Antigua Power Company Limited v The Attorney General of Antigua and Barbuda and others (Antigua and Barbuda)

Cabinet approval of a joint venture agreement is determined by its ordinary meaning, read with the agreement, contemporaneous documents and commercial context. Approval of the agreement as a whole ordinarily covers its phased components where they form one project, making the agreement unconditional. A Minister cannot direct the Commissioner of Police to undertake a particular operational act: operational control rests with the police. A declaration may be granted after a dispute has lost practical significance where public importance, possible recurrence, continued assertion of power and the claimant’s need for vindication justify it. Serious unexplained appellate delay is unacceptable, but ordinarily does not warrant a rehearing where the decision did not depend on evidence.

Antigua Power Company Limited appealed after Thomas J dismissed its claims concerning a proposed joint venture with Antigua Public Utilities Authority. The Eastern Caribbean Court of Appeal dismissed the appeal. The principal issue was whether Cabinet approval on 16 May 2006 extended to the whole Joint Venture Agreement, including its second phase, or only to a 17MW generator. Alternative arguments based on estoppel and legitimate expectation arose if approval was incomplete. The appeal also concerned a declaration that the Prime Minister exceeded his powers by instructing the police to prevent installation of generators, and whether the Court of Appeal’s delay in delivering judgment justified relief.

1. Disposition. The appeal was allowed. Lord Neuberger delivered the judgment of the majority, with Lord Mance, Lord Sumption and Lord Toulson agreeing. Lord Carnwath agreed on the contractual issue and the orders against APUA, but dissented on the declaration against the Prime Minister.
2. Cabinet approval and the contract. The ordinary meaning of the Cabinet minute approving the Joint Venture Agreement between APCL and APUA was approval of the agreement as a whole. The contemporaneous Synopsis treated the two phases as components of one project, and the agreement contained provisions which operated across both phases. Commercial coherence also supported that construction. The earlier Cabinet decision concerned only the purchase of the 17MW generator and did not limit the later approval. Arguments based on surplusage were of little force: Arbuthnott v Fagan [1995] CLC 1396 and Beaufort Developments (NI) Ltd v Gilbert Ash NI Ltd [1999] 1 AC 266. The Joint Venture Agreement therefore became unconditionally binding on 16 May 2006. The alternative estoppel and legitimate-expectation arguments did not require determination.
3. Police operational control. Applying R v Comr of Police of the Metropolis v Blackburn [1968] 2 QB 118, and the corresponding principle described in R v Secretary of State for the Home Department, Ex p Northumbria Police Authority [1989] QB 26, the Board held that operational control and responsibility for law enforcement rested with the Commissioner. The Prime Minister therefore acted in excess of authority by instructing the Commissioner to prevent the generators being installed. The Board did not determine the separate questions concerning police powers to prevent trespass, since those issues were unnecessary and the evidence and argument were limited.
4. Declaration and delay. The majority considered a declaration appropriate despite the dispute’s lack of continuing practical significance. The issue was of substantial public importance, might recur, the Prime Minister continued to assert his entitlement, and the impugned action had significantly affected APCL. A serious unexplained delay of more than twenty-two months was unjustified and risked undermining confidence in the justice system, but did not warrant a rehearing where the lower decision did not depend on evidence. The approach in Bond v Dunster Properties Ltd [2011] EWCA Civ 455 was considered.
5. Dissent. Lord Carnwath would have refused the declaration because the issue was academic, the claim was commercial, and common-law remedies were available. He relied on the cautious public-interest approach in R v Secretary of State for the Home Department, Ex p Salem [1999] 1 AC 450, and on the principle that constitutional claims should not generally be pursued where parallel common-law remedies exist, citing Jaroo v Attorney General of Trinidad and Tobago [2002] 1 AC 871 and Webster v Attorney General of Trinidad and Tobago [2011] UKPC 22.
6. Orders. It was declared that Cabinet approved the Joint Venture Agreement on 16 May 2006 and that it thereby became unconditional. APCL’s damages claim against APUA and the issue whether the agreement was discharged by accepted repudiation were remitted to the High Court. It was also declared that the Prime Minister acted in excess of authority. The parties were directed to agree an order and make written costs submissions within 14 days.

• Privy Council. Appeal allowed in [2013] UKPC 23; declarations made and contractual issues remitted to the High Court.
• Eastern Caribbean Court of Appeal. Appeal from Thomas J dismissed on 19 October 2011.
• High Court of Antigua and Barbuda. Thomas J dismissed APCL’s claims on 23 February 2009.