Page 1 of 51 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL. Civil Appeal No. 38/2009 CV No BETWEEN AUDINE MOOTOO.

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1 REPUBLIC OF TRINIDAD AND TOBAGO Civil Appeal No. 38/2009 CV No IN THE COURT OF APPEAL BETWEEN AUDINE MOOTOO Appellant AND THE ATTORNEY GENERAL THE PUBLIC SERVICE COMMISSION Respondents PANEL: A. YORKE-SOO HON, JA R. NARINE, JA P. MOOSAI, JA APPEARANCES: Mr G. Ramdeen for the Appellant Mr A. Byam for the 1 st named Respondent Mr R. Martineau S.C., Ms T. Maharajh and Ms O. Pierre for the 2 nd named respondent DATE DELIVERED: 5 th April, 2017 I have read the judgment of Moosai JA and agree with it. A. Yorke-Soo Hon Justice of Appeal Page 1 of 51

2 I have read the judgment of Moosai JA and I too agree. R. Narine Justice of Appeal I. Introduction [1] The crucial issue arising for determination is whether the appellant has suffered unequal treatment in contravention of her fundamental right to equality of treatment from a public authority in the exercise of its functions as enshrined in section 4 (d) of the Constitution. The appellant contends that she was discriminated against with respect to four different offices between the period August 2004 to March 2006, namely: i. Her being bypassed for the office of acting Deputy Director, Extension Training and Information Services (Extension post); ii. Her reversion to her substantive office after acting in the office of Technical Officer (Horticulture) (Horticulture, Ministry of Agriculture) for approximately six months; iii. Her being bypassed for the office of Deputy Director, Agricultural Services Division (Crop Production) (Crop Production post) on more than one occasion; and iv. Her being bypassed for the office of Acting Director, Horticultural Services, Ministry of Public Utilities (Horticulture, Ministry of Public Utilities). [2] There are subsidiary procedural issues, namely whether the judge was correct in adding the Public Service Commission (the PSC) as a party; and whether the filing of a constitutional motion was an abuse of process. [3] On the major issue, I have found that the cumulative effect of the treatment meted out to the appellant, across a broad spectrum of acting appointments, smacks of unfairness and arbitrariness and constitutes evidence of unequal treatment contrary to section 4 (d) of the Constitution. Accordingly, damages are to be assessed by a Master. [4] On the procedural issues I find that: 1) the Attorney General is the proper party to these proceedings; 2) the filing of a constitutional motion was not an abuse of process. Page 2 of 51

3 II. The Trial Judge s Findings [5] The judge found that it was clear from the terms of the PSC Circular No 1 of 2004, which came into effect on 3 January 2005, that the PSC was changing the policy that had previously applied with respect to acting appointments and promotions in the public service. This Circular expressly provided that, effective 3 January 2005, the PSC would no longer consider recommendations for acting appointments and/or promotions in respect of officers who did not satisfy the training and experience requirements for the particular office. However, exceptions may be made in special circumstances. The judge also found that, at the time of the appellant s application to act in the post of Deputy Director, Extension on 25 August 2004, the post was not yet available. A vacancy only arose after 31 December Accordingly, and, contrary to the appellant s assertion that the Circular did not apply to her as her application pre-dated it, any consideration of the appellant to fill this vacancy would be governed by the Circular. It would also follow that the comparators relied on by the appellant could not be appropriate comparators as consideration of their circumstances would have taken place prior to the Circular coming into effect. Thus, the appellant failed to establish a claim for unequal treatment pursuant to section 4 (d) of the Constitution. [6] As the onus of proof in the instant case was on the appellant, wherever there was a dispute of fact between the evidence of the appellant and that of the PSC, the judge resolved that dispute in favour of the PSC. On the evidence, the judge relied on the principle espoused in R v Reigate Justices, ex parte Curl 1 to the effect that, where there is a dispute of fact on the affidavit evidence, the court ought, in the absence of cross-examination, to proceed on the basis of the affidavit evidence of the person who does not have the onus of proof. III. Grounds of Appeal [7] The appellant filed extensive grounds of appeal, both procedural and substantive. They may conveniently be summarized as follows: i. The decision is wrong in law and contrary to the weight of evidence; 1 (1991) COD 66. Page 3 of 51

4 ii. The absence of any legal basis and/or justification for the joinder of the PSC as a respondent to this constitutional motion; iii. The court erred in treating the amended constitutional motion as if it were an application for leave to apply for judicial review. The court ignored the fact that the joinder of the second respondent, the PSC, mandated the appellant to pray for relief against this new party. The relief claimed fell within the constitutional jurisdiction of the court and within the concept of constitutional redress pursuant to section 14 of the Constitution. There was never any application for judicial review; iv. The court was wrong to find that there was unreasonable delay in bringing the application and that leave should be refused on the basis that to grant relief at this stage would have been detrimental to good administration and prejudicial to other officers. The court misunderstood the nature of the appellant s claim for constitutional redress which would not have necessarily affected third parties as monetary compensation could have adequately remedied and vindicated the breach of constitutional rights; v. The court erred in refusing to dismiss as an abuse of process the application made by the Attorney General to dismiss the action. This was an objection in limine and should have been dismissed with costs on the hearing of the application as there was no basis for it; vi. The court erred further in refusing to award the appellant her costs on the preliminary point in limine. As the court had expressly refused to strike out the claim as against the Attorney General, this meant that the appellant was successful on this point and therefore entitled to her costs; vii. The court fell into error in holding that the disputed facts must be resolved in favour of the PSC in the absence of cross-examination. The court was duty bound to weigh the evidence against the backdrop of the documentary evidence and assess its probative value on a balance of probabilities; viii. The court erred in accepting without question the evidence of Verna Johnson and ought to have held on a balance of probabilities that the Page 4 of 51

5 appellant was told that a Master s degree in the relevant discipline was a pre-requisite to appointment to a higher office; ix. The court fell into error by refusing to grant relief against the Attorney General given the role of the Ministry and its several unchallenged acts of victimization, unfairness and discrimination complained of based on the conduct and/or actions of its servants and/or agents; x. The court ought to have held that in the absence of any challenge to the evidence presented against the Ministry, the State was liable in damages for discrimination. The comment of Jones J at paragraph 25 of her judgment that, as may be expected, no evidence was presented on behalf of the Attorney General, belies the fact that the court denied an application by the State for leave to file evidence in opposition to the claim on the ground that several directions for the filing of evidence had been breached with no explanation; xi. The court erred in finding that there was no evidential basis for the assessment of loss suffered by the appellant and that this was fatal to her claim for monetary compensation. The court ought to have taken into account the nature of the violation and the resulting loss of a chance of acting appointments and promotion. This loss would have obviously been more appropriately dealt with in a subsequent assessment of damages hearing. IV. Preliminary issues [8] By fixed claim form filed on 23 February 2007, Ms Audine Mootoo (the claimant and appellant to this appeal) sought constitutional redress pursuant to section 14 of the Constitution against the Attorney General, the sole defendant at the time. Ms Mootoo, whose substantive post was that of Biochemist II in the Ministry of Agriculture, contended that the PSC subjected her to unequal and discriminatory treatment when she was bypassed for certain acting appointments and/or promotions in her employment in contravention of her right to equality of treatment from a public authority in the exercise of its functions as enshrined in section 4 (d) of the Constitution. Page 5 of 51

6 [9] An affidavit in support of her claim was filed by Ms Mootoo on 23 February Her claim for relief, apart from the question of costs, all related to the constitutional breach complained of and included: i. A declaration that the Attorney General had been guilty of unequal and discriminatory treatment of Ms Mootoo in violation of her right under section 4 (d); ii. Damages and/or compensation including aggravated and/or exemplary damages for the contravention of her fundamental right. [10] Early on in the proceedings and before filing any affidavits in opposition, the Attorney General applied to have the action dismissed. The preliminary issue relied on two grounds, namely that: (a) the PSC and not the Attorney General was the proper party to the action; and (b) resort to the constitutional procedure in these circumstances was inappropriate and an abuse of the court s process. Counsel for Ms Mootoo, Mr Ramlogan (as he then was, now SC) submitted that the PSC, although autonomous and independent, is a public authority and, on a proper construction of the constitutional and statutory provisions, proceedings by or against the State must be instituted by or against the Attorney General. 2 [11] On the abuse of process point, Mr Ramlogan submitted that, as this was a case of discrimination by a public authority in the exercise of its jurisdiction, resort to the constitutional procedure was appropriate. 3 [12] The judge refused to dismiss the action on either of the grounds relied on by the Attorney General and ordered that the PSC be joined as a defendant. She also granted leave to the appellant to amend the claim form in terms of the draft filed on 18 September 2007, and to make the necessary amendments consequential on the joining of the new defendant. Even though she did not provide any reasons for her decision at the time, the judge incorporated these in her written judgment dated 29 January [13] On the preliminary issue, the judge found that the conjoint effect of sections 14 (3) and 75 (2) of the Constitution rendered the Attorney General a proper party to the action. She further held that, in any event, the joinder of the Attorney General was particularly necessary in order to give effect to any orders for monetary compensation which might be made in favour of the appellant. 2 Record of Appeal, p Ibid. Page 6 of 51

7 Moreover, as the actions complained of were the actions of the PSC, a service commission made independent of the State under the Constitution, the PSC should in the circumstances have been joined as a party to the action. With respect to the abuse of process argument, the judge held that it was more appropriate to adjudicate on this when all the parties and all the relevant facts were placed before the court. [14] The appellant now appeals against the findings of the judge: a) That it was necessary to join the PSC; and b) That it was appropriate to adjudicate on the abuse of process argument when all the parties and all relevant facts were placed before the court. a) The order for joinder of the PSC [15] It would be of some assistance to set out at this juncture the material provisions of both the Constitution and the State Liability and Proceedings Act, Chapter 8:02 ( the SLPA ). The Constitution: "14. (1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion. (2) The High Court shall have original jurisdiction- (a) to hear and determine any application made by any person in pursuance of subsection (1); and (b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled. (3) The State Liability and Proceedings Act shall have effect for the purpose of any proceedings under this section.... Page 7 of 51

8 76. (2) The Attorney General shall, subject to section 79, be responsible for the administration of legal affairs in Trinidad and Tobago and legal proceedings for and against the State shall be taken- (a) in the case of civil proceedings, in the name of the Attorney General; (b) in the case of criminal proceedings, in the name of the State." The State Liability and Proceedings Act: (8) Proceedings against an authority established by the Constitution or a member thereof arising out of or in connection with the exercise of the powers of the authority or the performance of its functions or duties are deemed to be proceedings against the State. (9) In this section, authority means a Service Commission as defined in section 3(1) of the Constitution. 19 (2) Subject to this Act and to any other written law, proceedings against the State shall be instituted against the Attorney General. Section 3 (1) of the Constitution defines a service commission as the Judicial and Legal Service Commission, the Public Service Commission, the Police Service Commission or the Teaching Service Commission. The Civil Proceedings Rules Change of parties general 19.2 (1) This rule applies where a party is to be added or substituted. (3) The court may add a new party to proceedings if (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue. Page 8 of 51

9 Case management conference (3) At the case management conference the judge may allow any person who appears to have sufficient interest in the subject matter of the claim to be heard whether or not he has been served with the claim. (4) The judge must direct whether any person or body having such interest is to make submissions by way of written brief or whether such person or body may make oral submissions at the hearing. Hearing of application 56.14(1) At the hearing of the application the judge may allow any person or body which appears to have a sufficient interest in the subject matter of the claim to make submissions whether or not he has been served with the application. (2) Such a person or body must make submissions by way of a written brief unless the judge orders otherwise. [16] The essence of the appellant s arguments is that the Attorney General was the proper defendant for two reasons: i. The PSC is part of the executive in the constitutional separation of powers ii. between the legislature, the executive and the judiciary. The Constitution which is the supreme law requires and allows proceedings to be brought against the Attorney General in respect of State action. [17] Mr Martineau SC, counsel for the PSC, submitted that the law on the proper parties to be defendants to a claim for constitutional redress under section 14 of the Constitution has now been settled by the Privy Council in the Attorney General v Carmel Smith 4 case. Thus, the Attorney General is to represent the PSC in proceedings brought pursuant to section 14 of the Constitution. Mr Martineau, in his oral arguments before us contended that with respect to the PSC, the Privy Council in Carmel Smith did not address the further issue as to whether you could have such a public authority also as a defendant or interested party to the proceedings. Counsel referred us to the decision of this court in Attorney General of Trinidad and Tobago v Ravi Jaipaul 5 to support his contention. He posited that it would be quite wrong for a public authority not to have at least been heard in a scenario where a court makes a declaration seriously condemnatory of the action of a public authority. 4 [2009] MHRC Civ. App. No. 35 of Page 9 of 51

10 [18] Counsel for the Attorney General, Mr Byam, disagreed with the submission of the PSC and submitted that the proper defendant to an action where a claimant alleges a service commission established by the Constitution (in this case the PSC) has infringed upon her fundamental rights is the commission itself. Mr Byam contended that section 18 (8) and (9) of the SLPA creates a state indemnity for the service commissions established by the Constitution against any award of damages made against it and guarantees that claimants can easily recover such awards. Mr Byam further argued that the Privy Council decision in Carmel Smith does not decide that service commissions established by the Constitution are deemed to be part of the State, but is limited to holding that the Statutory Authorities Service Commission was not a part of the State. [19] In my view the judge was correct in her decision not to dismiss the action on the preliminary objection taken by the Attorney General. The Attorney General is the proper party to the suit. However, she fell into error by adding the PSC as a defendant in these circumstances. [20] It is to be noted from the very outset that section 14 (1) of the Constitution enables any person who alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him may apply to the High Court for redress. Section 14 (2) invests the High Court with original jurisdiction (a) to hear and determine any application made by any person in pursuance of subsection (1) and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled. Where there has been a contravention of a fundamental right the court has the power, in an appropriate case, to fashion a remedy to give effective relief within the broad limits of section 14: Gairy v Attorney General of Grenada. 6 This is so even where there has been a failure by Parliament or the rule-making authority of the Supreme Court of Judicature to regulate the practice and procedure to be followed upon applications to the High Court for constitutional redress: Jaundoo v Attorney General of Guyana. 7 Lord Diplock at pages 982 to 983 stated: To "apply to the High Court for redress" was not a term of art at the time the Constitution was made. It was an expression which was first used in the Constitution of 1961 and was not descriptive of any procedure which then existed under Rules of Court for enforcing any legal right. It was a newly 6 [2002] 1 AC 167 [PC]. 7 [1971] AC 972 [PC]. Page 10 of 51

11 created right of access to the High Court to invoke a jurisdiction which was itself newly created by article 13 (2) of the 1961 Constitution now replaced by article 19 (2). These words in their Lordships' view, are wide enough to cover the use by an applicant of any form of procedure by which the High Court can be approached to invoke the exercise of any of its powers. They are not confined to the procedure appropriate to an ordinary civil action, although they would include that procedure until other provision was made under article 19 (6). The clear intention of the Constitution that a person who alleges that his fundamental rights are threatened should have unhindered access to the High Court is not to be defeated by any failure of Parliament or the rule-making authority to make specific provision as to how that access is to be gained. [21] Some four decades ago the Privy Council in Maharaj v Attorney General of Trinidad and Tobago 8 held that the redress claimed by the appellant, an attorney at law, under section 6 (now section 14) of the Constitution was redress from the State for a contravention of the appellant s constitutional rights by the judicial arm of the State and, in accordance with section 19 (2) of the SLPA, the Attorney General was the proper respondent to the originating motion. [22] Recently in Carmel Smith, the Privy Council considered in greater detail the broad procedural issue as to the proper party to be the defendant to a claim for constitutional redress under section 14 of the Constitution. 9 In so doing, the Board did not restrict its consideration, as suggested by the appellant, to only the Statutory Authorities Service Commission, a statutory body established under section of the Statutory Authorities Act, Chapter 24:01 ( the SASC ). Rather, the Board examined the autonomous commissions established under the Constitution, namely the Judicial and Legal Service Commission, the PSC, the Police Service Commission, the Teaching Service Commission; as well as two other commissions with more limited and specific functions, namely the Integrity Commission and the Salaries Review Commission (sections and respectively). [23] The Board opined that the procedural issue is one of statutory construction which depends on the language of the Constitution and the State Liability and Proceedings Act, construed in a purposive and practical way 10. Lord Walker at paragraphs [18] and [24] propounded what must be taken to be the settled position on this procedural issue: "When the new Constitution was being drafted and considered the Service Commissions were already in existence, carrying out the important functions 8 (No 2) (1978) 30 WIR 310 [PC]. 9 Carmel Smith at para [1]. 10 Carmel Smith at para [17]. Page 11 of 51

12 described by Lord Diplock in Thomas v A-G of Trinidad and Tobago. SASC was already in existence carrying out similar functions in relation to statutory authorities. The fact that the former but not the latter were given constitutional status may reflect Parliament's view that the functions of the Service Commissions are closer to what is sometimes called 'core functions'. That view would tend to be confirmed by the amendments to s 19 of the State Liability and Proceedings Act made by Parliament in But whether or not that is correct it is inconceivable that Parliament did not have it well in mind, in making the amendments, that they were making an important procedural distinction between the four Service Commissions, on the one hand, and the Integrity Commission, the Salaries Review Commission, and the SASC, on the other hand. In the Board's opinion the scheme and language are clear. The Attorney General is to represent the State (in effect, Central Government). The Attorney General is also to represent (except in judicial review proceedings) statutory bodies which (presumably because of their core functions) are deemed by s 19 (8) and (9) to be part of the State. Other statutory bodies, even if public authorities amenable to constitutional redress proceedings under s 14 of the Constitution, are not part of the State, and are not deemed to be part of the State." [24] Our court of appeal in Jaipaul applied Carmel Smith in concluding that the Attorney General and not the PSC is the proper party to be defendant to a claim for constitutional redress under section 14 of the Constitution. 11 This court stated at paragraph 36: The PSC, as a public body, performs core public functions with respect to the appointment, promotion, transfer and disciplining of officers in that part of the public sector for which the Constitution gives them exclusive responsibility. Pursuant to section 19 (8) and (9) of the SLPA, the PSC is one of the bodies for which proceedings in connection with the exercise of the powers of the authority or the performance of its functions will be deemed to be proceedings against the State. Carmel Smith establishes that, in constitutional proceedings for redress pursuant to section 14, the Attorney General is to represent any statutory body which is deemed by section 19 (8) and (9) to be part of the State. Accordingly, this being a constitutional motion in connection with the exercise of the powers of the PSC, which is a service commission as defined under section 3 (1) of the Constitution, and therefore an authority within the meaning of sections 19 (8) and (9) of the SLPA, it follows that the proper party against whom proceedings are to be brought is the appellant. [25] The court in Jaipaul also hinted at the possibility of such a commission being joined in constitutional proceedings pursuant to the Civil Proceedings Rules 1998 ( the CPR ) as a defendant or interested party. However, it did not go on to provide the circumstances in which such a commission could be so added nor did the submissions extend that far. The resolution of 11 Jaipaul at paras [29]-[37]. Page 12 of 51

13 this issue may be better dealt with on a case by case basis applying, as mentioned before, the relevant rules of the CPR, including CPR 19 and CPR 56 (the latter providing for administrative orders which include a claim under section 14 (1) of the Constitution). CPR 19 deals with the addition or substitution of parties after proceedings have been commenced: CPR Pt Under CPR Pt 19, the court has extensive powers to add or substitute parties. The court must seek to give effect to the overriding objective when it interprets the meaning of any rule or exercises any discretion given to it by the Rules: CPR Pt 1.2. A defendant is defined as a person against whom a claim is made: CPR Pt 2.3. Pursuant to CPR Pt 19.2 (3), the court has a discretion to add a new party to proceedings if: (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue. [26] It would appear that the conjoint effect of CPR Pt 19 and CPR Pt 56 contemplates different degrees of participation by persons who have some kind of interest in an application for constitutional relief. This would exclude persons with insufficient interests, such as cranks and mere busybodies. The court has a discretion under CPR Pt 56.12, at the case management conference, to allow any person who appears to have sufficient interest in the subject matter of the claim to be heard whether or not he has been served with the claim. Further, the judge must direct whether any person or body having such interest is to make submissions by way of written brief or whether such a person or body makes oral submissions at the hearing: CPR Pt (4). This degree of participation seems more limited and less direct than where someone is added as a party under CPR Pt 19.2 (3). [27] In its determination as to joinder in constitutional proceedings, a court would of course have to be mindful that there may be a distinction depending on whether the proceedings are purely civil and private, or, whether they concern issues of public law; an assessment of the nature and extent of the interest may also be relevant. One can, for example, envisage a situation, hopefully rare, where joinder may be desirable in circumstances where there is a real possibility that the independence of a commission might be interfered with or compromised by having the Attorney General as sole defendant. Basu Shorter Constitution of India 12 posits that, as a matter of 12 Basu Shorter Constitution of India 14th ed. (2009), Vol 2, pp Page 13 of 51

14 principle, the essential question to be asked is whether the presence of a person is necessary to render an effective decision. Merely because certain questions will have to be determined incidentally in awarding relief does not make each and every person interested in such questions necessary parties to such proceedings. 13 [28] However, at the stage at which the judge was considering the preliminary objection in the instant case, all that was before her was an ex facie constitutional motion seeking vindication of the appellant s constitutional right against discrimination pursuant to section 4 (d). There was nothing to suggest that the joinder of the PSC was desirable. The Attorney General, in its role as guardian of the public interest, could be relied upon to fairly, faithfully and independently resolve all matters in dispute, or all issues involving the PSC which were connected to the matters in dispute in the proceedings. Any redress being sought by the appellant, such as a declaration for contravention of a fundamental right or monetary compensation, could have been effectively provided by the Attorney General in its role as exclusive defendant. b) Abuse of Process [29] The court s general powers of case management, set out in CPR Pt 26.1, are extensive. Its discretionary powers must be exercised so as to further the overriding objective of dealing with cases justly (CPR Pt 25.1). The court must further the overriding objective by actively managing cases (CPR Pt 25.1). [30] CPR Pt 25 confers no powers, but rather, spells out the aims or policies that are behind many of the CPR provisions and which the court must keep in mind when giving management directions. 14 Pursuant to CPR Pt 25.1, active case management includes: (a) identifying the issues at an early stage; (b) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; (f) deciding the order in which issues are to be resolved. Insofar as addressing specific issues arising during the course of proceedings, express case management powers are conferred on the court, including: (g) to decide the order in which issues are to be tried; (h) to direct a separate trial of any issue; Ibid. 14 Zuckerman on Civil Procedure 3 rd ed (2013) at para Page 14 of 51

15 (k) to dismiss or give judgment on a claim after a decision on a preliminary issue; (w) to take any other step, give any other direction or make any other order for the purpose of managing the case and furthering the overriding objective. [31] In addition to its case management powers under the CPR, the court has a wide discretionary power, arising from its inherent jurisdiction at common law, to prevent its process from being abused. 15 [32] In Johnatty v A.G of Trinidad and Tobago, 16 the Privy Council held that the fact that the alternative remedies of breach of contract and judicial review were available was fatal to the appellant s application for constitutional relief. Lord Hope summarized on this particular type of abuse as follows: The fact that these alternative remedies [judicial review and breach of contract] 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 is 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 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 Nichols of Birkenhead said that where there is a parallel remedy constitutional relief should not be sought unless the circumstances of which complaint is made includes some feature which makes it appropriate to take such a course. [33] I am of the view that the judge, within the ambit of the exercise of her case management powers under the CPR, could have postponed adjudication of the appellant s preliminary abuse of process issue to such a point that she deemed more appropriate. 17 This is because at that stage of the proceedings the judge only had before her the appellant s version of events. This revealed what on the face of it appeared to be a legitimate constitutional claim for discrimination based on the cumulative treatment meted out to her. The judge could not be faulted for deferring 15 Ibid at para [2008] UKPC 55 [22]. 17 Judgment of Jones J at para [4]. Page 15 of 51

16 consideration of this issue until she had considered the respondents version, as this would have allowed her to make an informed decision as to whether the appellant was seeking constitutional protection as a general substitute for the normal procedures for invoking judicial control of administrative action. As it turned out, after all the evidence had been introduced by the parties, she did not determine the abuse of process issue again. Implicit in her determining the case on its merits is a recognition by the judge that there was no merit in the second respondent s argument on abuse of process. It is clear that determination of a preliminary issue may be beneficial under the CPR: see Steele v Steele. 18 However, it is worth bearing in mind that Lord Scarman in Tilling v Whiteman, 19 cautioned that preliminary issues were often treacherous shortcuts which could lead to delay, anxiety and expense. [34] Consequent upon the judge s order to amend, the appellant sought, as the judge found, to expand on what was initially a constitutional motion for violation of a fundamental right, to include a claim for judicial review. Thus, in the amended claim form, the appellant included, among other matters: i. A claim for a declaration that she was treated unfairly and/or illegally and/or irrationally by the PSC contrary to the principles of natural justice and section 20 of the Judicial Review Act ( JRA ). ii. Grounds pursuant to section 5 (3) of the JRA, including the traditional grounds of illegality, irrationality and procedural impropriety. [35] The judge found that the mere granting of permission to amend the claim form constituted neither an application for leave to apply for judicial review, nor was it a substitute for such leave. She went on to hold that even if the proper procedure had been followed, the application would have failed nonetheless at the leave stage on the ground of delay. The judge reasoned that, save for one decision which the appellant alleged she discovered in April 2007, the impugned decisions to act in or to be promoted to a higher post all took place in As the amendment to the claim for judicial review was only filed in 28 September 2007, there would have been unreasonable delay in the bringing of the application for judicial review with respect to all the contested decisions. Further, in determining whether to grant leave or relief, the judge considered that the granting of such leave or relief would be detrimental to good administration 18 (2001) Times 5 June. 19 [1980] 1 AC 1, 25. Page 16 of 51

17 and would substantially prejudice the rights of persons now holding the various offices. 20 The appellant initially challenged various facets of these findings. However, at both hearings before this court, the appellant signaled her intention to no longer pursue those aspects. 21 Costs on the preliminary issues [36] The appellant, having succeeded on both preliminary points as to the proper party to the proceedings and abuse of process, would have been entitled to an order of costs in her favour on these issues. Likewise, the respondent having been successful on the judicial review issue, an order for costs should so reflect. V. Relevant facts and background. Affidavits. [37] The appellant filed the following affidavits: i. 23 February 2007; ii. 26 September 2007; iii. 30 January The second respondent filed the following affidavits in opposition: i. three affidavits of Gloria Edwards-Joseph, the Director of Public Administration ( the DPA ) filed on: a. 6 December 2007; b. 6 December 2007; c. 18 March ii. Verna Johnson, Director Human Resource, filed on 6 December [38] The appellant is a career public servant some fifty-nine years old with a very impressive academic record. In 1979 the University of the West Indies ( UWI ) awarded the appellant a 20 Judgment of Jones J at para See CAT 15 June 2011, p 3, 8 27; CAT 13 November 2015, p 2, 38. Page 17 of 51

18 Bachelor of Science degree with First Class Honours. She was awarded a Canadian Commonwealth Scholarship and in 1983 graduated with a Master of Science degree in Horticultural Sciences from the University of Guelph in Canada. [39] She taught for one year ( ). She then started off as an Agricultural Officer I in what is now the Ministry of Agriculture, Land and Fisheries ( Ministry of Agriculture ) in 1980 and has worked in this Ministry for her entire working life, save for the period 1991 to 1992 when she was on secondment as a lecturer in plant physiology and botany at UWI. [40] From 1 January 1993 and even up to the time of the commencement of these proceedings in February 2007, the appellant s substantive post was that of Biochemist II. However, while this action was pending, the PSC on 12 November 2007 advised the appellant of her promotion to the substantive post of Technical Officer (Agriculture) Horticulture (Range 63) with effect from 16 October [41] On 25 August 2004 the appellant, by way of a memorandum signed by the appellant and four other officers of the Ministry and addressed to the Director of Personnel Administration ( DPA ), indicated their capability and willingness to act in the position of Deputy Director, Extension Training and Information Services. [42] With respect to this 2004 application, the appellant alleges that she was present at a meeting in August or September 2004 with two officials of the Ministry of Agriculture, namely Mr Winston Gibson, Acting Personnel Secretary, and Ms Verna Johnson, Director of Human Resources Division I. At this meeting she was advised that, notwithstanding her seniority over the person appointed to the post of Deputy Director Extension, she would not be so appointed as her Master s degree in Horticulture was insufficient because the preferred candidate possessed a Master s degree in extension and this was now a precondition. [43] The appellant stated that she objected to this new policy as in the past officers without such a qualification had been appointed to act. Ms Johnson, the appellant alleges, went on to explain that, with the new policy, seniority was no longer the guiding factor as it once was for acting appointments. Rather a specialist Master s in the relevant discipline for the higher office to which acting appointment and/or promotion was sought was now a pre-requisite. [44] The appellant alleged that the vast majority of officers who had previously held the Extension post were not subjected to the pre-requisite of having a Master s degree in Extension; nor did Page 18 of 51

19 most of them have such a degree. Such persons would have included Mr Samuel Rivers, Mr Vernon Douglas, Dr G Bhola, Ms Mona Jones and Mr Mohammed Halim. [45] Ms Johnson, in her affidavit filed on 6 December 2007, did not recall the appellant being told of a new policy. Further she expressly disavows: (i) telling the appellant that a Master s degree in the relevant discipline for the higher offices to which acting appointment and/or promotion was sought was now a pre-requisite; (ii) telling the appellant that a Master s degree in Extension was now a pre-condition for appointment to act in the position of Deputy Director, Extension. While Ms Johnson does not recall the precise words spoken, she stated that whatever was said to the appellant would have been guided by the contents of Circular No. 1 of 2004 from the DPA. [46] It may be appropriate at this stage to set out the contents of this circular which took effect on 3 January This circular emanated from the DPA and was directed to Permanent Secretaries and Heads of Department. The subject matter dealt with compliance by these officers with the Public Service Commission Regulations. It recorded that the PSC had decided, among other matters: (3) Effective January 3, 2005 the Commission will no longer consider recommendations for acting appointments and /or promotions in respect of officers who do not satisfy the training and experience requirements for the particular office. Exceptions may be made in special circumstances. (5) Effective January 3, 2005 the Commission will not consider recommendations that do not comply with the above conditions and in such situations the Commission may require the personal attendance of the Permanent Secretary or Head of Department to explain the particular circumstances. The PSC underscored the responsibility placed upon Permanent Secretaries and Heads of Department to ensure compliance so that officers under their supervision are not disadvantaged. [47] Mrs Edwards-Joseph, the DPA at the material time, in her affidavit filed on 6 December, 2007 weighed in on this issue of the appointment to act in the office of Deputy Director, Extension. She exhibited the job specification for the post. She stated that the job specification required evidence in training by post-graduate training in Agricultural Extension or an appropriate field, or any equivalent combination of training and experience. [48] She explained why another officer, Mr Adrian Bhekoo, was selected for this acting appointment. The Permanent Secretary in this Ministry had recommended Mr Bhekoo to act in that position. Mr Bhekoo held a Master of Philosophy in agricultural extension. The PSC considered that Page 19 of 51

20 post-graduate training in Agricultural Extension was more relevant to the post at that time. However, the PSC did not treat the post-graduate training in Agricultural Extension as a prerequisite. Rather, in choosing between Mr Bhekoo and the appellant, whose post-graduate training was in another field (Horticulture), it accorded greater weight to Mr Bhekoo s postgraduate training in the specific field and concluded that, in all the circumstances, it was in the interest of good administration to appoint Mr Bhekoo at that time. [49] With respect to any conversations between the appellant and Mr Gibson and Mrs Johnson, Mrs Edwards-Joseph remarked that neither of the latter two can speak to the policy of the PSC except to the extent that the Commission has informed them of its policy. The Commission s policy is based on the PSC Regulations. By Circular No. 1 of 2004 (dated 8 December 2004), the Commission informed all Permanent Secretaries and Heads of Department of its decision, inter alia, that, effective 3 January 2005, it would no longer consider recommendations for acting appointments in respect of officers who do not satisfy the training and experience requirements for particular offices; however, exceptions may be made in special circumstances. The contents of this Circular were also published in the press for public information on 15 June [50] On the issue of an acting appointment in the office of Deputy Director, Extension, the appellant countered that she had the equivalent combination of training and experience. She highlighted the fact that in her undergraduate program, she had taken several courses in Agricultural Extension. Further, at the Ministry, she had a close working relationship with the Extension Division and had participated in innumerable programs and training sessions where I presented papers, lectured and chaired workshop sessions for stakeholders in the industry. I have also written several training manuals and fact sheet for the benefit of extensionists and farmers. The Ministry also sent me on various short courses at the University of California where I gained firsthand experience in this field. These courses were hosted by the University Extension Department in the Faculty of Agriculture which is internationally renowned for its proficiency in this field. The experience I gained in the area of linkages between research, extension and stakeholders in the industry would have been a tremendous asset in the performance of duties as Department Director, Extension Training and Information Service Memorandum of 16 July 2006, Record of Appeal p 83. Page 20 of 51

21 [51] The appellant was also critical of Ms Edwards-Joseph making no mention of any recommendation being made by the Permanent Secretary or Head of Department as is required under regulations 25 to 28. The appellant also complains that, in breach of regulation 25, the failure to notify her that an acting appointment was about to be made meant that she was unable to make any representations on her behalf and resulted in her being treated unfairly. [52] Ms Edwards-Joseph in her final response maintained that the appellant did not possess the postgraduate training in Agricultural Extension or an appropriate field nor the prescribed equivalent combination of experience and training. The Claimant did not possess the postgraduate training in Agricultural Extension or an appropriate field. The Commission decides whether an Officer possesses the equivalent combination of experience and training and if the officer does, how it is to be ranked using guidelines established by the Chief Personnel Officer. 23 Ms Edwards-Joseph goes on to make the point that the statutory obligation under regulations 25 to 28 of the Public Service Commission Regulations is on the Permanent Secretary, not the PSC, to notify the officers who are eligible for consideration for an acting appointment and to make recommendations. As the appellant did not possess the prescribed or equivalent training and experience, she was not entitled for consideration and as a consequence not entitled to notification. [53] Finally, Ms Edwards-Joseph deposed that, even though the appellant applied for the acting Extension post on 25 August 2004, that post was not yet vacant as Mr Halim was appointed to the position until 31 December Crop Production [54] Following the indication in the memorandum of 25 August 2004 of her capability and willingness to act in the post of Deputy Director, Extension, the appellant was appointed to act in the post of Deputy Director, Crop Production (the third post) from 2 May 2005 to 24 June The appellant contended that this was all a part of the unequal treatment meted out to her as she did not even possess a Master s degree in Crop Production, the requisite post-graduate qualification. 23 Affidavit of Ms Edwards-Joseph dated 18 March 2008 at para 3. Page 21 of 51

22 Horticulture [55] On the very day that this acting appointment in Crop Production ended, the appellant on 24 June 2005 requested consideration by the PSC for the post of Technical Officer, Horticulture, Agricultural Services Division, namely Technical Officer (Agriculture) Horticulture, as the incumbent was due to retire very shortly. It is common ground that the appellant s post-graduate qualification was in Horticulture. The appellant contended that this was an important acting appointment as a permanent vacancy had effectively arisen and she expected to act as a prelude to a subsequent promotion in the said office. 24 [56] The appellant attached memorandum dated 6 July , from the Acting Director, Agricultural Services Division, Ms Mona Jones, strongly recommending her for promotion to this post of Technical Officer, Horticulture. The Acting Director stated therein: Ms Mootoo demonstrated both the capability and the vision required for implementation of our recently approved strategic plan. If we were to move forward towards a serious 20/20 vision for agriculture in Trinidad and Tobago I would recommend that we capitalize on Ms Mootoo s analytical abilities and scientific capacity. Her work in the Research Division has allowed her to develop sensitivity for quality produce and to this end she initiated a quality management seminar during her short stint in the division in This was a very successful experience and demonstrated the type of leadership qualities, which could enhance the Division s output and thus satisfy both national and international standards. [57] By letter dated 19 September 2005, the Permanent Secretary in the Ministry of Agriculture acknowledged that a recommendation had been made to the DPA for the appellant to act in the Horticulture post from 19 th September 2005 and continuing vice Dr George Bola on preretirement leave and in the ensuing vacancy from 2 nd November, [58] There seems to be some uncertainty as to whether it was the PSC or the Permanent Secretary of the Ministry that continued the acting appointment of the appellant beyond 31 December Ms Edwards-Joseph in her affidavit of 6 December 2007 at paragraph 6 27 deposed that it was the PSC that appointed the appellant to act in the Horticulture post from 19 September 2005 to 31 December 2005 and from 1 January 2006 to 28 February Yet, surprisingly, Ms Edwards- 24 Affidavit of 23 February 2007, Record of Appeal p 28 at para Record of Appeal p Ibid p Ibid p 316. Page 22 of 51