Describing a drawn-out defence of their actions as “highly improper”, Grand Court Judge Robin McMillan has ordered the heads of customs and police, along with former Chief Medical Officer Dr. John Lee, to pay Doctors Express its full legal costs after it challenged an illegal raid on its premises.
McMillan was blisteringly critical of legal arguments delivered by counsel for Director of Customs Charles Clifford, Commissioner of Police Derek Byrne and Lee, who were respondents in the case.
In 2020, Doctors Express brought legal action against the authorities after customs and police officers raided its urgent care facility in George Town in September 2019, and seized its vaporised medical marijuana products.
Despite clear evidence that arose in court that a cease notice and a warrant to search the premises of Doctors Express for vaporised cannabinoid medicine were unlawful and improper, the respondents continued to argue their point, prolonging the case, McMillan said.
Judge: ‘Highly improper is practically an understatement’
In his judgment on costs, delivered on 24 Feb. and released publicly on 28 Feb., McMillan noted that the respondents’ continuing defence of the legality of the cease notice and search warrant, was “an extraordinary position to take,” as the “deficiencies singly and collectively were manifestly fatal”.
By contesting the validity of the cease notice and the search warrant, the respondents “added to the injustice which the applicants had already experienced,” he said.
“Frankly, to describe this form of litigious conduct as highly improper is practically an understatement,” he added.
He noted that in circumstances where errors of judgement occur, “it is imperative that they be recognised, addressed and mitigated as soon as practicable. The present application arises precisely because those errors were not recognised, addressed and mitigated.
“Instead, as we have seen in the course of the proceedings,” he said, “they were compounded by additional sets of errors. Errors were relentlessly heaped upon errors. Reality was manifestly ignored.”
‘No merit’ to defence
He stated that the judicial review judgment, which was delivered on 4 Feb. 2021, determined that Doctors Express’s case was “overwhelming, and conversely that the respondents’ case was without any merit at all”.
In deciding if costs should be awarded, the judge first considered whether the respondents’ case was “manifestly hopeless” rather than “merely weak”, and found that since the cease notice was “legally misconceived… and executed for an improper purpose”, it was both “unreasonable” and “improper” to defend the notice.
McMillan stated in his ruling, “In summary, the defence is not simply a weak one but a non-existent one.”
He stated, “The respondents were accorded several invitations to come to terms with persuasive arguments which could well have led them to a more orderly outcome for all concerned. Instead they continued on even in the face of questions from the judge that they could not answer.
“Rather than recognising, addressing and mitigating their difficulties, they chose to ignore them. In the opinion of the court, this was a very serious misjudgment. They pursued a defence which was manifestly hopeless and, in some material aspects, highly improper.”
Lee’s email
One of those material aspects was the failure to disclose to the court until the final day of the judicial review, an email which revealed the real reason behind the cease order. The judge described this late submission as “immensely disappointing”.
That email revealed that Lee, who had issued the cease notice, did not consider the vaporised medical cannabis advertised by Doctors Express to be any more harmful than smoking marijuana, but nonetheless wanted to use the occasion to “rein in” the prescription of medical cannabinoids in Cayman.
The prescribing and dispensing of medical marijuana had been legal in Cayman since 2017, and Doctors Express had a licence to import and sell the products seized in the raid.
In his email, Lee had written, “The juxtaposition of the worldwide focus on vaping deaths at the same time as Doctors Express’ flagrant use of blanket advertising was unfortunate for Doctors Express and gives us a chance to rein in this widespread use of cannabinoids in the face of guidance to the contrary.”
Those email comments contradicted Lee’s earlier evidence that he had issued the cease notice because vaporised medical cannabinoids posed a serious public health risk.
No specific sum was mentioned in the judge’s ruling on indemnity costs.
This is the second judgment issued this month in relation to the Doctors Express legal challenge. Justice Cheryll Richards, on 16 Feb., granted Doctors Express leave to apply for a judicial review into a decision by the Director of Public Prosecutions not to prosecute Lee and others over the unlawful raid and seizure of the medical marijuana items.
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