550 West Indian Reports 91 WIR

Re USA’s application in the matter of Warner v

Attorney General
b
COURT OF APPEAL OF THE REPUBLIC OF TRINIDAD AND TOBAGO
ARCHIE CJ, MENDONÇA AND JAMADAR JJA
16 DECEMBER 2016

c
Extradition – Procedure – Case management – Judicial review – Respondent
charged with offences in violation of law of USA – USA requesting respondent’s
extradition – A-G of Trinidad and Tobago issuing authority to proceed –
Respondent applying for judicial review – Case management judge refusing
USA’s application for permission to be heard and make submissions at case
d
management conference and review proceedings – Appeal to Court of Appeal –
Whether applicant having sufficient interest in subject matter of claim – Whether
court should exercise discretion to allow applicant to be heard – Civil Proceedings
Rules 1998 [T & T], rr 1.1(2), 56.12(3), 56.14(1).
e
On 15 May 2005, the USA, charged the respondent, W, with several
offences allegedly committed by him in violation of the law of the USA.
The USA made a request for the extradition of the respondent, acting
pursuant to the Extradition (United States of America) Order (‘the USA
Order’). The USA Order had been issued by the Attorney General f
(‘A-G’) pursuant to s 4 of the Extradition (Commonwealth and Foreign
Territories) Act 1985 (‘the Act’). On 21 September 2015, the A-G issued
an authority to proceed (‘the ATP’) pursuant to the Act in respect of the
request for the extradition of the respondent. In February 2016, the
respondent applied for judicial review of the decision of the A-G to issue g
the ATP and sought several forms of relief. The USA applied to be
allowed to be heard and make oral and written submissions at the case
management conference and any subsequent case management
conference(s) or applications and to receive all documents, applications
and written submissions made by the parties, and itself to make written h
submissions for, and oral submissions at, the substantive hearing of the
application for judicial review filed by the respondent. The application
was made pursuant to rr 56.12(3) and 56.14(1) of the Civil Proceedings
Rules 1998 (‘the CPR’). CPR 56.12(3) provided that ‘At the case
management conference the judge may allow any person who appears to i
have sufficient interest in the subject matter of the claim to be heard
whether or not he has been served with the claim’. CPR 56.14(1)
provided that ‘At the hearing of the application the judge may allow any
person or body which appears to have sufficient interest in the subject
matter of the claim to make submissions whether or not he has been
 T&T Re USA’s application 551

a served with the application’. In the application, the USA submitted that
it was ‘undoubtedly a person who has a sufficient interest in the subject
matter of these judicial review proceedings’ in that the outcome of the
judicial review proceedings would directly affect and impact on, inter
alia, the respondent’s extradition to the USA to face serious criminal
b charges. The case management judge refused the USA’s application,
holding that the requirement of a sufficient interest in CPR 56.12(3) and
56.14(1) was not necessarily satisfied when an applicant only had an
interest in the outcome or result of the claim. To be a sufficient interest,
the applicant’s interest had to be ‘an interest that is connected to and
c important to the fair resolution of the subject matter of the claim. Being
affected by the eventual ruling is not … the critical or sole
consideration.’ The judge stated that although the applicant clearly had
an interest in the outcome of the judicial review proceedings, ‘It is not
simply a matter of being present in the courtroom supporting or even
d amplifying what is said by another party, but having something unique
and useful to say that will assist the court in fairly resolving the dispute’.
The judge held that the onus on the applicant ‘to explain the usefulness
of its intervention to the fair resolution of the dispute’ had not been
discharged by the USA. The USA appealed to the Court of Appeal. The
e
issues for the court were (1) did it appear that the applicant had a
sufficient interest in the subject matter of the claim and, if so, (2) should
the court exercise its discretion to allow him to be heard. The court
considered CPR 1.1(2) which provides that ‘Dealing justly with the case
includes—(a) ensuring, so far as practicable, that the parties are on an
equal footing; (b) saving expense; (c) dealing with cases in ways in which
f are proportionate to—(i) the amount of money involved; (ii) the
importance of the case; (iii) the complexity of the issues; and (iv) the
financial position of each party; (d) ensuring that it is dealt with
expeditiously; (e) allotting to it an appropriate share of the court’s
resources, while taking into account the need to allot resources to other
g cases’.
Held – (1) For the purposes of CPR 56.12(3) and 56.14(1) a person
would appear to have a sufficient interest in the subject matter of the
claim if he were adversely affected by the decision that was the subject
h matter of the application and wished to support the application but
would also be someone who might be adversely affected by the relief
claimed, which might be granted if the judicial review application were
successful, and wished to oppose it. The outcome of proceedings in the
instant case might have far-reaching consequences for the USA; if the
i respondent succeeded the USA might be adversely affected. It was clear
that the USA had a sufficient interest in the subject matter of the claim
and was entitled to a consideration by the court whether it should have
exercised its discretion to allow the USA to be heard. The case
management judge had erred in finding that the USA did not have a
552 West Indian Reports 91 WIR

sufficient interest. In coming to that conclusion he had considered a

whether the USA could have made a useful contribution to the
resolution of the claim. That consideration and matters incidental thereto
were matters that were relevant to the exercise of the discretion and not
to the finding of a sufficiency of interest. By taking those matters into
account in determining whether it appeared that the USA had a b
sufficient interest, the judge had conflated the considerations as to the
sufficiency of its interest and the exercise of the court’s discretion, which
were two separate considerations. The USA had a sufficient interest in
the subject matter of the claim (see [21]–[23], below).
(2) The overriding objective of the CPR was to enable the court to c
deal with cases justly. In exercising the discretion given to it in
CPR 56.12(3) and 56.14(1), the court had to do so so as to enable it to
deal with the case justly. One of the components of dealing with a case
justly was procedural fairness. In the instant case that had to include
giving the USA, which was adversely affected by the decision, the d
opportunity to be heard. But in dealing with a case justly, it was not the
only consideration. The CPR, in r 1.1(2), provided that dealing with a
case justly specifically included other matters, the court having to deal
with a case in ways (1) that ensured it would be dealt with expeditiously;
(2) that would save expense, so that the court had to be satisfied that the e
likely benefit of taking a step justified the cost of taking it; (3) that were
proportionate to, inter alia, the importance of the case, the complexity
of the issues, and the financial position of each party; and (4) that would
only have allotted to it an appropriate share of the resources of the court
bearing in mind the need to allot resources to other cases. Doing justice f
under the CPR was to enable a case to be dealt with justly in accordance
with the overriding objective and that included considerations of
expedition and efficiency. Considerations as to whether the applicant
would make a useful contribution were relevant to the notions of
efficiency and expedition. The person seeking to make a useful g
contribution could not simply be an additional counsel for the parties
already before the court but had to be in a position to offer something
more than a repetition of the arguments by the parties before the court
or a slightly different emphasis on points made by their arguments. It
could not be said to be dealing with the case justly if the only effect of
h
granting permission to hear the USA was for it to repeat the A-G’s
submissions or put a slightly different emphasis on them. If the interests
of the USA could be represented by the A-G and the USA had not
demonstrated that it could add anything of use, then it had not been
demonstrated that it would suffer any real prejudice if it were not
allowed to be heard. The obligation was on the applicant to put before i
the court sufficient material to show that on a balance of probability it
could make a useful contribution if allowed to be heard. That the USA
had failed to do. In those circumstances to have permitted the USA to
be heard would have amounted to giving it permission to be heard
 T&T Re USA’s application 553

a simply on the basis that it had a sufficient interest in the subject matter of
the claim. To have done so would not have been acting in compliance
with the relevant rules which governed the application and would not
have been to give effect to the overriding objective. Accordingly, the
appeal would be dismissed (see [26]–[28], [36], [43]–[46], below);
b Halpern v Toronto (City) Clerk (2000) 51 OR (3d) 742 considered.
Per curiam. The USA’s application may be premature, at least in so far
as it seeks leave to make submissions at the hearing of the application for
judicial review. The dismissal of this application does not shut out the
USA from making a fresh application if it can demonstrate, in the light
c of the submissions by the parties before the court, that it can make a
useful contribution to the resolution of the matter or would be
substantially prejudiced by not being able to do so (see [47], below).

Cases referred to
d Alleyne v Singh (12 December 2005, Civ App 55 of 2004, unreported),
T & T CA.
Halpern v Toronto (City) Clerk (2000) 51 OR (3d) 742, Ont DC.
M v H (1994) 20 OR (3d) 70, Ont SCJ.
Stadium Corp of Ontario Ltd v Toronto (City) (1992) 10 OR (3d) 203,
e Ont CA.

Appeal
The United States of America appealed against the decision of the case
management judge in February 2016 refusing its application for
f permission to be heard at the case management conference and to make
submissions at the substantive hearing of the judicial review proceedings
relating to the extradition of Jack Austin Warner. The facts are set out in
the judgment of Mendonça JA.

g J Lewis QC and V Gopaul for the USA.

F Hosein SC, A Maraj, S Bridgemohansingh and R Dass for Jack Warner.
S Julien for the Attorney General.

16 December 2016. The following judgments were delivered.

h
ARCHIE CJ.
I have read the judgment of Mendonça JA. I agree with it and have
nothing to add.

i JAMADAR JA.
I too agree.
MENDONCA JA.
[1] This is an appeal from the order of the case management judge
refusing the United States of America (‘the USA’), the appellant before
554 West Indian Reports 91 WIR

this court, permission to be heard at the case management conference a

and to make submissions at the substantive hearing of these judicial
review proceedings.
[2] On May 15 2005, the USA charged the respondent, Mr Jack
Austin Warner, with several offences allegedly committed by him in
violation of the law of the USA. Under s 4 of the Extradition b
(Commonwealth and Foreign Territories) Act (‘the Act’) where a treaty
has been concluded between Trinidad and Tobago and any foreign
territory in relation to the return of offenders, the Attorney General
(‘the A-G’) may by order declare that foreign territory to be a foreign
territory to which the Act applies and when any such order so declares c
the Act applies to that foreign territory.
[3] Following the conclusion of a treaty between Trinidad and
Tobago and the USA, the A-G issued the Extradition (United States of
America) Order (‘the USA Order’) pursuant to s 4 of the Act declaring
the USA to be a foreign territory to which the Act applies. Acting d
pursuant to the USA Order, the USA made a request for the extradition
of the respondent in relation to the offences for which he has been
charged. On 21 September 2015, the A-G pursuant to the Act issued an
Authority to Proceed (‘the ATP’) in respect of the request for the
extradition of the respondent. e
[4] By Fixed Date Claim Form filed on 3 February 2016, the
respondent applied for judicial review of the decision of the A-G to issue
the ATP and sought the following relief:
1. An interim order staying any hearing of the committal
proceedings before the Magistrate further to the ATP in respect of f
his extradition until the hearing and determination of the judicial
review proceedings;
2. A declaration that the USA Order is unlawful and null and
void and of no effect;
3. A declaration that the decision of the A-G to issue the ATP in g
respect of the request for the extradition of the respondent is
unlawful, null and void and of no effect;
4. An order quashing the USA Order; and
5. An order quashing the ATP.
The respondent also sought: h
1. A declaration that s 4(3) of the Act, which in essence provides
that any order made pursuant to s 4 of the Act shall not be quashed
in any legal proceedings whatever, is unconstitutional; and
2. An order striking down the said section.
i
[5] The crux of the respondent’s challenge to the ATP is three-fold.
First, the respondent claims that the USA Order is ultra vires the Act. It
is the respondent’s case that, under s 4 of the Act, an order declaring a
territory a foreign territory to which the Act applies can only be made
when the treaty between Trinidad and Tobago and the foreign territory
 T&T Re USA’s application 555

a is in conformity with the provisions of the Act (see s 4(2)(a) of the Act).
The respondent contends that there are provisions of the treaty between
Trinidad and Tobago and the USA which are not in conformity with the
Act, and the USA Order is therefore ultra vires the Act. It follows that
there is no basis on which the A-G could have issued the ATP in relation
b to the respondent. Second, the respondent contends that there was a
breach of natural justice in relation to him when he was denied a fair
hearing by the A-G before he made the decision to issue the ATP. And
third, the respondent contends that a special arrangement made between
the A-G and the USA in relation to the return of the respondent offends
c the Act and so voids the ATP.
[6] The USA applied to be allowed to be heard and make oral and
written submissions at the case management conference and any
subsequent case management conference(s) or applications and to receive
all documents, applications and written submissions made by the parties,
d and itself to make written submissions for, and oral submissions at, the
substantive hearing of the application for judicial review filed by the
respondent. The application was made pursuant to rr 56.12(3) and
56.14(1) of the Civil Proceedings Rules 1998 (‘the CPR’). These rules
are as follows:
e ‘Case management conference
56.12 …
(3) At the case management conference the judge may allow any
person who appears to have sufficient interest in the subject matter
of the claim to be heard whether or not he has been served with
f the claim.
…
Hearing of application
56.14 (1) At the hearing of the application the judge may allow
any person or body which appears to have sufficient interest in the
g subject matter of the claim to make submissions whether or not he
has been served with the application.’

[7] In the grounds contained in the application, the USA set out that
it is ‘undoubtedly a person who has a sufficient interest in the subject
h matter of these judicial review proceedings’ in that the outcome of the
judicial review proceedings will directly affect and impact on, inter alia,
the following:
(a) The USA’s status as a declared foreign territory under the Act;
i
(b) The respondent’s extradition to the USA to face serious
criminal charges;
(c) The manner and extent to which (if any) the USA may rely
on and have the treaty applied and/or the USA Order for the
extradition of the respondent and/or any future extradition of
person(s) charged with offences contrary to the laws of the USA;
556 West Indian Reports 91 WIR

(d) The manner and extent (if any) to which an arrangement a

may be made with the appellant for the extradition of the
respondent and/any future extradition of person(s) charged with
offences contrary to the laws of the USA; and
(e) Whether the USA will be permitted to have this case
prosecuted or any case for extradition against the respondent in the b
Magistrates’ Court.
[8] The USA added in para nine (9) of the grounds set out in the
application:
‘It is therefore in the interest of the administration of justice that c
the [USA] be allowed to be heard at the case management
conference of the said judicial review application and to make
submissions at the hearing thereof in the light of the far-reaching
and direct consequences to which the [USA] will be subject if these
judicial review proceedings are determined in the [respondent’s] d
favour. Not to allow the [USA] an opportunity to do so would
offend the principle of being allowed to be heard on a judicial
decision that directly affects him.’
[9] The judge refused the application. His reasons for so doing are e
essentially these. It is clear from rr 56.12(3) and 56.14(1) that the person
seeking permission to be heard must have a sufficient interest. The
requirement of a sufficient interest is not necessarily satisfied when an
applicant only has an interest in the outcome or result of the claim. To
be a sufficient interest, the applicant’s interest should be— f
‘an interest that is connected to and important to the fair
resolution of the subject matter of the claim. Being affected by the
eventual ruling is not … the critical or sole consideration’.

The applicant must therefore show that his participation is necessary— g

‘for the fair resolution of the proceedings and his position or

interest would be unrepresented and thus adversely affected in the
event of his exclusion’.
h
[10] The judge was of the view that the applicant—
‘clearly has an interest in the outcome of the judicial review
proceedings’.
i
He continued:
‘But having a bare interest in an outcome is somewhat different
from having an interest in the fair resolution of the subject matter
of the claim, in this case, the claimant’s challenge of the Attorney
 T&T Re USA’s application 557

a General’s decision to issue the ATP on the basis of the USA Order.
In the latter case the party’s interest is one which will provide
assistance to the court to resolve the dispute. It is not simply a
matter of being present in the courtroom supporting or even
amplifying what is said by another party, but having something
b unique and useful to say that will assist the court in fairly resolving
the dispute. Such an interest is more likely to be regarded as
sufficient.’

[11] The judge stated that although the applicant clearly has an
c interest in the outcome of the judicial review proceedings the sufficiency
of the applicant’s interest in this case was not ‘so clear’. The onus was on
the applicant—

‘to explain the usefulness of its intervention to the fair resolution

d of the dispute’.

In the judge’s opinion that onus had not been discharged by the USA.
[12] The judge also made the observation that the provisions of the
Act do not permit a foreign government to participate in judicial review
e proceedings, prior to the committal of the respondent, that question the
vires of the A-G’s decision to issue the ATP.
[13] It is clear that the rules of court, under which the application of
the USA has been made, give the court the discretion to allow an
applicant an opportunity to be heard at the case management conference
f (56.12(3)) or to make submissions at the hearing of the judicial review
application (56.14(1)). The judge exercised his discretion against the
appellant. This therefore is an appeal from the exercise of the judge’s
discretion.
[14] The principles on which the appellate court will act on such an
g appeal are well settled. The Court of Appeal will not interfere simply
because it would have exercised its discretion differently and so would
have arrived at a different decision. The appellate court will generally
only interfere where it can be shown that the judge was plainly wrong in
the exercise of his discretion. What that means is that the court will
h generally only interfere where the judge, in coming to his decision, took
into account irrelevant considerations or failed to take into account
relevant ones, or that he exercised his discretion under a mistake of law
or in disregard of principle, or the decision is against the weight of
evidence, or it cannot be supported having regard to the evidence, or
i
the conclusion that the judge reached in the exercise of his discretion is
outside the generous ambit within which reasonable disagreement is
possible.
[15] The appellant argued that the judge was indeed plainly wrong.
Mr Lewis QC, appearing for the appellant, submitted that the judge was
wrong to hold that the appellant did not have a sufficient interest in the
558 West Indian Reports 91 WIR

subject matter of the claim within the meaning of the rules. He a

submitted that the USA would be ‘directly affected’ by a quashing of the
decision to issue the ATP. A person who is directly affected has the
highest form of sufficient interest and because of the maxim audi alteram
partem has an automatic right to be heard. Alternatively, counsel
contended that if the right was not an automatic one, there is the b
strongest presumption that the USA should be heard since to do
otherwise would be a breach of the audi alteram partem rule. This was a
relevant factor to be taken into account in the exercise of the discretion
by the judge under the relevant rules. Counsel referred to other matters
that he submitted were relevant to the exercise of the court’s discretion c
to which I will refer in the course of the judgment.
[16] Mr Hosein SC, appearing for the respondent, submitted that the
court has no jurisdiction to entertain this appeal since it amounts to an
indirect assertion of the sovereign right of a foreign state. He further
submitted that in the event that this court should find that it has d
jurisdiction and entertain the appeal, the judge’s decision should be
upheld. The appellant has no automatic right to be heard. The appellant
had to show that either there was a conflict of interest between the
appellant and the A-G so that the appellant’s interest could not be
properly represented by the A-G or that it could add a new perspective e
to the case and make a useful contribution to its resolution. There was,
however, no basis disclosed by the appellant that would justify its
intervention in this case.
[17] It is logical that I first refer to Mr Hosein’s submission as to the
jurisdiction of the court. I accept that if this appeal involves an assertion f
of the sovereign right of a foreign state, the court should not entertain it
but I do not regard that is what this appeal is about. This appeal arises
out of judicial review proceedings where the decision of the A-G to
issue the ATP is challenged. The issue is therefore not the exercise or
assertion of a sovereign right of a foreign State but whether the decision g
of the A-G is lawful and whether it is lawful depends on the application
of the laws of this jurisdiction. If the judicial review proceedings are
successful and the ATP is set aside that would amount to the setting aside
of an act of the A-G on a basis that depended entirely on the application
of the laws of this jurisdiction. On the other hand, if the proceedings do
h
not succeed, that would amount to the upholding of the act of the A-G
on the basis of the laws of this jurisdiction. Neither outcome in my view
amounts to the assertion, directly or indirectly of the sovereign right of
a foreign State. I therefore do not agree with counsel’s submissions as to
the jurisdiction of the court and I therefore turn to the substantive
arguments in relation to the application. i
[18] The rules under which the application has been made, I do not
think provide any difficulty in their interpretation. The judge may allow
a person who appears to have a sufficient interest in the subject matter of
the claim to be heard at the case management conference and/or at the
 T&T Re USA’s application 559

a hearing of the application for judicial review whether or not he has been
served with the claim. Rule 56.10(1) requires that the claim form be
served on the defendant. A defendant to the judicial review application
has an automatic right to be heard. Rules 56.12(3) and 56.14(1)
therefore apply to a person other than the defendant in the judicial
b review proceedings. If it appears to the court that such a person has a
sufficient interest, the court may allow him to be heard. A determination,
therefore, that the person appears to the court to have a sufficient
interest does not entitle him automatically to be heard at the case
management conference and/or at the judicial review application but
c gives a right to the applicant to have exercised the court’s discretionary
judgment whether or not to allow him to be heard at the case
management conference and/or at the hearing of the application for
judicial review. On hearing of an application under the rules for
permission to be allowed to be heard, there are therefore two
d considerations that should engage the court’s mind, namely, (1) does it
appear that the applicant has a sufficient interest in the subject matter of
the claim, and if so, (2) should the court exercise its discretion to allow
him to be heard.
[19] It is relevant to note that the rules use the words ‘sufficient
e interest’. These words did not appear under the former rules of court,
the Rules of the Supreme Court 1975 (‘the RSC’). Order 53 of the
RSC which dealt with applications for judicial review referred to
persons who were directly affected (Order 53 r 4(2)) and persons who
appeared to the court to be proper persons to be heard (Order 53 r 7).
f Where persons were directly affected within Order 53 r 4(2) they had to
be served with the judicial review application and automatically became
parties to the suit. Where they were proper persons to be heard, the
court had a discretion to allow them to be heard (see Alleyne v Singh
(12 December 2005, Civ App 55 of 2004, unreported)). The CPR has
g
not sought to maintain that distinction. It requires only the defendant to
be served who would usually be the person or authority whose decision
is challenged. All other persons who may have a sufficient interest and
wish to be heard must now apply to the court for permission to do so.
I do not believe that in applying the rules under the CPR any useful
guidance will be obtained by referring to how persons who were
h directly affected, or were proper persons to be heard, were treated under
the former rules.
[20] The CPR give an indication as to what is a sufficient interest.
Rule 56.2 provides that an application for judicial review may be made
i
by any person, group or body who has a sufficient interest in the subject
matter of the application. The rule then goes to identify certain persons,
bodies or groups that may be included within the umbrella of persons,
bodies or groups having a sufficient interest. They include any person
who can show that he has been adversely affected by the decision which
is the subject of the application. So a person who is adversely affected by
560 West Indian Reports 91 WIR

the decision that is the subject matter of the application for judicial a
review has a sufficient interest to apply for judicial review. It is, of
course, not only persons who are adversely affected who have a sufficient
interest to apply for judicial review, but it is clear from 56.2 that they do.
[21] In rr 56.12(3) and 56.14(1) the language is somewhat different
from 56.2 in that they refer to a ‘sufficient interest in the subject matter b
of the claim’ as compared to a sufficient interest in the subject matter of
the application. ‘Claim’ in 56.12(3) and 56.14(1) in my judgment will
certainly apply to the decision that is the subject matter of the
application, but the word ‘claim’ is to be construed in accordance with
Pt 8 of the CPR (see r 2.3) and is wide enough to include the relief c
sought by the application for judicial review (see r 8.5). For the purposes
of rr 56.12(3) and 56.14(1) a person will appear to have a sufficient
interest in the subject matter of the claim if he is adversely affected by
the decision that is the subject matter of the application and wishes to
support the application but will also be someone who may be adversely d
affected by the relief claimed which might be granted if the judicial
review application is successful and wishes to oppose it.
[22] In this case the respondent has challenged the ATP on the bases
identified earlier. I agree with counsel for the appellant that the outcome
of these proceedings may have far-reaching consequences for the USA. e
If the respondent succeeds the USA may be adversely affected in the
manner as set out in the grounds in support of the application (see
para [7] of this judgment). In those circumstances, it is clear that the
USA has a sufficient interest in the subject matter of the claim. That
finding entitles the USA to a consideration by the court whether it f
should exercise its discretion to allow the USA to be heard.
[23] As I mentioned, the judge did not find that the USA has a
sufficient interest and in my judgment he erred in so deciding. In
coming to that conclusion he considered whether the USA could make
a useful contribution to the resolution of the claim. That consideration
g
and matters incidental thereto, as I will come to later in this judgment,
are matters that are relevant to the exercise of the discretion and not to
the finding of a sufficiency of interest. By taking those matters into
account in determining whether it appears that the USA has a sufficient
interest, the judge conflated the considerations as to the sufficiency of its
interest and the exercise of the court’s discretion. They are indeed two h
separate considerations.
[24] In the circumstances, as the judge erred in coming to the
conclusion that the USA does not have a sufficient interest, it falls to this
court to look at the matter afresh.
i
[25] Being of the view that the USA has a sufficient interest, the
question becomes how should the court exercise its discretion.
[26] The CPR provide that the court must seek to give effect to the
overriding objective when it exercises any discretion given to it by the
rules (see r 1.2(1)). This is, of course, applicable to the discretion given
 T&T Re USA’s application 561

a to the court in rr 56.12(3) and 56.14(1). The overriding objective of the

CPR is to enable the court to deal with cases justly. In exercising the
discretion given to it in the said rules, the court must therefore do so as
to enable it to deal with the case justly.
[27] One of the components of dealing with a case justly is
b procedural fairness. In this case that must include giving the USA which
is adversely affected by the decision the opportunity to be heard. This
therefore is a factor that must be considered. But in dealing with a case
justly, it is not the only consideration. The CPR provides that dealing
with a case justly specifically includes other matters and these are to be
c found at 1.1(2) of the CPR which provides as follows:

‘Dealing justly with the case includes—

(a) ensuring, so far as practicable, that the parties are on an
equal footing;
d (b) saving expense;
(c) dealing with cases in ways in which are proportionate to—
(i) the amount of money involved;
(ii) the importance of the case;
e
(iii) the complexity of the issues; and
(iv) the financial position of each party;
(d) ensuring that it is dealt with expeditiously; and
(e) allotting to it an appropriate share of the court’s resources,
while taking into account the need to allot resources to other
cases.’
f

[28] 1.1(2)(a) speaks to fairness in the exercise of the court’s

management powers. 1.1(2)(b)–(e) speak to matters relevant to
expedition and efficiency, which include the efficient use of time and
g the proportionate use of resources. The court to enable a case to be dealt
with justly must do so in ways (1) that ensure it will be dealt with
expeditiously; (2) that will save expense, so that the court must be
satisfied that the likely benefit of taking a step justifies the cost of taking
it; (3) that are proportionate to, inter alia, the importance of the case, the
h complexity of the issues, and the financial position of each party; and (4)
that will only have allotted to it an appropriate share of the resources of
the court bearing in mind the need to allot resources to other cases. The
overriding objective includes these matters as relevant considerations to
deal with the case justly. Under the CPR, justice, therefore, is not
i
distinct or superior to the overriding objective. Doing justice under the
CPR is to enable a case to be dealt with justly in accordance with the
overriding objective and that includes considerations of expedition and
efficiency.
[29] It has been put this way in Zuckerman on Civil Procedure:
Principles of Practice (3rd edn) at para 1.17:
562 West Indian Reports 91 WIR

‘The objective of the civil legal process remains of course the a

same: enabling the court to decide disputes on their merits and
determine the litigants’ rights and enforce them. It remains the case
that the court must strive to establish the true facts and correctly
apply the law to them, thereby giving effect to substantive rights.
This is sometimes referred to as doing substantive justice, or justice b
on the merits. But the CPR now recognize that substantive justice
is not the sole aim of the civil process. Substantive justice, it makes
clear, must be delivered by means of proportionate use of resources
(public and litigant alike) and within reasonable time. To fully
appreciate the nature of the CPR system and its practical c
implications it is essential to realise that it is driven by three
imperatives: that judgments follow from the correct application of
the law to the true facts; that judgments are reached by means of
proportionate resources; and that judgments are delivered in a
reasonable time. The overriding objective makes plain that all three d
imperatives are central components of the civil litigation justice
system. It seeks to ensure that considerations of resource and of
time receive appropriate attention throughout the adjudication
process.’
e
[30] That applies to this jurisdiction as well. So that in giving effect
to the overriding objective considerations should be given to matters of
time and efficiency. It is in this context that the Canadian case of Halpern
v Toronto (City) Clerk (2000) 51 OR (3d) 742, which was referred to this
court by counsel for the respondent, is of assistance. f
[31] In that case there was an application by Egale Canada Inc to be
added as a party in a case concerning the issuance of marriage licenses by
the city of Toronto to same-sex couples. The application was made under
r 13.01 of the Ontario Rules of Civil Procedure, RRO 1990, Reg 194,
which provides as follows: g

‘13.01 (1) A person who is not a party to a proceeding may

move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in h
the proceeding; or
(c) that there exists between the person and one or more of
the parties to the proceeding a question of law or fact in
common with one or more of the questions in issue the
proceeding. i
(2) On the motion, the court shall consider whether the
intervention will unduly delay or prejudice the determination of
the rights of the parties to the proceeding and the court may add
the person as a party to the proceeding and may make such order as
is just.’
 T&T Re USA’s application 563

a [32] The court considered that in ruling on the application of the

applicant to intervene, it must determine, inter alia, whether the
intervenor has a sufficient direct interest and what ‘useful contribution
could the proposed intervenor make to the proceedings’.
[33] As to what amounts to a useful contribution, the court stated
b that it would not be a useful contribution if the intervenor simply
proposes to repeat the issues put forward by the main parties although
some overlap may be permissible. The court then went on to add:

c ‘[19] It has been put this way by A. Campbell J. in Stadium Corp.

v. Toronto (City) [(1992) 10 OR (3d) 203]:
“Proposed intervenors must be able to offer something
more than the repetition of another party’s evidence and
argument or a slightly different emphasis on arguments
d squarely by the parties. The fact that the intervenors are
prepared to make somewhat more sweeping constitutional
arguments does not mean that they will be able to add or
contribute to the resolution of the legal issues between the
parties.”
e
[20] When considering the criteria of whether the proposed
intervener will make a useful contribution to the proceedings, the
court must balance any such contribution against any resulting
delay or prejudice to the other parties. In M v H [(1994) 20 OR
(3d) 70], Epstein J. helpfully put the balancing of the tension
f between contribution and delays as follows:
“Regardless of whether the proposed intervention is sought
under rule 13.01 or rule 13.02, the court’s focus should be on
determining whether the contribution that might be made by
g the intervenors is sufficient to counterbalance the disruption
caused by the increase in the magnitude, timing, complexity
and costs of the original action.” …’

h [34] In my judgment, although the Halpern case was dealing with an

application to add a party to the proceedings, considerations as to
whether the applicant will make a useful contribution as discussed in the
Halpern case are relevant to the notions of efficiency and expedition to
which the court must have regard in giving effect to the overriding
i
objective on this application. As is noted in the Halpern case, to be a
useful contribution the person seeking cannot simply be an additional
counsel for the parties already before the court. He must be in a position
to offer something that is more than a repetition of the arguments by the
parties before the court or that places a slightly different emphasis on
points made by their arguments.
564 West Indian Reports 91 WIR

[35] The court must consider all the relevant factors and give to each a
due weight without giving to any one more weight than the
circumstances justify. How do the relevant factors influence the exercise
of the court’s discretion in this case?
[36] It is relevant to note that, before the court, there is the
respondent who is the claimant in the judicial review proceedings and b
the A-G who is the defendant. The claimant opposes the decision to
issue the ATP on the grounds referred to earlier. The A-G supports the
decision and it is to be inferred disputes the grounds on which the
challenge is based. So there is someone supporting the claim and
opposing it. The USA wishes to join with the A-G in opposing the c
claim. Obviously a relevant factor is that it can be adversely affected by
the outcome of the proceedings if the ATP is quashed. That is a factor
that must be considered and one to which significant weight should be
given. Certainly more weight should be attached to that factor than if
the USA had a sufficient interest but was not adversely affected. But it is d
not the only factor and consideration must be given to the other factors.
So the question must be asked, what useful contribution can the USA
make to the resolution of the claim? This factor must be weighed in the
balance since it cannot be said to be dealing with the case justly if the
only effect of granting permission to hear the USA is for it to repeat the e
A-G’s submissions or put a slightly different emphasis on them.
Unfortunately the USA, neither in its affidavit nor in its oral
submissions, was able to say that there was anything it could usefully add
to the just resolution of the matter.
[37] Mr Lewis QC, for the USA, argued that the A-G’s and USA’s f
interests are not perfectly aligned in the extradition proceedings. The
USA is the prosecutor whereas the same is not true of the A-G. I agree
with that position. Contrary to what the judge found, the role of the
A-G is not to ‘cause the accused person to be extradited’. That obviously
is what the USA seeks. So the interests of the USA and the A-G in the g
extradition proceedings are not perfectly aligned but this application is
not in the extradition proceedings. It arises out of an application for
judicial review.
[38] In his judgment, the judge stated that in the judicial review
proceedings, the interest of the USA and the A-G appear to him to be h
identical. He noted that it was not the intention of the USA to put any
evidence before the court and their input would be limited to legal
arguments. Counsel for the USA did not disagree with the judge’s
position nor did he agree with it. He indicated that at this stage he just
did not know as he could not say until submissions were developed in i
the judicial review proceedings whether their interests were aligned. But
that notwithstanding, he still urged that the court should allow the USA
to be heard. To do so without knowing whether the USA could add
anything of use to the debate, however, would amount to allowing
anyone with a sufficient interest in the subject matter of the claim an
 T&T Re USA’s application 565

a automatic right to be heard. That clearly is not the obvious meaning and
intention of the rules. It is imperative that an applicant put sufficient
information before the court from which the court can be satisfied that
by allowing him to be heard, he will make a useful contribution and the
court will give effect to the imperatives of the CPR.
b [39] The obligation of the USA to identify the usefulness of its
contribution is made even more obvious in this case by art 17 of the
treaty between Trinidad and Tobago and the USA. This article provides
as follows:

c ‘1. The Requested State shall advise, assist, appear in court on

behalf of the Requesting State, and represent the interests of the
Requesting State, in any proceedings arising out of a request for
extradition.
2. The Requesting State shall bear the expenses relating to the
translation of the documents and the transportation of the person
d
surrendered. The Requested State shall pay all other expenses
incurred in that State by reason of the extradition proceedings.’
[40] In these proceedings, which can be said to have risen out of a
request for extradition, it is the obligation of the Requested State to
e appear on behalf of the Requesting State and represent its interests.
Where therefore the USA has not shown that its interests and that of the
A-G are different, the question must be asked why the need for separate
representation and places an even greater onus on the USA to show how
it will make a useful contribution if it were allowed to be heard at the
f case management conference and make submissions at the substantive
hearing.
[41] Counsel for the USA further submitted that under s 14 of the
Act, the USA as the Requesting State is given the right to apply to the
High Court to review an order of the magistrate discharging the
g respondent. Further, under s 15 of the Act, the USA is given the right to
appeal to the Court of Appeal from the order of the High Court made
on the review under s 14. Counsel argued that if these proceedings were
to result in the quashing of the ATP, the respondent will then have to be
discharged by the magistrate. The USA will then have the right under
h s 14 to apply to the High Court to review the order discharging the
respondent and if dissatisfied with the outcome of that review, the USA
has a right under s 15 to appeal to the Court of Appeal. He argued that
in those circumstances the issue as to the quashing of the ATP can be
raised again since if the USA was not heard in these proceedings there
i
will be no estoppel operating to bar the raising of the same issues in the
proceedings before the High Court on the review of the order for the
discharge of the respondent. That will therefore be a waste of time and
court resources and would unnecessarily expense the parties. On that
basis, the USA should therefore be allowed to be heard in these
proceedings.
566 West Indian Reports 91 WIR

[42] That submission would carry weight if indeed it were the case a
that if the ATP were quashed, the very issues which would be raised in
these proceedings could be re-litigated in a review by the High Court of
the order discharging the respondent. Counsel however accepted that
the court hearing the judicial review proceedings could properly
discharge the respondent if it were to set aside the ATP and in my b
judgment it would probably do so. The likelihood of the magistrate
therefore having to order the discharge of the respondent appears to be
remote. This therefore, in my view, virtually eliminates the likelihood of
the USA having the opportunity to review the order of the magistrate.
Counsel, however, argued that that in itself is a consideration since the c
USA would be prejudiced if the effect of excluding it from these
proceedings, in essence, would be to deny it the opportunity to be
heard, given to it by the Act, on an order discharging the respondent
should the ATP be set aside.
[43] The prejudice that the parties would suffer by the exercise of the d
discretion of the court to grant or refuse the order is a factor that the
court should consider in giving effect to the overriding objective.
However, the prejudice that it is argued that the USA would suffer in
my view returns the discussion to the usefulness of the USA’s
contribution. If the interests of the USA can be represented by the A-G, e
and the USA has not demonstrated that it can add anything of use, then
it has not been demonstrated that it will suffer any real prejudice if they
were not allowed to be heard in these proceedings.
[44] Counsel further submitted that the issues in the judicial review
proceedings are complex and novel. In these circumstances the court f
should welcome as much assistance as it can get on the issues. It may
very well be that the issues in the judicial review proceedings are
complex and novel, but before the court welcomes the intervention of
any other person, it must be satisfied that it would benefit from such
intervention. The obligation is on the applicant to put before the court g
sufficient material to show that on a balance of probability it can make a
useful contribution if allowed to be heard. This the USA has failed to do.
In those circumstances to permit the USA to be heard amounts to giving
them permission to be heard simply on the basis that it has a sufficient
interest in the subject matter of the claim. To do so would not be acting h
in compliance with the relevant rules which govern the application and
would not be to give effect to the overriding objective.
[45] As to the judge’s observation that there is nothing in the Act that
permits a foreign government to participate in pre-comitial judicial
review proceedings that question the vires of the A-G’s decision to issue i
the ATP, the judge is correct in saying that. But there is nothing,
however, that prevents the participation of the foreign government. That
is to be determined by the application of the principles discussed in this
judgment.
 T&T Re USA’s application 567

a [46] In view of the above, for somewhat different reasons than

articulated by the case management judge, I would dismiss the appeal
and hear the parties on costs.
[47] Before leaving this appeal I would like to make this observation.
The answer by counsel for the USA to the question raised by the court
b on the hearing of this appeal as to whether he agreed with the judge’s
finding that in these proceedings the interests of the A-G and the USA
are identical, was that it would depend on how the submissions
developed before the court. In my opinion that suggests that there may
be some pre-maturity in the making of the application, at least in so far
c as it seeks leave to make submissions at the hearing of the application for
judicial review. In the usual course of events, given the relationship
between the A-G and the USA in these judicial proceedings, I would
expect that there would be a sharing of all materials including
submissions filed by the respondent and the A-G. Indeed, one assumes
d that there would be full consultation between them prior to all court
appearances in relation to all decisions proposed to be taken and
submissions to be filed, as one would expect between a principal and
agent in the usual course of such a relationship. The dismissal of this
application does not shut out the USA from making a fresh application
e
if it can demonstrate, in the light of the submissions by the parties before
the court, that it can indeed make a useful contribution to the resolution
of the matter or would be substantially prejudiced by not being able to
do so.
Appeal dismissed.