Kattina Anglin wins legal aid case to challenge exercise of Governor’s powers Loop Cayman Islands

Black Immigrant Daily News

Kattina Anglin has just won the right to have her legal aid funding extended to challenge the legality of the exercise of the Governor’s powers to enact the Civil Partnership Act. This is according to a judgment delivered by Justice Alistair Walters on August 23, 2022.

Anglin’s argument

As outlined in the judgment, Anglin commenced initial judicial review proceedings to challenge the Governor’s powers.

Anglin’s dispute was that the Governor went outside the limit of his powers under section 55 of the Bill of Rights under the Cayman constitution.

More specifically, section 55(1)(b) says that the Governor is responsible for the conduct of any business of the Government with respect to external affairs, but Anglin questioned whether the passing by the Governor of the Civil Partnership Act was a matter of “external affairs.”

After losing the initial judicial review case before Justice Williams, Anglin filed an appeal against the judgment of Justice Williams. However, in order fund that appeal, Anglin had to ask for extra money from the legal aid department.

Decision of Director of Legal Aid

Unfortunately for Anglin, her request for more money was refused by the Director of Legal Aid.

The refusal certificate of the Director said:

[h]aving reviewed the judgment of the court and section 5 of the Legal Aid Act, an extension of this certificate is refused. If the Applicant seek to further appeal of this matter, they should make their own private arrangements with counsel. Circumstances do not Justify the expenditure of public funds.

Contrary to the Director’s position, however, Anglin did not suddenly win the lottery and did not have any “private arrangements” to continue to her challenge against the Governor’s exercise of his powers.

The next logical step for Anglin was to ask the Director of Legal Aid to reconsider the refusal. However, Anglin was told that the Director of Legal Aid was of the view that “It is highly unlikely that an appeal will be successful” as the exercise by the Governor of his powers “was not an error in law and well with the scope of the Governor’s responsibilities…”

Had any other citizen received such a response, there is a chance they would have given up on their fight. But, Anglin pressed on and asked the court to reverse the decision of the Director of Legal Aid to refuse Anglin an extension of legal aid funding.

Decision of Justice Walters

In giving his judgment (delivered on August 23, 2022), Justice Walters noted the following:

Anglin’s case involves a substantial question of lawThe case raises matters of public interestThe basis of Anglin’s appeal does demonstrate,when readin conjunctionwith the writtensubmissionsand the Judgmentthat there is a reasonableprospectthat Anglin’s appealwill succeedNovel questionsof law are involved and it was unreasonable for the Director to discuss summarily the prospects of success without providing any reasoning for that decision. To simply rely on the previous judge’s own reasoning in the Judgment without addressing the proposed grounds of appeal is insufficientIt was unreasonable to assume (if that is what the Director did) that Anglin might be able to obtain donations from the public towards her legal expenses. There was no evidence to suggest that otherwise that Anglin’s means had changed

In addition, Justice Walters said:

On the basis that the appeal does demonstrate a reasonable prospect of success on the merits and there is no change in the Plaintiff circumstances then there must be an expectation (as opposed to an assurance) that legal aid will be available to fund an appeal. The withdrawal of support would expose the Plaintiff to a costs risk in the event that she pursued the appeal without legal aid. However, I do not regard that as the most significant factor that is relevant here. The more material issues are that the Plaintiff maintains a significant interest in arguing her position in the litigation and in my view, most importantly, the issues raised on the appeal are of general public importance which are unlikely to be argued unless legal aid is granted. Added to that is the fact that if the matter is to proceed to appeal, the Plaintiff should be represented to ensure that her arguments are properly presented.

On the basis of the above, Justice Walters reversed the decision of the Director of Legal Aid to refuse Anglin an extension of legal aid funding to challenge the Governor’s powers. This will now permit Anglin to continue her appeal case, questioning the legality of the exercise of the Governor’s powers which were allegedly contrary to the Cayman constitution.

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