Singh v Public Service Commission
| Jurisdiction | UK Non-devolved |
| Judge | Lord Briggs |
| Judgment Date | 13 May 2019 |
| Neutral Citation | [2019] UKPC 18 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0031 of 2018 |
| Date | 13 May 2019 |
[2019] UKPC 18
Lord Reed
Lord Briggs
Lady Arden
Privy Council Appeal No 0031 of 2018
Easter Term
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Anand Ramlogan SC
Nicola Newbegin
Alana Rambaran
(Instructed by Alvin Pariagsingh)
Respondent
Robert Strang
(Instructed by Charles Russell Speechlys LLP)
Heard on 25 March 2019
This appeal is concerned with the court's discretion as to costs where an application is made for leave to apply for Judicial Review, but where no such proceedings are thereafter instituted, because the subject matter of the applicant's complaint is speedily resolved. Specifically, the issue concerns the effect upon what appears to be the usual practice of the courts of Trinidad and Tobago in such circumstances, namely to make no order as to costs, of a failure by one of the parties (in the present case the intended respondent) to comply with the provisions of the relevant pre-action protocol.
This is an appeal purely about costs. In Fourie v Le Roux [2007] 1 WLR 320, at 338, Lord Carswell said, in relation to appeals about costs, that:
“This is peculiarly an area in which the principles should be developed and applied by the judges at first instance, with the oversight of the Court of Appeal, and that the House should not reverse a costs order without a strong reason in principle.”
That observation, although made in the House of Lords, is fully applicable to the practice of the Board. Even where (as here) the appeal about costs is brought as of right, it will be a rare case where the Board will think it appropriate to intervene. Not only will issues as to costs generally fall within the discretion of the first instance judge, but the local circumstances (including the implementation of procedural reform) will generally be better adjudicated upon by the local courts, rather than by the Board. Nonetheless the Board cannot simply dismiss the appeal because it is merely an appeal about costs, since this would render the statutory right of appeal, conferred in this case by sections 23(1) and (2) of the Judicial Review Act, nugatory.
The appellant Mr Singh is a public officer. His case is that he was awarded a government scholarship to pursue a degree in forestry. Having been accepted by the neighbouring University of Guyana he says that he was advised by officials that a degree from that university would not be recognised because it did not meet international standards. He says that he was instead advised to pursue a degree in a related subject at the University of Idaho. Having done so successfully, he says that he was then told that his Idaho degree was not recognised for the purpose of acting appointment and promotion as a forester in Trinidad and Tobago.
With a view to exploring possible remedies, on 27 January 2016 he made (through his attorneys) a Freedom of Information Request, under section 13 of the Freedom of Information Act (No 26 of 1999 as amended) (the “ FOIA”) for six classes of documents including his personal file, the personal files of two foresters who had obtained promotion and correspondence between various state agencies, including the Public Service Commission (“PSC”) the respondent to this appeal, relating to the non-recognition of his Idaho degree. The request was addressed to the Chairman of the PSC. The letter concluded with a reference to the requirement, in section 15 of the FOIA, that:
“A public authority shall take reasonable steps to enable an applicant to be notified of the approval or refusal of his request as soon as practicable but in any case not later than 30 days after the day on which the request is duly made.”
It appears that Mr Singh may have sent an earlier request dated 1 December 2015, but nothing turns on it.
By letter to Mr Singh dated 11 March 2016 the PSC replied as follows:
“ Request Under the Freedom of Information Act 1999
I acknowledge receipt of your requests dated 1 December 2015 and 27 January 2016 which was received in the Service Commissions Department on 18 December 2015 and 16 February 2016 respectively.
Your requests will be granted in part.
The information is being compiled and further communication would be forwarded to you when finalised.
Yours faithfully.”
Having received neither an indication which of his six classes of requested documents were to be granted, nor the documents themselves, Mr Singh's attorneys wrote a pre-action protocol letter dated 23 May 2016 threatening judicial review proceedings for a declaration that the PSC was in breach of its duty under the FOIA, for an order of mandamus to compel the PSC either to grant access to a copy of the documents requested, or to give reasons for refusing to do so and, in the alternative, a declaration that Mr Singh was entitled to access to all the requested information. The letter (“the PAP Letter”) concluded by calling for provision of the required information within 14 days.
By letter in reply dated 9 June 2016 (the “PAP Reply”) the PSC responded as follows:
“ Re: PROPOSED JUDICIAL REVIEW BETWEEN VIJAY SINGH AND THE PUBLIC SERVICE COMMMISSION
I refer to the captioned subject and acknowledge receipt of your letter dated 23 May 2016, which was received in the Service Commission's Department on 6 June 2016.
You will be duly informed once the matter has been finalised.
Yours faithfully.”
By letter dated 11 July 2016 the PSC provided copies of some of the documents requested by Mr Singh and gave reasons for its decision not to provide the remainder. This letter was not received by Mr Singh's attorneys until 19 July.
Meanwhile, on 18 July, Mr Singh filed an application for permission to apply for judicial review supported by affidavit. The application for leave came on for an ex-parte hearing before Charles J on 26 July. Having by then received a response to his FOIA request with which he was satisfied, although not the whole of what he had requested, Mr Singh asked the judge to give him permission to withdraw his application, but he sought, and obtained, an order for the costs of his application to be paid by the PSC in the sum of TT$7,500. The court's order to that effect was served on the PSC on 24 August.
The PSC applied to set aside that order in late September 2016. At an inter-partes hearing on 7 April 2017 Charles J set aside her ex-parte order and made no order as to the costs, either of Mr Singh's application for permission or of the PSC's application to set aside. She rejected Mr Singh's submission that the PSC's set-aside application had been made too late, and rejected the PSC's submission that Abzal Mohammed v Police Service Commission 31 March 2010 (Civil Appeal No 53 of 2009) compelled her to make no order for costs. She continued:
“Nevertheless, in light of the fact that the defendant was not yet a party in a substantive claim and the required information was handed over to the proposed claimant before the court made a determination as to whether leave would be granted, I am prepared to review my order for costs made on 26 July 2016 in favour of the proposed claimant. In all the circumstances of the case I have determined that I will vary the said order by setting it aside.”
It is not clear whether any submission was made on that occasion for Mr Singh that he should have his costs of the application for leave by reason of the PSC's non-compliance with the applicable pre-action protocol. In any event, Charles J made no reference to such a submission, or to the protocol itself.
Mr Singh's appeal was heard in June 2017 before Smith JA, Pemberton JA and des Vignes JA. Some time was taken up during the hearing with the question whether there was any jurisdiction to make an order for costs of the withdrawn application for leave, no proceedings for judicial review having been commenced. That question was decided, during the course of argument, in Mr Singh's favour. On this occasion, reliance was placed on Mr Singh's behalf upon the PSC's failure to comply with the pre-action protocol.
In a short extempore judgment (with which his colleagues agreed) Smith JA decided as follows:
“Okay. We have reached a decision and we are unanimous on this decision. We will just give an outline of our judgment.
We are of the view that, first of all, the judge cannot be faulted for setting aside the original order to grant costs. The order was made without the application for leave or anything having been served on the respondent and the respondent was never given a chance to be heard in its defence to an order for costs.
Secondly, we don't find that the judge was plainly wrong and, in fact, we don't fault her for extending the time to make the application. We find the reasons provided by Mrs O'Brady in her affidavit, at pp 120 and 121 of the record, we can't see that it was unreasonable or that there was no good reason for extending the time, so we can't see that the judge was clearly wrong there. However, we noted that in her judgment, the judge did not make explicit reference to the consideration of the pre-action protocol and that may have been — and we are not saying it is — an oversight on her part. We now have been invited to do so and look at the circumstances to see whether the failure to comply with the pre-action protocol was one that should be visited with costs.
In summary, we agree with counsel for the respondent that, given the circumstances, it was proper and reasonable not to respond immediately to the pre-action protocol. In fact, it was not a case that the pre-action protocol was ignored; there were attempts to comply, but the depth and breadth of the request were indeed voluminous, and efforts were made to comply. We find that it was not unreasonable in these...
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