Attorney General of Trinidad and Tobago v Ayers-Caesar
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales,Lady Black,Lord Briggs,Lord Kitchin,Lord Carnwath |
| Judgment Date | 09 December 2019 |
| Neutral Citation | [2019] UKPC 44 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0014 of 2019 |
| Date | 09 December 2019 |
[2019] UKPC 44
Lord Carnwath
Lady Black
Lord Briggs
Lord Kitchin
Lord Sales
Privy Council Appeal No 0014 of 2019
Privy Council
Michaelmas Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Howard Stevens QC
Daniel Goldblatt
(Instructed by Charles Russell Speechlys LLP (London))
Respondent
Peter Knox QC
Robert Strang
Philip Judd
(Instructed by BDB Pitmans LLP)
Heard on 14 November 2019
( with whom Lady Black, Lord Briggs and Lord Kitchin agree)
This appeal arises out of an unfortunate dispute which has arisen between the respondent, the Judicial and Legal Service Commission (“the Commission”) and the President of Trinidad and Tobago. The President is sued in the name of the Attorney General of Trinidad and Tobago, in a representative capacity. The appeal concerns the question whether leave to bring judicial review proceedings against the President should have been granted by the courts in Trinidad and Tobago to the respondent. Leave to apply for judicial review against the Commission has also been granted, and there is no appeal in relation to that aspect of the respondent's claim.
The test to be applied is the usual test for the grant of leave for judicial review. The threshold for the grant of leave to apply for judicial review is low. The Board is concerned only to examine whether the respondent has an arguable ground for judicial review which has a realistic prospect of success: see governing principle (4) identified in Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780, para 14. Wider questions of the public interest may have some bearing on whether leave should be granted, but the Board considers that if a court were confident at the leave stage that the legal position was entirely clear and to the effect that the claim could not succeed, it would usually be appropriate for the court to dispose of the matter at that stage.
The material provisions in the Constitution which are relevant for present purposes are as follows. Section 104(1) provides:
“The Judges, other than the Chief Justice, shall be appointed by the President, acting in accordance with the advice of the Judicial and Legal Service Commission.”
Section 137 makes provision in relation to the removal of a judge from office. Section 137(1) provides that a judge may be removed from office only for inability to perform the functions of his office or for misbehaviour. Section 137(2) provides:
“A Judge shall be removed from office by the President where the question of removal of that Judge has been referred by the President to the Judicial Committee and the Judicial Committee has advised the President that the Judge ought to be removed from office for such inability or for misbehaviour.”
Section 137(3) provides, among other things, that the Commission may inform the President that the question of removing a Judge (other than the Chief Justice) ought to be investigated, and if it does so the President shall appoint a tribunal to enquire into the matter and report back to the President whether he should refer the question of removal of the Judge to the Judicial Committee. Section 137(4) provides that in a case covered by section 137(3) involving a Judge (other than the Chief Justice, in respect of whom a different procedure is specified) the President, acting in accordance with the advice of the Chief Justice, may suspend the Judge pending the conclusion of the investigation.
Section 142 provides in relevant part as follows:
“(1) Subject to the provisions of this Constitution, any person who is appointed or elected to or otherwise selected for any office established by this Constitution … may resign from that office by writing under his hand addressed to the person or authority by whom he was appointed …
(2) The resignation of any person from any such office shall take effect when the writing signifying the resignation is received by the person or authority to whom it is addressed or by any person authorized by that person or authority to receive it.”
The respondent served as a magistrate from 1992. By early April 2017 she had been promoted to the position of Chief Magistrate of Trinidad and Tobago.
On 12 April 2017 the respondent was appointed as a High Court Judge by the President, acting in accordance with the advice of the Commission pursuant to section 104 of the Constitution. Shortly before her appointment, the respondent was contacted by the Chief Justice, who is the Chairman of the Commission, to ask whether she had any outstanding part-heard matters as a magistrate, and she provided details of some 28 outstanding cases.
After the respondent's appointment as a High Court Judge, the Acting Chief Magistrate examined the position regarding outstanding part-heard cases in matters the respondent had been dealing with as Chief Magistrate and identified some 52 cases, considerably more than the respondent had reported to the Chief Justice. The Acting Chief Magistrate drew this to the attention of the Chief Justice.
On 27 April 2017 there was a meeting of the Commission, including the Chief Justice. The matters discussed and the points decided at that meeting are in dispute in these proceedings. After the meeting, on the same day, the respondent had a meeting with the Chief Justice, acting for the Commission. What was said at that meeting is also in dispute. The respondent's case is that at her meeting with the Chief Justice, he informed her that the Commission had decided that either she tender her resignation as a High Court Judge or the Commission would advise the President to revoke her appointment. This is disputed by the Chief Justice. Unusually in judicial review proceedings, there is to be cross-examination of witnesses at the hearing of the case in order to resolve the factual issues which are in dispute between the parties. On 13 November 2019 the Board dismissed the Commission's appeal against the order made by the Court of Appeal for cross-examination of witnesses.
Thereafter, also on 27 April 2017, the respondent went to see the President and handed him a letter of resignation from her position as a High Court Judge. The respondent's case is that she did this under duress, by reason of illegitimate pressure put on her to resign by the Chief Justice and the Commission.
Having had time to reconsider her position, by letter dated 19 May 2017 the respondent wrote to the President setting out the circumstances in which she came to resign and making allegations against the Commission, including the Chief Justice. She maintained that her resignation was the result of unlawful and unconstitutional pressure placed on her by the Commission, that the President's acceptance of her resignation, as so obtained, was also unconstitutional and that her resignation was of no legal effect. She requested that the President acknowledge that what she described as her removal from office was unlawful, unconstitutional and of no legal effect.
By letter dated 14 June 2017, the President replied to say that he had received legal advice that it would be inappropriate and outside of his constitutional remit to comment on the respondent's letter of 19 May or to accede to the request she had made.
In judicial review proceedings commenced on 19 July 2017, the respondent sought leave to apply for judicial review of (i) relevant decisions made by the Commission on or about 27 April 2017 to seek her resignation and regarding the course of action it would take if she did not resign, of the alleged conduct of the Commission on that date in pressuring her to resign against the threat of action by it if she did not, and of the alleged decision of the Commission to treat her purported resignation as effective; and (ii) alleged decisions of the President on 27 April 2017 to agree to accept, and then to accept, the respondent's...
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