Honourable Attorney General and another v Isaac
| Jurisdiction | UK Non-devolved |
| Judge | Lady Black |
| Judgment Date | 14 May 2018 |
| Neutral Citation | [2018] UKPC 11 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0077 of 2016 |
| Date | 14 May 2018 |
[2018] UKPC 11
Lord Mance
Lord Reed
Lady Black
Lord Lloyd-Jones
Lord Briggs
Privy Council Appeal No 0077 of 2016
Privy Council
Civil practice and procedure - Pleadings — Whether the fixed date claim was an application for judicial review for which leave was required under Part 56 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 — Whether the fixed date claim form filed was an application for judicial review — Whether the nature of the controversy disclosed in the claim was a private law claim involving an employment dispute, for which the forum was the Industrial Court though the respondent was employed by a public authority.
Appellants
Sir Gerald Watt, KCN, QC
David Dorsett PhD
(Instructed by Simons Muirhead & Burton LLP)
Respondent
Justin L Simon QC
Desiree A A Artesi
(Instructed by Simon Rogers Murdoch)
Heard on 8 February 2018
The question that arises in this appeal is whether the fixed date claim which Ms Isaac filed in the High Court of Justice, seeking various declarations and damages, was an application for judicial review for which leave was required under Part 56 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000. The first instance judge, the Honourable Madame Justice Henry, held that it was not, and the Court of Appeal agreed.
In 2000, Ms Isaac was appointed to be the Executive Secretary of the Board of Education, which is a statutory body established by the Board of Education Act 1994 (“the Act”). Her appointment was by Cabinet and took effect from 1 February 2001.
By a letter dated 18 July 2014 from the Secretary of Cabinet, Ms Isaac was informed that she was suspended from her position for 28 days. Ms Isaac returned to her office on 18 August 2014. She found the locks changed and she was denied entry, apparently on the basis that the suspension was not yet at an end because it was to last for 28 working days.
The Board of Education issued a press notice that day about the suspension. Ms Isaac considered herself to have been constructively dismissed and caused her legal representative to write to the Chairperson of the Board of Education to say so. She declined to meet with Cabinet to discuss the matter. On 11 September 2014, she filed a fixed date claim form and supporting affidavit, the respondents to the claim being the Attorney General, as the nominal representative of Cabinet, and the Minister of Education, whose portfolio includes the Board of Education (hereafter, when referred to jointly, “the appellants”).
By the claim, Ms Isaac sought various declarations, plus damages for diminution of reputation, and also, against the Minister, aggravated or exemplary damages. The broad nature of the case upon which Ms Isaac based her claim can be gathered from her supporting affidavit, both in its original form and as amended. She there asserts that the reason for her suspension related to her having declined to follow a directive and a request from the Minister whereas, she says, the Act does not provide for the Minister to exercise any authority over her. In addition, she complains about the way in which aspects of her suspension were made the subject of a press release, rather than being communicated in writing directly to her. She also criticises the investigation carried out by the Minister into her conduct as Executive Secretary. She says that in the absence of a report from the Board of Education, the Minister could not institute the investigation that he did, and she complains that she was not given any opportunity to respond to matters contained in the investigatory report, which was made public on the radio.
The first of the declarations sought was set out in the claim form in this way:
“A declaration that the decision of the Cabinet to suspend the Claimant from her duties as Executive Secretary of the Board of Education:
(a) was arbitrary, wrong in law, and without legal basis; and
(b) is void and of no effect.”
The other declarations sought (declarations 2 to 6) reflected the contents of the supporting affidavit. Declaration 2 was that the Minister of Education had no legal authority to issue directives or instructions to Ms Isaac in her role as Executive Secretary of the Board of Education. Declarations 3 to 6 concerned the investigation which the Minister had instituted in respect of her performance of her duties as Executive Secretary. In this respect, Ms Isaac sought declarations to the effect that the Minister had no legal basis for instituting the investigation, that failing to give her the opportunity to be heard in the investigation was contrary to natural justice, and that publishing the report of the investigation without giving her such an opportunity involved “reckless disregard of [her] rights and reputation.” It is important to recognise that no claim was included for the quashing of the decision to suspend Ms Isaac, or for an order that the appellants do any act, such as arranging for her to be reinstated in her role as Executive Secretary.
An acknowledgment of service was initially filed in relation to the claim form but then, in October 2014, the Attorney General and the Minister applied to the High Court for leave to withdraw the acknowledgment and for Ms Isaac's claim to be struck out. In essence, their argument was that the claim was for judicial review and had been filed without the leave that was required by rules 56.3 and 56.4 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (hereafter “ CPR 2000”). Ms Isaac agreed that leave was required for an application for judicial review, but argued that her claim was an application for an administrative order other than judicial review, and did not therefore need leave.
The appellants' application to strike out the claim was dismissed by Henry J on 29 April 2015 and, on 11 March 2016, the Court of Appeal dismissed the appellants' appeal against her decision. Permission was subsequently granted by the Board of the Privy Council for the present appeal.
The two issues identified by the parties for the determination of the Board are as follows:
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i) Whether the fixed date claim form filed by Ms Isaac was an application for judicial review?
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ii) Whether the nature of the controversy disclosed in Ms Isaac's claim was a private law claim involving an employment dispute, for which the appropriate forum was the Industrial Court, notwithstanding that Ms Isaac was employed by a public authority?
The second of the two issues has no doubt been formulated with an eye to the request made by the Board, when granting permission to appeal, that it be addressed on the nature of Ms Isaac's employment and whether her claim should properly be regarded as a private law claim for wrongful or unfair dismissal which should be transferred to the Industrial Court for determination. However, as will be seen, in advancing their appeal to the Board, the appellants themselves rely upon what they say is the private nature of the dispute, falling within the remit of the Industrial Court, rather than the High Court by way of an application for an administrative order.
It is undesirable that the Board should become too involved with this second issue at this stage. There are, in fact, ongoing proceedings in the Industrial Court, brought by Ms Isaac against the Board of Education. She filed a Reference in the Industrial Court, naming the Board of Education as her employer, and identifying that there are disputed issues in relation to her constructive dismissal, and her entitlement to compensation and contractual fringe benefits. The Board of Education applied to have the Reference struck out on the basis that it was not the respondent's employer and that she was employed by Cabinet. A decision on that point is awaited.
The appellants maintain the position before the Board that the Cabinet was Ms Isaac's employer and say that the Attorney General is ready to be named as the employer in proceedings in the Industrial Court. That is not, however, Ms Isaac's case. In the absence of the awaited ruling from the Industrial Court on the point, it seems to the Board that the present appeal must proceed upon the basis of the contention of Ms Isaac, as the claimant in an application for an administrative order, that the Board of Education is her employer. Assuming that to be the case, her fixed date claim in the High Court is not against her employer, but against other public bodies, namely the Attorney General as representative of Cabinet and the Minister of Education. As things stand, therefore, her claim has the appearance of a public law claim, rather than a purely private law claim.
Whether Ms Isaac's fixed date claim is an application for judicial review depends upon rules 56.3 and 56.4 of the CPR 2000, which are to be found in Part 56 of the CPR 2000, which is headed “Administrative Law”. CPR 56.1(1) defines the scope of Part 56 as follows:
“Scope of this Part
56.1(1) This Part deals with applications -
(a) by way of originating motion or otherwise for relief under the Constitution of any member state or Territory;
(b) for a declaration in which a party is the state, a court, a tribunal or any other public body;
(c) for judicial review; and
(d) where the court has power by virtue of any enactment or at common law to quash any order, scheme, certificate or plan, any amendment or approval of any plan, any decision of a minister or government department or any action on the part of a minister or government department.
(2) In this Part —such applications are referred to generally as “applications for an administrative...
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