Johnatty v. The Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2008] UKPC 55 (4 November 2008)

Privy Council Appeals No 51 and 56 of 2007

Malcolm Johnatty								Appellant

v.

The Attorney General of Trinidad and Tobago 	Respondent

and

Malcolm Johnatty								Appellant

v.

The Permanent Secretary of the Ministry of Education 	Respondent

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO

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REASONS FOR DECISION OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE
	4th November 2008, Delivered the 2nd December 2008

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Present at the hearing:-

	Lord Hope of Craighead
	Lord Rodger of Earlsferry
	Lord Walker of Gestingthorpe
	Lord Mance
	Lord Neuberger of Abbotsbury
	
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[Delivered by Lord Hope of Craighead]

1.	The appellant is a teacher by profession. He is also an attorney-at-law admitted to practice in the courts of Trinidad and Tobago. These appeals, which he presented on his own behalf, are the product of an uneasy relationship which he has had with his employers in the Ministry of Education over many years.  Regrettably, his approach to the issues raised by the litigation lacks the objectivity which is necessary for sound judgment.  Most of the material in his lengthy written case, though forcefully presented, was irrelevant.  In it he seeks to raise issues which the Board cannot consider as they were not raised in the Court of Appeal.  Those issues that were decided against him in that court are properly before the Board.  But at the end of the appellant’s oral argument their Lordships were in no doubt that, except for one point regarding costs, the Court of Appeal’s decision on those issues was well-founded and that the appeals must be dismissed.  When they informed the parties of the result they said that reasons for their decision would be given later.  These are their reasons. 

The facts
2.	The appellant has been employed at the Chaguanas Senior Comprehensive School by the Ministry of Education as a chemistry teacher since September 1984.  In that capacity he is entitled to payment of a monthly salary.  In 1994 he was suspended from duty pending disciplinary proceedings because it had been alleged that he was not performing his duties as a teacher.  But no finding of misconduct was made against him, and he resumed his duties in 1999.  In March 2003 disciplinary proceedings were once again brought against him.  On this occasion it was alleged that the appellant frequently signed the school’s attendance register and then left the school compound shortly afterwards, not to return for the rest of the day. These proceedings remain pending before the disciplinary tribunal of the Teaching Service Commission.  

3.	In June 2004 the appellant discovered that his salary for that month had not reached his bank in the usual way.  He made inquiries at the Paysheets Section of the Ministry of Education as to why his salary had not been processed.  He was given a handwritten note by a clerk which indicated that his salary was to be stopped in July.  On 1 July 2004 he wrote to the Permanent Secretary of the Ministry of Education (“the respondent”) informing her that as of that date no salary had been paid to him for June 2004.  He asked for an explanation as to why his salary had been stopped and by whose decision that step had been taken.  He gave the letter to Carl Morton, the acting principal of the school, for forwarding to the Ministry.  Mr Morton forwarded it to the respondent the same day.  The respondent did not reply to it, so the appellant received no answer to the questions that he had raised.  This lapse on the part of the Ministry was unfortunate.  The appellant assumed that the respondent had indeed decided to cease paying his salary.  He also assumed that this was because of allegations that had been made against him of which he had had no notice, to which he had had no opportunity to respond and on which no determination had been made by the tribunal.  So he decided to apply for judicial review of the action that he believed had been unfairly taken against him.

4.	On 27 June 2004 the post of Senior Legal Adviser in the Ministry of Planning and Development was advertised in the Newsday newspaper.  The appellant decided to apply for it.  He had been advised that applications by him for posts of that kind, which involved the transfer of a person in the public service from one Ministry to another, were to be sent to the Permanent Secretary of the Ministry in which the position was sought through the school’s Principal for forwarding by the Ministry of Education’s Permanent Secretary.  So he gave his letter of application which was dated 29 June 2004 to Mr Morton for forwarding to the respondent.  Mr Morton forwarded it to her on 1 July 2004.  The deadline for response to the advertisement was 9 July 2004.  Later that month the appellant enquired of the Ministry of Planning and Development whether his application had been received.  He was told that it had not.  Here too there was an unfortunate lapse which led the appellant once again to think that he was being victimised.  

The proceedings in the High Court
5.	On 26 July 2004 the appellant applied by way of judicial review for the following reliefs: (a) an order quashing the respondent’s decision to stop payment of his salary or alternatively to implement a decision to stop payment, (b) an order of mandamus directing the respondent to forward to the relevant authority his applications for employment as an attorney-at-law in the public service and (c) an injunction, including an interim injunction, restraining the respondent by herself or her servants or agents from implementing any decision to stop his salary unless any such decision resulted from disciplinary proceedings.  On that date Dean-Armorer J granted an interim injunction on the appellant’s ex parte application.  The appellant’s name was re-instated on the computerised payroll to ensure that while the injunction remained in force he was paid the full amount of his salary.

6.	The grounds on which the appellant sought relief against the decision to stop payment of his salary were that it contravened section 129(4) of the Constitution of Trinidad and Tobago which provides that no penalty may be imposed on any public officer except as a result of disciplinary proceedings, that it was in breach of the principles of natural justice in that he had not been confronted with any allegation on which such a decision could have been based and that it failed to satisfy the procedures laid down by regulation 90 of the Public Service Commission Regulations under which he was entitled to be informed of the allegations against him.  The appellant maintained that the only allegations against him of which he was aware were those that were already before the disciplinary tribunal, which had not yet made any determination.  The grounds on which he sought relief against the failure to forward his application for employment were that the respondent had failed to perform a duty required of her by public policy, and that her failure had deprived him of his legitimate expectation that his application for transfer to another position as an attorney-at-law in another Ministry would be forwarded by her to that Ministry’s Permanent Secretary.     

7.	The respondent filed an affidavit on 20 December 2004 in response to the appellant’s complaint about the stopping of his salary.  She said, in the clearest possible terms, that she had made no decision to stop payment.  The Ministry’s Director of Human Resource Management, Glenford Joseph, filed an affidavit on 23 December 2004 in which he too said that he did not give any direction or order to stop the appellant’s salary.  But he went on to explain that, in an effort to avoid overpayment for work not done, he gave directions to the Ministry’s Director of Finance and Accounts on 22 June 2004 that the appellant’s salary was to be paid only on the basis of returns of attendance submitted by the Principal of the school and validated and forwarded to his Division by the office of the Permanent Secretary.  This was to ensure that the appellant would be paid only for the days and parts of each day in each month that he actually worked.  He explained that this method of payment was being adopted to combat a chronic problem of overpayment of salary due to absenteeism that was currently being experienced in the Ministry of Education.  Its introduction meant that there was some delay in the payment to the appellant of the salary that was due to him.  His letter of 22 June 2004, which had not previously been shown to the appellant, was filed as an exhibit to his affidavit.  The exhibits also included a copy of a letter which Mr Joseph sent to Mr Morton on 23 June 2004 requesting that reports of the appellant’s attendance for each month be forwarded to the office of the Permanent Secretary in order to process the appellant’s salary.

8.	In response to the appellant’s complaint that the respondent had failed to forward his application for the post of Senior Legal Adviser Mr Morton filed an affidavit in which he stated that he had forwarded the appellant’s letter to the School Supervisor III at the District Office at Couva on 1 July 2004.  The respondent said in her affidavit of 20 December 2004 that she had caused her records to be searched and that this had revealed no record of the application on her file.  No explanation was offered for the fact that the application did not reach the respondent.  Her case was simply that there had been no failure on her part of the kind that the appellant had alleged against her.      

9.	On 31 March 2005 the appellant filed an originating motion under section 14 of the Constitution of Trinidad and Tobago in which he sought a declaration that the stopping or reduction of his salary by the Ministry of Education without any finding of misconduct by the disciplinary tribunal and without giving him any opportunity to answer allegations against him amounted to an infringement of his constitutional rights.  These were his right to enjoyment of his property, his right not to be deprived thereof except by due process of law and his right to the protection of the law, to a fair hearing and to such procedural provisions as were necessary for the purpose of giving effect and protection to those rights.  He also sought an order preventing the stopping or reduction of his salary except pursuant to disciplinary proceedings and an award of damages including exemplary damages.  The issues which it raised were, in substance, the same as those in the appellant’s application for judicial review of the decision to stop his salary.  The affidavit which the appellant filed in support of his constitutional motion was the same as that which he had filed in support of his application for judicial review.

10.	The appellant’s application for judicial review and his constitutional motion were heard together in April 2005 by the trial judge, Narine J.  By that stage two things at least had become clear.  First, that there was a sharp conflict between the parties on the facts.  And second, that the basis for the orders which the appellant sought would be wholly undermined if the respondent’s version of the facts were to be accepted by the trial judge.  Nevertheless the appellant decided to stick to his version of the facts.  He did not seek leave to amend his application for judicial review in the light of the respondent’s affidavits.  Although it was obvious that there was a material conflict of evidence he did not seek leave to cross-examine the respondent’s witnesses.  Instead he sought to persuade the trial judge that for various reasons the respondent’s affidavits ought not to be relied on.  

11.	In a judgment which he delivered on 19 April 2005 Narine J held that the onus was on the appellant to establish the facts on which he relied and that he had not done so.  As he pointed out, the respondent had stated quite emphatically in her affidavit that she had made no decision to stop the appellant’s salary.  Mr Joseph had deposed in his affidavit to the same effect.  In the absence of cross-examination he accepted their evidence.  In his opinion, the decision that Mr Joseph said he had taken was an eminently reasonable one in the circumstances.  As for an order of mandamus, there was no evidence that the appellant’s application for employment ever came to the attention of the respondent.  In any event an affidavit by Cheryl Hay, the acting Deputy Director of Personnel Administration, indicated that the procedure which the appellant said that he was following was not the only procedure.  The established procedure was for a standardised form to be submitted to the Director of Public Service Administration in the Service Commissions Department.  Ms Hay said that there was no application on file for the office of State Counsel or State Solicitor or any other office in the appellant’s name.  In these circumstances the judge held that there was no basis for the allegation that the respondent had failed to perform a duty that was required of her by public policy.  The application for judicial review was dismissed.
  
12.	The judge also dismissed the appellant’s constitutional motion.  He observed that the same facts had been relied on in support of this motion, and that he had already found that there was no decision to stop the appellant’s salary.  In his opinion the decision to pay the appellant based on his attendance at the school did not give rise to any constitutional issue, as the Board had held in Sykes v The Minister of National Security and Justice (unreported) 26 October 2000 that a deduction to take account of salary that by reason of unauthorised absences from work had not been earned was necessary to calculate the person’s contractual entitlement and was not a penalty.  So there was no infringement of the appellant’s right to property.  In any event he had an alternative remedy in the form of an action for breach of contract.  The constitutional motion was an abuse of process.

The judgment of the Court of Appeal
13.	The appellant appealed against these decisions to the Court of Appeal.  On 11 October 2006 the Court of Appeal (Kangaloo, Archie and Mendonca JJA) dismissed both appeals.   In his judgment with which the other members of the court agreed, Kangaloo JA said that the substratum of the appellant’s challenge to the decision to stop his salary had been entirely eroded by the respondent’s affidavit evidence.  It had been open to the appellant to amend his statement to challenge the decision that he was to be paid only on the basis of records of attendance, but he did not take this step.  The appellant had submitted that the decision to pay on that basis was contrary to natural justice and that the late payment of his salary that resulted from it was in breach of regulation 20 of the Education (Teaching Service) Regulations, ch 39.01.  These submissions must be rejected because this was not the basis of the case that the respondent had to meet below.  As for the order of mandamus, it had been overtaken by events as the date for the submission of the application had passed.  In any event the appellant had not been able to demonstrate the requirements for the legitimate expectation that he asserted, as the practice which he was following was only one of the ways that applications of that kind were dealt with.

14.	Turning to the appeal against the dismissal of the constitutional motion, Kangaloo JA pointed out that no relief had been sought for late payment of the appellant’s salary.  The order that was sought was directed to its stopping or reduction, and the record of appeal showed that before the trial judge the attorneys were agreed that, if he found that there was no decision to stop the appellant’s salary, the appellant would have no claim for deprivation of property.  That left open the question of the infringement of the other rights.  But the protection of the law was afforded by the constitutional motion itself and the right to a fair hearing would only apply if the deduction of salary was a penalty which, on the authority of Sykes, it was not.  Quite apart from its lack of merit, the constitutional motion was an abuse of process as the judicial review proceedings which were awaiting hearing and about to commence when the motion was filed were a parallel remedy.

15.	On the issue of costs, Kangaloo JA said at the end of his judgment in para 21:

“On the issue of costs of the judicial review, I would have thought that because the appellant only found out on the 23rd December 2004 (from the respondent’s affidavits) that there was no decision to stop his salary that he should be liable for all costs only after service of that affidavit.  The point however was not taken below or argued here so that the order would be the appellant must pay to the respondent the costs of both appeals.”

Discussion
16.	The appellant submitted that Narine J’s finding that his salary had not been stopped was not based on an evaluation of the evidence.  He said that the judge ought to have concluded that Mr Joseph’s letter of 22 June 2004 was a fabrication.  He had received no reply to his inquiry as to why his salary had been stopped, and it was not until five months later that this letter had been produced as an exhibit to an affidavit.  Furthermore the respondent had deposed in her affidavit that payment of his salary had “resumed” as a result of the injunction.  The logical conclusion from that observation was that it had been stopped and not subjected to a different procedure as Mr Joseph had said.  In any case, taking this letter at its face value, it amounted to a decision to stop his salary, albeit only temporarily.  His criticisms of Mr Joseph’s decision were within the scope of his application, and he should have been permitted to develop them.  He referred to section 5(4) of the Judicial Review Act, ch 7.08, which provides:

“An applicant is not limited to the grounds set out in the application for judicial review but if the applicant wishes to rely on any other ground not so set out, the Court may, on such terms as it thinks fit, direct that the application be amended to specify such other ground.”

He maintained that the judge, and in its turn the Court of Appeal, should have permitted him to alter the grounds of his application notwithstanding the fact he had not asked for it to be amended.  He said that he had raised the issue, so the court ought to have dealt with it.

17.	Their Lordships were not persuaded that there was any substance in these arguments.  It is plain that the basis of this part of the application for judicial review was that payment of the appellant’s salary had been stopped.  So it was for him to establish that this was what had happened.  It was clear from the affidavits that were filed in reply that this was how his application had been understood by the respondent.  It was also clear that his assertion that his salary had been stopped was disputed.  It would have been open to him to seek leave to cross-examine the respondent’s witnesses on this point.  His assertion that the letter of 22 June 2004 was a fabrication was one that certainly ought, in fairness, to have been put to Mr Joseph.  But the appellant did not take this course.  So the judge was entitled to proceed on the basis of the respondent’s unchallenged affidavit evidence.  His interpretation of that evidence is the subject of a concurrent finding by the Court of Appeal.  That being so, it is not open to review by their Lordships’ Board.  This leads inevitably to the conclusion that the courts below were entitled to hold that the substratum of this part of the appellant’s case, which depended on there having been a decision to stop payment of his salary, was entirely eroded by the respondent’s affidavit evidence.

18.	The appellant could have sought permission to alter the grounds for his application when the affidavit evidence was filed in the light of the explanation that he had now been given for the interruption in the payment of his salary.  But section 5(4) of the Judicial Review Act requires the applicant to seek the permission of the court if he wishes to amend his application.  The court may then direct this to be done on such terms as it thinks fit.  The decision as to whether or not to permit an amendment is in the discretion of the court.  Its discretion extends to awarding costs and the granting of an adjournment, if the respondent wishes time to consider how to respond to the amended ground.  But the appellant did not make use of this procedure.  The mere raising of an issue is not the same thing as applying for leave to amend.  In these circumstances there are no grounds for interfering with the Court of Appeal’s refusal to allow him to present this alternative argument.  Their Lordships agree with the Court of Appeal that it would have been unfair for him to be permitted to do this, as Mr Joseph had been given no opportunity in the court below to explain his decision to change the basis on which the appellant’s salary was to be paid, or as to its effect.

19.	As for the order of mandamus, the appellant accepted that his application of 29 June 2004 had been overtaken by events.  He said that that was only one of several such applications that he had made which had not been forwarded, and that the judge had only dealt with that one because it was the most recent.  But he conceded that no other such application was pending to which an order of mandamus could be directed.   He said that he wanted a ruling on the method of applying for these posts, which he maintained gave rise to a legitimate expectation that the letters which he forwarded by the use of this method would be passed on to the relevant authority. This argument, if accepted, would lead to the granting of a declaration, which he has not sought in his application.  Their Lordships might have been willing to allow him to amend his application to that effect, even at this late stage, if there had been a point of real substance that required to be addressed. But he has made no other application since June 2004, so there is no current threat which merits the attention of the court.

20.	The courts below were agreed that the appellant’s constitutional motion was an abuse of process, although for different reasons.  Narine J said that he had an alternative remedy in the form of an action of damages against his employer for breach of contract.  The Court of Appeal said that he had a parallel remedy in the proceedings for judicial review.  Their Lordships agree with them both.  It would have been open to the appellant to seek a private law remedy against his employer for non-payment of his salary.  It was also open to him to seek judicial review, as is demonstrated by the fact that his constitutional motion was based on the same facts as those in the proceedings for judicial review.  
  
21.	The fact that these alternative remedies were available is fatal to the appellant’s argument that he ought to have been allowed to seek a constitutional remedy.  In Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC 265, 268 Lord Diplock warned against the misuse of the right to apply for constitutional redress when other procedures were available.  He said that its value would be seriously diminished if it was allowed to be used as a general substitute for the normal procedures for invoking judicial control of administrative action.  This warning has been repeated many times.  In Hinds v Attorney General of Barbados [2001] UKPC 56; [2002] 1 AC 854 Lord Bingham of Cornhill said that it remained pertinent.  In Jaroo v Attorney General of Trinidad and Tobago [2002] UKPC 5; [2002] 1 AC 871, para 39 Lord Hope of Craighead said that before he resorts to this procedure the applicant must consider the true nature of the right that was allegedly contravened and whether, having regard to all the circumstances of the case, some other procedure might not more conveniently be invoked.  In Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15; [2006] 1 AC 328, para 25 Lord Nicholls of Birkenhead said that where there is a parallel remedy constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take such a course.  The appellant was unable to point to any such circumstances in this case.  

22.	The appellant said that at the time when he made his constitutional motion he was not in possession of all the facts.  Their Lordships cannot accept this, as he had the respondent’s affidavits before him before he took this step.  In any event, as the Board said in Jaroo, para 39, if it becomes clear after the motion has been filed that the use of the procedure is not appropriate, steps should be taken to withdraw the motion as its use in such circumstances will be an abuse.  The appellant then said that an alternative remedy by way of judicial review was not available in regard to his criticisms of Mr Joseph and that the Court of Appeal should have ruled on them.  Their Lordships do not agree.  As the arguments that the appellant sought to present in his application for judicial review demonstrate, the decision that Mr Joseph took in his capacity as the Ministry’s Director of Human Resource Management was exactly the kind of administrative decision that may be subjected to judicial control in this way.   But fairness requires that a proper basis is laid in the application by giving notice of the point before it can be entertained by the court.  It was for that reason, not for lack of any jurisdiction, that the courts below refused to deal with these criticisms.    

Conclusion
23.	For these reasons, subject to a modification that must be made to the Court of Appeal’s order for costs, these appeals must be dismissed.  

24.	The Court of Appeal declined in their order for costs to recognise that it was not until the filing of the respondent’s affidavits on 23 December 2004 that the appellant found out that there had been no decision to stop his salary.  This was because the point was not taken in the court below or argued before it.  The point was raised before the Board however and counsel for the respondent, Mr Hamel-Smith SC, very properly conceded that, while in all other respects costs should follow the event, it would be unfair for this point not to be recognised.  He proposed that the order of the Court of Appeal should be varied by allowing the appellant the costs of his application for judicial review until the expiry of a period of one month after 23 December 2004.  Their Lordships agree that this would be a fair result in the circumstances.  Subject to this qualification, the appellant must pay the costs of the proceedings for judicial review and of the constitutional motion both in the courts below and before their Lordships’ Board.