Attorney General of Trinidad and Tobago v Carmel Smith
| Jurisdiction | UK Non-devolved |
| Judge | LORD WALKER |
| Judgment Date | 14 December 2009 |
| Neutral Citation | [2009] UKPC 50 |
| Court | Privy Council |
| Docket Number | Appeal No 0021 of 2009 |
| Date | 14 December 2009 |
[2009] UKPC 50
Lord Phillips
Lord Rodger
Lord Walker
Lord Brown
Lord Mance
Privy Council
Appellant
James Guthrie QC
(Instructed by Charles Russell LLP)
Respondent
Sir Fenton Ramsahoye SC
Anand Ramlogan
(Instructed by Bankside Law)
The issue
This appeal turns on a procedural issue, that is the proper party to be defendant to a claim for constitutional redress under section 14 of the Constitution of Trinidad and Tobago. The claim alleges that the Statutory Authorities Service Commission ("SASC") discriminated against Mrs Carmel Smith (who is the claimant, and the respondent to this appeal) and treated her unequally in violation of her rights under section 4(b) (equality before the law) and (d) (equality of treatment by a public authority).
Although the events complained of occurred more than seven years ago, and there have been previous proceedings by way of judicial review, the merits of the claim have still to be investigated. Nothing in this judgment should be taken as expressing any view on the merits. The factual background is sufficiently summarised by recording that from 1996 Mrs Smith was the Acting Director of the National Lotteries Control Board ("NLCB") which she had joined as Secretary to the Board of Directors in 1989. In 2000 she was formally appointed as Deputy Director but remained as Acting Director. In August 2002 she was on an extended period of vacation when she received a letter from the Chairman telling her to remain on vacation leave because accountants' reports had provided "evidence of matters of concern, which bear on the performance of your duties."
Shortly afterwards she was told that the matter had been referred to SASC, and on 2 September 2002 an executive officer of SASC wrote to her referring to an allegation of misconduct. The letter stated:
"In accordance with the provisions of Regulation 88(1) and (2) of the Statutory Authorities' Service Commission Regulations Chapter 24: 01, the Statutory Authorities' Service Commission has directed that you cease to report for duty with effect from August 5, 2002, until further notice."
There was then considerable delay (a matter which was ventilated in the judicial review proceedings but is not relevant to this appeal). On 31 March 2004 Mrs Smith received from SASC a formal charge under Regulation 90(6) of the SASC Regulations:
"Statement of Charge;
Misconduct contrary to an implied term in your contract of employment;
Particulars of Charge:
That you, Carmel Smith, Deputy Director, National Lotteries Control Board did an act in breach of an implied term of your contract of employment namely not to exercise your authority unreasonably when during 2000 and 2002 you received a benefit above and beyond your entitlement as acting Director, by accepting and using motor vehicle registration number PBJ 3133 while enjoying an upkeep allowance on your personally owned motor vehicle."
On 16 April 2004 Mrs Smith wrote formally denying the charge.
On 31 March 2006 Mrs Smith issued an originating motion claiming redress under section 14 of the Constitution. Her affidavit in support of the motion referred, in support of her allegation of discrimination, to SASC's decision not to suspend another (less senior) male employee of NLCB against whom SASC had at the end of 2005 brought seven separate charges of sexual harassment (all these incidents having allegedly occurred in August 2004 and involving a single female employee).
The Attorney General of Trinidad and Tobago was made the sole defendant to Mrs Smith's originating motion. He objected that (although entitled to be given notice of the proceedings, under section 3 of the Supreme Court of Judicature Act, Chapter 4: 01) he could not be made a party without his consent, and that the proper defendant was SASC. This point was heard as a preliminary issue. On 18 February 2008 Moosai J upheld the Attorney General's objection and gave leave for the amendment of the proceedings, striking out the Attorney General and adding SASC. On 21 July 2008 the Court of Appeal (Hamel-Smith, Kangaloo and Weekes JJA) allowed Mrs Smith's appeal and struck out the judge's order, so that the Attorney General again became the sole defendant in place of SASC. The Attorney General appeals to the Board with final leave granted on 2 February 2009.
It is a matter for regret that considerable delay and expense has been incurred over this purely procedural point, with the substance of Mrs Smith's claim being held in suspense. The procedural point is however of some importance to both parties. The Attorney General wishes to have the law clarified, to avoid similar delay and expense in future proceedings for constitutional redress. Mrs Smith has anxieties (whether or not well-founded) about the recovery of any damages and costs that may eventually be awarded to her, if the Attorney General himself is not a party to the proceedings.
Relevant provisions of the Constitution
The Constitution of Trinidad and Tobago came into force on 1 August 1976. Chapter 1 (Recognition and protection of fundamental human rights and freedoms)contains sections 4 and 14, to which reference has already been made. Section 14(Enforcement of the protective provisions) provides:
"(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating the motion.
(2) The High Court shall have original jurisdiction
(a) to hear and determine any application made by any person in pursuance of subsection (1); and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4),
and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.
(3) The State Liability and Proceedings Act shall have effect for
the purpose of any proceedings under this section."
The State Liability and Proceedings Act (Chapter 8: 02) is concerned with proceedings by and against the State. The Judicial Committee has considered the effect of section 14(3) in Durity v Attorney General of Trinidad and Tobago [2003] 1 AC 405, explaining (para 24 of the judgment delivered by Lord Nicholls):
"On this the first point to note is that the express but general reference to the State Liability and Proceedings Act in section 14(3) of the Constitution cannot be read as meaning that every provision of that Act is incorporated into the Constitution for the purposes of constitutional proceedings … Thus, section 14(3) of the Constitution has to be read as applying to constitutional proceedings such of the provisions of the State Liability and Proceedings Act as are capable of being applied for this purpose."
Section 76(2) of the Constitution provides for the office of Attorney General:
"The Attorney General shall, subject to section 79 [relating to temporary incapacity], be responsible for the administration of legal affairs in Trinidad and Tobago and legal proceedings for and against the State shall be taken –
(a) in the case of civil proceedings, in the name of the Attorney General;
(b) in the case of criminal proceedings, in the name of the State".
In the Constitution the expression "the State" is not defined (other than by reference to its geographical extent in section 1(2)). Nor is the expression "civil proceedings" defined; in particular, there is no restrictive definition such as is found in the State Liability and Proceedings Act (para 12 below).
There are some other definition provisions in the Constitution that may be relevant, although they were not relied on in counsel's submissions. In section 3(1) "public office" and "public officer" are defined by reference (directly or indirectly) to the public service, which is defined, subject to subsections (4) and (5), as service in a civil capacity of the Government of Trinidad and Tobago (or of the Tobago House of Assembly). "Service Commission" means the Judicial and Legal Service Commission, the Public Service Commission, the Police Service Commission and the Teaching Service Commission. Section 3(4) provides that a person shall not be considered to hold an office in the public service by reason only that
"(b) he holds the office of –"
…
(iii) Ombudsman or member of the Integrity Commission or member of any other Commission established by this Constitution;
…
(v) member of any board, commission, committee or similar body, whether incorporated or not, established by any enactment."
The Constitution provides for the establishment and functioning of a number of Commissions to oversee appointments, promotions, removals and terms of service for those working in the public sector in Trinidad and Tobago. These are the four Service Commissions already mentioned, that is the Judicial and Legal Service Commission (Chapter 7, sections 110-111); and (all in Chapter 9, sections 120-129) the Public Service Commission, the Police Service Commission and the Teaching Service Commission. There are two Commissions with more limited and specialised functions, the Integrity Commission (Chapter 10, sections 138-139) and the Salaries Review Commission (Chapter 11, sections 140-141). There is also a Public Service Appeal Board (Chapter 9, sections 130-137). Some at least of...
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