REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No: CV 2006-00254
PUBLIC SERVICE COMMISSION
BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES
Mr. A. Ramlogan instructed by Mr. N. Lalbeharry for the Claimant
Mr. R. Martineau, S. C. instructed by Mr. S. Julien
The Applicant, Reynold Beddeau, alleges that in not considering him for promotion to
the office of Deputy Permanent Secretary he was treated unfairly by the Public Service
Commission (“the Commission”); that such treatment was contrary to a legitimate
expectation that he would be considered for such promotion and that the Commission
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acted unreasonably in refusing to shortlist him on the ground that he did not satisfy the
requirement of 5 years at a senior management level in the public service. The Applicant
seeks declarations and various consequential orders in this regard.
In the main the facts of this application are not in dispute.
By a circular memorandum, dated the 13th December 2002, (“the memorandum”)
applications for the post of Deputy Permanent Secretary were requested from suitably
qualified officers holding substantive appointments in the public service in range 54D
and above. Apart from other specified experience and training, applicants for the job
were required by the advertisement to have ‘at least five years experience at a senior
managerial level’. Pursuant to this circular the Applicant, a public servant, applied for the
job. By a letter dated the 7th August 2003 (“the letter”), signed on behalf of the Director
of Public Administration (“the DPA”), the Applicant was advised that he was short-listed
as a candidate to undergo the first phase of an assessment centre exercise (“the
assessment exercise”) to select officers to fill the posts.
According to the affidavits of the Applicant, on or around the 19th July 2004, the
Applicant discovered that the first phase of the assessment exercise had been concluded
without him. After some investigation the Applicant states that he met with the DPA who
advised him that a mistake had been made in not informing him of the assessment
exercise. The Applicant says that he was told that the fact that he could not participate in
assessment exercise would not prejudice or adversely affect his claim for promotion.
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Relying on this assurance from the DPA he took no further steps and awaited contact by
the relevant persons.
He states that on the 30th November 2005, however, he discovered that appointments had
been made to the posts in the month of October 2005. He was not one of the persons so
appointed. Thereafter, on the 1st December 2005, he made an application under the
Freedom of Information Act and, by letter dated the 21st December 2005 and received on
the 5th January 2006, was advised to direct his concerns to the DPA. By letter dated the
6th January 2006 he wrote the DPA voicing his concerns and on the 30th January 2006
filed this application.
According to the affidavits filed on behalf of the Commission, the Applicant was not
short listed because he did not satisfy the requirement of 5 years experience at a senior
management level in the public service. The Commission’s evidence is that the letter of
the 7th August 2003 was sent to the Applicant in error and that by the 22nd July 2004 the
Applicant had been informed of the error and made no protest. According to the
Commission no assurances were given to the Applicant that his application would still be
considered or that he would not be prejudiced by his failure to participate in the first stage
of the assessment exercise.
It is not in dispute that the Applicant was on no pay leave from the public service on the
grounds of public policy during the periods: 1st November 1995 to 31st January 1998
when he held the post of Deputy Human Resource Manager on contract with the Ministry
of Education and 1st June 1999 to 12th July 2001 when he held the post of Human
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Resource Manager on contract with the Ministry of the Attorney General. According to
the Commission it is this leave that rendered him ineligible for consideration for the post
as at the time he did not have five years experience at a senior management level in the
public service. The Applicant contends however that the period he held the contract
positions ought to have been taken into consideration given the nature of the leave
granted and the fact that the posts were senior managerial positions in the public service.
It is not in dispute that the Applicant met all the other criteria for appointment to the job.
The Commission, at trial, also raises the question of the effect of the delay of the
Applicant in making the application.
The issues for the court’s determination in this matter are as follows:
1. Did the Applicant have a legitimate expectation that he would be considered for
2. Was the decision to exclude the Applicant from consideration for the post based
on his lack of experience unreasonable, irrational, unfair and/or illegal?
3. Has the Applicant’s delay precluded him from obtaining relief in these
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“Legitimate, or reasonable, expectation may arise either from an express
promise given on behalf of a public authority or from the existence of a
regular practice which the claimant can reasonably expect to continue.”
Per Lord Fraser: CSSU v Minister for the Civil Service  3All ER 936 at page
“Where the court considers that a lawful promise or practice has induced a
legitimate expectation of a benefit which is substantive, not simply
procedural, authority now establishes that here too the court will in a
proper case decide whether to frustrate the expectation is so unfair that to
take a new and different course will amount to an abuse of power. Here,
once the legitimacy of the expectation is established the court will have
the task of weighing the requirements of fairness against any overriding
interest relied upon for the change of policy.”
Per Lord Woolf M.R: Reg. v North and East Devon Health Authority, ex parte
Coughlan  2 WLR 622 at 645.
In examining the judgements of Simon Brown L.J. Michael Fordham states at
paragraph 41.1.3 at page 769 of the Judicial Review Handbook:
“These various authorities show that the claimant’s right will only be found
established when there is a clear unambiguous representation upon which it
was reasonable for him to rely. Then the administrator or other public body
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will be held bound in fairness by the representation made unless only its
promise or undertaking as to how its power would be exercised is inconsistent
with the statutory duties imposed upon it. The doctrine employed in this sense
is akin to an estoppel.”
I accept these statements as correct statements of the law.
On the case as presented therefore I am required firstly, to examine the facts to ascertain
whether a representation was made and, if made, whether it was reasonable for the
Applicant to rely on that representation. If the expectation was in the circumstances
legitimate, then I must weigh the requirement of fairness to the Applicant against any
overriding interest that may have caused the Commission to resile from the representation
The Applicant’s case in this regard is that, induced by the representation in the letter that
he was short-listed for the assessment exercise, and, the representations of the DPA that
his failure to attend the first stage of the assessment exercise would not affect his chances
of promotion, he had a legitimate expectation that he would be considered for the
This issue involves firstly findings of fact with respect to the representations allegedly
made by the DPA to the Applicant. In this regard I have to examine the evidence of the
Applicant and that of the deponents on behalf of the Commission, namely Dawn Harding;
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Gloria Edwards-Joseph, the Deputy DPA and Michael Mahabir, the DPA, as to the
conversations between the representatives of the Commission on the one hand and the
Applicant on the other.
The affidavit evidence of the Applicant is that in or about the 19th July 2005 he spoke to
Ms. Harding who informed him that his name was not on the list of persons given to her
as being scheduled to participate in the exercise. At her request he delivered a copy of the
letter to her on the 22nd July 2004. On the 30th July 2004 at Ms. Harding’s request he
delivered the original of the letter to her and was told by her that the Deputy DPA would
speak to him on her return to office from leave.
With respect to the DPA, the Applicant says that he first spoke to the DPA with regard to
the initial postponement of the first stage of the assessment exercise over the telephone.
He says that the DPA advised that there had been a delay and that he would be notified
when the exercise was rescheduled. He next spoke to the DPA on the telephone after his
conversation with Ms. Harding on the 22nd July 2004 and, according to him, was advised
that the DPA needed to speak with Ms. Harding on the issue. On the 26th August he wrote
a letter to the DPA setting out his position and stating that it was his understanding that
the assessment process was incomplete and requesting that he be given the opportunity to
be assessed. Thereafter he met with the DPA in early September 2004 and was told by
him that a mistake had been made in not notifying him of the re-scheduled date.
According to the Applicant, he was informed by the DPA that it was impossible to
reschedule the exercise but that, since it was the fault of the Commission, his claim for
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promotion would still be considered. According to the Applicant he asked whether his
failure to participate in the exercise would not place him at a disadvantage. He states that
Mr. Mahabir replied in the negative and assured him that “the PSC would ensure that my
claim to promotion was not prejudiced or adversely affected by my non- participation in
the assessment centre exercise.”
No reference was made in the Applicant’s initial affidavit about any conversations with
the Deputy DPA. However in an affidavit deposed to in reply to those filed on behalf of
the Respondents the Applicant, while not referring to the meeting with Mrs. Edwards-
Joseph, specifically denies Ms. Edwards-Joseph’s claim in her affidavit that he
specifically enquired of her whether he would have another opportunity to participate in
the assessment exercise or that she apologised to him and that he said to her that he
The Applicant’s evidence was not shaken by cross-examination but he confirms in cross-
examination that his conversation with the Deputy DPA occurred after his conversation
with the DPA.
According to Ms. Harding she was the Acting Deputy DPA at the time. She says that she
informed the Applicant that Mrs. Edwards-Joseph had signed the letter; that he did not
satisfy the experience requirements to qualify for the exercise and that the letter had been
sent to him in error. According to her he seemed not to be satisfied and she referred him
to the Deputy DPA. Under cross-examination Ms. Harding stated that the Applicant told
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her that he had received a letter stating that he was short-listed and he had a legitimate
expectation that he would have been called for the exercise.
Apart from confirming the position taken by the Commission that the Applicant did not
have the required experience and that the letter was signed by her and sent to the
Applicant in error, Mrs. Edwards-Joseph, in her affidavit, states that she met with the
Applicant and explained to him that he had not been short listed and that the letter had
been sent to him in error. According to her the Applicant did not query what she said but
merely enquired of her whether he would have another opportunity to participate in an
assessment centre exercise. She advised him that he would. According to Mrs. Edwards-
Joseph the Applicant seemed to accept what she had said. She apologised and he left.
Under cross-examination she states that at the time that she had met with the Applicant,
she was not aware that he had already met with Mr. Mahabir. According to her, she told
the Applicant that he did not meet the requirements.
Michael Mahabir stated that he agreed with Mrs. Edwards-Joseph that the Applicant did
not satisfy the experience requirement. His evidence is that he met with the Applicant to
discuss issues raised in the Applicant’s letter to him. He says that he told the Applicant
that a mistake had been made in notifying him in the first place that he was short-listed as
a candidate. He said that the possibility of the Applicant’s participation in the exercise
never arose in the conversation. Neither did he give the Applicant any assurances or
attribute any fault to the Commission. He states that he did not tell the Applicant that the
Commission would nonetheless consider his claim for promotion.
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None of the evidence given by the witnesses for the Commission was shaken by the
The Applicant refers to the contents of a letter dated the 9th January 2006 written by him
to the DPA and the fact of there being no response to this letter as confirmation that the
representation was made by the DPA. While it is true that the letter, addressed to the
DPA, sets out the Applicant’s position and, in particular, refers to the representation the
Applicant alleges was made to him by the DPA, the fact that no response was made to the
letter is, in my opinion, not conclusive of the acceptance of the contents by the DPA. Nor,
in my view, can I infer from the lack of response that there was an acceptance of the
position taken by the Applicant in the letter. The letter is dated the 9th January 2006, these
proceedings were brought on the 30th January 2006 and leave granted on the 2nd February
2006. There is no evidence as to when this letter was brought to the attention of the DPA
or, indeed, if it was brought to his attention at all. It may very well have been that even if
the letter was brought to the attention of the DPA these proceedings were filed before a
reply could have been sent. Further the letter, although referred to in the Applicant’s
initial affidavit as illustrative of another point, was only produced in the Applicant’s
affidavit in reply.
It seems to me that of greater significance in the resolution of this issue is the fact that the
Applicant met with the Deputy DPA after the meeting with the DPA in which he alleges
that the representation was made. In my view had such a representation been made in the
earlier meeting there would have been no need for the Applicant to meet thereafter with
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the Deputy DPA. Even if there existed some valid reason for the Applicant to meet with
the Deputy DPA on the issue surely he would have at least advised her of the
representation made to him by the DPA. Nowhere does the Applicant either allege that
he told the Deputy DPA of his meeting with the DPA or of the representations which he
claims that the DPA made to him nor does he explain his failure to do so. Indeed,
although in cross-examination the Applicant admits meeting with the Deputy DPA, in his
affidavits the only reference to any conversations with her are made in his affidavit in
reply. Even then no details are given of the conversation. The Applicant only refers to the
said conversation by way of a denial of some aspects of it.
The Applicant refers to the fact that Mr. Mahabir does not in his affidavit specifically
state that he told the Applicant that he was not qualified for the job. In my view this could
be attributed to the manner in which the affidavits were drafted. It seems to me that the
version of the conversation given by Mr. Mahabir seems more probable than the version
given by the Applicant.
In the circumstances I accept the evidence of Mr. Mahabir and find as a fact that the
(i) did not represent to the Applicant that his claim to promotion would not be
affected adversely by his failure to undergo the first assessment exercise;
(ii) informed the Applicant that a mistake had been made in notifying him that he
was short-listed for the assessment exercise; and
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(iii) informed the Applicant that he had not been short-listed because he did not
meet the experience qualifications.
Further I find as a fact that the information given to the Applicant by Mr. Mahabir was
confirmed by Mrs. Edwards-Joseph at her meeting with the Applicant soon thereafter.
In these circumstances I am of the view that the only representation the Applicant can
rely on is that contained in the letter, that is, that he was short-listed as a candidate to
undergo the first stage of the assessment exercise. The first question to be answered
therefore is whether, in the circumstances, it is reasonable for the Applicant to rely on
such a representation.
The evidence led on behalf of the Commission is that the letter was issued by mistake.
While I accept that it is difficult for the Applicant to lead evidence challenging this
evidence, the fact is that this evidence has not been challenged in any material way. The
Applicant suggests that this is all an elaborate scheme concocted by the Commission’s
witnesses to cover up their mistake in not informing the Applicant of the date of the first
assessment exercise. If the Applicant is to be believed, then not only would the persons
responsible for the mistake, supposedly Ms. Harding and Mrs. Edwards- Joseph, be
parties to this conspiracy, but Mr. Mahabir would also have had to participate in the
elaborate fabrication. I find that hard to believe.
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I have already rejected the Applicant’s version of the conversation between him and Mr.
Mahabir and have specifically found that Mr. Mahabir advised the Applicant that the
letter had been sent to him in error. It would seem to me that this finding is consistent
with the evidence given by the other witnesses for the Commission with respect to the
issue of the letter. In the circumstances, I accept the evidence of Ms. Harding and Mrs.
Edwards-Joseph with respect to the issue of the letter and find as a fact that the letter was
sent to the Applicant in error.
The Commission submits that a letter sent in error cannot give rise to a legitimate
expectation. Of assistance in this regard are two cases. In the first, Reg. v The Secretary
of State for Education and Employment, ex parte Begbie  1W.L.R. 1115, the
court found that there was contained in a letter, “the Teed letter”, a clear and
unambiguous representation upon which the applicant sought to rely. It was not in dispute
that the representation contained in the letter was as a result of a mistake. According to
Peter Gibson L.J.:
“For my part I cannot accept that the mere fact that a clear and unequivocal
statement such as that made in the Teed letter was made is enough to establish a
legitimate expectation in accordance with that statement such that the
expectation cannot be allowed to be defeated. All the circumstances must be
considered. Where the court is satisfied that a mistake was made by the minister
or other person making the statement, the court should be slow to fix the public
authority permanently with the consequences of that mistake. That is not to say
that a promise made by mistake will never have legal consequences. It may be
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that a mistaken statement will, even if subsequently sought to be corrected, give
rise to a legitimate expectation, whether in the person to whom the statement is
made or in others who learnt of it, for example where there has been detrimental
reliance on the statement before it was corrected. The court must be alive to the
possibility of such unfairness to the individual by the public authority in its
conduct as to amount to an abuse of power. But that is not this case.”
at page 1127 letters B and C.
In the case of Rowland v Environment Agency  Ch.581, in dealing with a
representation given by mistake, Lightman J states at paragraph 68:
“In such a situation the court must be alive to the possibility of such unfairness to
the individual so as to amount to an abuse of power. The court must also consider
whether and how far, going beyond the immediate parties, the wider interests of
the public may be affected by giving effect to the expectation, for the wider
interests may require that the public body resiles in order properly to protect those
wider interests. …….At the end of the day the court must decide whether having
regard to all the relevant circumstances including the reliance by the citizen, the
impact on the interests of the citizen and the public and considerations of
proportionality for the public body to resile would in all the circumstances and
applying the criteria referred to be so unfair as to constitute an abuse of power.”
This statement of Lightman J. was approved on appeal to the Court of Appeal: 
3WLR 249 at page 273.
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The issue here is whether allowing the Commission to resile from the representation
made in the letter, that is that he was short listed for the assessment exercise, would
amount to an abuse of power. The test, put another way, is one of fairness. In my
determination I must consider all the circumstances including in this case whether the
Applicant relied on such representation to his detriment and the effect of enforcing such
representation on the other applicants for the posts.
It would seem to me that on the facts as presented the Applicant suffered no detriment by
his reliance on the representations in the letter. Indeed it seems to me hardly likely that
the Applicant would have suffered a detriment in the circumstances. Further I must also
bear in mind the fact that to allow the Applicant to rely on the mistake of the Commission
would present some measure of unfairness with regard to the other applicants, both short-
listed and eliminated.
It is not every representation that will result in a legitimate expectation and similarly it is
not every legitimate expectation that will result in an order preventing the authority from
avoiding its effects. While I accept that the Applicant’s expectation that he was to
participate in the assessment exercise was legitimate, the test here is whether to do so will
amount to an abuse of power. In my opinion, on the facts as presented, it cannot be said
that to allow the Commission to resile from the representation made in error in these
circumstances will be so unfair as to result in an abuse of power.
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In his written submissions the Applicant claims that he had a legitimate expectation that
on taking up the ‘special no pay leave contracts’ he would continue to accrue seniority as
if he were on leave of absence. With due respect to the Applicant not only is this not his
case as stated in his application but the Applicant has adduced no evidence in support of
In the circumstances the Applicant’s case with respect to legitimate expectation fails.
Is the decision unreasonable, irrational, unfair and or illegal?
It has long been accepted that the statement of Lord Diplock in the Council of Civil
Service Unions and others v Minister for the Civil Service 3 All ER 935 at
pages 950 to 951 accurately encapsulates the law in this regard:
“By ‘illegality’ as a ground for judicial review I mean that the decision-maker
must understand correctly the law that regulates his decision-making power and
must give effect to it.”
“By ‘irrationality’ I mean what can by now be succinctly referred to as
‘Wednesbury unreasonableness’……It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no sensible
person who had applied his mind to the question to be decided could have arrived
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On the case as presented by the Applicant the decision complained of is the decision not
to short-list the Applicant for consideration for appointment to the post of Deputy
Permanent Secretary. As I understand the submissions of the Applicant under this head
(i) The decision was illegal and ultra vires because no statute or regulation
affords the Commission the discretion exercised; and
(ii) The decision was irrational and unreasonable given the Applicant’s
experience and seniority.
The Commission on the other hand, in justification of its decision, states that the
Applicant was not short-listed because he was not qualified for the post as he did not
have the requisite five years experience at a senior managerial level in the public service.
According to the Commission, as a result of the Applicant applying for and receiving two
periods of no pay leave from the public service, he only had about 3 1/2 years senior
managerial experience in the public service rather than the required five years.
In order to deal with these submissions it is necessary to examine the relevant statutory
framework regulating the Commission’s decision- making power, that is the Constitution
and the Public Service Regulations (“the Regulations”) established under the
Section 120 of the Constitution establishes the Commission. Section 121 vests the
power to appoint persons as officers in the public service in the Commission. By section
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121(1) this power includes the power to make appointments on promotion or transfer.
The manner by which the Commission is to exercise the power vested in it by the
Constitution is prescribed by section 129 of the Constitution and the Regulations. By
Regulation 13 the DPA shall by circular memorandum give notice of vacancies which
exist in a particular service “and any officer may make application for appointment to any
such vacancy”. Regulation 14 provides that whenever it is possible and in the best
interests of the particular service, appointments shall be made by the Commission from
officers within the particular service by competition. In considering the eligibility of
officers for promotion, the Commission is mandated by Regulation 18 to take into
account, among other things, the seniority and experience of the officers. Seniority,
according to this Regulation, is only to be given special consideration in two instances,
where there is an equality of efficiency between two officers or where promotion is to an
office that involves work of a routine nature.
It is clear by the Constitution and these Regulations therefore that the power to appoint to
a post in the Public Service lies with the Commission, such power to be exercised in the
manner prescribed by the Regulations. It would seem to me that the fact that the
Regulations provide for any officer within the particular service to apply for appointment
and for the process of appointment to be by competition must of necessity include the
power to eliminate Applicants not qualified for the job. This in my view must include the
short-listing of candidates. Indeed, with respect to first time appointments to the public
service, Regulation 16 specifically allows the Commission to delegate such power to
selection boards appointed for the purpose of assisting in the selection of candidates.
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According to the Applicant the relevant regulation is Regulation 20. Regulation 20 deals
with seniority. In my view the issue here is not one of seniority but rather one of
experience. The decision not to short list the Applicant was made on the basis of the
Applicant’s lack of experience. Regulation 18 mandates the Commission when
considering the eligibility of officers for promotion to take experience as well as other
considerations including seniority into account. Seniority only becomes specifically
relevant where there is equality of efficiency or where the work involved is of a routine
Further, it cannot be that in determining how it ought to exercise it’s responsibility to
promote public officers that the Commission cannot decide what qualification including
experience it requires for a particular post. In the absence of any prohibition either in the
Constitution or the Regulations in this regard, in my opinion, the Applicant cannot rely
on illegality or ultra vires as a valid challenge to the decision of the Commission not to
The second question to be answered here is whether the decision ‘is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who had applied
his mind to the question to be decided could have arrived at it’.
The Applicant submits that to discount the periods of his no pay leave from the public
service is unreasonable and irrational. According to the Applicant, by excluding the
period when he was on official no pay leave granted on the grounds of public policy and
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in circumstances where he was in fact functioning at a higher level in the public service,
the Commission acted irrationally and unreasonably.
Of note, the Applicant submits, is the memorandum calling for applications. This
memorandum, addressed to “Permanent Secretaries/ Heads of Departments”, requests
that they bring the contents to the attention of their staff. The memorandum states that
applications are invited from suitably qualified officers holding substantive appointments
in Range 54D and above. Under the heading ‘Minimum Experience and Training’ the
memorandum states: “At least five years experience at a senior managerial level”.
It must be noted here that the Applicant’s case is not one of a legitimate expectation
created by the use of the words “at a senior management level” without any qualification.
Rather the Applicant’s case is that by not taking the periods when he served on contract
into consideration the decision not to short-list him was irrational because:
(i) While on no pay leave from the public service he was in fact functioning at a
higher level in the very public service;
(ii) The Commission wrongly equated no pay leave simpliciter with no pay leave
granted on the grounds of public policy;
The Applicant deposes to the fact that the contract positions of Human Resource
Manager and Deputy Human Resource Manager, the positions he served during his
periods of leave, were far superior to his substantive posts in the public service and
existed “at a senior managerial level. The Commission’s short answer to this is that these
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posts were not posts in the public service and in the circumstances the posts were
unknown to it.
With respect to (i) with due respect to the Applicant, merely to state this proposition
exposes its fallacy. This situation only arises because the Applicant was on leave from
the public service. There is no evidence that despite the fact that the Applicant was
appointed to the posts on contract, these were in fact posts within the public service.
Indeed to assume from the fact that the Applicant was appointed to a Ministry that the
post was one within the public service would in my view be erroneous and illogical.
With respect to (ii), according to the Applicant in the case of leave granted on the
grounds of public policy, as opposed to no pay leave simpliciter, the seniority of the
officer is preserved and accordingly the Commission is obliged to treat the officer as
never having left the public service. The Applicant cites the example of his promotion
while on such leave and that of another public officer to illustrate this fact. The difficulty
with this submission is that this is not a case of seniority. It is clear that under the
Regulations seniority and experience are not the same. This is a case based on the
Applicant’s experience not his position on the seniority lists. It seems to me that insofar
as the Applicant bases his case on the Commission’s failure to consider his seniority his
case must fail.
At the end of the day this is a case where the issue is whether it was illogical or
unreasonable for the Commission only to take into consideration service within the public
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service at a senior managerial level. Even if I accept the Applicant’s statement that the
posts of Deputy Human Resource Manager and Human Resource Manager are senior
managerial positions, the question to be determined here is whether a decision by the
Commission that the experience that must be experience within the public service is so
outrageous in its defiance of logic or of accepted moral standards that no sensible person
who has applied his mind to the question to be decided could have arrived at it.
In my view I am unable to make such a finding. It may very well be that, given the
peculiar nature of the public service, senior managerial experience outside of the public
service, even at a ministry level, would not adequately prepare an applicant for the
requirements of the post of Deputy Permanent Secretary. In any event the memorandum
identifies the minimum experience required for the post. The fact that the Commission is
required to appoint persons by way of competition requires that the Commission to have
the ability to eliminate persons holding the minimum requirement in favour of those who
may have more than that minimum requirement.
It would seem to me that to make a finding as suggested by the Applicant is to
impermissibly intrude on the exercise of the discretion granted to the Commission by the
Constitution and the Regulations. In the circumstances the Applicant’s submissions on
this issue fails.
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Although given my findings it is not strictly necessary to deal with the issue of delay, it
seems to me that given the arguments presented I ought to deal with the question of
whether it is open to a Respondent to an application for judicial review to raise the issue
of delay at trial in circumstances where there is no application to have the leave granted
The Respondent submits that it is entitled to raise the question of delay as one of the
factors to be considered by the court in the granting of the relief. At issue here is the
effect of Part 56.5(1) and (3) of the Civil Procedure Rules 1998 as amended (“the
CPR”) in the light of section 11 (2) of the Judicial Review Act (“the Act”).
Section 11(2) of the Act allows the Court to refuse to grant leave to apply for judicial
review if it considers that there has been undue delay in the making of the application and
the grant of relief would cause substantial hardship to or substantially prejudice the rights
of any person or would be detrimental to good administration.
Part 56.5(1) of the CPR provides that a judge may refuse leave or to grant relief in any
case in which he considers that there has been unreasonable delay before making the
application. Part 56.5(3) states that when considering whether to refuse leave or to grant
relief because of delay the judge must consider whether the granting of leave or relief
would be likely to (a) cause substantial hardship to or substantially prejudice the rights of
any person; or (b) be detrimental to good administration.
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The confusion here arises, in part, from the statement of Nelson J.A. in the case of
Fisherman and Friends of the Sea v The Environmental Management Authority and
BP Trinidad and Tobago LLC Civ. App. No. 106 of 2002. The sole issue to be
determined by the Court of Appeal in that case was whether the trial judge properly
exercised his discretion in refusing to extend the time to apply for leave to apply for
judicial review. In a judgement delivered Nelson JA, in dealing with the conflict between
section 11(1) of the Act and Order 53 (4)(1) of the Orders and Rules of the Supreme
Court of Judicature of Trinidad and Tobago 1975 (“the 1975 Rules”), he came to the
conclusion that section 11(1), being substantive law, had to prevail over Order 53(4)(1)
which was subordinate legislation. While acknowledging that section 11(2) of the Act
was not an issue in the case, Nelson JA was of the opinion that the section dealt only with
leave applications and not the substantive application.
In the case of the Sanatan Dharma Maha Sabha of Trinidad and Tobago v The
Honourable Patrick Manning and Others Civ. App. No 174 of 2004, an appeal from
an application to set aside leave, the Court of Appeal dealt with section 11(2) of the
Judicial Review Act. In the judgement of the Court delivered by Kangaloo JA on the 14 th
October 2005 Kangaloo JA states, with respect to section 11(2):
“the section appears on its face to ‘disapply the concept of undue delay to
applications for substantive judicial review’ (see Nelson J.A.’s comments at
paragraph 46 in the Fishermen & Friends of the Sea case….) so that the question
of delay and prejudice may only be considered at the leave application. This point
was not argued before this court and I am not saying that this is the effect in law
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of the section, but on the face of it, it can be argued that the section is capable of
that interpretation (see for example HCA No.1747 of 2002 Gillette Marina Ltd.
Port Authority of Trinidad and Tobago.) This could hardly have been the
intention of the draftsman.”
Both decisions were from applications brought under the Orders and Rules of the
Supreme Court of Judicature 1975 (“the 1975 Rules”). Indeed at the time of the Maha
Sabha decision Order 53 of the 1975 Rules had been amended to omit any reference to
delay. The law applicable to the issue of delay was that contained in section 11 of the
Act. In this regard therefore, Part 56(1) and (3) of the CPR are new provisions which did
not form a part of the rule it replaced.
In my opinion, the position in this jurisdiction is now akin the position in the United
Kingdom prior to the CPR but in reverse. Save for the use of the word “undue” instead of
the word “unreasonable” section 36 (6) of the Supreme Court Act 1981 [UK] is in similar
terms to Part 56.5 of the CPR. Similarly, Order 53 r 4 of the pre-CPR rules [UK] is in
similar terms to section 11(1) of the Act.
It would seem to me that the conjoint effect of the Act and the Part 56(1) and (3) of the
CPR is that:
(i) In circumstances where the Court is of the view that there has been undue
delay in the making of the application and that the grant of relief would cause
substantial hardship to or substantially prejudice the rights of any person or be
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detrimental to good administration, then the Court may refuse to grant leave to
apply for judicial review;
(ii) Even after leave has been granted the Court hearing the substantive
application may refuse to grant relief if it is of the opinion that there has been
unreasonable delay before making the application and the grant of relief
would be likely to cause substantial hardship or substantially prejudice the
rights of any person or be detrimental to good administration.
It seems to me that this accords with the views of the Court in the cases of R v Stratford-
on-Avon District Council, ex p Jackson  3 All E.R.769 and R v Dairy produce
Quota Tribunal for England and Wales, ex p Caswell and another  3All E.R.
205 and  2 W.L.R. 1320. Further it seems to me that in cases where there may be
a dispute on the facts relevant to delay this makes perfect sense.
Assuming that delay was still an issue in this case what this Court would have to consider
therefore is whether there was an unreasonable delay on the part of the Applicant and if
so, whether to grant the relief sought would be likely to cause substantial hardship,
substantially prejudice the rights of any person or be detrimental to good administration.
The Commission submits that to grant such relief would be detrimental to good
On the facts as presented by the Applicant the delay between the 30th November 2005
and the 30th January 2006 cannot be considered unreasonable. The Applicant would have
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had to receive legal advice. He deposes to the fact that he made an application for
information under the Freedom of Information Act, received a reply and thereafter wrote
a letter to the DPA setting out his position prior to accessing the Court.
In my opinion however, on the facts as found by me, the relevant date would have been
the date when the Applicant discovered that the assessment exercise had been held
without him. According to the Applicant this was around the 19th July 2004. By the
middle of September 2004 at the very latest, the Applicant would have been told of the
reasons for his exclusion from the short-list. By that time as well the Applicant would
have been aware that his attempts to have the matter resolved without recourse to the
Court would have failed. It seems to me that a delay of six and a half month is an
unreasonable delay particularly in circumstances where the Applicant has presented no
valid reason for such delay past September 2004.
Even if the Applicant had presented a good case to this Court to review the Commissions
decision I am of the opinion that it would at this stage be open to the Court to consider
whether the grant of relief would be detrimental to good administration. In the light of
my finding with respect to the other two issues I am of the view that a determination as to
whether the grant of relief would be detrimental to good administration would serve no
In the circumstances the Claim is dismissed.
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The Applicant has failed on all of the issues for my determination. On the 16 th January
2007, on the application of both parties, an order was made for a cost budget in the sum
of $125,000.00. Part 66.6 describes the Court’s discretion with respect to an award of
costs. In the circumstances I will hear the parties on whether it is appropriate for me to
depart from the general rule that the unsuccessful party pay the costs of the successful
party in the instant case and the quantum of such costs.
Dated the 6th day of December, 2007.
Judith A. D. Jones
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