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“The Caribbean Court of Justice (CCJ) has developed a test for damages that is simply too
difficult for any claimant to ...
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suffered by the party11
. According to one writer12
, the second criterion is usually the hardest
hurdle to overcome but...
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and claimed damages in the amount of approximately USD $3 million with interest23
. With
respect to damages against the ...
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no room for the Court to grant exemplary damages and added that only those remedies known to
both legal traditions of th...
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not being able to show that HRM was separate and distinct from its affiliates, there was a lack of
evidence on the part ...
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earlier, that the non-pecuniary damages were awarded for breach of the RTC and not for the
human or fundamental rights b...
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Shanique Myrie v Barbados- A Silver Lining?

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This paper provides an insight into the recent landmark decision of the Caribbean Court of Justice in Shanique Myrie v The State of Barbados [2013] CCJ 3 (OJ) and a comparative analysis on previous case law of the Court with regard to its test for damages.

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Shanique Myrie v Barbados- A Silver Lining?

  1. 1. 1 “The Caribbean Court of Justice (CCJ) has developed a test for damages that is simply too difficult for any claimant to satisfy. This is demonstrated by the fact that not one of the original jurisdiction decisions until Myrie resulted in an award of damages. If the CCJ does not change its approach, no claimant will deem it worthwhile to pursue remedies before the Court in the future.” Critically assess the above statement, being certain to compare the CCJ’s position with the similar jurisprudence of the ECJ. The Caribbean Court of Justice (CCJ) in Trinidad Cement Ltd and TCL Guyana Inc. v Guyana1 developed a test for damages which was used in subsequent cases2 before the CCJ in its original jurisdiction. In the Trinidad Cement case established that Member States can be liable to private persons for any of its breaches under the Revised Treaty of Chaguaramas (RTC)3 . In order to hold a Member State liable for breaches under the RTC, the CCJ set out three requirements to be met. Firstly, the party needs to show that there was a conferred benefit on that person for allegedly breached provision. Secondly, that breach had to be serious with substantial loss. Thirdly, a causal link between the breach and the loss or damage to the person had to be shown. At the outset, the CCJ said that this threshold for damages was a high one4 . However, not one of the original jurisdiction cases before Shanique Myrie v Barbados5 resulted in an award of damages. From an overview of the original jurisdiction cases of the CCJ one may conclude that this test has been too difficult to satisfy. To explain this, some original jurisdiction decisions of the CCJ will be examined such as TCL and TCL Guyana v Guyana6 , Trinidad Cement Limited v CARICOM7 , Hummingbird Rice Mills v Suriname and CARICOM 8 , and the saga Shanique Myrie v Barbados. This concept of state liability was borrowed from jurisprudence of the ECJ from the cases Francovich v Italy9 and Brasserie du Pecheur10 . It is only therefore fitting to discuss this test of damages as used by the CCJ in light of the ECJ position. At the forefront, the concept of state liability must be examined from the perspective of the ECJ. This concept emerged from the Francovich case which was further clarified by the ECJ in Brasserie. In Brasserie the ECJ clarified conditions for liability which are, the rule of law which is breached must be one which conferred benefit to the person; that breach was sufficiently serious and; there is a direct causal link between the breach of the State and the loss 1 See Trinidad Cement Limited and TCL Guyana Inc. v Guyana [2009] CCJ 5 (OJ), [27]. 2 See Trinidad Cement Limited v CARICOM [2009] CCJ 4 (OJ); Hummingbird Rice Mills v Suriname and CARICOM [2012] CCJ 1 (OJ), [2012] CCJ 2 (OJ); Shanique Myrie v Barbados [2013] CCJ 3 (OJ). 3 [2009] CCJ 5 (OJ), [27]. 4 [2009] CCJ 5 (OJ), [28]. 5 [2013] CCJ 3 (OJ). 6 [2009] CCJ 5 (OJ). 7 [2009] CCJ 4 (OJ). 8 [2012] CCJ 1 (OJ), [2012] CCJ 2 (OJ). 9 Joined Cases C-6/90 and 9/90 Francovich v Italy [1991] ECR 1-5357. 10 Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur SA v Germant and R v Secretary of State for Transport ex parte Factorame Ltd [1996] ECR I-1029.
  2. 2. 2 suffered by the party11 . According to one writer12 , the second criterion is usually the hardest hurdle to overcome but as will be seen in the original jurisdiction cases highlighted, the biggest hurdle for the claimants was proving that there is a direct causal link between the breach of the obligation imposed on the State and the loss suffered by the party. The CCJ in the Trinidad Cement case alluded to this concept of State liability when they said that the remedy of compensation was available where rights enured to private entities and individuals were breached by the Member State13 . The CCJ said that the principle of state liability was based on the principle of effectiveness and art. 9 RTC14 . The original jurisdiction cases where the parties sought damages and costs will now be discussed. In 2009, the CCJ had the opportunity to establish the Court’s position on a party’s entitlement to damages in the Trinidad Cement15 case. The salient facts of this case involved Guyana’s suspension of the Common External Tariff (CET) on cement imported into that country which according to the claimants was a breach of art. 82 RTC. According to the CCJ, the first two requirements for state liability were satisfied by the claimants TGI and the Court said that an award of damages could be granted if the other requirements were met16 . When assessing the entitlement of TGI to damages, the Court said that in order to have a successful claim for damages TGI would need to show that the losses suffered had to derive from the specific breach in question and that suffering loss was not sufficient to successfully claim damages before the Court17 . The Court than held that TGI could not successfully claim damages against Guyana because they could not demonstrate any such link between the breach in question and the losses suffered18 . The Court also addressed the issue on whether exemplary damages were available to the claimants and concluded that international law does not recognise the award of punitive damages19 and therefore they would not grant any such award20 . Even though the Court did not grant any award for damages in this case, it referred to its decision in TCL v CARICOM21 and made coercive order against Guyana to re-impose the CET22 . The next decision of the CCJ which addressed the issue on damages was the Hummingbird case. In this case the claimants, Hummingbird Rice Mills (HRM) alleged, inter alia, that they suffered substantial financial losses through the acts and omissions of CARICOM 11 [1996] ECR 1-1029, paragraph 51. 12 Kaczorowska, A, European Union Law, 3rd edn, 2013, New York, Routledge at p. 318. 13 [2009] CCJ 5, paragraph 27. 14 The CCJ followed the ruling of the ECJ in Francovich which based its decision on the principle of effectiveness and Article 5 EC. See Trinidad Cement Ltd and TCL Guyana Inc. v Guyana [2009] CCJ 5 (OJ), [24]-[25] 15 [2009] CCJ 5 (OJ). 16 [2009] CCJ 5 (OJ), paragraph 31. 17 [2009] CCJ 5 (OJ), paragraph 33. 18 [2009] CCJ 5 (OJ), paragraph 34. 19 [2009] CCJ 5 (OJ), paragraph 35. 20 [2009] CCJ 5 (OJ), paragraph 40. 21 [2009] CCJ 4 (OJ), paragraph 42 and 43- the Court said that they had the power to make coercive orders against Member States and the Community. 22 [2009] CCJ 5 (OJ), paragraph 43.
  3. 3. 3 and claimed damages in the amount of approximately USD $3 million with interest23 . With respect to damages against the Community, the Court did not find them guilty of any unlawful conduct so they were not liable for damages24 . Among the various losses, HRM claimed damages against Suriname for the loss of profits over a 4 ½ year period. Again in this case the Court laid down the test for damages for breach of the RTC when it referred to the Trinidad Cement25 case and decided that HRM had satisfied, as in the Trinidad Cement case, the first two requirements set out for state liability26 . For the first time the court in the Hummingbird case said that the most difficult hurdle for satisfying the test for damages was for the claimant, HRM, to prove that it suffered substantial loss as a result of the breach by Suriname27 . HRM failed this last hurdle, inter alia, because of its corporate nature since it had to clearly distinguish the losses by HRM as separate to those of Republic Grains Ltd with which it was affiliated resulting in no award for damages being granted. The Court however, invited written submissions on question of appropriate orders as to costs28 . It is ironic however, that the Court made it clear that it was not the intention of the CCJ to discourage private entities from bring important issues of economic integration law before the Court29 . This is interesting because the Court held this view with regard to costs but for an award of damages, neither in the Trinidad Cement case nor in the Hummingbird case did it ever consider that setting such a high threshold would deter applicants. Some of the costs of HRM were paid by Suriname in this case30 as was also seen in previous case-law of the CCJ31 where the Court ordered payments of the Claimants’ costs. This leads us to the most recent original jurisdiction case decided by the CCJ, Shanique Myrie v Barbados. This was a landmark decision because, for the first time, the CCJ awarded damages as well as non-pecuniary damages to a claimant. The most significant issue in this case was whether there was and to what extent did CARICOM nationals have a right of free movement within the Caribbean Community. The claimant in this case brought action against the State of Barbados for, inter alia, alleged breaches of her right of free movement as a CARICOM national pursuant to art. 45 RTC32 . When dealing with the claim for damages, the Court again laid down the test for damages it set out in the Trinidad Cement case. The Court in dealing with exemplary damages, reinforced its position laid down in the Trinidad Cement case that there is 23 [[2011] CCJ 1 (OJ), paragraph 11. 24 [2012] CCJ 1 (OJ), paragraph 52. 25 [2009] CCJ 5 (OJ), paragraph 27. 26 [2012] CCJ 1 (OJ), paragraph 58. 27 [2012] CCJ 1 (OJ), paragraph 59. 28 [2012] CCJ 1 (OJ), paragraph 66. 29 [2012] CCJ 2 (OJ), paragraph 6. 30 [2012] CCJ 2 (OJ), paragraph 8- Suriname was ordered to pay 50% of the costs incurred by the Claimant. 31 Trinidad Cement Limited v Caribbean Community [2009] CCJ 4 (OJ), [82] ( the Court ordered payment of half the costs); Trinidad Cement Limited and TCL Guyana Inc. v Guyana [2009] CCJ 5 (OJ), [46] (the Court ordered payment of two-thirds costs); Trinidad Cement Ltd and TCL Guyana Inc. v Guyana [2009] CCJ 6 (OJ) [15] (payment for one half of the costs was ordered by the Court). 32 Shanique Myrie v Barbados [2013] CCJ 3 (OJ), [91]-[92]- The claimant also claimed breaches of her rights under Article 7 RTC (non-discrimination) and Article 8 RTC (Most Favoured Nation Treatment) but this was struck out by the Court.
  4. 4. 4 no room for the Court to grant exemplary damages and added that only those remedies known to both legal traditions of the Community i.e. common law and civil law can be applied by the Court in its original jurisdiction and since exemplary damages were not available under the civil law legal tradition, the Court cannot make award for such33 . Unlike the previous cases before the CCJ in its original jurisdiction, the Myrie case was the first of its kind in that no other states sought non-pecuniary damages and the Court even alluded to that fact34 . The facts of the Myrie case are important because among the allegations of the claimant, to which the Court agreed35 , were the body cavity search and the conditions she was kept in at the airport. In the view of the Court, that was sufficient to be a sufficiently serious breach of her right to entry into Barbados. In assessing whether there was any direct link between the treatment and the exercise of her right of entry, the Court said that the breach of her right of entry included everything that happened between her point of arrival and her departure the next day36 . On this basis, she was awarded BDS $2,240 in pecuniary damages and BDS $75,000 in non-pecuniary damages37 . What is interesting is even then the court said that the non-pecuniary damages were awarded only for the breach of the right to travel within the Community “without harassment or the imposition of impediments”38 . Although the Myrie decision does appear that the Court is heading in a more liberal approach than its previous original jurisdiction decisions, it is erroneous to comprehend on what basis was the amount for non-pecuniary damages granted. The Court did indicate in its judgment the various conditions exposed to the claimant, they did not say why the amount granted for non- pecuniary damages amounted to BDS $75,000. At this point mention should be made on the reasoning by the Court for the grant of non-pecuniary damages. The Court used the Chorzow Factory39 case to say that an award of non-pecuniary damages is recognised in international law40 . In the Chorzow Factory case the Permanent Court of International Justice (PCIJ) said that reparation must erase all possible consequences of an illegal act and return to the situation before there was any such breach41 . Granted that the award of non-pecuniary damages in the amount of $75,000 may have the possibility of putting the claimant in the position she was in before the breach, it still remains unclear on what basis that was granted. Turning to the award of compensatory damages which was BDS $2,240 (for cost of her plane ticket and medical expenses) the Court granted it even though she presented no invoice for her airline ticket. If this is compared to the situation in the Hummingbird case where, apart from 33 [2013] CCJ 3 (OJ), paragraph 94. 34 [2013] CCJ 3 (OJ), paragraph 96. 35 [2013] CCJ 3 (OJ), paragraph 42. 36 [2013] CCJ 3 (OJ), paragraph 99. 37 [2013] CCJ 3 (OJ), paragraph [95] and [100]. 38 [2013] CCJ 3 (OJ), paragraph [100]. 39 Case Concerning the Factory at Chorzow (Claim for indemnity)(Germany v Poland) Judgment on the Merits, dated September 13, 1928, PCIJ, Series A, No 17. 40 [2013] CCJ 3 (OJ), paragraph 96. 41 PCIJ, Series A, No. 17, 1928, pp. 47-8.
  5. 5. 5 not being able to show that HRM was separate and distinct from its affiliates, there was a lack of evidence on the part of HRM to show evidence of the actual profit that would have been made if they wanted to claim losses for hypothetical profits. Not being able to provide such evidence, the third hurdle was not met. If one can transpose that principle into the Myrie case with respect to compensatory damages, no provision of an invoice for the plane ticket would, lead to no award of compensatory damages. Furthermore, the Court admitted in Myrie that there were inconsistencies with regard to the facts presented by the claimant which dealt mainly with the time and sequence of events42 . Under the approach of the Court in the Hummingbird case this would have added impetus to the Court for deciding that the third criterion was not satisfied i.e. no direct causal link could be established between the claimant’s loss and the breach. One common thread running through the original jurisdiction cases where the parties sought damages before the CCJ was the lack of sufficient evidence provided by the claimants. We see this in the Trinidad Cement43 case and the Hummingbird44 case. Therefore, by the Court in Myrie granting compensatory damages even though there were inconsistency in evidence presented and invoice for plane ticket, it can be said that the Court seems to be moving to a more liberal stance in granting damage but this remains to be seen. From the original jurisdiction cases before the CCJ mentioned, the decision in Myrie to make an award for pecuniary and non-pecuniary damages can be seen as a silver lining for prospective claimants wish to seek damages for breaches of their rights under the RTC before the CCJ. More so, with respect to those private entities, if the chance of an award of damages is very slim as in the Trinidad Cement and Hummingbird case, it may discourage such claimants from seeking relief before the CCJ especially where the only relief granted is a coercive order against the State. Even though it may be argued that private entities would effectively benefit from these coercive orders made by the Court, since these entities are profit driven45 they would be incurring severe losses in the end when their claims for damages are unsuccessful. Along this vein, by setting such a high threshold for the test of damages the Court would be operating contrary to the object and goals of the RTC. The Court in the Trinidad Cement 46 case raised this point when it said private entities played a major role in fulfilling the goals and objectives of the RTC. In retrospect, even though the award of damages (both compensatory and non-pecuniary) in the Myrie decision from the reasons mentioned can be questioned, it does give hope to future claimants as it may seem that the high threshold for the test of damages may be relaxed. However, mention must be made of the Court where they said in the Myrie case, as mentioned 42 [2013] CCJ 3 (OJ), paragraph 33. 43 TCL indicated they suffered no loss and TGI could not prove any link between Guyana’s breach and its loss suffered; See, [2009] CCJ 5 (OJ), paragraph [32] and [34]. 44 There was lack of evidence by HRM to show any loss of profits between the relevant period (January 2007 to June 2010) and this was one of the factors which led the Court to rule that the third requirement of proving a direct causal link between the loss suffered and breach by Suriname was not satisfied; See [2012] CCJ 1 (OJ), paragraph [60]. 45 Berry, S, Caribbean Integration Law, Oxford, OUP, 2014, p. 433 46 See Trinidad Cement Ltd. and TCL Guyana Inc. v Guyana [2009] CCJ 1, paragraph [13]
  6. 6. 6 earlier, that the non-pecuniary damages were awarded for breach of the RTC and not for the human or fundamental rights breaches47 . It remains to be seen how much the Court would stretch its leniency toward claimants but from the dicta mentioned, the Court has a long way to go in fleshing out its issues for award of damages. Liam Labban (Year III) University of the West Indies, Cave Hill, Barbados 47 [2013] CCJ 3 (OJ), paragraph 100.

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