s submission that judicial review proceedings fell within
part 56 of the CPR, counsel for Dr Ocampo submitted that rule 56.01(a) provides
that Part 56 applies to administrative orders where the relief sought is for judicial
review under the Judicial Review Act. It was therefore submitted that since the Act
was not in operation, Dr Ocampo could not have brought an application under Part
 [2018] CCJ 8 (AJ)

56. The common law position in relation to applications for judicial review still
applied. Interestingly, counsel also submitted that even though Dr Ocampo could not
have applied for relief under the Act, the court was nevertheless not free to act
inconsistently with the Act, which in section 9 provided that the court should not
refuse an application for judicial review because of an alternative remedy.

[19] In reply, the Council submitted that part 56 of the CPR applies to all administrative
orders including constitutional relief, certiorari and mandamus. The Council
submitted that although the same orders named in the Rules can be obtained in
judicial review proceedings at common law, the Rules set out the procedure for
obtaining those orders, and counsel for Dr Ocampo erred when he submitted that the
old prerogative writ procedure still exists under the Rules.

[20] We found convincing the submissions of Mr. Ramkarran for the Council. In addition,
and in modification, we observe that the CPR provides in rule 2.02(1) that the CPR
applies to all civil proceedings under the jurisdiction of the Court and, while not
defined in the rules, the expression ‘civil proceedings’ is a most compendious one,
which embraces virtually any civil claim in court (formerly an action or matter) and
clearly includes a claim for judicial review. This point was fully discussed and settled
by this Court in Singh.4

[21] Further, in rule 2.02(3) it is provided that “Where these Rules are silent on a matter
and no other enactment applies, the matter shall be determined by analogy to these
Rules.” Since no other enactment applies to judicial review claims, the CPR applies
by analogy. As was submitted, rule 56.01(a) provides for the CPR to apply to claims
brought under the Judicial Review Act, whenever that Act comes into operation, so
it is only consistent that the Rules should apply, by analogy, to claims for judicial
review, brought before the Act commences. Still further, we observed that Dr
Ocampo commenced his claim by Fixed Date Application, a creation of the CPR,
thereby confirming the virtual impossibility of the CPR not applying to any claim in
court.

4
[2012] CCJ 2 (AJ) at [37].
 [2018] CCJ 8 (AJ)

[22] Our conclusion that the CPR applies generally to judicial review claims and that, by
analogy, Part 56 should be applied specifically to such claims notwithstanding (and,
perhaps, because) the Judicial Review Act does not apply meant the application of
Dr Ocampo was properly refused by the High Court, even if that court arrived at
refusal on a different basis. The implication of our decision is that pending (and
especially unheard) applications, brought or proceeding otherwise than in accordance
with the CPR will now need to be case managed, bearing in mind the stricture in rule
8.01(4) that a claim should not be defeated by reason of having been brought by the
wrong form or procedure.

[23] While that was the reasoning for our decision, we take the opportunity to address two
other matters, being the issue of alternative remedies and the issue of a court’s
jurisdiction to strike out proceedings for abuse of the court’s process.

Appeal versus Judicial Review

[24] As indicated, the High Court dismissed Dr Ocampo’s application because judicial
review was not an appropriate remedy in this situation where a remedy of appeal was
available to Dr Ocampo. The written judgment of the Court of Appeal clarified that
the Chief Justice should have considered whether judicial review was the appropriate
recourse where there existed a right of appeal and she should not have proceeded on
the basis that the mere existence of that recourse meant the applicant should not have
brought a claim for judicial review.

[25] To this Court, both sides presented very able and helpful arguments on the issue of
appeal versus judicial review and how a court should approach the issue. Because of
the commendable despatch with which this claim proceeded, the written submissions
of the parties were prepared before the written judgment of the Court of Appeal
became available. The pith of that judgment is that the mere existence of a right of
appeal does not preclude judicial review and that an applicant may be permitted to
proceed with judicial review if he shows there are exceptional circumstances which
justify so proceeding rather than appealing. On examining the written and oral
submissions of counsel on both sides it was clear this was the position of both sides
 [2018] CCJ 8 (AJ)

and the division was as to the application of this principle to the facts of the particular
case.

[26] Our disposition to the question, in this case, of appeal or judicial review is that the
fully reasoned and persuasive judgment of the Court of Appeal states the applicable
legal principles and reasoning in an entirely satisfactory manner. The judgment says
nothing, as regards applicable principles, contrary to what either side has submitted.
The court did not purport to apply the principles it stated to the facts of this case but
remitted the case to the High Court for that court to engage in that process. This was
most fortunate because the information now before us was not even a glimmer before
them. In the circumstances, it is entirely appropriate that we leave the decision of the
Court of Appeal on this point as the last word.

[27] We should mention that we have considered the seeming contradiction between
supporting the reasoning of the Court of Appeal and allowing the appeal against their
decision to remit the claim to the High Court to consider whether the claim for
judicial review should be allowed to proceed. It should be apparent that there is no
contradiction as we have decided the case and arrived at a result on a basis that they
did not address and was not presented to them, namely, the availability of ex parte
orders and orders nisi in the new CPR landscape.

[28] Before leaving this issue, we would simply observe that in any future case where the
court must consider whether to permit recourse to judicial review where a right of
appeal is given, there will be much cogency to the factor, as existed in this case, that
the appeal is to a High Court judge in chambers, as per section 19 of the Medical
Practitioners Act Cap.32:02. That provision brings the matter into the jurisdiction of
the High Court and makes it a civil proceeding in which the panoply of remedies
within the armoury of the court are available regardless of whether the challenge is
to the legality or the merits of the decision. As a rule of thumb, the safe route to a
substantive resolution in a case like this would therefore appear to be to appeal the
decision and not to request judicial review.

[29] We would also observe that it may be possible, in a scenario similar to the current
one, for the court to direct that a claim brought for judicial review should proceed as
an appeal under a specific statutory procedure or otherwise as appropriate. By raising
 [2018] CCJ 8 (AJ)

this possibility, we do not intend to encourage the bringing of ill-advised judicial

review claims in the belief that if an unworthy attempt is scotched the applicant loses
nothing since the court will not dismiss it but route it properly. Adventurers should
be aware that there may be a costs consequence. Rather, the thinking is that a
genuinely brought claim for judicial review, if not appropriate, should not result in
the loss of all recourse by an applicant on a purely procedural basis. In this regard
we note the un-commenced Judicial Review Act provides in section 11 for a court to
direct that a claim for judicial review that is not amenable to that remedy should
continue as an ordinary private law action and give such directions as may be
necessary. It may be that the court’s case management powers and the overriding
objective of the CPR to deal justly with cases may enable the court to exercise a
power similar to that provided in the section.

Strike out jurisdiction

[30] The Court was greatly disturbed by the deception perpetrated by Dr Ocampo in
failing to disclose the very material facts that the Council had investigated him for
practising in breach of his licence, that it had presented this breach to him as
professional misconduct and liable to result in disciplinary action that he had been
given an opportunity to defend, and that he knew the Council had a perfectly good
reason for refusing his application. We were relieved to be told by senior counsel,
upon inquiring of him, that he did not know of the correspondence to Dr Ocampo
from the Council and that he was surprised to learn of it on reading the secretary’s
affidavit.

[31] Dr Ocampo’s conduct, upon being exposed even at this late stage, would have
justified and indeed demanded that his claim be struck out as an abuse of the court’s
process. The position was clearly expressed by the English Court of Appeal in
Masood v Zahoor (Practice Note),5 which held that 'where a claimant [was] guilty of
misconduct in relation to proceedings which is so serious that it would be an affront
to the court to permit him to continue to prosecute the claim, then the claim may be
struck out for that reason'. In Guyana, rule 14.01(1)(a)(ii) gives the High Court the

5
[2009] EWCA Civ 650.
 [2018] CCJ 8 (AJ)

case management power to strike out a statement of case if it appears the case is an
abuse of the court’s process. Section 11(6) of the Caribbean Court of Justice Act
2004 empowers this Court to exercise all the powers that the Court of Appeal could
have exercised and section 6 of the Court of Appeal Act Cap.3:01 gives that court
power to exercise the powers that the High Court could have exercised.

[32] We note that in Summers v Fairclough Homes6 the Supreme Court of England,
approving Masood, refused to strike out, after a trial on quantum, a massively
overstated personal injury claim, when the defendant discovered that the claimant
had been playing football, working and leading a normal life, despite claiming to be
grossly disabled, on crutches and unable to work. Their Lordships concluded that as
a matter of principle, cases should only be struck out on these grounds, after a trial,
in very exceptional circumstances. While a strike out before trial could produce a
significant saving of a number of resources, if the case had proceeded to trial and a
dismissal of the claim on its merits would produce the same result, it could be helpful
to the litigants and, in this case, to the public interest for the court to give a decision
on the merits and withhold the strike out power.

[33] It is for this reason we chose to decide this appeal on the merits rather than exercise
the strike out power. But it is also in the public interest that we make these further
observations about the conduct of the claim in the High Court.

[34] It is basic law that an applicant has a duty fully and frankly to disclose all material
facts to the court. That duty must be most scrupulously performed when an applicant
makes his application without notice to the party who will be the object or target of
the order sought in which case there is no possibility for any inaccurate or deficient
information the applicant has presented to the court to be supplemented or corrected.

[35] If the duty of full disclosure is basic, the duty to be truthful is transcendent. The
affidavit that Dr Ocampo swore was a statement on oath and, even if as a matter of
shortcut, he did not actually swear on the Bible (or any other Holy Book), he
presented that document as his oath and asked the court to act on it as such. It is a
criminal offence knowingly to give false evidence on oath. We would be failing in

6
[2012] 1 WLR 2004.
 [2018] CCJ 8 (AJ)

our duty as guardians of the administration of justice if we allowed Dr Ocampo’s

conduct to go unremarked.

A happy note

[36] Our concluding observations end these reasons for decision on a happy note. As
mentioned, this case proceeded with admirable despatch and expedition. The claim
was filed on 14 September 2017, decided by the Chief Justice on 19 October 2017,
and heard by the Court of Appeal on 21 December 2017, when it gave an oral
judgment.7 The application for special leave to appeal was filed on 10 January 2018
and affidavits and written submissions were completed in time for the hearing before
the CCJ on 16 March 2018.

[37] It is a deep pleasure to pay tribute to the judiciary, the court administration and
counsel for this remarkable achievement. This case took 6 months from start to finish.

/s/ A. Saunders
The Hon Mr Justice A Saunders

/s/ J. Wit /s/ D. Hayton

The Hon Mr Justice J Wit The Hon Mr Justice D Hayton

/s/ M. Rajnauth-Lee /s/ D. Barrow

The Mme Justice M Rajnauth-Lee The Hon Mr Justice D Barrow

7
This was followed by a written judgment filed in the CCJ on 15 th March 2018.