270 West Indian Reports (1989) 39 WIR, Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd and Another COURT OF APPEAL OF JAMAICA ROWE P, CAREY and FORTE JJA 1st, 2nd, Sed, 13th, 4th MARCH, 10th, 11th APRIL, 16th JUNE 1989 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL LORD KEITH OF KINKEL, LORD ACKNER, LORD OLIVER OF AYEMERTON, LORD LOWRY and SIR EDWARD EVELEIGH 22nd APRIL, 13th MAY 1991 Prerogative orders ~ Application for ~ Parties ~ Whether Attomey-General a necessary or proper party to proceedings ~ Whether application for leave to apply for prerogative orders “civil proceedings” ~ Persuasive authority of English decisions — ‘Crown Proceedings Act [J ], sections 13, 18 Prerogative orders— Leave to apply for — Jurisdiction to set aside ex parte order giving leave ~ Need for new material to be before court ~ Court following English practice in absence of law or rules of court— Judicature (Civil Procedure Code) Law, Cap 177 LJ], section 686 Prerogative orders ~ Leave to apply for ~ Leave operating as stay of proceedings — Leave accompanied by order staying executive action ~ Judicature (Civil Procedure Code) Law, Cap 177 [J ], section 564B(4) ‘The Minister of Foreign Affairs, Trade and Industry, acting under statutory powers, made the Motor Vehicle (Sale and Distribution) Order 1985, Under the Order certain motor cars could be imported into Jamaica only by specified importers. Only one such importer, JCTC (a Government owned company), was specified. JCTC was notified by the Minister of allocations of vehicles among dealers and JCTC would collect payment from the dealers and arrange to deliver vehicles to them. The respondents, two motor dealers, being dissatisfied with the allocations of vehicles, applied ex parte for leave to apply for prerogative orders in relation to the allocations and for allocations and proceedings consequent on the allocations to be stayed pending the final determination of the matter. Clarke J made the orders requested by the respondents. The orders were served on theJ Minister of Foreign Affairs v Vehicles & Supplies an “Minister, who applied for the orders to be set aside; in a supporting affidavit it wasstated that the allocation had already been made and instructions given to JCTC to order the vehicles, and that irreparable damage would be caused to the national economy if the importation of the vehicles were to be delayed. On the return date for the summons Clarke J was absent and the matter was heard by Ellis J who, after hearing both parties, set aside that part ofthe order grantinga stay; but he gave the respondents leave to appeal. The Court of Appeal (who regarded the grant of a stay as permissible under section 564B(4) of the Judicature (Civil Procedure Code) Law, which empowered the judge to direct that leave to apply for a prerogative order should operate asa stay of the proceedings) allowed the appeal, set aside Ellis ‘J's order and restored the stay ordered by Clarke J. The Court of Appeal also ruled (accepting that this was a subject where English authorities were of persuasive authority) that, as the proceedings were not “civil proceedings” within the meaning of the Crown Proceedings Act, the Attomey-General was not a necessary party to them, ‘The Minister appealed to the Privy Council. Held, advising that the appeal be allowed, (1) that the Court of Appeal had correctly concluded that the proceedings were not “civil proceedings” within the Crown Proceedings Act (cf. sections 13 and 18) and that, accordingly, the Minister (rather than the Attorney-General) was the proper party to proceedings reviewing the exercise of his statutory powers. (2) That Ellis J, in making the order on the Minister's application, had acted within his jurisdiction as he had new material before him, namely information as to the supposed effect of the stay ordered by Clarke J and the fact that the allocation had been made and instructions given to JCTC; abo, in accordance with section 686 of the Judicature (Civil Procedure Code) Law, in the absence of express provisions in the Code and in Rules of Court the practice and procedure of the English court (where it had been established that leave to institute proceedings for judicial review can be revoked) must be followed, Becker v Noel [1971] 1 WLR 803, W.E.A. Records Ltd v Visions Channel 4 Lid [1983] 2 All ER 589, and R v Secretary of State for the Home Department, ex parte Herbage (No 2) {1987] 1 QB 1077 applied, (3) That section 564B(4) had no application to an executive decision which had already been made and conferred no jurisdiction to grant an injunction; there were no “proceedings” on which the “stay” ordered by Clarke J could take effect and the order was meaningless, Editorial note. The Privy Council, in the course of their advice that this appeal should be allowed, dealt only very briefly with the question whether the proceedings were “civil proceedings” for the purpose of the Crown2. West Indian Reports (1989) 39 WIR Proceedings Act 1959 and in so doing affirmed the decision of the Court of Appeal on this point. The relevant parts of the judgments of the Court of Appeal on this issue are therefore set out below. Cases referred to in extracts from judgments of the Court of Appeal O'Reilly v Mackman {1982} 3 All ER 680, [1982] 3 WLR 604, Peter Pain J and England CA; affirmed [1983] 2 AC 237, [1982] 3 All ER 1124, [1982] 3 WLR 1096, HL. Rv Licensing Authority established under the Medicines Act 1968, ex parte Smith Kline & French Laboratories Ltd (No 2) [1990] 1 QB 574, [1989] 2 AILER 113, [1989] 2 WLR 378, The Times, 16th August 1988, England CA. Rw Secretary of State for the Home Department, ex parte Herbage [1987] QB 872, [1986] 3 All ER 209, [1986] 3 WLR 504, Hodgson J R v Secretary of State for the Home Department, ex parte Kirkwood [1984] 2 All ER 390, [1984] 1 WLR 913, Mann J R v Secretary of State for Transport, ex parte Factortame Ltd (1990] 2 AC 85, [1989] 2 All ER 692, [1989] 2 WLR 997, The Times, 19th May 1989, HL. Additional cases referred to in the advice of the Board Becker v Noel [1971] 2 All ER. 1248, [1971] 1 WLR 803, England CA. Grange, La v McAndrew (1879) 4 QBD 210, 48 LJQB 315, sub nom de la Grange v McAndrew 39 LT 500. Rv Secretary of State for the Home Department, ex parte Herbage (No 2) [1987] QB 1077, [1987] 1 All ER 324, [1987] 2 WLR 226, England CA. W.E.A, Records Ltd v Visions Channel 4 Ltd {1983} 2 All ER-589,(1983] 1 WLR 721, England CA. Appeal Vehicles and Supplies Ltd and Northern Industrial Garage Ltd appealed to the Court of Appeal of Jamaica (civil appeal 10 of 1989) against an order of Ellis J in which he discharged an order made by Clarke J for a stay on allocations made under the Motor Vehicles (Sale and Distribution) Order 1985. Ellis J refused to set aside leave to institute proceedings for certiorari granted by Clarke J under section 564B(2) of the Judicature (Civil Procedure Code) Law and the Minister of Foreign Affairs, Trade and Industry sought by respondent's notice to have this part of Clarke J's order set aside. The facts are set out in the advice of the Privy Council which was delivered by Lord Oliver of Aylmerton. David Muirhead QC and Enos Grant (instructed by Miss Jacqueline Hall of Clough, Long & Co), for the appellants.J Minister of Foreign Affairs v Vehicles & Supplies 273 Dr K.O. Rattray QC, Solicitor-General, Windell Wilkins and David Henry for the Minister. Rowe P. .. . I must resolve the question whether these are “civil proceedings” governed by the Crown Proceedings Act, or whether they are exempted therefrom, From the history of the development of the prerogative remedies of mandamus, prohibition and certiorari, itis clear that they were remedies to which the subject was not entitled as of right, but only at the discretion ofthe court. Professor de Smith in his work Judicial Review of Administrative Action, Chapter 8, traces the historical origins of the prerogative writs and states (at page 269): “Centiorari had other good qualifications for membership of a prerogative group of writs: e.g. it had originated as the King’s personal command for information; it was often used to remove indictments into the King’s Bench, and upon their removal the King would proceed to prosecute in his own court; it was a writ of grace for the subject ‘Mandamus, too, was a writ of grace; it alleged a contempt of the Crown consisting in the neglect of a public duty; it was at once of high governmental importance and a valuable remedy of last resort for the subject. All four writs were awarded primarily by the Court of King’s Bench,a court which had always performed quasi-governmental functions and which was historically the court held coram rege ipso. In short, all four writs could be described, by those who were so minded, as the King’s prerogative writs. ‘The King could be conceived as superintending the due course of justice and administering through the medium of his own court: as prosecuting indictments, preventing usurpation of jurisdiction and upholding public rights and the personal freedom of his subjects.” Lord Denning MR in O'Reilly v Mackman [1982] 3 All ER. 680 at page 690, speaking of the prerogative writs, said: “Itwas for the King to call on a judge of an inferior court and ask him, to account for his actions. ‘The King did it by the prerogative writ of ‘certiorari... The very words ‘prerogative writ’ show that it was issued by the royal authority of the King. No subject could issue it on his own, He had no right to issue it as of course, as he could for trespass or trover. All thatthe subject could do was o inform the King’s judges of the complaint He could tell them about the unjust judge of any inferior court. The King’s judges would then authorise the issue of the writ in the King’s But Lord Denning MR said in the same case that, in modern law, certiorari was available not just against a judge of an inferior court, but also against a public authority. He added (at page 692)274 West indian Reports (1989) 39 WIR, “In modern times, we have come to recognise two separate fields of law, one of private law, the other of public law. Private law regulates the affairs of subjects as between themselves. Public law regulates the affairs of subjects vis-d-vis public authorities. For centuries there were special remedies available in public law. They were the prerogative writs of certiorari, mandamus and prohibition, As I have shown, they were taken in the name of the Sovereign against a public authority which had failed to perform its duty to the public at large or had performed it wrongly. Any subject could complain to the Sovereign; and then the King’s courts, at their discretion, would give him leave to issue such one of the prerogative writs as was appropriate to meet his case. But these writs, as their names show, only gave the remedies of quashing, commanding or prohibiting, They did not enable a subject to recover damages against a public authority, nor a declaration, nor an injunction.” The authors of Short and Mellor (3rd Edn), pages 1 to 7, describe the distribution of business in the superior courts in England. They state “The Judicature Acts which effected such radical changes in the procedure in ordinary actions introduced little more than nominal changes into Crown practice. The procedure on the Crown side-of the King’s Bench Division still remains an exceptional procedure, dealing with its appropriate subject matter and governed by its own rules.” In England there isa sharp distinction between Crown side proceedings on. the one hand and civil proceedings on the other hand and this distinction isto be found in the rules governing the institution of the proceedings and the remedies available, Short and Mellor remind us that ~ “The jurisdiction of the Court of King’s Bench on the plea side is now merged and obliterated in the general jurisdiction of the High Court, but, as has been shown, its jurisdiction on the Crown side is still preserved intact and allocated to the King’s Bench Division. “The jurisdiction on the Crown side may be divided into two classes = first, ‘the strictly criminal jurisdiction, and secondly the general superintending jurisdiction.” The Crown Proceedings Act came into force in Jamaica on Ist February 1959. It had as a precedent the English Crown Proceedings Act 1947. There is such substantial similarity between the provisions of the two statutes that the decisions of the English courts touching the interpretation, of the 1947 Act may be usefully considered as persuasive authority. The 1959 Act made the Crown in Jamaica liable in tort in very much the same way as an ordinary subject. When civil proceedings (as defined in that Act) are brought by or against the Crown, the Attomey-Genera is the proper plaintiffJ Minister of Foreign Aftai v Vehicles & Supplies 275 or defendant (as the case may be) and no pending proceedings abate by any change in the person holding the office of Attomey-General (Section 13). The term “civil proceedings” is defined to exclude “Crown side proceedings”. In section 2(2) of the Crown Proceedings Act, the definition reads: * “Civil proceedings’ does not include proceedings which in England would be taken on the Crown side of the Queen's Bench Division”. No action can be brought against the Sovereign personally.and, when the term “Crown’”is used in the Crown Proceedings Act, it refers to the Sovereign in the right of Her Governmentin the Island. An officer ofthe Crown includes any servant of Her Majesty and (by statute) includes a Minister of the Crown. Section 16 of the Crown Proceedings Act restricts the reliefs which may be granted against the Crown oragainstan officer ofthe Crown. Section 16(1) sets dutthe general rule applicable in civil proceedingsto the relief obtainable against the Crown, The proviso to the section refers to “proceedings against the Crown”, without the qualifying word “civil”, and goes on to provide that an injunction or an order for specific performance cannot be made against the Crown. Section 16(2) sets out the restriction in respect of reliefs obtainable against officers of the Crown. The language is clear and unambiguous, in that section 16(2) confines the exclusionary rule to “any civil proceedings”. Tereads: “The court shall notin any civil proceedings grant any injunction or make an order against an officer of the Crownif the effect of granting the injunction ormakingthe order wouldbe to give any relicfagainstthe Crown which could not have been obtained in proceedings against the Crown.” Te must be observed at once that the fact that an injunction of an order for specific performance could not be made against the Crown did not mean that the subject had no remedy, because the statute empowered the court to make a declaration in lieu thereof and the Government was expected to comply faithfully with the terms of that declaration. ‘A series of English cases has decided that the provision in the English Crown Proceedings Act 1947 which issimilar in language to section 16 of the Jamaican statute of 1959 relates only to civil proceedings and does not extend to Crown side proceedings. In Rv Seaetary of Stateforthe Home Department, ex parte Kirkwood [1984] 1 WLR913, Mann J acted on the concession of counsel in the case that proceedings under Order 53, rule 3(10)(@), of the Rules of the Supreme Court for judicial review (ie. Crown side proceedings) were civil proceedings. Hodgson], however, came to the opposite conclusion in R v Secretary of State ior the Home Deparment, ex parte Herbage [1986] 3 WLR. 504 when, after referring to the definition of “civil proceedings” in the English Act of 1947, he said: “It follows that section 21(1) does not apply to Crown side proceedings”. He made the important observation that prerogative orders do not lie against the Crown itselfand, consequently, that the proviso could not relate to anything but civil proceedings. ‘The distinction between the Crown and officers of the Crown is expressly preserved by the division of276 West Indian Reports (1989) 39 WIR, the section into two distinct parts: the proviso to sub-section (1) making the exemption in favour of the Crown, and sub-section (2) which made special provision for officers of the Crown. All the judges in R v Licensing Authority established under the Medicines Act 1968, ex parte Smith Kline & French Laboratories Ld (No 2) (1988) The Times, 16th August, approved the decision of Hodgson J on this point. The decision of the House of Lords in R v Secretary of State for Transport, ex parte Factortame Ltd (1989) The Times, 19th May, did not deal with this point. ‘The definition section of the Crown Proceedings Act opens with the words: “(2) In this Act, except in so far as the context otherwise requires ...". Dr Rattray submitted that the phrase “the context otherwise requires” is apposite to qualify and to explain the meaning. of the term “proceedings” in the first proviso to section 16 of the Act and thus to render the word “proceedings” wide enough to encompass Crown side proceedings alongside “civil proceedings”. This would mean that the Crown Proceedings ‘Act would apply generally to Crown side proceedings. I do not think that the proviso can be so interpreted. Prerogative remedies do not lie against the “Crown” as defined in the Crown Proceedings Act and, consequently, it would be unnecessary to make an exemption in relation thereto. As against subjects, injunctions and orders for specific performance are notorious remedies, but these were considered inappropriate in respect of actions against the Crown and, for these remedies, a declaration was substituted. Section 16(2) reverts to the use of the term “civil” proceedings. If Dr Rattray’s interpretation were to be accepted, officers of the Crown would be given express protection in respect of civil proceedings but not from prerogative orders. In agreement with Hodgson J in Herbage’s case, | am of the view that the omission of the word “civil” before the word “proceedings” in the first proviso to section 16 is a mere drafting ploy and has no significance in the interpretation, thereof, I find that Crown side proceedings do not fall to be dealt with under the Crown Proceedings Act. The direct consequence of this is that there is no statutory requirement for Crown side proceedings to be commenced against the Attorney-General and that, in the instant case, the Attorney- General was neither a necessary nor a proper party to the action Carey JA... . The judge in the present case revoked the stay on two grounds, viz. that the effect of the stay, firstly, was to grant an injunction against the Crown in contravention of section 16(2) of the Crown Proceedings Actand, secondly, wasto restrict the importation andallocation of motor vehicles which would cause irreparable damage to the national economy and particularly to the tourist trade. [will deal with these grounds in the order given. Section 16 enacts as follows: (1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such ordersPc Minister of Foreign Affairs v Vehicles & Supplies 27 as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that — (a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and (8) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of land or the delivery of property, but may in lieu thereof make an order declaring that the plaintiffs entitled as against the Crown to the land or property or to the possession thereof. “) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown ifthe effect of granting the injunction or making the order would be to give any relief against the ‘Crown which could not have been obtained in proceedings against the Crown.” The effect of section 16(2) isquite clear. Italo prohibits the grant of injunctions or orders which have that effect against “officers of the Crown”, a term which by virtue of ection 22) includesa Minister ofthe Crown. The restriction against such orders is directed, however, at “civil proceedings”. The Act defines such proceedings as “not including proceedings which in England would be taken on the Crown side of the Queen's Bench Division”. Consequently, no proceedings for prerogative orders, viz. certiona, prohibition and mandamus would come within the ambit of the provision . . Forte JA. ..., The Crown Proceedings Act, was relied on both before this courtand before EllisJ to establish that injunctive relief could notbe ordered against the Crown. Indeed, section 16 of the Act was the basis upon which Ellis J came to the conclusion that Clarke J had no jurisdiction to grant “a stay of proceedings” because that stay was in the nature ofan injunction. In my opinion that argument is untenable, and in spite of the many authorities cited, the answer sin the definition of “civil proceedings” in the Act, which states that “civil proceedings” does not include “proceedings which in England would be taken on the Crown side of the Queen's Bench Division”. Those proceedings of course relate to mandamus, prohibition and certiorari... Appeal The Minister of Foreign Affairs, Trade and Industry appealed to the Judicial Committee of the Privy Council (appeal 2 of 1991) against the order of the Court of Appeal of Jamaica allowing the appeal by Vehicles and Supplies Ltd and Northern Industrial Garage Ltd (the respondents to this appeal) from an order of Ellis J. ‘The facts are set out in the advice of the Board which was delivered by Lord Oliver of Aylmerton.278 ‘West indian Reports (1991) 39 WIR DrK.O. Rattray QC, Solicitor-General ofJamaica, and Oswald B. Burchenson, assistant Attorney-General of Jamaica (instructed by Charles Russell), for the Minister. The respondents did not appear and were not represented ‘Their Lordships took time for consideration. Lord Oliver of Aylmerton delivered the advice of the Board. This is an appeal from a judgment dated 16th June 1989 of the Court of Appeal of Jamaica (Rowe P, Carey and Forte JJA), allowing with costs the respondents’ appeal from an order made by Ellis J in the Supreme Court of Jamaica on 2nd February 1989 and restoring a previous order of Clarke J dated 11th January 1989. Although events occurring subsequent to the order of Ellis J have rendered the litigation entirely academic so far as the respondents are concerned and they have not appeared to argue before their Lordships’ Board, it was considered by the Minister that the order of the Court of Appeal raised questions of general public importance in Jamaica which it was desirable should be considered by their Lordships. The background to the litigation lies in the Trade Act of Jamaica, section 8 of which enables the Minister (in this case the Minister of Foreign Affairs, Trade and Industry) to prohibit the importation of goods and to regulate the distribution, purchase or sale of goods or any class of goods, In pursuance of this power the Motor Vehicle (Sale and Distribution) Order 1985 was made, the effect of which was that approved motor vehicles were permitted to be imported into Jamaica only by specified importers for distribution to dealers whose business is to purchase motor vehicles for resale. An “approved” motor vehicle is defined as one imported under credit facilities which are guaranteed by the Government of Jamaica. In fact there was at the material time only one specified importer. This was the Jamaica Commodity Trading Co Ltd ("JCTC”), which their Lordships have been given to understand isa registered limited company the issued share capital of which is owned or controlled by the Jamaican Government but which is managed by a board of directors in the ordinary way. It is under Government control in the sense that the directors can be removed and replaced by the Government by virtue of its shareholding, but it is not in any relevant sense an agent or organ of the Government. In practice, the way in which the system works is that ]CTC issues annual invitations to car retailers to indicate within specified categories and subject to certai specified maxima the number of vehicles which they require for the year. Once the retailers’ requests for allocations are received, they are forwarded to the Minister for him to make the allocation. The retailers are subsequently informed, through JCTC, ofthe allocation made to them and JCTC iis instructed to contract with the foreign suppliers for the supply of the vehicles allocated.Pc Minister of Foreign Affairs v Vehicles & Supplies 279 Regulations 3, 4 and 5 of the Order provide as follows: “3. All approved motor vehicles shall be allocated among dealers in such manner and in such numbers and subject to such terms and conditions as the Minister may, in his absolute discretion, determine. “4. (1) The Minister shall notify in writing each specified importer of the determination made pursuant to paragraph 3. (2) The specified importer shall notify in writing all dealers affected by the determination communicated to him by the Minister. “5, Every specified importer shall give effect to the determination by the Minister and upon receipt of payment from the dealer of the price of the approved motor vehicle, forthwith deliver or cause to be delivered to the dealer, such motor vehicle.” Ie will thus be seen that in making the determination the Minister, although no doubt acting within a discretion which must be properly exercised, performs a purely executive function which is exhausted once the determination has been made. The responsibility for implementing the determination then devolves upon the specified importer to whom the communication has been issued The respondents are motor dealers carrying on retail businesses in Jamaica, Both applied for allocations of vehicles for the year 1988/89. ‘Allocations were made and on 25th November 1988 JCTC was instructed to place orders for vehicles of the types and in the quantities allocated. On 7th December 1988 JCTC notified the respondents of their allocations, which were for quantities substantially less than in the previous year. They protested but without result and on 4th January 1989 they issued an ex parte summons for leave to apply for an order of certiorari to quash the allocations, alternatively for an order of prohibition directed to the Minister prohibiting him from implementing the allocation, alternatively for an order of mandamus directing the Minister to make a fair allocation. Paragraph (ii) of the summons asked “That all allocations of quotas and/or proceedings consequent on the said allocations be stayed pending a final determination ofthis matter”. On I Ith January 1989 Clarke Jin chambers made an ex parte order granting the relief sought by the summons, including the stay sought by paragraph (ii). "That order was served on the Minister on 13th January 1989 and on 17th January the respondents’ attorneys wrote threatening proceedings for contempt if a contract was concluded by JCTC for the importation of motor vehicles. ‘The response to this threat (which, for reasons which appear hereafter, their Lordships consider to be entirely misconceived) was a summons by the Minister for the ex parte order to be set aside either in whole or in part, the summons being supported by an affidavit deposing to the fact that the allocation had already been made and that instructions had, well prior to the order, been given for JCTC to order the vehicles concerned and also adverting to the irreparable damage to the economy which would be caused if the importation were to be delayed and to the escalation of prices consequent upon any further delay.280 West Indian Reports (1991) 39 WIR Clarke J was absent from Kingston on circuit at the return date for the hearing of the summons and the matter was heard in chambers by Ellis J who, after hearing both parties, set aside that part of the order of Clarke J which granted a stay but gave leave to the respondents to appeal. On 16th June 1989 the Court of Appeal reversed the decision of Ells J and restored the stay contained in the order of Clarke J, although the court appears to have accepted that the relief was academic since, in the interim, the vehicles had been ordered and the allocations effected. The court also dismissed the cross-appeal by the Minister seeking to have the order of Clarke J granting leave to apply set aside in its entirety. It was the Minister's contention before the Court of Appeal that an application forleave to apply for an order of certiorari or prohibition in respect ofa Ministerial decision was a proceeding against the Crown to which the only proper party was the Attorney-General, so that the proceedings before Clarke J were, in any event, misconceived. Thisargument rested upon the provisions of the Crown Proceedings Act of Jamaica, section 13 of which expressly provides that civil proceedings against the Crown must be instituted against the Attomey-General. The Act, however, contains, in section 18, a restrictive definition of “civil proceedings” and the court was unanimous in holding that the proceedings from which the appeal arises were not civil proceedings within the Act. There was thus no statutory requirement rendering the Attorney-General eithera necessary ora proper party. The Minister's primary ground of attack on the order of 1th January 1989, however, was that the stay granted by paragraph (2) of the order was in fact in the nature of an injunction and that no injunction could be granted against the Crown. Carey JA and Forte JA were at one in concluding that in Jamaica an interim injunction could not be granted against the Crown but that the grant of a stay (which they seem to have assumed would have the same effect) was permissible by virtue of section 564B(4) of the Judicature (Civil Procedure Code) Law. Rowe P felt it unnecessary to consider whether injunctive relief could be granted against the Crown in civil proceedings since this remedy was irrelevant to proceedings on the Crown side for prerogative remedies. There, in his view, “interim relief was always obtainable in Crown side proceedingsin that the order nisi acted as a stay in Crown side proceedings”. ‘The principal ground, however, upon which the court concluded that the appeal must be allowed and the stay restored was that Ellis J had no jurisdiction to discharge an ex parte order made by another judge. Leave to appeal to Her Majesty in Council was granted by an order made on 2ist July 1989 in which it was certified that four questions ought, by reason of their general or public importance, to be submitted to Her Majesty in Council. These were: (1) Whether the stay of proceedings granted pursuant to section 564B(4) of the Judicature (Civil Procedure Code) Law is in the circumstances of the case in the nature of an injunctive relief? (2) Ifthe answer to question 1 is “Yes”, whether any relief which isPc Minister of Foreign Affairs v Vehicles & Supplies 281 in the nature of an injunctive relief can be granted against the Crown and/ or its officers in these proceedings having regard to the provisions of the Crown Proceedings Act and the unavailability of such reliefon the Crown side of the Queen’s Bench Division or otherwise? (3) Whether or in what circumstances a High Court judge can review and set aside the ex parte order of another High Court judge made on an application for leave to issue a prerogative order? (4) Should the Attomey-General be named as the respondent in these proceedings instead of the Minister of Foreign Affairs, Trade and Industry? As regards the last of these questions, their Lordships entertain no doubt whatever that the Court of Appeal was correct in concluding that the proceedings were not “civil proceedings”, as defined by the Crown Proceedings Act, and that the Minister and not the Attorney-General was the proper party to proceedings instituted for the purpose of reviewing the exercise of his statutory powers On the principal ground upon which the decision of Ellis was reversed, however, their Lordships take an entirely contrary view to that taken by the Court of Appeal. Although the three members of the court were unanimous in their conclusion on this point, they reached it by rather different routes. Rowe P, whilst acknowledging that in civil proceedings ‘commenced by writ the ex parte interim order of a judge is reviewable and may be varied or discharged either by the judge who made the order or, in an appropriate case, by another judge, nevertheless held that in proceedings under section 564B of the Judicature (Civil Procedure Code) Law the only method of varying or revoking an ex parte order was by way of appeal to the Court of Appeal except in the case where the order itself gives a liberty to apply to vary or discharge. Carey JA, with whom Forte JA agreed, accepted that a judge of the Supreme Court has an inherent jurisdiction to set aside or vary an order made ex parte and even to revoke leave given ex parte, but that this only applied where “new matters are brought to hisattention either with respect to the facts or the law”. In his view Ellis] did not have before him any material which enabled him to exercise the jurisdiction. An ex parte order is, in its nature, provisional only and Carey JA was plainly right in following and adopting what was said to this effect by Sir John Donaldson MR in WV.E.A. Records Ltd v Visions Channel 4 Ltd [1983] 2 AILER 589 at page 593 and by Lord Denning MR in Becker v Noel [1971] 1 WLR 803. Rowe P considered that section 564B, in providing for an appeal to the Full Court against a refusal of leave, impliedly ousted any reconsideration of the matter either by the same judge or by another judge, This, with respect, is a non sequitur and it would, if correct, produce the absurd result that, even in a case where an order had been obtained by deliberate concealment of material facts and misleading evidence, the judge who had been wrongly persuaded to make the order would be incapable of revoking it. All other considerations apart, it is provided (section 686) that282 West Indian Reports (1991) 39 WIR “Where no other provision is expressly made by law or by Rules of Court the procedure and practice for the time being of the Supreme Court of Judicature in England shall so far as applicable, be followed . ..” Neither the Code nor the Rules contain express provisions relating to the discharge of ex parte orders but Order 32, rule 6, ofthe Rules of the Supreme ‘Court provides in terms that “the court may set aside an ordermade ex parte”. Leave granted to institute proceedings for judicial review can, in an appropriate case, be revoked by a judge under this rule (see R v Secretary of State for the Home Department, ex parte Herbage (No 2) [1987] 1 QB 1077 at page 1092). ‘Their Lordships entertain no doubt that Ellis J was acting within his jurisdiction in makingthe order which he made on the Minister’sapplication and they have difficulty in understanding Carey JA’sassertion that the judge had before him no new material justifying his exercise of the jurisdiction. He had in fact most material evidence, adduced before the court for the first time; first as to the supposed effect of the stay which Clarke J had purported to grant and, secondly, that in fact the allocation had been made already and the instructions given to JCTC which, in so far as the “stay” could have had any effect, was not bound by the order and was not even a party to the proceedings. In their Lordships’ judgment, Ellis ] was entitled, on an application properly made, in his discretion to vary or revoke the ex parte order which had been made by Clarke J and no ground has been shown for any interference by an appellate court with his exercise of discretion, which seems to their Lordships perfectly proper on the supposition, which everybody connected with the court seems to have adopted, that the order for a stay had some inhibiting effect. This by itselfis sufficient to dispose ofthe appeal but it hasto be remarked that, quite apart from the factual material adduced in support of the Minister's application for the variation of the order, and regardless of any question whether the evidence adduced in support of the respondents’ application to Clarke J provided even prima facie ground for the grant of the leave sought, there was every ground for challenging the order fora stay as a matter of law. It seems in fact to have been based upon a fundamental misunderstanding of the nature of a stay of proceedings. A stay of proceedings is an order which puts a stop to the further conduct of proceedings in court or before a tribunal at the stage which they have reached, the object being to avoid the hearing or trial taking place. It is not an order enforceable by proceedings for contempt because it is not, in its nature, capable of being “breached” by a party to the proceedings oranyone else. It simply means that the relevant court or tribunal cannot, whilst the stay endures, effectively entertain any further proceedings except for the purpose of lifting the stay and that, in general, anything done prior to the lifting of the stay will be ineffective, although such an order would not, if imposed in order to enforce the performance of a condition by a plaintiff (e.g. to provide security for costs), prevent a defendant from applying toPc Minister of Foreign Attairs v Vehicles & Supplies 283 dismiss the action iffthe condition is not fulfilled (see la Grange v McAndrew (1879) 4 QBD 210). Section 564B(4) of the Judiciature (Civil Procedure Code) Law provides that: “The grant of leave under this section to apply for an order of prohibition or an order of certiorari shall, ifthe judge so directs, operate as a stay of the proceedings in question until the determination of the application or until the court or judge otherwise orders”. This makes perfectly good sense in the context of proceedings before an inferior court or tribunal, but it can have no possible application to an executive decision which has already been made. In the context of an allocation which had already been decided and was in the course of being implemented by a person who was not a party to the proceedings it was simply meaningless. If it was desired to inhibit JCTC from implementing the allocation which had been made and communicated to it or to compel the Minister, assuming this were possible, to revoke the allocation or issue counter-instructions, that was something which could be achieved only by an injunction, either mandatory or prohibitory, for which an appropriate application would have had to be made. The Minister's apprehension that that was what was intended by the order is readily understandable, but ifthat was what the judge intended by ordering a stay, it was an entirely inappropriate way of setting about it. He had not been asked for an injunction nor does it appear that he considered or was even invited to consider whether he had jurisdiction to grant one. Certainly none is conferred in terms by section 564B. An injunction cannot be granted, as it were, by a side-wind and, ifthat was the judge’s intention, it should have been effected by an order specifying in terms what acts were prohibited or commanded. As it was there were no “proceedings” in being upon which the “stay” could take effect. One is left with only two possibilities. Either Clarke J granted relief which was entirely inappropriate and inapplicable to the circumstances before him or he sought to enjoin the activities of JCTC, which was not a party to the action, and to do so by wholly inappropriate machinery. In either event, the order was meaningless The answer to the first of the certified questions must, therefore, be in the negative and the second question does not arise. Their Lordships do not feel called upon to answer what is now an entirely academic question upon the hypothesis that injunctive relief is what Clarke J may have intended to grant. They can well understand the anxiety of the Solicitor-General for Jamaica to have an authoritative answer to an important question and they are greatly indebted to him for his clear and illuminating submissions. But the point is far from easy. Attention has been drawn to some of the difficulties in this area of the law in a note by Sir William Wade QC in a recent issue of the Law Quarterly Review (Volume 107, pages 4 to 10) and there are, in addition, considerations regarding the status of Ministers of the ‘Crown which are peculiar to Jamaica. Despite Dr Rattray’s most helpful284 West Indian Reports (1991) 39 WIR, address, their Lordships do not think it appropriate to express an opinion on what is, in any event, now a hypothetical as well as an academic question and without having the benefit of a full inter partes argument. Their Lordships will, accordingly, humbly advise Her Majesty that the appeal should be allowed and the order for costs made in the Court of ‘Appeal discharged. Advice that appeal be allowed