The Chairman of the Board of Inland Revenue v Finbar Boland and 15 others
| Jurisdiction | UK Non-devolved |
| Judge | Lady Rose |
| Judgment Date | 18 July 2023 |
| Neutral Citation | [2023] UKPC 27 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0028 of 2022 |
[2023] UKPC 27
Lord Kitchin
Lord Sales
Lord Burrows
Lady Rose
Lord Richards
Privy Council Appeal No 0028 of 2022
Privy Council
Trinity Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Richard Clayton KC
Anand Ramlogan SC
Robert Strang
(Instructed by Freedom Law Chambers)
Respondent
Thomas Roe KC
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 13 June 2023
This appeal arises from an application brought by sixteen auditors who held office as Field Auditor II in the Inland Revenue Division of the Ministry of Finance. It concerns the lawfulness of the alleged failure of the respondent, the Head of the Inland Revenue Division, to recommend to the Public Service Commission that the appellants be appointed to act in the higher office of Field Auditor III between the months of October 2012 and December 2012. The Public Service Commission (“the Commission”) is constituted under section 120 of the Constitution and is the body responsible for appointments to these, and other, public service posts, on the recommendation of the Chairman of the Board of the Inland Revenue. The appellants' application for judicial review was lodged on 29 January 2013.
At the outset it is important to make clear that there are three different ways in which an officer at the Inland Revenue can occupy the post of Field Auditor III. The officer can be appointed to the substantive post as Field Auditor III. An officer can also be appointed to “act” in that post, which is a temporary appointment rather than a permanent promotion to the higher grade. Further, there are two kinds of “acting” posts, one which is a prelude to the officer being promoted to the substantive post as Field Auditor III (“prelude acting”) and one which is not a prelude to such a promotion (“non-prelude acting”).
The relief sought by the appellants in their application was a series of declarations, the first of which was that the Chairman of the Board of the Inland Revenue had acted unlawfully in failing to recommend the appellants for appointment as acting Field Auditors III whilst recommending other Field Auditors II to act in that office. The complaint was, broadly, that some Field Auditor II officers who were junior (in terms of length of service) had been appointed ahead of the appellants and that other Field Auditor II officers who were similarly circumstanced to the appellants had been appointed whereas the appellants had been passed over.
A further declaration sought, which turned out to raise the key point in this appeal, was a declaration that there is no legal requirement that an officer must hold a professional qualification in accounting in order to act in or to be promoted to the office of Field Auditor III and that the appellants were eligible to act in that office and to be promoted thereto. The appellants did not hold a professional accounting qualification but asserted that they were holders of other qualifications at a tertiary level. They also had extensive experience in revenue auditing work and had successfully completed the relevant in-service training course. They were, they said, eligible for substantive and acting appointment to the office of Field Auditor III. Their complaint was that the respondent had refused to recommend them for appointment to act as Field Auditor III on the grounds in part at least, they believed, that they did not have a professional accounting qualification.
As well as the declaratory relief, the appellants said that they had suffered loss in the form of the monthly increment of about $300 to their salary they would have earned in the acting Field Auditor III post.
By the time of the hearing before the Board, a large measure of agreement had been reached by the parties on the following points:
(i) The respondent accepted that the appellants were right in so far as they asserted that they did not need a professional qualification in accountancy in order to be appointed to the post of non-prelude acting Field Auditor III.
(ii) The appellants accepted that a professional qualification in accountancy was necessary in order for an auditor to be appointed both to the substantive post as Field Auditor III, and to the post of prelude acting Field Auditor III, prior to being promoted to substantive appointment.
(iii) In so far as the High Court in granting the appellants' judicial review application and the Court of Appeal in allowing the Inland Revenue's appeal had stated in their judgments that the law was different from (i) and (ii) above, those judgments were in error.
(iv) The allegations of unlawfulness put forward in the appellants' application were not tenable and there was no basis on which the Board needed to remit the matter for further consideration to the High Court.
(v) The Board should therefore dismiss the appeal from the Court of Appeal's order but make clear in its judgment that the reasons for dismissal were not the reasons on which the Court of Appeal based its judgment, and set out the correct position, as now agreed by the parties.
The only remaining issue between the parties was whether the Board should grant declaratory relief to the appellants, declaring the law to be as now agreed, or whether a judgment of the Board clarifying the legal position was sufficient. The Board returns to this question at the end of this judgment.
The application for judicial review was supported by an affidavit by the appellants in which they set out the background to the claim. This described how in 2006, the then Chairman of the Board of Inland Revenue made recommendations to the Commission that three of the appellants be appointed to act as Field Auditors III but had shortly thereafter rescinded those acting appointments. They exhibited to the affidavit the letter sent by the Inland Revenue to Mr Boland, the first appellant, expressing their deepest regret that “in the present circumstances” Mr Boland would have to revert to his substantive position as Field Auditor II and making clear their “sincere appreciation for [his] past and continuing excellent performance and high level of commitment to the Division”. The affidavit also stated that since the lodging of the claim, some of the appellants had in fact been appointed to the office of acting Field Auditor III.
The affidavit responding to the application for judicial review was sworn by Allison Raphael, Acting Chairman of the Board of the Inland Revenue. She had held that post since March 2013. She explains that given the nature of the work of a Field Auditor at level III, the Chairman of the Board of Inland Revenue had considered what specifications were required for appointment to the substantive post and to the prelude acting post. She also refers to the possibility of the requirement for a professional accounting qualification being waived. She also states:
“8. The Claimants are eligible for acting appointments to the office of Field Auditor III, hence the recommendations of Messrs. Finbar Boland and Ian Bourne and Mmes. Cheryl-Ann Andrews-Cave and Dhanmatie Gosine as stated in paragraph forty-four (44) of the Claimants' affidavit. They have been selected for recommendation by me on the basis of their seniority. …
11 The position of the Board of Inland Revenue and in particular its Chairman is and has been that Field Auditors II without the professional qualifications are eligible for recommendation to act. Where, as the Claimants state in paragraph nineteen (19) of their affidavit, Field Auditors II junior to them have been recommended to act as Field Auditors III, they have been so appointed to act as a prelude to a substantive appointment and to assess their performance while so acting. This is so in the case of [four named officers] referred to in paragraph nineteen (19) of the Claimants' affidavit.”
In an affidavit in reply dated 3 October 2014 the appellants record that they have all, except one, been promoted to the office of Field Officer III. This appointment appeared to have been retrospective, taking effect as from April 2013, and was said to be “on one year's probation”.
As the claim proceeded towards a hearing in the High Court, 17 other Inland Revenue officers were joined to the claim as Interested Parties. They were auditors who did have professional accounting qualifications and were claimants in a separate application for judicial review asserting that they had a legitimate expectation that the post of Field Auditor III would be limited to those with such qualifications.
Judgment was given in the present claim by Kangaloo J on 15 September 2015. The judge noted at paras 5 and 6 of her judgment that the respondent had acknowledged in the proceedings that the appellants were qualified and entitled to act as Field Auditors III, that they were eligible for acting appointments and that “they were indeed persons who ought to be considered for recommendations to act in the post of Field Auditor III”. The issue on which she focused was therefore whether there had been a breach of natural justice in failing to recommend them for appointment. She held that there had been such a breach and granted a declaration to that effect.
She also granted a declaration that the appellants “were eligible to act in the office of Field Auditor III and to be promoted thereto”. She ordered that monetary compensation be assessed at a future date. She made no order as to costs. Kangaloo J's judgment did not consider whether the position might be different as between promotion to the substantive office and acting office, or as between prelude and non-prelude acting office.
The judgment of the Court of Appeal, handed...
To continue reading
Request your trial