McLaughlin v Governor
| Jurisdiction | UK Non-devolved |
| Judge | (Lord Bingham of Cornhill, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell and Lord Neuberger of Abbotsbury) |
| Judgment Date | 23 July 2007 |
| Court | Privy Council |
| Date | 23 July 2007 |
(Lord Bingham of Cornhill, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell and Lord Neuberger of Abbotsbury)
M. Barnes, Q.C. and P.L.S. Simon for the appellant;
A. Lynch, Q.C. and Ms. S. Bothwell for the Governor.
(1) Anisminic v. Foreign Compensation Commn., [1969] 2 A.C. 147; [1969] 1 All E.R. 208; (1968), 113 Sol. Jo. 55, followed.
(2) Boddington v. British Transp. Police, [1999] 2 A.C. 143; [1998] 2 All E.R. 203, followed.
(3) Calvin v. Carr, [1980] A.C. 574; [1979] 2 All E.R. 440, followed.
(4) Hoffmann-La Roche (F.) & Co. A.G. v. Trade & Indus. Secy., [1975] A.C. 295; [1974] 2 All E.R. 1128; (1974), 118 Sol. Jo. 500, followed.
(5) Jhagroo v. Teaching Serv. Commn.UNK(2002), 61 W.I.R. 510; [2002] UKPC 63, referred to.
(6) Malloch v. Aberdeen Corp., [1971] 1 W.L.R. 1578; [1971] 2 All E.R. 1278; (1971), 115 Sol. Jo. 756, followed.
(7) Palacegate Properties Ltd. v. Camden London Borough Council, [2000] 4 P.L.R. 59; [2001] A.C.D. 23; (2000), 3 L.G.L.R. 18; 82 P. & C.R. 17, referred to.
(8) Percy v. Hall, [1997] Q.B. 924; [1996] 4 All E.R. 523; (1996) 93 (23) L.S. Gaz. 36; referred to.
(9) R. v. Chief Const. (N. Wales), ex p. Evans, [1982] 1 W.L.R. 1155; [1982] 3 All E.R. 141; (1982), 126 Sol. Jo. 549; 79 L.S. Gaz. 1257, referred to.
(10) R. v. Privy Council (Lord President), ex p. PageELRICR, [1993] A.C. 682; [1993] I.C.R. 114; (1992), 137 Sol. Jo. (L.B.) 45; sub nom.Page v. Hull University Visitor, [1993] 1 All E.R. 97, referred to.
(11) Ridge v. Baldwin, [1964] A.C. 40; [1963] 2 All E.R. 66; (1963), 107 Sol. Jo. 313, followed.
(12) Vine v. National Dock Labour Bd., [1956] 1 Q.B. 658; [1956] 1 All E.R. 1; on appeal, [1957] A.C. 488; [1956] 3 All E.R. 939, followed.
(13) Wood v. WoadELR(1874), L.R. 9 Ex. 190; [1875] All E.R. Rep. 408, followed.
(14) Zainal bin Hashim v. Government of Malaysia, [1980] A.C. 734; [1979] 3 All E.R. 241, followed.
Administrative Law-public officers-dismissal-dismissal of public officer void, i.e. not effective to remove from public service, if authority acts in excess of powers, in breach of natural justice and/or unlawfully-entitled to damages for lost salary or pension until tenure lawfully determined by dismissal or resignation
The appellant sought compensation in connection with his purported dismissal from Government service.
The respondent was retired from his position in the Ministry of Agriculture, Environment, Communications & Works by the Governor on the ground that the office had been abolished. The appellant applied for judicial review of the decision and the Grand Court (Graham, J.) held that the Governor had been entitled to retire the appellant and dismissed the application. The proceedings are reported at 2001 CILR 249.
On appeal, the Court of Appeal (Zacca, P., Rowe and Taylor, JJ.A.) held that the appellant”s dismissal had been procedurally unfair and set aside the Grand Court”s judgment. It declared that the dismissal was void, but declined to grant the appellant”s request for an order that he be reinstated and instead remitted the case to the Grand Court for the assessment of damages. The proceedings in the Court of Appeal are reported at 2002 CILR 576.
At the assessment hearing, the Grand Court (Smellie, C.J.) held that, since the decision to dismiss the respondent and the dismissal itself were null and void and of no effect, he remained a public officer, albeit not in his previous post, and was entitled to his salary and other related payments. However, it felt this entitlement should cease after a ‘reasonable period,’ which was one year after the Court of Appeal”s decision, since it was unrealistic to ignore common law principles relating to employment contracts and thereby allow the appellant to draw a salary indefinitely for rendering no service. It awarded damages of $409,624.31 and ordered the Governor to pay pension contributions of $37,197. The proceedings are reported at 2004–05 CILR 515.
On appeal, the Court of Appeal (Zacca, P., Taylor and Mottley, JJ.A.) held that its previous declaration that the dismissal was void meant no
more than that it was unlawful, but it was, nevertheless, effective to determine the appellant”s employment, and the case was again remitted to the Grand Court for the assessment of damages on that basis. The proceedings in the Court of Appeal are reported at 2006 CILR 292.
On further appeal to the Privy Council, the appellant submitted that (a) the declaration that the decision to dismiss him and his dismissal had been ‘void’ could only mean that they had no legal effect, and did not bring his tenure to an end; (b) since he was still a member of the public service, he had no need for an order for reinstatement; and (c) he was entitled to salary and pension contributions from the effective date of his purported dismissal (i.e. April 1st, 1999) to the present, since it was unsound to import principles from the private law of contract into the legally distinct field of unlawful dismissal from public office and thereby restrict his damages to one year”s remuneration.
The respondent submitted in reply that (a) it was preferable to use the term ‘unlawful’ in relation to the appellant”s dismissal, since ‘void’ did not have a precise meaning, and his dismissal, though unlawful, had nevertheless been effective; (b) even when a dismissal was invalid, authority showed that an officer did not necessarily remain in office, since public law remedies were discretionary and an applicant might be unable to obtain the relief sought on the facts of his particular case; and (c) he was not, therefore, entitled to the compensation awarded by the Grand Court.
Held, allowing the appeal:
The decision to dismiss the appellant and his dismissal were null, void and of no effect, and he remained in office until such time as his tenure was lawfully brought to an end by resignation or dismissal, so long as he remained ready, willing and able to render the service required. It was a settled principle of law that if a public authority purported to dismiss an office-holder in excess of its powers, in breach of natural justice or unlawfully (categories which overlapped), the dismissal was of no effect, at least once a court of competent jurisdiction had so declared. While it had been reasonable, in the circumstances, for the first Court of Appeal to decline to order that the appellant be reinstated, this did not alter the legal result of the declaration. The second Court of Appeal had sought to rewrite its first judgment by, in effect, substituting the word ‘unlawful’ for ‘void,’ but ‘void’ was apt and its meaning was not in doubt. There was no analogy with wrongful dismissal and the Court of Appeal had erred in finding that the dismissal, though unlawful, was nonetheless effective. The appellant was entitled to recover arrears of salary from the date of his purported dismissal on April 1st, 1999 and to the payment of pension contributions on his behalf, less an allowance for any salary he had earned in the meantime (para. 17; paras. 21–22; para. 24).
1 LORD BINGHAM OF CORNHILL, delivering the opinion of the Board: The real issue in this appeal concerns the compensation payable to Dr. McLaughlin, the appellant, following his dismissal or purported dismissal from the Government service of the Cayman Islands on December 31st, 1998. The Governor contended below, and the Court of Appeal held in its decision now subject to appeal, that the dismissal of Dr. McLaughlin, although unlawful, was effective in law to determine his engagement and his only entitlement was to damages, which were to be re-assessed. Dr. McLaughlin contends that in law his engagement was never determined, with the result that he remains in the Government service, entitled to be remunerated as a Government officer despite the lapse of time since his purported dismissal.
2 Dr. McLaughlin, a citizen of the Cayman Islands, is a well-qualified scientist. From 1989 onwards he was employed in various scientific posts
in the Cayman Government service. From 1996 onwards he held the position and office of Administrative Officer 1 in the Ministry of Agriculture...
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Shelley Ware Plaintiff v Cayman Islands Airport Authority Defendant
...review as the CIAA is a body created by statute. The Applicant relies upon the Privy Council decision in the Cayman case of McLaughlin v Governor [2007 CILR 321], That case resulted in what is sometimes now termed a McLaughlin-type order. The Privy Council decided that if a public authority......