Comprehensive Nephrology Services Ltd v The Prime Minister and Head of the Cabinet of the Government of the Republic of Trinidad and Tobago Representing Himself and All Other Members of the Cabinet

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Robin N. Mohammed
• Judgment Date: 13 July 2021
• Neutral Citation: TT 2021 HC 158
• Docket Number: Claim No CV2017-03999
• Court: High Court (Trinidad and Tobago)

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice Robin N. Mohammed

Claim No CV2017-03999

In the Matter of an Application for Judicial Review Pursuant to the Judicial Review Act Chapter 7:08

Between

(1) Comprehensive Nephrology Services Limited

(2) Biomedical Technologies Limited

(3) Caribbean Kidney Disease Society

Claimants

and

(1) The Prime Minister and Head of the Cabinet of the Government of the Republic of Trinidad and Tobago Representing Himself and All Other Members of the Cabinet

(2) The Minister of Health

(3) The North-Central Regional Health Authority

Defendants

Appearances:

Mr. Ramesh Lawrence Maharaj S.C. leading Mr. Ronnie Bissessar and instructed by Mr. Varin Gopaul-Gosine for the Claimants

Mr. Douglas Mendes S.C. leading Mr. Michael Quamina and instructed by Mr. Charles Law for the Defendants

JUDGMENT ON THE CLAIMANTS' APPLICATION FOR JUDICIAL REVIEW FILED ON 27 NOVEMBER 2017

I. Introduction

1 Biomedical Technologies Limited (hereinafter “ BTL”), the Second Claimant, is a company incorporated in Trinidad and Tobago whose principal business is the marketing, sale and maintenance of medical equipment. Fresenius Medical Care (Holdings) Ltd (hereinafter “ FMCHL”) is a company incorporated in England in the business of providing dialysis services and centres; a subsidiary in a group of companies whose ultimate controlling company is German. Comprehensive Nephrology Services Limited (hereinafter “ CNSL”), the First Claimant, is a company incorporated in Trinidad and Tobago and originally jointly owned by BTL and FMCHL. However, FMCHL transferred its shares to BTL on 20 October 2016. Caribbean Kidney Disease Society (hereinafter “ CKDS”), the Third Claimant, is a not-for-profit company incorporated in Trinidad and Tobago on 27 October 2017. CKDS, however, previously operated as an unincorporated public interest pressure group since about 2007. CKDS' principal mandate is to be an advocate for patients who suffer from kidney disease and to promote wellness by encouraging the provision of efficient systems for the delivery of adequate health care to kidney patients.

2 The First Defendant is the Prime Minister and Head of the Cabinet of Government of the Republic of Trinidad and Tobago, representing himself and all other members of the Cabinet. The Second Defendant, the Minister of Health, is the public person, who is charged with oversight of the entire health system in the Republic of Trinidad and Tobago. He plays a central role in protecting and promoting public health. The Third Defendant, the North-Central Regional Health Authority, (hereinafter “ NCRHA”) is a body corporate established under the Regional Health Authorities Act, Chap 29:05, (hereinafter “the RHA Act”) with the responsibility for the provision and development of health care in its region, subject to the direction of the Minister of Health. NCRHA is the owner of the Eric Williams Medical Sciences Complex (hereinafter “ EWMSC”). South-West Regional Health Authority (hereinafter “ SWRHA”), though not a party to these proceedings, is another body corporate established under the RHA Act. SWRHA is the owner of San Fernando General Hospital (hereinafter “ SFGH”).

3 On 6 November 2017, the Claimants filed an Application pursuant to section 6 of Judicial Review Act, Chap. 7:08 ( “the JRA”) and Part 56.3(1) and (2) and 56.7(1)(b) of the Civil Proceedings Rules 1998 (“ the CPR”) for leave to apply for Judicial Review of the following decisions (hereinafter “the impugned decisions and/or impugned actions”):

• (i) the decision of the Cabinet of the Republic of Trinidad and Tobago (hereinafter “the Cabinet”) made after 8 August 2017 and continuing in the Cabinet failing to take action or the Minister of Health failing to take action or the NCRHA failing to take action to do all things which were and are necessary to facilitate the construction and operation of two Full Service Renal Dialysis Centres at EWMSC and SFGH;

• (ii) the decision of the Minister of Health made after 8 August 2017 and continuing in the Minister failing to give the requisite specific or general directions to the NCRHA pursuant to section 5(1) of the RHA Act for the NCRHA to do all things necessary to facilitate the construction and operation of the centres;

• (iii) the decision of the NCRHA made after 8 August 2017 and continuing in failing to do all things necessary to facilitate the construction and operation of the centres;

• (iv) the delay after 8 August 2017 and continuing by the Defendants for them and each of them to take the necessary action to have the Centres constructed and operational constitutes unreasonable delay pursuant to section 15 of the JRA;

• (v) further and/or in the alternative, the delay between the period of 1 September 2015 to 7 August 2017 of the Defendants to take the necessary action to facilitate the construction and operation of the Centres constitute unreasonable delay pursuant to section 15 of the JRA;

• (vi) the unlawful frustration which occurred after 8 August 2017 and continuing of the legitimate expectation of a substantive benefit which was created in favour of the First and Second Claimants, CNSL and BTL that the Third Defendant, the NCRHA, would execute the requisite documents which were necessary for the Third Defendant to execute for the First and Second Claimants, to get the requisite security to raise the financing for the construction and operation of the centres; and

• (vii) the unlawful frustration which occurred after 8 August 2017 and continuing of the legitimate expectation of a substantive benefit which was created in favour of the Third Claimant, CKDS, and its members that government would provide the centres for the Third Claimant, CKDS, its members and members of the public at which they would receive adequate renal treatment, therapy and replacement services in a clinical and non-clinical environment.

4 On 13 November 2017, the Court heard the Claimants' Application ex parte and leave was granted for the Claimants to pursue their claim for judicial review in terms of the reliefs sought in paragraph 10 of the application for leave and which said reliefs are recited in paragraph 6 below for the purpose of avoiding repetition. Pursuant to leave having been granted, the Fixed Date Claim was filed on 27 November 2017 supported by the principal, supplemental and further supplemental affidavits of David Jaikissoon, Director of both CNSL and BTL, filed on 6 November 2017, 13 November 2017 and 24 January 2018 respectively, the affidavits of George Anthony Laquis, a medical doctor and Honorary Chairman of CNSL, and Krishna Ramkumar, Director and Chairman of CKDS, filed on 6 November 2017 and the affidavit of Martin Charles Lawrence, Director and Secretary of CKDS, filed on 27 November 2017.

5 The Claimants also sought constitutional relief in the Fixed Date Claim, for which leave is not required, pursuant to section 14(1) of the Constitution and Part 56.7(1)(b) of the CPR that the impugned decisions and/or inaction of the Defendants and/or each of them in failing to ensure that the 2 Full Service Renal Dialysis Centres at the EWMSC and at the SFGH are constructed and operational amount to a contravention of the right to life of the 3 ^rd Claimant, CKDS and its members guaranteed under section 4(a) of the Constitution.

6 The reliefs sought by the Claimants in the Fixed Date Claim are:

• (i) A declaration that the decision of the Cabinet of the Republic of Trinidad and Tobago “the Cabinet”) made after 8 August 2017 and continuing in failing to take the necessary action for the NCRHA to do what was necessary to facilitate the construction and operation of two (2) Full Service Renal Dialysis Centres at Eric Williams Medical Sciences Complex (“EWMSC”) and San Fernando General Hospital (“SFGH”) (“ the Centres”) is unlawful.

• (ii) A declaration that the decision of the 2 ^nd Defendant, the Minister of Health, made after 8 August 2017 and continuing in failing to give the requisite specific or general directions to the NCRHA pursuant to section 5(1) of the RHA Act to do all things necessary to facilitate the construction and operation of the Centres is unlawful.

• (iii) A declaration that the decision of the 3 ^rd Defendant, NCRHA, made after 8 August 2017 and continuing in failing to do all things necessary to facilitate the construction and operation of the Centres is unlawful.

• (iv) (a) A declaration that the 1 ^st and 2 ^nd Claimants, CNSL and BTL are the beneficiaries of a legitimate expectation of a substantive benefit that the 3 ^rd Defendant, the NCRHA, would execute the requisite documents so that the First and Second Claimants, CNSL and BTL, will obtain financing for the construction and operation of the Centres.

  (b) A declaration that the 3 ^rd Defendant, the NCRHA, after 8 August 2017 and continuing unlawfully frustrated the said legitimate expectation of a substantive benefit in failing to take steps to execute the requisite documents so that the 1 ^st and 2 ^nd Claimants, CNSL and BTL, will obtain financing for the construction and operation of the Centres.

• (v) (a) A declaration that the 3 ^rd Claimant, CKDS, and its members are the beneficiaries of a legitimate expectation of a substantive benefit created by the representations made to them by the Cabinet and Ministers of Government acting on behalf of the government that the government would construct and operate the Centres so that the 3 ^rd Claimant, CKDS, and its members and other members of the public would receive adequate renal services.

  (b) A declaration that the Defendants after 8 August 2017 and continuing by their decisions and/or actions or inactions unlawfully frustrated the said legitimate expectation of a substantive benefit in favour of the 3 ^rd Claimant, CKDS, and its members.

• (vi) A declaration that the delay from 1 September 2015 to 8 August 2017 and/or the failure by...