In a judgment handed down today, the Supreme Court of Gibraltar has dismissed a judicial review claim commenced by Hepta Limited (‘Hepta’) against the Deputy Chief Minister of His Majesty’s Government of Gibraltar, the Honourable Dr Joseph Garcia CMG MP (the ‘Deputy Chief Minister’), relating to a proposed sixteen-storey development at Devil’s Tongue (the ‘Development’). The property owned by Hepta is found at the northern end of Queensway Road in the site in which for years there existed a car dealership and garage, the Casa Antonio restaurant, and the Bahia Bar. In his written evidence, the Deputy Chief Minister states that HMGoG, in its capacity as landlord, communicated its discontent to Hepta, inter alia, as to the height and the massing of the Development.
The Judicial Review claim, which was heard over the course of a three-day trial, touched upon a number of legal issues, including whether the dispute was amenable to judicial review, whether Hepta had exhausted its remedies, whether there was a legitimate expectation, and whether the (purported) decision of the Deputy Chief Minister was irrational. The judgment highlights legal principles in respect of judicial review proceedings that may be of interest to legal practitioners and may also be of interest to the public.
In finding for the Deputy Chief Minister, the Honourable Mr Justice Dudley, Chief Justice (the ‘Chief Justice’), agreed with Neil Costa that a legitimate expectation, as that legal term should properly be understood in the light of the pertinent case-law authorities, could not arise in the circumstances of the case. The Chief Justice also agreed with Neil Costa that it could not be said that the Deputy Chief Minister’s decision was irrational, once again, as that legal term should properly be understood by reference to the applicable jurisprudence.
In brief terms, the Chief Justice concluded that:
(a) ‘…in any land transaction entered into by government there will be a range of considerations, not exclusively financial, which may require the balancing of competing interests and which will involve social and political value judgments…;
(b) His Majesty’s Government of Gibraltar ‘…was entitled to change its policy and reassess its position in respect of the Development…’; and
(c) ‘…[i]t is not for the court to substitute its own view for that of the executive in matters involving policy choices and the balancing of competing interests unless the decision can be shown to be irrational.’
Importantly for the Deputy Chief Minister, the Chief Justice not only dismissed the judicial review claim in its entirety but also refused to grant the more limited alternative remedies sought by Hepta. The Chief Justice decided that, ‘…in [his] judgment it would be wrong to grant a more limited declaration as to do so would constrain the terms upon which HMGOG may negotiate a commercial transaction and would risk an improper encroachment by this court upon the functions of the executive.’
The link to the judgment follows: the_king_hepta_ltd_dr_joseph_garcia_crown_lands.pdf