Durity v Attorney General of Trinidad and Tobago

JurisdictionUK Non-devolved
JudgeLord Nicholls of Birkenhead
Judgment Date13 May 2002
Neutral Citation[2002] UKPC 20
CourtPrivy Council
Docket NumberAppeal No. 52 of 2000
Date13 May 2002
Felix Augustus Durity
Appellant
and
The Attorney General of Trinidad and Tobago
Respondent

[2002] UKPC 20

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hutton

Lord Hobhouse of Woodborough

Lord Millett

Lord Scott of Foscote

Appeal No. 52 of 2000

Privy Council

[Delivered by Lord Nicholls of Birkenhead]

1

This appeal raises a point of interpretation of the Constitution of Trinidad and Tobago. The point at issue, and it is the sole point for decision on this appeal, is whether section 14(3) of the Constitution renders the appellant's constitutional motion subject to the twelve months' limitation period contained in section 2(1) of the Public Authorities Protection Act, chap 8:03. This Act has now been repealed by the Limitation of Certain Actions Act 1997, but only as to causes of action accruing in the future: see section 20. This change in the law does not affect the present case.

2

The appellant, Mr Felix Durity, was appointed a magistrate in 1981 and a senior magistrate in 1986. He was a senior magistrate at the Arima Magistrates Court from October 1988 until he took early retirement in April 1997. The proceedings arose out of Mr Durity's suspension from office for nearly seven years, from August 1989 to May 1996. The suspension had its origin in an incident which occurred on a bail application made to Mr Durity in his judicial capacity in February 1989. One Clement Boodoo appeared before Mr Durity on two charges of larceny. On 20 February, on the application of counsel, Mr Devenish, Mr Durity fixed bail at $25,000 by way of cash deposit with the court. The matter was adjourned until 20 March. On 3 March another counsel, Mr Selwyn Ross, acting or purporting to act on behalf of Boodoo applied to a judge in chambers to review Mr Durity's bail decision. Lucky J ordered that this decision should be varied to bail with a surety in the increased amount of $50,000.

3

On 20 March, when Boodoo next appeared before Mr Durity, he was represented once more by Mr Devenish. Mr Devenish, in the presence and in the hearing of Mr Ross, told Mr Durity of Lucky J's order. Counsel said that the application to Lucky J had been made without the authority of Boodoo, and he asked Mr Durity to continue his bail order of 20 February. Mr Durity acceded to this application. The prosecution raised no objection.

4

On the following day, 21 March, the matter was reported in the Trinidad Guardian newspaper under the headline "Magistrate reverses judge's bail decision". The Chief Magistrate, on the direction of the Chief Justice, sought an explanation from Mr Durity. Mr Durity responded by sending him a statement from Mr Devenish, to the effect that the application to Lucky J had not been authorised by Boodoo. Mr Durity said he had acted judicially in accordance with his authority as an Inquiring Magistrate.

The disciplinary proceedings

5

By a letter dated 10 August 1989 the Judicial and Legal Service Commission informed Mr Durity that the Commission had decided he should be suspended from duty. The Commission had power to suspend a senior magistrate, among others, when it became aware of any indiscipline or misconduct and considered the public interest or the repute of the public service required he should cease to perform the functions of his office forthwith: see regulation 88 of the Public Service Commission Regulations. The grounds of Mr Durity's suspension were twofold: on 20 March he had disobeyed Lucky J's order and purported to reverse it, and he had remanded (unnamed) accused persons without their consent to dates beyond the statutory period.

6

This letter was received by Mr Durity on 17 August 1989. On the evidence before the Board, the Judicial and Legal Service Commission seems then to have taken no steps to investigate the complaints, or pursue the matter at all, for the next two and a half years. Throughout this period the Commission did not get in touch with Mr Durity, who remained suspended on full pay.

7

Eventually, in March 1992, Mr Durity's lawyers wrote to the Attorney General and asked him to intervene. They sent a copy of the letter to the chairman of the Commission. Action followed some weeks later. On 28 May 1992 the Commission appointed a master of the High Court, Master Doyle, to investigate the allegations. Master Doyle provided Mr Durity with particulars of the two matters mentioned in the letter of suspension dated 10 August 1989. Mr Durity responded on 10 June. He had not, save by consent, remanded anyone named in the particulars in custody for periods beyond those permitted. He had formed the opinion that the application made to Lucky J was "fraudulent" because counsel had no instructions to make the application. He had spoken to Lucky J, who said he was satisfied with the explanation.

8

Six months later, after two reminder letters from Mr Durity's lawyers, the Commission wrote to Mr Durity, on 15 December 1992. The Commission had considered Master Doyle's report and was preferring a disciplinary charge against Mr Durity. The charge was that he had conducted himself in a manner such as to bring the judicial and legal service into disrepute, contrary to his implied terms and conditions of service as a senior magistrate. The conduct comprised failing to follow or purporting to reverse Lucky J's bail decision on Clement Boodoo's bail application. There was no allegation that Mr Durity had acted in bad faith. No mention was made of the other matter, concerning remands in custody for excessive periods, which had earlier been the subject of complaint and investigation. On 18 February 1993 the Commission appointed Deyalsingh J as a disciplinary tribunal to hear the evidence and find the facts.

The judicial review proceedings

9

The disciplinary proceedings did not proceed because on 16 March 1993 Mr Durity sought leave from the High Court to apply for judicial review of the Commission's decisions to prefer the disciplinary charge and to appoint a tribunal to hear the charge, and of Deyalsingh J's decision to call upon Mr Durity to answer the charge. Seely J refused leave. She held that Mr Durity did not have an arguable case.

10

Mr Durity renewed his application to the Court of Appeal. On 30 November 1994 the Court of Appeal, comprising Hamel-Smith, Gopeesingh and Permanand JJA, refused this application: see (1994) 47 WIR 424. In the course of the Court of Appeal hearing Mr Durity sought leave to amend his application to include a challenge to the Commission's decision to suspend him from performing his duties as a magistrate pending the outcome of the disciplinary charge: see (1994) 47 WIR 424, 437g-i. The Court of Appeal refused the application to amend. The Commission's suspension decision was taken five years previously, and Mr Durity had not made any earlier attempt to impugn the decision.

11

On 26 July 1995 the Court of Appeal, Sharma JA dissenting, refused an application by Mr Durity for leave to appeal to the Judicial Committee: see (1995) 49 WIR 433. In September 1995 Mr Durity discontinued an application to their Lordships' Board for special leave when the parties entered into negotiations to resolve the dispute by agreement.

12

Negotiations continued for some months but did not come to fruition. In May 1996 Mr Durity decided to take early retirement, effective from 1 April 1997. He was granted permission to take up paid employment during his period of pre-retirement leave, from 1 May 1996 onwards. The suspension order was formally lifted from the same date, 1 May 1996. The disciplinary proceedings, held in abeyance while the judicial review proceedings were on foot, were discontinued.

The constitutional proceedings

13

On 24 February 1997 Mr Durity started constitutional proceedings claiming declarations that the Commission's decision to suspend him from his office contravened several provisions of the Constitution: section 4(a) (the right to the enjoyment of property), section 4(b) (the right to the protection of the law), section 5(2)(e) (the right to a fair hearing) and section 5(2)(h) (the right to procedural safeguards). He also claimed damages. The grounds he relied upon were set out in 29 paragraphs. These went far beyond a challenge to the Commission's original suspension decision made in August 1989. The grounds covered the whole history of Mr Durity's suspension, as outlined above.

14

The Attorney General filed a cross motion raising four preliminary objections: res judicata, abuse of the process of the court, statute of limitations and inordinate delay. On 29 April 1998, having heard argument on these objections, Sinanan J dismissed the constitutional motion. He ruled, in favour of Mr Durity, that the matters raised were not res judicata. Nor was there any abuse of process. But he ruled against Mr Durity on the other two preliminary objections. The matters raised were time-barred, by the joint operation of section 14(3) of the Constitution, section 33(1) of the State Liability and Proceedings Act and section 2(1) of the Public Authorities Protection Act. The twelve months' limitation period prescribed by the latter statutory provision was applicable to Mr Durity's claims. Additionally, inordinate and unexplained delay disentitled Mr Durity to constitutional relief. His cause of action accrued on 17 August 1989. His constitutional proceedings were started on 24 February 1997, more than seven years later.

15

Mr Durity appealed. In the Court of Appeal he appeared in person. He conceded that section 2(1) of the Public Authorities Protection Act applied to his constitutional claims. He also accepted that the sole issue was whether his cause of action accrued, as he contended, on 1 May 1996 when the Commission's final decision was given. On 28 July 1999 the Court of Appeal, comprising Ibrahim, Warner and Nelson JJA, dismissed the appeal. On 2...

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