Funeral homes lose bid to challenge police orders dealing with sudden deaths

The Court of Appeal has set aside permission granted to five funeral homes to challenge police force orders on sudden deaths, ruling that procedural defects meant the judicial review case should never have gone forward.

The decision ends, for now, an attempt by five funeral homes to contest 2016 Jamaica Constabulary Force orders that narrowed the circumstances in which police must engage contracted morgue operators—a change the companies said harmed their businesses and breached their legitimate expectations.

Judicial review allows courts to assess the legality of decisions made by public authorities.

In a unanimous judgment delivered on December 19, the Court of Appeal ruled that the Supreme Court judge erred in refusing to set aside the permission that had been granted to the funeral homes, and found that the grant of permission should not have stood in light of procedural defects and the applicable legal tests.

The appeal, brought by the security ministry, was heard in July 2022 by Justices Paulette Williams, Nicole Simmons and Kissock Laing.

The funeral operators were Lyn’s Funeral Home Limited, Gateway Mortuary Services and Funeral Supplies Limited (trading as Morgan’s Funeral Home), St Michael’s Funeral Home Limited, Witter & Son Company Limited, and Robert’s Funeral Home and Services Limited.

They had been contracted by the Government of Jamaica, through the Ministry of National Security, to retrieve, store and transfer bodies in medico-legal cases, including homicides, suspicious deaths and sudden deaths.

The dispute arose after the Commissioner of Police issued Force Orders on June 24, 2016, revising earlier instructions that governed when police officers were required to engage contracted funeral homes in cases of sudden death where the deceased had a known medical condition.

The revised orders reduced the circumstances in which police were required to call contracted funeral homes, allowing families to engage a funeral home of their choice once a doctor was willing to certify the cause of death.

The funeral homes contended that the revised Force Orders breached their legitimate expectations, adversely affected their businesses, and raised issues of public interest.

During the case, the funeral home operators asserted that, due to the changes in the protocols for handling sudden deaths, there had been a “marked reduction in the number of calls received from the police to receive and/or store deceased”," the judgment said. The operators also stated that “several other funeral home operators, since the change in the force orders, have been receiving dead bodies”.

In October 2017, they applied, without notice to the Ministry or the Attorney General, for permission to seek judicial review. Permission was granted ex parte by McDonald J, along with an extension of time.

When the ministry later applied to set aside those orders, Justice Simone Wolfe-Reece refused, concluding that she lacked jurisdiction to overturn an order made by a judge of concurrent jurisdiction.

The ministry appealed, and the Court of Appeal agreed that errors had been made, overturning Wolfe-Reece’s decision.

Writing for the court, Justice Simmons held that an order made ex parte is provisional in nature and may be set aside by a judge of concurrent jurisdiction under the Civil Procedure Rules. She found that Wolfe-Reece erred in concluding that she had no such jurisdiction.

The appellate court further found that the affidavit relied on to obtain permission for judicial review was irregular, having been sworn months before the notice of application was filed.

Because the application was heard ex parte and the ministry had no opportunity to respond at that stage, the irregularity was not cured and should have been treated as a material defect justifying the setting aside of leave, the court ruled.

The court also examined whether the respondents had demonstrated an arguable case for judicial review with a realistic prospect of success—the test for granting permission.

While acknowledging that the threshold for permission is generally low, the court emphasised that the power to set aside leave, though exercised sparingly, arises where it is shown that leave plainly ought not to have been granted.

The Court of Appeal found merit in the ministry’s argument that the nature of the dispute did not require judicial review proceedings.

The court said the funeral homes’ real complaint was commercial, not public law, and should be resolved under their contracts with the State rather than through judicial review.

“The crux of the matter, therefore, appears to be the reduction in respondents’ earnings resulting from the non-referral of certain cases to them,” Justice Simmons said. “In my view, 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.”

The judge noted, however, that her finding in the case involving the funeral homes “is not to say that judicial review is not available in matters of contract between a public entity and private individuals”.

Faith Hall, director of state proceedings in the Attorney General’s Chambers, represented the ministry.

Attorney-at-law Oraine Nelson, instructed by Oraine Nelson & Co, appeared for the funeral homes.

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