BILLION-DOLLAR BLUNDER
Legal avalanche looms as motorists line up to claim damages over illegal traffic fines
Published:Sunday | February 4, 2024 | 8:41 AMLivern Barrett - Senior Staff Reporter
Drivers in the public transportation sector who were compelled for 15 years to pay illegally imposed traffic fines are now lining up to file a wave of lawsuits against the Government that could cost taxpayers nearly $2 billion.
And the looming claims for constitutional redress by bus and taxi operators islandwide could be a slam dunk, given the recent landmark ruling by the Jamaican High Court in a lawsuit filed by one motorist, legal experts opined.
Motorists who paid traffic fines to tax authorities over the 15-year period are also eligible to bring constitutional claims against the Government.
It is another indication, experts say, of the multibillion-dollar impact the ruling will have on the public purse, with the Government also ordered to refund a significant chunk of all traffic fines paid to tax authorities over the 15-year period between April 2006 and November 2021.
In 14 of the years in question, a total of 4,779,473 traffic tickets, with fines totalling $5.7 billion, were issued by the police, a review of the Economic and Social Survey of Jamaica (ESSJ) published annually has revealed. The data were unavailable for one year.
FLOODGATE OPEN
Maurice Housen, a software engineer, opened the proverbial floodgate with a lawsuit he filed against the State challenging the legality of a $5,000 ticket given to him by cops in July 2021 for a speeding violation.
He also contended that the fine was a breach of his constitutional right to due process guaranteed by Section 16 (11) of the Jamaican Constitution.
Section 16 (11) provides that no penalty shall be imposed for any criminal offence or infringement of a civil nature that is more severe than the maximum penalty which might have been imposed at the time the offence or infringement was committed.
The $5,000 ticket issued to Housen was six times more than the $800 fines stipulated in the 1938 Road Traffic Act (RTA) for a speeding violation.
The significant increases in fines for speeding and other traffic violations were made in 2006 and again in 2007 through the Provisional Collection of Taxes Act (Road Traffic) Orders signed by then Finance Minister Dr Omar Davies.
But Housen’s attorneys Gavin Goffe, Jahmar Clarke and Matthew Royal, from the law firm Myers Fletcher & Gordon, argued that this approach was wrong.
They argued in court that at the time Housen was ticketed, fines or fixed penalties for traffic offences contained in the 1938 Road Traffic Act had not been increased by the legislature or the transport minister, as is mandated by Section 116 of the legislation, but by Davies.
A panel of three Constitutional Court judges agreed, ruling that contrary to the submissions made by lawyers for the Government, Housen’s right to due process, as guaranteed by Section 16 (11) of the Constitution, “was engaged on the facts of the case”.
“In the absence of justification for derogation from it, the fixed penalty notice/traffic ticket issued to the claimant [Housen] … with a more severe fixed penalty than that authorised by the law then in force, constitutes a breach of the right,” the judges declared, while awarding Housen $250,000 in damages.
A review of ESSJ reports shows that in 2007, the first full calendar year that the illegal order was in effect, the Government collected $275 million in fines from 304,086 traffic tickets issued by the police.
Motorists paid a total of $2.18 billion in fines to the Government through Tax Administration Jamaica and before that the Inland Revenue Service to settle 1.6 million traffic tickets issued in six of the 15 years the orders were in effect, according to the ESSJ data.
There were no data on the total traffic fines collected through tax authorities in each of the remaining years.
The number of traffic tickets handed out by cops in a calendar year peaked at 508,910 in 2017, while the total value of tickets issued in a calendar year peaked at $968 million in 2021, the data show.
And the ESSJ, which is published annually by the Planning Institute of Jamaica, revealed that motorists paid a total of $94 million in traffic fines through the courts in 2021 and 2020, the only years for which the data were available.
Fines paid through the courts are not refundable under the Housen ruling, according to Goffe.
‘WE WILL BE GOING TO COURT’
Egeton Newman, president of Transport Operators Development Sustainable Services, disclosed on Friday that his group has agreed in principle to have the law firm Myers Fletcher & Gordon seek constitutional redress for drivers in the public transportation sector islandwide.
According to Newman, the suggestion now is for the lawsuits to be filed in batches of 50 for a still-undetermined number of bus and taxi operators.
“We will be going to the court to claim that award of $250,000 per member,” he told The Sunday Gleaner, making reference to the damages awarded to Housen.
“We have persons who have been to jail and we have persons who have paid hundreds of thousands of dollars in traffic tickets,” Newman added.
Goffe, the attorney who represented Housen, said Myers Fletcher & Gordon would be willing to make itself available to represent the public transport operators and stopped short of calling the cases a slam dunk.
“It is more likely going to be a question of how much any other claimant would be entitled to receive as nominal damages instead of whether their constitutional rights were infringed,” he told The Sunday Gleaner on Friday.
The attorney acknowledged, however, that the Housen ruling is still a “first-instance decision”, meaning it could be challenged in the Court of Appeal, Jamaica’s second-highest court, or that another panel of Constitutional Court judges could take a different view in future cases.
SETTLEMENT REJECTED BY THE GOVERNMENT
A conservative estimate, based on the damages awarded in the Housen case and the ESSJ data, suggests that the illegal orders purportedly imposed by Davies could cost taxpayers almost $4 billion, experts opined.
But according to sources, the Government rejected a settlement offer from Housen’s lawyers that could have “easily” resulted in savings of nearly $600 million.
Under the proposed settlement seen by The Sunday Gleaner, the offer was for the Government to refund motorists the difference between the fines paid and the fines that were stipulated in the since-repealed 1938 RTA “discounted by 20 per cent”, subject to conditions that were attached.
Further, the proposed settlement, which would require court approval, offered to release the Government from “all further claims, including claims for damages under the Constitution”.
One attorney who viewed the proposal noted, however, that the offer of a discount was not binding on everyone in the class of persons impacted by the Housen ruling.
“There are mechanisms for people to opt out, for example, and claim for every dollar that they are entitled to,” said the attorney, who did not want to be named.
“Part of the benefit of a representative action claim like this is that if you come to the court with a negotiated settlement and the court gives its blessing, then you can include things which will become the default position, unless somebody says they want to be excluded from that.”
Still, the attorney believes the reported rejection of the settlement offer was “a billion-dollar blunder”.
“Because based on the ESSJ data alone, the 20 per cent discount would be equivalent to over $600 million,” the attorney asserted.
“There are hundreds of people who will seek constitutional redress. Let’s assume that everybody who sues gets $250,000, you’re talking about billions of dollars.”