Marc Willers KC, Leslie Thomas KC, Stephen Cottle and Thalia Maragh, of the Garden Court Chambers Environmental Law and Climate Justice Team, represent John Mussington and Jacklyn Frank pro bono, instructed by Theo Solley of Sheridans. Global Legal Action Network (GLAN) are supporting the case.
The legal team also includes Adam Riley of 3 Hare Court, and they have been assisted by David Neale, Garden Court Chambers’ Legal Researcher, and David Watkinson, Associate Member and former Head of Garden Court Chambers.
On 27 February 2024, the Privy Council allowed an appeal by John Mussington and Jacklyn Frank against the Eastern Caribbean Court of Appeal’s decision to dismiss their challenge to the development of a runway on the island of Barbuda, on the ground that they lacked standing to bring such a claim.
The appeal concerned a judicial review challenge of the Antigua & Barbuda Development Control Authority’s decision dated 6 July 2018 to grant a development permit for the construction of an airport on the Caribbean island of Barbuda, a small island with a population of around 2,000 people, which was devastated on 6 September 2017 by Hurricane Irma.
The appellants are Barbudans resident on Barbuda. Ms Frank is a retired teacher, and Mr Mussington a marine biologist and former local school principal.
In response to the appellants’ appeal against the refusal of an interim injunction in the proceedings, the second respondent, the Antigua and Barbuda Airports Authority, counter-appealed, arguing that the appellants did not have standing to bring their claim for judicial review. The Eastern Caribbean Court of Appeal allowed the counter-appeal and dismissed the claim. It was this point which the appellants challenged, successfully, before the Board.
The Privy Council concluded that the Eastern Caribbean Court of Appeal was wrong to hold that the decision of the Supreme Court in Walton v Scottish Ministers [2012] UKSC 44, [2013] 1 CMLR 28 was not relevant to the issue of standing in judicial review claims.
In Walton Lord Hope of Craighead had made clear that a person with a genuine interest in the aspect of the environment they seek to protect, and sufficient knowledge of the subject to qualify them to act in the public interest, may be accorded standing in an environmental case, even though the challenged decision does not directly affect their own rights or interests.
The Privy Council not only endorsed that principle but importantly expanded upon it, giving judges the following clear guidance:
‘Where an application for judicial review involves issues of environmental concern it is not necessary that the applicant demonstrates an expertise in the subject matter. All that is required is that they demonstrate some knowledge or concern for the subject. So an amateur ornithologist or bird-watcher might raise a concern about the potential loss of a bird’s habitat; or a fisherman about the effect of a hydro-electric scheme on fish; or a local historian about the effect on an archaeological or historical site; or a local resident on the loss of a local beauty spot frequented by the local community. In Walton Lord Hope in effect asked the rhetorical question, “Who speaks for the ospreys?”. The answer is whoever can demonstrate a genuine interest in their fate.’
Applying that principle and guidance the Privy Council held that the appellants had:
‘demonstrated sufficient interest in the environmental issues and the breaches of the 2003 Act raised by the application for the development permit. In particular Mr Mussington’s scientific background, his knowledge of the flora and fauna in the area, his status as a local resident, and his experience of conducting environmental assessments amply demonstrate a sufficient interest in the subject matter of the application for judicial review.’
Significantly, the Privy Council also made the point that:
‘Such an approach [on the determination of the issue of standing] is consistent with Antigua and Barbuda’s obligations on the international plane under the “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean”, the Escazú Agreement. Antigua and Barbuda was the first country to sign the agreement on 27 September 2018. It was ratified on 4 March 2020. Amongst other important provisions Article 7 provides for public participation in the environmental decision-making process.’
In reaching the above conclusions, the Privy Council also endorsed the wide-ranging analysis of Jamadar JA (as he then was) in Dumas v Attorney General of Trinidad and Tobago, Civil Appeal No P 218 of 2014, in which he summarised the trends and approaches taken across various common-law jurisdictions to the issue of “standing” in public interest litigation
Leading Counsel, Marc Willers KC of Garden Court Chambers, said:
‘This is a wonderful decision for our brave clients John Mussington and Jacklyn Frank - who have battled long and hard for the right to challenge the construction of an airport on Barbuda and to protect the island’s fragile ecosystem from the impacts of the development.
But it is also an important decision for ordinary citizens, across the Caribbean and beyond, because it confirms a person bringing a claim does not have to be an ‘expert’ or full-time ‘environmental defender’ to stand up for the environment. The Privy Council held that where “an application for judicial review involves issues of environmental concern it is not necessary that the applicant demonstrates an expertise in the subject matter. All that is required is that they demonstrate some knowledge or concern for the subject”. So, for example, “an amateur ornithologist or bird-watcher might raise a concern about the potential loss of a bird’s habitat; or a fisherman about the effect of a hydro-electric scheme on fish; or a local historian about the effect on an archaeological or historical site; or a local resident on the loss of a local beauty spot frequented by the local community.'
John Mussington and Jacklyn Frank were represented in the Privy Council by Marc Willers KC, Leslie Thomas KC, Stephen Cottle and Thalia Maragh of Garden Court Chambers’ Environmental Law and Climate Justice Team and Adam Riley of 3 Hare Court. All Counsel acted pro bono.
John Mussington and Jacklyn Frank’s Privy Council agent is Theo Solley of Sheridans.
The legal team were assisted by David Neale, Garden Court Chambers’ Researcher, as well as David Watkinson, door tenant and former head of Garden Court Chambers.
John Mussington and Jacklyn Frank were represented in the East Caribbean Courts by Justice Chambers.
They are also supported by the Global Legal Action Network (GLAN). Join GLAN for a legal debrief and next steps Zoom webinar today at 6pm UK time to discuss the judgment.
Read more about GLAN's support for Barbudan land defenders here and support their CrowdJustice campaign here.
Read GLAN's previous news item on supporting Barbudan land defenders here.
