Inniss v Attorney General of Saint Christopher & Nevis (Saint Christopher & Nevis)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 30 July 2008 |
| Neutral Citation | [2008] UKPC 42 |
| Court | Privy Council |
| Docket Number | Appeal No 29 of 2007 |
| Date | 30 July 2008 |
[2008] UKPC 42
Present at the hearing:-
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Mance
Lord Neuberger of Abbotsbury
Privy Council
[Delivered by Lord Hope of Craighead]
The appellant is a barrister and solicitor of the High Court of the Federation of St Christopher and Nevis. She was admitted to practice on 31 October 1988. From 1 November 1988 to 31 May 1996 she was the junior partner in a private law firm in partnership with her father, Sir Probyn Ellsworth Inniss, a former Governor-General of the Federation. In June 1996 she decided to enter the public service as Registrar of the High Court. This is an office to which section 83 of the Constitution of St Christopher and Nevis applies, as it does to the office of magistrate and to any public office in the departments of the Attorney-General and the Director of Public Prosecutions. Section 83(2) provides:
"The power to appoint such persons to hold or act in offices to which this section applies (including the power to confirm appointments) shall vest in the Governor-General, acting in accordance with the recommendation of the Public Services Commission:
Provided that before making any recommendation as to the exercise of the powers conferred by this section in any case the Public Service Commission shall consult the Judicial and Legal Services Commission."
The appellant was appointed to the offices of Registrar of the High Court and of Additional Magistrate for Districts A, B and C on the recommendation of the Public Service Commission after consultation with the Judicial and Legal Services Commission. On 18 June 1996 she entered into a contract with the Governor-General acting on behalf of the Government of St Christopher and Nevis to serve in that capacity for a period of two years, commencing on 1 June 1996. Thereafter the appellant entered upon her duties as Registrar of the High Court and she performed the duties of an additional magistrate when necessary. As she was to explain later in an affidavit, she decided to accept the post of Registrar in the belief that exposure to the public service in this post would make her a more eligible candidate for appointment as a member of the judiciary.
Clause 2 of the appellant's contract provided that she was to conform to the general or standing orders for the civil service for the time being in force in so far as they were applicable. Clause 3 provided that her salary would be paid from 1 June 1996. Clause 4 provided that on the satisfactory completion of her term of engagement she was to be entitled to a gratuity equivalent to 20% of her salary during the period of her appointment. Clause 8(1) provided that the Government might at any time determine her engagement on giving her three months notice in writing or on paying her one month's salary. Clause 12 provided that on 1 March 1998 she was to give notice in writing to the Government whether she wished to remain in employment, and that the Government was thereupon to decide whether it would offer further employment.
On 20 February 1998, after one year and a little less than nine months from its commencement, the Permanent Secretary of the Establishment Division on behalf of the Government wrote to the appellant purporting to terminate her contract. His letter was in these terms:
"In accordance with clause 8(1) of your employment contract between His Excellency the Governor-General and yourself, and dated the 18 th day of June 1996, the Government decided to 'determine your engagement' as Registrar of the Supreme Court (sic) and Additional Magistrate with immediate effect.
You will be paid one month's salary in lieu of notice in keeping with the terms of your contract and your gratuity will be pro rated to reflect the period of your employment.
On behalf of the Government and people of St Christopher and Nevis, I take this opportunity to thank you for your service to the Federation and wish you every success in your future endeavours."
No mention was made in the letter of any recommendation by the Judicial and Legal Services Commission that the appellant's contract should be terminated before the expiry of its term of two years. It is common ground that there was no such recommendation.
On 5 March 1998 the appellant wrote to the respondent, the Attorney-General of St Christopher and Nevis, drawing his attention to section 83(3) of the Constitution. This subsection provides:
"The power to exercise disciplinary control over persons holding or acting in offices to which this section applies and the power to remove such persons from office shall vest in the Governor-General, acting in accordance with the recommendation of the Judicial and Legal Services Commission:
Provided that before making any recommendation as to the exercise of the powers conferred by this subsection in any case the Judicial and Legal Service Commission shall consult the Public Service Commission."
She pointed out that the method of her removal from office was covered by that subsection, that the power to terminate her employment as Registrar and Additional Magistrate under clause 8(1) of her contract could not be invoked unless the provisions of section 83 of the Constitution were observed and that her dismissal without observing those provisions was wrongful. She said that she intended to institute legal proceedings against the Government of the Federation for wrongful dismissal and for damages for loss of reputation and consequential damage to her professional status and employment opportunities.
Section 96 of the Constitution provides that any person who alleges that any of its provisions other than a provision of Chapter II (Protection of Fundamental Rights and Freedoms) has been or is being contravened may, if he has a relevant interest, apply for a declaration and relief under that section. Subsection (5) provides that a person shall be regarded as having a relevant interest for the purpose of an application under that section only if the contravention of the Constitution affects his interests. Subsection (3) provides:
"(3) Where the High Court makes a declaration under this section that a provision of this Constitution has been or is being contravened and the person on whose application the declaration is made has also applied for relief, the High Court may grant to that person such remedy as it considers appropriate, being a remedy available generally under any law in proceedings in the High Court."
Subsection (6) provides that the rights conferred on a person by that section to apply for a declaration and relief shall be in addition to any other action in respect of the same matter that may be available to that person under any law.
On 20 July 1998 the appellant commenced proceedings against the respondent by way of a constitutional motion in the High Court. She sought a declaration that the letter of 20 February 1998 which purported to remove her from her office as Registrar was null and void as it was in contravention of section 83(3) of the Constitution. Among other orders she sought an award of damages for breach of her constitutional rights including exemplary damages.
The judgments below
On 21 February 2000 Moore J rejected the respondent's argument that the government determined the appellant's appointment in the exercise of a power that it had under the contract. He held that the appellant's constitutional rights had been breached.
The judge described the appellant in his judgment as a young woman of deep feelings and strong convictions. He said that she had approached her appointments as Registrar and Additional Magistrate with the utmost seriousness, with an iron determination to stand upon principle, come what may. The principle of the independence of the judiciary and its officers from executive interference or executive control was one of the principles which she held sacred, and she vigorously resisted any conduct by any member of the Executive which she judged to be in violation of that principle. This had led to strained relations between herself, senior civil servants and even a senior member of the judiciary. Having examined the evidence, he said that he had absolutely no doubt that the letter was the result of a desire on the part of the Executive to rid itself of, as he put it, "this 'turbulent' Registrar". The framers of the Constitution evidently considered that the holders of the offices specified in section 83 provided a service of such importance to the public that there should be a mechanism for their removal which lay outside the control of the Executive. But it was clear that the procedures under section 83(3), which would involve the appellant being heard, were too time-consuming for the Executive as their wish was that the respondent should be dispatched quickly. He declared that the letter of 20 February 1998 was a contravention of section 83(3) of the Constitution and that it was calculated to affect, and did affect, the interests of the appellant. He ordered the respondent to pay the appellant damages for breach of her constitutional rights in the sum of EC$100,000, which he said was an award of general damages including an element of exemplary damages.
On 14 January 2002 the Court of Appeal of the Eastern Caribbean Supreme Court (Redhead JA, Archibald JA (Ag) and Bruce-Lyle JA (Ag) allowed an appeal by the respondent from Moore J's judgment. It held that there had been no breach of the appellant's constitutional rights. Redhead JA said that the trial judge had elevated registrars, magistrates and Crown Counsel in the office of the Attorney-General and the Department of the Director of Public Prosecutions to the status of Director of Public...
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