Caribbean Welding Supplies Ltd v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens |
| Judgment Date | 28 March 2024 |
| Neutral Citation | [2024] UKPC 7 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0044 of 2021 |
[2024] UKPC 7
Lord Hodge
Lord Hamblen
Lord Leggatt
Lord Stephens
Lord Richards
Privy Council Appeal No 0044 of 2021
Privy Council
Hilary Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Tom Richards KC
Gerald Ramdeen
(Instructed by Dayadai Harripaul (Trinidad))
Respondent
Rowan Pennington-Benton
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 6 February 2024
The Trinidad and Tobago Police Service (“the police”) unlawfully detained a Case 210 B excavator (“the excavator”) owned by Caribbean Welding Supplies Limited (“the appellant”) for a period of two years, three months, and 17 days from 4 November 2015 until they returned it to the appellant on 21 February 2018. During that period the police did not take any steps to maintain the excavator, but rather stored it in an open area where it was exposed to the weather. Consequently, the condition of the excavator deteriorated, and there was a substantial depreciation in its value.
In these proceedings against the Attorney General of Trinidad and Tobago (“the Attorney General”) Madam Justice Quinlan-Williams (“the judge”) by judgment and order dated 1 June 2018 awarded the appellant TT$1,328,320.00 as damages in detinue for unlawful detention of the excavator. The judge calculated those damages on the basis that the market value of the excavator at the start of the period of unlawful detention was TT$1,328,320.00 and by the time it was returned to the appellant on 21 February 2018 it either had no value or a nominal value. Accordingly, she assessed the depreciation in value as being the difference between TT$1,328,320.00 and no value or a nominal value. In addition, the judge awarded the appellant TT$150,000.00 as aggravated damages. The judge dismissed a claim made on behalf of the appellant for loss of rental income during the period of unlawful detention. The judge also ordered the Attorney General to pay the appellant's costs quantified in accordance with the scale of prescribed costs on the value of the claim being TT$1,328,320.00.
The appellant appealed to the Court of Appeal (Bereaux, Mohammed and Pemberton JJA) against the failure of the judge to award damages for loss of rental income during the period of unlawful detention. On 9 September 2020 the Court of Appeal, in a judgment delivered by Mohammed JA, with whom the other justices agreed, dismissed the appellant's appeal, and ordered it to pay the Attorney General's costs of the appeal in the sum of two thirds of the costs below. However, in addition to considering the appellant's grounds of appeal, the Court of Appeal raised the issue “as to whether the appellant was entitled to have the excavator returned to it in circumstances in which it was awarded the value of the excavator as special damages.” No notice of appeal or respondent's notice (referred to as “a counter-notice” in rule 64.7 of the Civil Proceedings Rules 1998) had been given by the Attorney General raising this issue. However, the Court of Appeal considered that it had jurisdiction under section 39 of the Supreme Court of Judicature Act Chapter 4:01 of 1962 (as amended) (“the SCJA”) to order the appellant to return the excavator to the Attorney General. In the event and in addition to dismissing the appellant's appeal the Court of Appeal ordered the appellant to return the excavator “to the State, whatever its current condition.”
The issues on this appeal are:
(a) Whether the Court of Appeal had jurisdiction under section 39 of the SCJA to order the appellant to return the excavator to the Attorney General.
(b) If there was jurisdiction, whether the Court of Appeal erred in ordering the return of the excavator to the Attorney General.
(c) Whether the Court of Appeal erred in ordering the appellant to pay the Attorney General's costs of the appeal in the sum of two-thirds of the costs in the High Court, in circumstances where the appeal only concerned one of several issues which had arisen in the High Court, namely the issue of loss of rental payments.
The appellant carries on business including, amongst other matters, buying, selling, and renting out heavy construction and agricultural equipment such as excavators.
By invoice issued on 17 December 2014, the appellant purchased the excavator for the sum of US$124,527.
On 21 October 2015, in relation to a criminal investigation into unlawful quarrying, the police seized the excavator. The judge held that two weeks was a reasonable period for the police to conduct and complete their investigation so that the excavator ought to have been, but was not, returned to the appellant by 4 November 2015. There has been no challenge to that finding so that for the purposes of this appeal it is accepted by the Attorney General that the excavator was unlawfully detained by the police for a period of 27 months and 17 days from 4 November 2015 to 21 February 2018.
As the Board has indicated, during the period of unlawful detention the police did not take any steps to maintain the excavator. Consequently, the condition of the excavator deteriorated, and there was a substantial depreciation in its value.
By a claim form dated 20 October 2017, the appellant commenced these proceedings against the Attorney General being the appropriate defendant in proceedings against the police: see Section 76 of the Constitution of the Republic of Trinidad and Tobago and section 19 of the State Liability and Proceedings Act Chapter 8:02. The Attorney General is the respondent to this appeal.
In the appellant's statement of case, filed on 20 October 2017, the appellant sought a declaration that it was entitled to possession of the excavator, an order that the excavator be delivered by the Attorney General to it, damages for the excavator's unlawful detention including special damages in the sum of TT$3,500.00 per day in respect of loss of rental payments, and in the sum of TT$1,328,320.00 in respect of depreciation, together with aggravated damages, and other relief.
On 21 February 2018, and prior to service of the Attorney General's defence, the police returned the excavator to the appellant so that its unlawful detention came to an end. Thereafter, having achieved the return of its property without any court order having been made, the appellant's objective in continuing the proceedings was to obtain damages in detinue for unlawful detention of the excavator between 4 November 2015 and 21 February 2018. There was no longer any need for a declaration that it was entitled to possession of the excavator or for an order that the excavator be delivered to it by the Attorney General.
On 27 February 2018, after the excavator had been returned to the appellant, the Attorney General filed a defence. In the defence, at paras 1 and 3, the Attorney General neither admitted nor denied that the appellant was the owner of or was entitled to possession of the excavator. The central allegation in the defence was that the excavator had been “lawfully detained due to the belief of the Police based on reasonable grounds that there was illegal quarrying on State Lands and the [excavator] was being used in the undertaking of illegal quarrying activities ….”.
By a Notice of Application dated 22 March 2018 the appellant applied for an order striking out the Attorney General's defence and for an order “[that] permission be granted to the [appellant] to enter judgment against the Claimant (sic) [by which was meant against Attorney General] for the reliefs sought in the Claim Form and Statement of Case filed 20th October 2017.” At para 7 of the appellant's application, it was stated that the excavator had been voluntarily returned by the State since proceedings were commenced (although the date indicated in the application as the date on which the excavator was returned was incorrectly stated to be 21 March 2018; in fact, it was returned on 21 February 2018 — see para 11 above).
By an order dated 22 March 2018, the judge struck out the Attorney General's defence. In her order the judge did not grant any declaration, nor did she order that the excavator be delivered to the appellant by the Attorney General. Rather, the order granted permission “to the [appellant] to enter judgment against the [Attorney General].” As in its statement of case filed on 20 October 2017 the appellant sought “[a] Declaration that the [appellant] is entitled to possession of [the excavator]” together with “[an] Order for the delivery up by the [Attorney General] to the [appellant] of [the excavator]” the appellant could have entered judgment for such a declaration and for an order for delivery up. However, the appellant did not in fact do so. There was simply no need to do so given that the police were not disputing the appellant's entitlement to possession of the excavator by virtue of the fact that they had already returned it to the appellant on 21 February 2018.
By her order dated 22 March 2018, the judge fixed a hearing for the assessment of damages and gave directions as to the filing of affidavit evidence in relation to the assessment of damages. The appellant's affidavit evidence was to be filed on or before 13 April 2018 and the Attorney General's evidence was to be filed on or before 20 April 2018.
The judge had intended to order that all matters in relation to the assessment of damages were to be determined at the assessment of damages hearing, including the date upon which the period of unlawful detention of the excavator commenced and the date upon which it ended. However, para...
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