AN Appeal Court panel recently overturned a 2018 decision by Supreme Court judge Justice Simone Wolfe-Reece that had paved the way for five funeral homes to challenge the second of two Jamaica Constabulary Force Orders issued in 2016, which changed the protocols surrounding the removal and storage of bodies of individuals who die suddenly.

The change in procedure made it so that the police were no longer mandated to contact a contracted funeral home where the deceased had a known medical condition and a medical practitioner is willing to sign the certificate.

According to the Force Orders, in such cases, the body can be released to the family, who can then contact a funeral home of their choice. The stipulation that where there is no suspicion of foul play, but there is no doctor willing to sign a certificate, the family of the deceased is tasked with making the arrangements for an autopsy to be conducted remained unchanged as in the first Force Orders.

However, the five entities — Lyn’s Funeral Home, Gateway Mortuary Services and Funeral Supplies Limited, St Michael’s Funeral Home Limited, Witter and Son Company Limited, and Roberts Funeral Home and Services Limited — who had contractual arrangements with the Ministry of National Security, after talks failed, hauled it before the court complaining that the terms of their engagement had changed with the issuance of the second Force Orders.

According to the funeral homes, they, following that policy shift, suffered a decline in business, affecting their earnings. The five, in contending that the changes breached their contracts with the Government and weakened the integrity of the process by which deaths are authenticated in Jamaica, asserted that the new protocols were prejudicial to the operation of their businesses and are contrary to the interests of the public as a whole.

In a notice of application filed in 2017 seeking leave to apply for judicial review, the funeral homes sought to have the court declare, among other things, that the Force Orders dated June 24, 2016 was unlawful and in breach of their legitimate expectations. They also prevailed on the court to issue an order of mandamus directing the appellant to restore the Force Orders dated February 11, 2016. They contended that before the issue of the second Force Orders, the police were mandated to contact them in all cases of sudden death. They further said that they were neither informed of the changes beforehand nor afforded the opportunity to make representations on how they would be affected.

That application for leave was heard ex parte (without all parties present) in October 2017 by Supreme Court judge Justice Marva McDonald, who granted an order for the extension of time within which the funeral homes were permitted to file their application for leave to apply for judicial review. They were also granted leave to file their claim for judicial review. In 2018 the Government’s attorneys sought to have those orders set aside. That hearing was presided over by Justice Wolfe-Reece who refused to set aside the orders granting the funeral homes leave to file a claim for judicial review.

The State’s attorneys, in escalating the matter to the Court of Appeal, sought to have the decision made by Wolfe-Reece overturn, arguing, among other things, that she “failed to consider sufficiently, or at all, the fact that the respondents [funeral homes] had an alternative remedy and that consequently, leave ought to have been set aside”.

Furthermore, the Government’s lawyers said, “The learned judge failed to have any, or any sufficient, regard to the fact that even if the respondents were to succeed in their claim, the judgement would be nugatory as the minister of national security cannot compel the commissioner of police to issue Force Orders”.

The appeal court panel, in siding with the Ministry of National Security in a judgment handed down two Fridays ago, said it was clear that Justice Wolfe-Reece, who “had the discretion to set aside the order of Justice McDonald”, had “erred in concluding that she did not”.

In the meantime, the appeal court panel said the grounds on which the funeral homes sought judicial review clearly indicate that their issue is with the policy decision made by the appellant on the Government’s behalf.

Said the judges of the appeal: “If, for argument’s sake, the relief sought is granted, the appellant’s policy decision would be unaffected, as Force Orders are merely the means by which decisions are communicated. This would render the judgement nugatory and would also create an untenable situation where the policy of the GOJ [Government of Jamaica], as communicated by the policy letter, would be at variance with the terms of the first Force Orders. Such a situation would be contrary to good governance. The respondents’ challenge ought to be directed at the change in the GOJ’s policy.

“In this matter, the respondents have a contractual relationship with the appellant. The terms of their engagement, they say, changed with the issuance of the second Force Orders. They have complained that they have since suffered a decline in business, which obviously would affect their earnings. The crux of the matter, therefore, appears to be the reduction in respondents’ earnings resulting from the non-referral of certain cases to them. They have asserted that due to the changes in the protocols for the handling of sudden deaths, there has been a “marked reduction in the number of calls received from the police to receive and/or store deceased” and that “several other funeral home operators, since the change in the Force Orders, have been receiving dead bodies”, the court pointed out.

In allowing the appeal and setting aside the application for judicial review by the funeral homes, the appeal court said, “those are private matters to be resolved between the respondents and the appellant within the terms of their contracts. They do not concern public rights”.

“That is not to say that judicial review is not available in matters of contract between a public entity and private individuals. Therefore, there is merit in the appellant’s contention that the respondents are not entitled to bring a claim for judicial review on this basis,” the panel said further.

According to the court, “in the circumstances, the legitimate expectation to be consulted or to be heard by the appellant claimed by the respondents cannot be said to be reasonable”.

“The request that the second Force Orders be quashed and that the first Force Orders be reinstated is, in these circumstances, curious,” it said further.

The court, in noting that the funeral homes had expressed concerns that police officers may be operators or affiliated with other funeral homes and, as such, business may be diverted from them, pointed out that “to qualify for relief by way of judicial review, the process by which a particular decision was made must be challenged”.

“The issues raised by the respondents are contractual and ought to be resolved within the terms of their contracts with the appellant,” it said in overruling the Supreme Court orders which had favoured the funeral homes.

“The order of Justice Wolfe-Reece, made on 21 August 2018, refusing the appellant’s application to set aside the ex parte order of Justice McDonald granting leave to the respondents to apply for judicial review, is set aside. The order for leave to apply for judicial review granted ex parte by Justice McDonald, on 20 October 2017, is set aside,” the judges of the appeal ruled.

The expanded Court of Appeal building, located on King Street in downtown Kingston. (Photo: JIS)