TRINIDAD AND TOBAGO IN THE COURT OF APPEAL THE …webopac.ttlawcourts.org/LibraryJud/Judgments/coa/2005/rlee/CvA_05... · the north west regional health authority appellant ... san

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TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 11 of 2005

[H.C.A. S-1812 of 2003]

THE NORTH WEST REGIONAL HEALTH AUTHORITY

Appellant

AND

AMEENA ALI

Respondent

Civil Appeal No. 14 of 2005

[H.C.A. No. S-1812 of 2003]

IN THE MATTER OF

THE JUDICIAL REVIEW ACT NO. 60 OF 2000

AND

IN THE MATTER OF AN APPLICATION BY

AMEENA ALI

OF CORNER CROSBY STREET AND BOUNDARY ROAD

SAN JUAN

FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

AND

IN THE MATTER OF

THE CIVIL SERVICE ACT CHAPTER 23:01

AS AMENDED,

THE REGIONAL HEALTH AUTHORITIES ACT

NO. 5 OF 1994 AS AMENDED,

THE PUBLIC SERVICE COMMISSION REGULATIONS

CHAPTER 1:01

AND

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IN THE MATTER OF AN APPLICATION IN RELATION TO THE CONTINUING BREACH

OF PUBLIC LAW DUTIES AND STATUTORY OBLIGATIONS BY THE NORTH WEST

REGIONAL HEALTH AUTHORITY AND THE MINISTRY OF HEALTH AND/OR THE

PERMANENT SECRETARY OF THE MINISTRY OF HEALTH IN THEIR DECISIONS

RELATING TO THE APPLICANT PURSUANT TO THE EXERCISE OF HER OPTION TO

TRANSFER FROM THE MINISTRY OF HEALTH TO THE NORTH WEST REGIONAL

HEALTH AUTHORITY BY VIRTUE OF SECTION 20(4) OF THE REGIONAL HEALTH

AUTHORITIES ACT 1994.

BETWEEN

AMEENA ALI

Appellant

AND

THE NORTH WEST REGIONAL HEALTH AUTHORITY

AND

THE MINISTER OF HEALTH

AND

THE PERMANENT SECRETARY MINISTRY OF HEALTH

Respondents

******************

PANEL: I. Archie, C.J.

R. Narine, J.A.

M. Rajnauth-Lee, J.A.

APPEARANCES:

Mr. Ramesh Lawrence Maharaj S.C. leading Ms. Vijaya Maharaj instructed by Ms. Shaheera

Allahar for Ms. Ameena Ali.

Mr. Neal Bisnath and Mr. Ravi Nanga instructed by Ms. Savitri Sookraj-Beharry for the North

West Regional Health Authority.

Mr. Kelvin Ramkissoon and Mr. Gerald Ramdeen instructed by Mr. Brent James for the Minister

of Health.

Date Delivered: December 18th

2013.

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I agree with the judgment of Rajnauth-Lee J.A. and have nothing to add.

………………………

I. Archie

Chief Justice

I too agree and have nothing to add.

……………..............

R. Narine

Justice of Appeal

JUDGMENT

Delivered by M. Rajnauth-Lee, J.A.

INTRODUCTION

1. Ameena Ali (“Ms. Ali”) was a Pharmacist II in the public service. She was seconded to

the North West Regional Health Authority (“the NWRHA”) in the position of Administrator –

Primary Health Care Centres (“Administrator”) from the 8th

September, 2001 to the 7th

September, 2003. During the period of her secondment and shortly after Ms. Ali had given

notice to the NWRHA seeking to exercise the option of transfer to the NWRHA, the NWRHA

rendered the position of Administrator redundant and terminated her services in that post. She

commenced judicial review proceedings challenging the decisions made by the NWRHA and

certain actions of the Minister of Health and the Permanent Secretary, Ministry of Health.

Ventour J. granted relief in her favour, inter alia, declaring illegal the NWRHA’s decisions to

render the post of Administrator redundant and to terminate her services in that post. He also

quashed those decisions. Ventour J. further ordered that she be paid all remuneration due to her

until the end of the period of her secondment, that is, the 7th

September, 2003. The judge,

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however, refused relief sought against the Minister of Health and the Permanent Secretary,

Ministry of Health.

2. The NWRHA and Ms. Ali have filed appeals against the judge’s decision. The appeals

have been heard together. The main issues arising in the NWRHA’s appeal are:

(a) Whether there was an alternative remedy available to Ms. Ali;

(b) Whether Ms. Ali’s claims were based in public or private law;

(c) Whether Ms. Ali enjoyed a legitimate expectation of a substantive or procedural benefit;

if yes, whether the NWRHA was entitled to frustrate that legitimate expectation; and

if there was an unlawful frustration of a legitimate expectation, whether and to what

extent was she entitled to compensation.

3. As to Ms. Ali’s appeal, the main issues concern whether Ms. Ali was entitled to

compensation beyond the term of her secondment, and whether the Minister of Health and the

Permanent Secretary, Ministry of Health, acted unlawfully in ordering Ms. Ali to report for duty

in her substantive post in the Ministry of Health.

CONCLUSIONS

4. Having considered all the submissions advanced on behalf of the parties, I have

concluded that there was no alternative remedy available to Ms. Ali, and that Ms. Ali’s claims

for judicial review were based in public law. I am also of the view that Ms. Ali enjoyed a

legitimate expectation of a substantive benefit and that the NWRHA did not discharge the onus

placed on it to prove that it was entitled to frustrate that legitimate expectation. Accordingly,

there was an unlawful frustration of the substantive legitimate expectation enjoyed by Ms. Ali,

for which damages beyond the term of her secondment, that is, beyond the 7th

September, 2003,

should be assessed and paid. In addition, I concluded that the decision of the NWRHA to make

the post of Administrator redundant was contrary to Regulation 55 of the Public Service

Commission Regulations Chap. 1:01, was in effect a summary dismissal of Ms. Ali in breach of

the terms of her contract, and amounted to an abuse of power. At the very least, therefore, Ms.

Ali enjoyed a legitimate expectation of a procedural benefit that the post of Administrator would

not be made redundant unless the process set out in Regulation 55 was followed. I was also of

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the view that the Minister of Health and the Permanent Secretary, Ministry of Health, did not act

unlawfully in ordering Ms. Ali to report for duty in her substantive post in the Ministry of

Health.

RELEVANT FACTS AND BACKGROUND

5. The key facts are not in dispute. By virtue of the Regional Health Authorities Act

Chap. 29:05, the provision of health services by the Ministry of Health was taken over by

regional health authorities. As mentioned before, Ms. Ali was employed as a Pharmacist II with

the Ministry of Health and was assigned to the St. Ann’s Hospital. She was initially offered

temporary employment by the NWRHA as Complex Administrator of the Eric Williams Medical

Sciences Complex for a period of one year. Prior to the expiration of the one year period, her

services were terminated. Ms. Ali challenged the termination and the parties entered into

negotiations. By letter dated the 8th

November, 2001, the NWRHA offered Ms. Ali fresh

employment for a period of two years with effect from the 8th

September, 2001 to the 7th

September, 2003 as Administrator.

6. The letter of the 8th

November, 2001, contained several terms and conditions which

included the following clauses:

(7) As a permanent employee of the Public Service seconded to the Authority and in

accordance with section 28(1) of the Regional Health Authorities Act 1994 as

amended, provision will be made to preserve your Pension benefits gratuity and

allowances in the Public Service. You shall not therefore be entitled to be paid

any contract Gratuity.

(8) Termination:

You may terminate your services with the Authority and the Authority may

terminate your services in the same manner as provided for in the Civil Service

Act Ch. 23:01 and the Civil Service Amendment Regulations 1996 (Legal Notice

No. 217) and in accordance with the disciplinary procedures contained in

Chapter VIII of the Public Service Regulations Ch. 1:01 with such amendments as

may be necessary to comply with the Authority’s organizational structure

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PROVIDED THAT, if during the term of this employment the Minister makes

Regulations for staff and related matters pursuant to Section 35 of the Regional

Health Authority Act 1994 as amended and/or provision is made for disciplinary

procedures at the Authority then you will be subject to such Regulations and/or

disciplinary procedures save and except in so far as they do not conform with

Section 29(2) of the Regional Health Authority Act 1994 as amended.

(9) Upon completion of the term of employment created herein you shall exercise one

of the three options available to you under section 29(4) of the Regional Health

Authorities Act 1994. Should you choose to exercise the option to remain with

the North West Regional Health Authority, three (3) months prior to the

completion of your tour of service you shall give notice in writing to the

Authority of your desire to remain in its employment and the Authority will offer

you such further employment upon such revised terms and for such periods as

may be mutually agreed.

7. Ms. Ali accepted the offer of employment and performed duties as Administrator until

she received a letter dated the 3rd

June, 2003 (“the first letter of the 3rd

June, 2003”). The

relevant parts of the letter are set out:

Please be advised that at the Third Meeting of the Board of Directors for 2003 held on

20th

May, 2003, the Authority’s new Organizational Structure was approved.

The Board has instructed that you be informed that the position of Administrator-Primary

Health Care Centres, does not exist in this new structure. Consequently, the said

position is now redundant.

Accordingly, we hereby terminate your services as Administrator-Primary Health Care

Centres with effect from 5th

June, 2003.

8. Prior to the receipt of that letter and on the 28th

May, 2003, Ms. Ali had written to the

Chief Executive Officer (“the CEO”) of the NWRHA as follows:

In accordance with clause 9 of the terms and conditions of my contract, (copy attached) I

hereby give notice of my desire to exercise the option of transfer (s 29(4) Regional

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Health Authorities Act 1994) and to be appointed on transfer to the service of this

Authority.

9. The NWRHA responded to Ms. Ali’s request by another letter dated the 3rd

June, 2003

(“the second letter of the 3rd

June, 2003”) which read as follows:

I hereby acknowledge receipt of your letter, dated 28th

May, 2003, which was received by

this Office at 2.00 p.m. of today’s date.

Pleased be advised that earlier today, the Office of the Chief Executive Officer issued

written communications to your good self, regarding your employment status with the

Authority.

Please be guided accordingly.

10. On the 28th

May, 2003, and prior to the first letter of the 3rd

June, 2003, the CEO of the

NWRHA, by memorandum circulated to all staff in the office of the Administrator, advised the

staff to report to Mr. Frank Deves, Projects Engineer, NWRHA, with immediate effect until

further notice. Further, by another memorandum dated the 3rd

June, 2003, circulated to all staff

in the office of the Administrator, the CEO of the NWRHA advised them to report to Mr. Frank

Deves, Projects Engineer, NWRHA, with effect from the 5th

June, 2003, until further notice.

11. Ms. Ali had been on leave for two working days from the 3rd

June, 2003, and was

scheduled to return on the 5th

June, 2003. She proceeded on sick leave from the 5th

to the 10th

June, 2003. By letter dated the 9th

June, 2003, the CEO of the NWRHA wrote to the Ms. Ali:

Further to our letter dated 3rd

June 2003, the Authority hereby acknowledges your

request for a transfer from the Public Service in accordance with Clause 9 of your

contract and Section 29 of the Regional Health Authorities Act 1994.

Please be advised that upon review of the listing of vacancies of this Authority, there is

no vacancy for a Pharmacist II presently. You can however seek to transfer to any of the

other RHAs where such a vacancy may exist.

The Authority thanks you for your interest shown in the NWRHA and wishes you all

success in your future endeavours.

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12. Ms. Ali held discussions with Mr. Keith Toby, Human Resources Consultant of the

NWRHA, on the 5th

June, 2003. On the 17th

June, 2003, Mr. Toby wrote to Ms. Ali advising her

that he had been directed to inform her that in order to effect the smooth transition, she was to

report directly to the Permanent Secretary, Ministry of Health, since she was no longer employed

by the NWRHA.

13. Thereafter, Ms. Ali took legal advice and wrote to the Permanent Secretary, Ministry of

Health, by letter dated the 17th

June, 2003, setting out the events which had occurred. She made

the point that although the CEO of the NWRHA had said in the first letter of the 3rd

June, 2003,

that the position of Administrator no longer existed, “the de facto position is that the primary

health care centres of the RHA still have to be and are still being administered and the duties

which I was performing are still being performed”. She challenged the decision of the

NWRHA to terminate her services and their response to her notification of the exercise of her

option to transfer pursuant to section 29(4) of the Regional Authorities Act and her contract of

employment. She indicated that the NWRHA had stopped her salary or other payments. She

sought the CEO’s guidance and intervention to facilitate a speedy resolution of her predicament.

14. By letter dated the 18th

June, 2003, Ms. Ali’s Attorneys called upon the NWRHA to

reconsider their decision to terminate her services and requested that they withdraw their letter of

termination. They called for her reinstatement and also asked that they reconsider their response

to her notice to exercise her option to transfer to the NWRHA.

15. The Permanent Secretary, Ministry of Health, by letter dated the 16th

July, 2003,

responded to Ms. Ali’s letter of the 17th

June, 2003. She was required to report immediately to

the Ministry of Health, 10 Duncan Street, Port of Spain, for assignment in her substantive post of

Pharmacist II.

16. Thereafter, Attorneys exchanged correspondence, whilst Ms. Ali remained on extended

sick leave, after having undergone surgery. The matter not being resolved, Ms. Ali commenced

judicial review proceedings on the 13th

October, 2003. Ms. Ali has since retired from the public

service, taking early retirement at age 55.

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ANALYSIS

Was there an alternative remedy available to Ms. Ali?

17. The NWRHA has argued that the trial judge failed to consider their submission that Ms.

Ali had an alternative remedy available to her to have her dispute determined by the Industrial

Court pursuant to section 23 of the Retrenchment and Severance Benefits Act Chap. 88:13.

The NWRHA further submitted that in this case there were no exceptional circumstances that

would have justified the trial judge proceeding with this matter in judicial review.

18. Section 23 provides that a dispute arising out of a retrenchment issue, including a dispute

which alleges unfair dismissal, a difference of opinion as to the reasonableness of any action

taken or not taken by an employer or a worker, or a dispute as to what is reasonably comparable

in respect of a terminal benefit scheme, may be reported to the Minister as a trade dispute and

shall be dealt with as such under the Industrial Relations Act Chap. 88:01.

19. By virtue of section 3(1)(a) of the Retrenchment and Severance Benefits Act, the Act

applies to persons falling within the definition of “workers” under the Industrial Relations Act.

However, workers employed on a specified fixed term basis are specifically excepted from the

definition of workers by section 3(1)(e) of the Retrenchment and Severance Benefits Act. It is

undisputed that Ms. Ali was seconded to the NWRHA for a specified fixed term of two years.

Accordingly, I am of the view that Ms. Ali cannot be considered a worker for the purposes of the

Retrenchment and Severance Benefits Act. The NWRHA’s argument of alternative remedy

must fail, if on this ground alone.

20. I have nevertheless considered the fact that Ms. Ali was a public officer holding a

substantive position in the public service. Section 2(3)(a) of the Industrial Relations Act

provides that for the purposes of this Act, no person shall be regarded as a worker if he is a

public officer as defined by section 3 of the Constitution. The Constitution provides at section

3 that a public officer means the holder of any public office. Further, public office is defined in

the Constitution as an office of emolument in the public service and public service is also defined

as the service of the Government of Trinidad and Tobago or of the Tobago House of Assembly.

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21. There can be no doubt that Ms. Ali was the holder of an office of emolument in the

service of the Government of Trinidad and Tobago. In my view, she cannot be regarded as a

worker for the purposes of the Industrial Relations Act and the NWRHA’s argument that Ms.

Ali had an alternative remedy under the Retrenchment and Severance Benefits Act cannot be

sustained.

Whether this is a matter of public law or private law?

22. The NWRHA has contended that the trial judge erred in law when he found that this was

a public law matter. It was argued by Mr. Nanga on behalf of the NWRHA that the trial judge

was wrong to hold that there was sufficient statutory underpinning simply by the incorporation of

certain statutory provisions into Ms. Ali’s contract of employment. Mr. Nanga further argued

that the power to discipline and to terminate would have arisen from the contract of employment

and not from the statutory provisions which had been merely incorporated into the contract of

employment. He submitted that Ms. Ali’s complaint was essentially a dispute between her and

her employer as to whether she should or should not have been terminated and that such a

dispute had no public law characteristics.

23. The trial judge considered the terms and conditions of Ms. Ali’s employment with the

NWRHA and reasoned that, in this case, there were special statutory restrictions on dismissal

and other statutory underpinnings in her contract. Accordingly, he held that the decisions of the

NWRHA, which had affected Ms. Ali, were subject to judicial review.

24. The letter of the 8th

November, 2001 which contained the terms and conditions of

employment between Ms. Ali and the NWRHA has been set out at paragraph 6 of this judgment.

The letter made provision for several matters, including the preservation of Ms. Ali’s pension

benefits, gratuities and allowances, the manner in which Ms. Ali’s services with the NWRHA

could be terminated, and the statutory right given to Ms. Ali to exercise one of the three options

laid down in section 29(4) of the Regional Health Authorities Act.

25. The letter specifically provided for Ms. Ali’s termination by the NWRHA in accordance

with the Civil Service Act Chap. 23:01, the Civil Service (Amendment) Regulations, 1996

(Legal Notice No. 217) and the disciplinary procedures contained in Chapter VIII of the Public

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Service Commission Regulations Chap. 1:01 with such amendments as may be necessary to

comply with the NWRHA’s organizational structure.

26. The Regional Health Authorities Act makes special provision for the secondment of

public officers employed at a health care facility at the commencement of the Act to the service

of an Authority with the approval of the appropriate Service Commission and with the consent of

the officer [see section 29(1)(b)].

27. Section 29(2) provides that an officer who opts for secondment under subsection (1)

shall, in relation to terms and conditions, be treated no less favourably than if he were not so

seconded. Section 29(4) sets out an important provision for seconded officers:

Subject to subsection (4) an officer shall, immediately at the end of the period

of secondment, exercise one of the following options:

(a) be appointed on transfer to the service of an Authority, subject to

the approval of the appropriate Service Commission, on such

terms and conditions as are acceptable to him or his trade union

and the Authority;

(b) remain in the public service;

(c) retire voluntarily on such terms and conditions as are agreed

upon between the person who exercises this option or his trade

union and the Chief Personnel Officer.

28. In addition, section 29(5) provides that where an officer opts to be appointed on transfer

to the service of an Authority under section (1)(a) or (4)(a), the provisions of section 27 shall

apply. Section 27 at subsections (1), (2) and (3) provide as follows:

27. (1) An officer in the public service or in a statutory authority may, with the

approval of the appropriate Service Commission or such statutory authority, consent to

be appointed on transfer to the service of an Authority upon such terms and conditions

as are acceptable to him or his trade union and the Authority.

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(2) The officer shall, upon transfer, have preserved his superannuation and

pension rights accruing at the time of transfer.

(3) Subsections (1) and (2) apply to transfers of the employees of an

Authority to the public service or to a statutory authority as they do to transfers of

officers from the public service or a statutory authority to the Authority.

29. The NWRHA placed much reliance on the unreported decision of the Court of Appeal in

Agricultural Development Bank of Trinidad and Tobago v. Seebalack Singh Civil Appeal

No. 61 of 2006. In that case, the respondent had been employed in the position of Chief

Executive Officer with the Bank, a body corporate established under the Agricultural

Development Bank Act Chap. 79:07. The respondent challenged his dismissal. The judge at

first instance held that the board of the Bank was exercising a public law function when it

terminated the respondent’s employment. The key issue before the court of appeal was whether

judicial review was the appropriate means by which the respondent could challenge the decision

of the Bank to dismiss him. Warner J.A. delivered the judgment of the court of appeal. She

examined several decisions which considered the public law/private law divide.

30. In particular, Warner J.A. looked at the case of R v. Derbyshire Council ex parte Noble

[1990] I.C.R. 808. In that case, Dr. Noble, a police surgeon, had been engaged by the county

council to provide services to detained persons if required. His appointment was terminated.

He commenced judicial review proceedings to challenge the decision to dismiss him. On appeal,

it was held that the remedies sought by Dr. Noble did not arise out of some breach of a public

duty placed upon the council related to the exercise of powers granted to them. In addition, it

was held that the council was not performing a public duty or exercising a public function in

deciding to give notice to terminate Dr. Noble’s contract for services. Woolf L.J. observed at

page 819:

As I understand the approach which the courts now adopt, and which has been made

clear in a series of cases, it is to look at the subject-matter of the decision which it is

suggested should be subject to judicial review and by looking at the subject-matter then

come to a decision as to whether judicial review is appropriate.

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That approach is an approach which can be found, for example, in Reg. v. Secretary of

State for Foreign and Commonwealth Affairs, ex parte Everett [1989] Q.B. 811, in

which this court had to decide whether or not the issue or refusal to issue a new

passport to the applicant was a matter which was appropriate for judicial review.

Having referred to the speeches in the Civil Service Unions v. Minister for the Civil

Service [1985] I.C.R. 14, O’Connor LJ, in giving the judgment of the Court, said

[1989] Q.B. 811, 817:

“Three of their Lordships, Lord Diplock, Lord Scarman and Lord Roskill

unequivocally held that judicial review did lie of decisions taken under the prerogative.

Lord Scarman in his speech stated that it was not the origin of the administrative

power, but it was the actual factual application which had to be considered.” I would

echo those remarks of O’Connor LJ and suggest that what one does is look at the

actual, factual application. (Emphasis mine)

31. Warner J.A. reasoned that the question which the court ought to ask was “what was the

‘actual factual application’ in which the decision maker was engaged”. She concluded that the

Bank was exercising an employment function and therefore what was at issue was a matter of

private law, that is, a breach of the respondent’s contract of employment.

32. The NWRHA also relied on the unreported decision of the Public Services Association

v. the Minister of Health and the Regional Health Authorities CvA. No. 123 of 2000. In

that case, the Public Services Association commenced judicial review proceedings complaining

that individual contracts of employment were being offered by the Regional Health Authorities

to nurses employed in the public service. de la Bastide C.J. delivering the judgment of the court

of appeal said at page 5:

The operation of the health services in Trinidad and Tobago has in fact been handed

over by the Government to the Regional Authorities so that those nurses who remain in

the public service work in institutions run by the Regional Authorities under the

supervision of staff employed by these Authorities. A transfer to the employment of a

Regional Authority involves no change of work place or function and whether

employed by the Government or by a Regional authority, nurses are paid ultimately

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from the same source i.e. the Treasury. This is all quite true but yet there are very real

consequences which flow from retaining the status of civil servant. That no doubt

explains the apparent reluctance of many nurses to surrender it. For one thing, the

security of tenure of civil servants is buttressed by an elaborate structure of regulations

which renders the disciplining of them problematical.

33. Mr. Nanga relied on the above dicta and submitted that when a public officer transfers to

a regional health authority, whether on secondment or on permanent transfer, the public officer

loses security of tenure and any statutory underpinning of his/her contract. Mr. Nanga therefore

submitted that although the statutory provisions may be incorporated in the contract, they no

longer had statutory force.

34. I do not agree with Mr. Nanga. I do not understand the dicta of de la Bastide C.J. as

being authority for Mr. Nanga’s proposition. The issue before the court of appeal in the Public

Services Association case was not whether the contracts of public officers on transfer to regional

health authorities retained such statutory underpinnings as to ground a challenge in public law.

Indeed, the simple issue before the court of appeal was whether the offer of individual contracts

of employment by regional health authorities to nurses employed in the public service offended

section 24 of the Civil Service Act.

35. Mr. Maharaj S.C., on the other hand, contended on behalf of Ms. Ali inter alia that the

subject matter of the challenge before this court involved claims based on public law principles

and not the enforcement of private law rights. Further, he contended that Ms. Ali was

challenging the exercise of powers of the NWRHA which powers were derived from statute and

that Ms. Ali was seeking to compel the NWRHA to perform its statutory duties and powers.

36. The court has asked the question what was the “actual, factual application” in which the

decision maker was engaged. In order to arrive at the correct answer, it is important to bear in

mind the issues which fall to be determined. In this case, the issue is not simply whether there

has been a breach of contract by the decision maker carrying out an employment function. This

matter concerns the rights and obligations of the parties in the light of the statutory option

contained in section 29(4) of the Regional Health Authorities Act, the lawfulness of the

NWRHA’s decisions, and, whether in the circumstances of this case, Ms. Ali enjoyed a

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legitimate expectation of a substantive or procedural benefit and should be compensated for

same.

37. What is at issue, therefore, is not merely a matter of breach of contract and of private law.

I am of the view that this case contains a sufficient element of public law, and, accordingly,

judicial review is the appropriate means by which the challenge to the decisions of the NWRHA

should be pursued.

38. I have also looked at the approach of the court of appeal in the unreported decision of

Emmanuel Romain v Water and Sewerage Authority C.A. No. 24 of 1997. de la Bastide

C.J., who delivered the judgment of the court, considered whether there was sufficient statutory

underpinning of the appellant’s employment with the respondent in order to justify judicial

review of the respondent’s decision to terminate it. Adopting that approach in the circumstances

of this case, I am of the view that the statutory underpinning of section 29(4) of the Regional

Health Authorities Act is sufficient to justify judicial review of the decisions of the NWRHA.

Ms. Ali’s claims are therefore based in public law.

Legitimate Expectation

39. Mr. Maharaj’s case in summary is that the representation made by the NWRHA to Ms.

Ali was clear, unequivocal and devoid of any relevant qualification and gave rise to a legitimate

expectation of a substantive benefit. He argued that the NWRHA’s decision to terminate Ms. Ali

was so unfair as to amount to an abuse of power and was therefore unlawful.

40. Lord Hoffmann in R (on the application of Bancoult) v Secretary of State for Foreign

and Commonwealth Affairs [2008] UKHL 62 at paragraph 60 summarized the relevant

principles where the legitimate expectation is based on a promise or representation:

‘It is clear that in a case such as the present, a claim to a legitimate expectation can be

based only upon a promise which is “clear, unambiguous and devoid of relevant

qualification”: see Bingham LJ in R v Board of Inland Revenue Commissioners, Ex p

MFK Underwriting Agencies Ltd [1990] 1 WLR 1545, 1569. It is not essential that

the applicant should have relied upon the promise to his detriment, although this is a

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relevant consideration in deciding whether the adoption of a policy in conflict with the

promise would be an abuse of power and such a change of policy may be justified in

the public interest, particularly in the area of what Laws LJ called “the macro-political

field”: see R v Secretary of State for Education and Employment, ex p Begbie [2000] 1

WLR 1115, 1131.’

41. As to whether the representation was clear, unambiguous and devoid of relevant

qualification, in Regina (Association of British Civilian Internees: Far East Region) v

Secretary of State for Defence [2003] Q.B. 1397, Dyson L.J. giving the judgment of the Court

of Appeal observed that the question to be posed was how on a fair reading of the promise it

would have been reasonably understood by those to whom it was made1.

42. These cases were considered by the Privy Council in Paponette and others v Attorney

General of Trinidad and Tobago 78 W.I.R. 474. In Paponette, the appellants were maxi-taxi

operators who alleged that they had relied on clear and unequivocal representations of the

Minister of Works and Transport that if they were to relocate to City Gate, they would not come

under the control or management of the Public Transport Service Corporation [“PTSC”], which

owned the land on which City Gate was located. For two years the appellants were not charged a

fee. However, the government introduced subsidiary legislation which gave the PTSC

management and control of City Gate with power to charge fees for its use, and requiring the

appellants to obtain permits from the PTSC to operate from it. From 2001, the appellants were

required to pay a fee and were the only maxi-taxi owners required to apply to the PTSC for a

permit and to satisfy the PTSC that they were fit and proper persons to use the taxi stand. They

filed a constitutional motion claiming inter alia that state action had frustrated their legitimate

expectations of a substantive benefit in a way which affected their enjoyment of property rights

protected by section 4(a) of the Constitution.

43. In Paponette, the question posed by Dyson L.J., that is, how on a fair reading of the

promise it would have been reasonably understood by those to whom it was made, was answered

in the context that the appellants had been controlling and managing their own affairs. They

knew that they were being asked to move to a facility owned by the PTSC. They would

1 See paragraph 56.

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therefore have reasonably understood the representations as reassuring them that they would

have been able to control and manage their own affairs if they moved. The fact that there might

be some uncertainty as to what precisely management entailed did not mean that the

representations were not clear and unambiguous. The representations were also found to be

devoid of any relevant qualification.2

44. I have considered the letter from the NWRHA to Ms. Ali dated 8th

November, 2001, and

in particular paragraph (9).3 The representation to Ms. Ali was that if she chose to exercise the

option to remain with the NWRHA, three months prior to the completion of her tour of service,

she should give notice in writing to the NWRHA of her desire to remain in its employment, and

the Authority would offer her such further employment upon such revised terms and for such

periods as may be mutually agreed.

45. Mr. Nanga submits in effect that the offer or the option to transfer was not clear and

unambiguous. According to him, it was not clear whether, on the exercise of the option, the

expectation was for Ms. Ali to be further employed as Administrator or as a Pharmacist II or in

some other position. In addition, I understand Mr. Nanga to be contending that the

representation was not devoid of relevant qualification for two (2) reasons. Firstly, the approval

of the Public Service Commission was required pursuant to section 29(4)(a) of the Regional

Health Authorities Act. He submitted that the Public Service Commission could refuse to grant

such approval; for example, in the case of exigencies of the service. Secondly, Mr. Nanga

argued, Ms. Ali and the NWRHA still had to agree terms and conditions pursuant to section

29(4)(a).

46. I am not persuaded by Mr. Nanga’s arguments. I have considered the

promise/representation made by the NWRHA to Ms. Ali in the context of what she would have

reasonably understood it to mean on a fair reading in all the circumstances of this case. In my

view, Ms. Ali would have had the expectation that the terms and conditions would be

comparable to those she enjoyed on secondment, or better. Indeed, the statutory option would

have little value if Ms. Ali were not offered the same or a similar or better job. In addition, Ms.

Ali would have been entitled to seek the approval of the Public Service Commission and such

2 See paragraph 30 of Paponette.

3 See paragraph 6 of this judgment.

Page 18 of 29

approval could not be unreasonably withheld. I also agree with Mr. Maharaj that the statutory

option would be meaningless if it could be frustrated by the imposition of unreasonable terms

and conditions. The NWRHA would have been obliged to enter into good faith engagement and

negotiations with Ms. Ali to come to an agreement as to reasonable terms and conditions.

47. Accordingly, the representation was clear, unambiguous and devoid of any relevant

qualification. The statutory requirements that the approval of the appropriate service

commission be obtained, and that the parties agree acceptable terms and conditions, did not

prevent the creation of a legitimate expectation. I am therefore of the view that Ms. Ali had a

legitimate expectation of a substantive benefit that she would have been transferred to the

NWRHA in accordance with section 29(4)(a) of the Regional Health Authorities Act.

48. I am fortified in my decision by the recent judgment of Supperstone J. in the case of R

(on the application of Simpson and others) v Chief Constable of Manchester Police [2013]

EWHC 1858 (Admin); [2013] All ER (D) 41 (Jul). In that case, the claimants were serving

police officers with the Greater Manchester Police Force. They had passed the necessary tests to

be promoted in accordance with the promotion selection policy for police officers. They had

been told that they had passed the assessment stage and that they would be promoted, subject to

an appropriate vacancy being available and a professional standards check. The policy provided

that all the parties potentially affected would be consulted in the event that significant changes to

the policy were proposed. In April and May, 2012, the claimants were informed that the

assessment result they had achieved would no longer stand for immediate promotion as part of a

promotion freeze. The claimants sought judicial review on the basis that the offer made to each

of them on passing the assessment stage gave each of them a legitimate expectation of a benefit

which was substantive, not simply procedural. Alternatively, they contended that there was a

promise or practice which induced a legitimate expectation of being consulted before a particular

decision was made.

49. In his defence, the defendant contended inter alia with regard to the merits of the claim

that the claimants had no legitimate expectation of a substantive benefit of the kind alleged or at

all. The defendant argued that the requirement that there be an appropriate vacancy available

and the aim of the policy to ensure that all promotion selection decisions were based on ability,

the experience and skills required for the rank, prevented the creation of a legitimate expectation.

Page 19 of 29

50. Supperstone J. held that the claimants had a substantive legitimate expectation that on

passing the assessment stage they would be promoted subject to an appropriate vacancy being

available and a professional standards check. He also found that the defendant had not justified

the frustration of the claimants’ legitimate expectation. In any event, he found that the claimants

had a legitimate expectation that they would be consulted before the decision. At paragraphs 44,

45 and 46, Supperstone J. observed:

[44] In my view the terms of the policy and past practice did amount to a promise

that was “clear, unambiguous and devoid of relevant qualification”. It was a

promise that having attained a pass in the promotion process the Claimants

would be within the pool of officers selected for promotion.

[45] In order to achieve a “pass” the officers plainly acted to their detriment. The

commitment required to complete the process was personal, emotional and

financial (see witness statement of Sergeant Smith at paras 3 and 11, for

example).

[46] I do not accept the Defendant’s contention that the requirement that there be an

appropriate vacancy available prevents the creation of a legitimate expectation.

It is part of the Claimants’ legitimate expectation that they will be promoted

into a suitable vacancy because that is how the system operated. I also do not

consider that because the policy provides that it aims to ensure that “all

promotion selection decisions are based on ability, the experience and skills

required for the rank” that that too prevents the creation of a legitimate

expectation. The policy describes the promotion selection process for police

officers applying for promotion up to the rank of chief superintendent.

Pursuant to that policy all promotion selection decisions are based on ability,

and the experience and skills required for the rank. The Claimants were

selected in accordance with that policy and that policy stated that successful

candidates “will be promoted subject to an appropriate vacancy being available

and a professional standards check”. In my view the Claimants have a

legitimate expectation that they will be promoted on that basis.

Page 20 of 29

Frustration of a Substantive Legitimate Expectation

51. The question that follows therefore is whether the NWRHA was entitled to frustrate the

substantive legitimate expectation that had been created. In the leading case of Regional v

North and East Devon Health Authority, Ex parte Coughlan [2001] Q.B. 213, Lord Woolf

M.R., giving the judgment of the Court of Appeal, considered the court’s role in circumstances

in which a public authority has frustrated a legitimate expectation. He said at paragraph 57:

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 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.

52. In the case of Paponette, Lord Dyson considered the burden of proof where a legitimate

expectation had been frustrated. According to him, the initial burden lies on the applicant to

prove the legitimacy of the expectation. Once this has been proven, the onus shifts to the public

authority of justify the frustration of the legitimate expectation. The public authority must

identify any overriding interest on which it relies to justify the frustration of the expectation.

The court is then called upon to weigh the requirements of fairness against that interest.4 Lord

Dyson went on to observe that where the public authority fails to place material before the court

to justify the frustration of the expectation, it runs the risk that the court will conclude that there

is no sufficient public interest and accordingly, that its conduct is so unfair as to amount to an

abuse of process.5

53. At paragraph 42, Lord Dyson considered the importance of the evidence to be given by

the public authority to explain why it acted in breach of the representation. According to him,

unless an authority provides evidence to explain why it aced in breach of a representation or

promise made to an applicant, it is unlikely to be able to establish any overriding interest to

4 Paragraph 37 of Paponette

5 Paragraph 38 of Paponette

Page 21 of 29

defeat the applicant’s legitimate expectation. Without evidence, the court is unlikely to be

willing to draw an inference in favour of the authority.

54. It cannot be disputed that the NWRHA has not provided any evidence which justified the

frustration of the substantive legitimate expectation enjoyed by Ms. Ali. Consequently, the

NWRHA has failed to discharge the onus placed on it to prove that there was an overriding

public interest which justified the frustration of this legitimate expectation. I will return to the

issue of damages later. Although I have dealt effectively with the key issue of substantive

legitimate expectation, I wish to go on to consider Ms. Ali’s complaint that although the post of

Administrator had been made redundant, the functions of Administrator still had to be and were

indeed being carried out.

Abuse of Power

55. As mentioned earlier, section 29(2) of the Regional Health Authorities Act provides

that an officer who opts for secondment under subsection (1) shall, in relation to terms and

conditions, be treated no less favourably than if he were not so seconded. Accordingly, Ms. Ali

while on secondment, continued to enjoy the statutory protection afforded to her as a public

servant. In addition, pursuant to section 12(g) of the Civil Service Act Chap. 23:01, a civil

servant may leave the Civil Service on the abolition of office [see paragraph (g)]. Indeed,

paragraph 8 of the letter of the 8th

November, 2001, had provided for termination of Ms. Ali’s

services inter alia in accordance with the provisions of the Civil Service Act and the Public

Service Commission Regulations.6

56. Regulation 55 of the Public Service Commission Regulations sets out the procedure by

which the appointment of an officer can be terminated on abolition of the office. In particular,

regulation 55(2) provides that where it is necessary to retire or remove an officer from the public

service for the purpose of facilitating improvement in the organization of a Ministry or

Department in order to effect greater efficiency or economy, the Permanent Secretary or Head of

Department shall make a report to the Director of Personnel Administration for consideration by

the Public Service Commission. The Permanent Secretary or Head of Department shall

6 See paragraph 6 of this judgment.

Page 22 of 29

recommend with his reasons therefor, which officer shall be retired or removed from the public

service in consequence of such reorganization.

57. Where such a recommendation has been made, the officer must at the same time be

notified in writing of the recommendation and must be given seven days in which to make

representations thereon.7 Once the officer makes representations, they are forwarded to the

Commission with such comments as the Permanent Secretary or the Head of Department sees

fit.8 The final decision is to be made by the Public Service Commission pursuant to regulation

55(5).

58. The first letter of the 3rd

June, 2003, has been set out in full at paragraph 7 of this

judgment. Ms. Ali was informed that at the Third Meeting of the Board of Directors for 2003

held on 20th

May, 2003, the new Organizational Structure for the NWRHA was approved. In the

circumstances, Ms. Ali was informed that the position of Administrator did not exist in the new

structure and had become redundant. It was in those circumstances that Ms. Ali’s services as

Administrator was terminated. Accordingly, the office of Administrator was in effect abolished.

59. Ms. Ali’s contentions throughout these proceedings were that the primary health care

centres of the NWRHA still had to be and were still being administered, and that the duties of

Administrator which she had been performing, were still being performed. It is notable that the

NWRHA has not responded to those allegations in any meaningful way. In her amended

statement filed pursuant to Order 53 of the Rules of the Supreme Court, 1975, Ms. Ali had stated

that since her termination, one Mr. Rampersad, a Special Projects Officer with the NWRHA was

responsible for the administration of the primary health care centres and utilized the same staff

who reported to her. According to her, Mr. Rampersad took up duties officially on the 7th

July,

2003. Mr. Roland Jack, Manager, Industrial Relations, Compensation and Remuneration of the

NWRHA, swore an affidavit on behalf of the NWRHA, denying the allegations made in respect

of Mr. Rampersad, but not addressing the complaint that Ms. Ali’s duties were still being carried

out although she was told in effect that the post was abolished.

7 Regulation 55(3) of the Public Service Commission Regulations

8 Regulation 55(4) of the Public Service Commission Regulations

Page 23 of 29

60. When this court expressly raised Ms. Ali’s complaint with Mr. Nanga, his position was

that the post of Administrator existed in the North Central Regional Health Authority (“the

NCRHA”) which was hived off from the larger organization of the NWRHA. I understand Mr.

Nanga to be saying that there now exist two entities - the NWRHA and the NCRHA. According

to Mr. Nanga, the post of Administrator of the primary health care centres in the NCRHA still

exists, in the context of restructuring throughout the years and the hiving off of the NCRHA

from the NWRHA.

61. Whilst the court openly expressed its appreciation for Mr. Nanga’s candid response, it

has caused the court some concern. When it is considered that the post of administrator of the

primary care centres is still in existence in the smaller institution, that is, the NCRHA, the

inference can be drawn as a matter of logic that such a post/function must exist within the larger

body of the NWRHA.

62. I have also looked at the affidavit of Mr. Hamid O’Brien, Permanent Secretary of the

Ministry of Health. Mr. O’Brien set out the procedure to be followed when an officer seeks to be

transferred to a regional health authority pursuant to either section 27 or section 29 of the

Regional Health Authorities Act. He concluded that the Ministry of Health in collaboration

with the regional health authorities, the Chief Personnel Officer and other stakeholders, has been

engaged in a process to facilitate the exercise of options under the Act. According to Mr.

O’Brien, it is and remains the right of individual officers within the public service to request to

be transferred to the regional health authorities on such terms and conditions that are acceptable

to the officer and/or the union. In fact, Mr. O’Brien deposed, such requests have been received

and have been duly processed.9

63. The established concept of abuse of power was considered in the leading case of

Regional v North and East Devon Health Authority, Ex parte Coughlan (supra). Lord

Woolf M.R. delivering the judgment of the Court of Appeal stated that abuses of power may take

many forms.10

Lord Woolf M.R. inter alia cited the case of Ex parte Preston [1985] A.C. 835

which, according to him, considered another form of abuse of power, where the authority

reneged, without adequate justification, by an otherwise lawful decision, on a lawful promise or

9 See paragraph 21 of the affidavit of Hamid O’Brien sworn on the 17

th November, 2003.

10 See paragraph 69

Page 24 of 29

practice adopted towards a limited number of individuals. In such a case, the final arbiter of

justification, rationality apart, was the court. He cited the judgment of Lord Templeman at pages

866-867, where Lord Templeman concluded:

In principle I see no reason why the [taxpayer] should not be entitled to judicial review

of a decision taken by the commissioners if that decision is unfair to the [taxpayer]

because the conduct of the commissioners is equivalent to a breach of contract or a

breach of representation. Such a decision falls within the ambit of an abuse of power

for which in the present case judicial review is the sole remedy and an appropriate

remedy. There may be cases in which conduct which savours of breach of [contract] or

breach of representation does not constitute an abuse of power; there may be

circumstances in which the court in its discretion might not grant relief by judicial

review notwithstanding conduct which savours of breach of [contract] or breach of

representation. In the present case, however, I consider that the [taxpayer] is entitled

to relief by way of judicial review for ‘unfairness’ amounting to abuse of power if the

commissioners have been guilty of conduct equivalent to a breach of contract or

breach of representations on their part.

64. I am of the view that the NWRHA has failed to follow the procedure set out at

Regulation 55 of the Public Service Commission Regulations. In the circumstances, the

NWRHA has acted unfairly and unlawfully. The decision of the Board of the NWRHA to make

the post of Administrator redundant was contrary to Regulation 55, was in effect a summary

dismissal of Ms. Ali in breach of the terms of her contract, and amounted to an abuse of power.

At the very least, therefore, Ms. Ali enjoyed a legitimate expectation of a procedural benefit that

the post of Administrator would not be made redundant unless the process set out in Regulation

55 was followed.

Damages

65. On the issue of compensation, the trial judge declared that Ms. Ali was entitled to be paid

all her salaries due to her by virtue of her contract of employment for the period 8th

September,

2001 to the 7th

September, 2003. Ms. Ali has appealed this finding on the ground that the trial

judge erred in fact and in law by not awarding her any damages given the circumstances of this

Page 25 of 29

case particularly his findings in relation to the NWRHA. It is not in dispute that Ms. Ali

eventually returned to her substantive post as Pharmacist II in the Ministry of Health and retired

from the public service some years ago at age 55. It is also not disputed that Ms. Ali sought

damages in her Amended Statement filed pursuant to Order 53 of the Rules of the Supreme

Court, 1975, as amended.

66. The Judicial Review Act Chap. 7:08 at section 8(4) provides:

(4) On an application for judicial review, the Court may award damages to the

applicant if –

(a) the applicant has included in the application a claim for damages

arising from any matter to which the application relates; and

(b) the Court is satisfied that, if the claim has been made in an action begun

by the applicant at the time of making the application, the applicant

could have been awarded damages.

67. Mr. Nanga relied on this provision and the first instance decision of Harridath Maharaj

v Public Service Commission CV 2007-01093. He submitted that in Harridath Maharaj the

trial judge had found that there was no basis upon which an award of damages could be made

since the loss of opportunity to gain promotion was not actionable. He therefore argued that in

this case the failure to transfer was not actionable and there could be no award of damages

beyond the 7th

September, 2003.

68. On the other hand, Mr. Maharaj contended that although the court could not award

damages in the true sense of the word, it could award compensation for the unlawful frustration

of the substantive legitimate expectation. Mr. Maharaj relied on Ex parte Coughlan (supra) and

the dicta of Lord Woolf M.R. at paragraph 82:

The court’s task – and this is not always understood – is then limited to asking

whether the application of the policy to an individual who has been led to expect

something different is a just exercise of power. In many cases the authority will

already have considered this and made appropriate exceptions (as was

envisaged in British Oxygen Co Ltd v Board of Trade [1971] AC 610 and as had

Page 26 of 29

happened in Ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714) or

resolved to pay compensation where money alone will suffice. But where no

such accommodation is made, it is for the court to say whether the consequent

frustration of the individual’s expectation is so unfair as to be a misuse of the

authority’s power.

69. Mr. Maharaj also relied on the learning in the Judicial Review Handbook by Michael

Fordham (6th

edn) at paragraph 41.1.16 under the rubric “Legitimate expectation and damages”.

Whilst recognizing that compensation was not available directly in judicial review proceedings

arising out of a claim for disappointment of a legitimate expectation [see R (on the application

of Nurse Prescribers Limited) v The Secretary of State for Health [2004] EWHC 403

(Admin) at paragraph 82] Fordham cited the case of F & I Services Ltd v Customs and Excise

Commissioners [2001] EWCA Civ 762 at [72]. In the latter case, Sedley L.J. made the point

that “the unfairness which a change of policy may work on those who have relied on the earlier

policy can often be adequately mitigated by ……. compensating them in money. The point,

however, is that such a payment of money is not an anticipatory payment of damages, it is a

practical means of eliminating unfairness”.

70. In the case of Paponette, Lord Dyson concluded that since there was no appeal against

the relief granted by the trial judge, his order was restored. The Board noted however that the

effect of the relief granted by the trial judge was that the members of the association were

reimbursed the entire fees that they had paid. Lord Dyson made the point however that the

appellants’ claim was for breach of their constitutional rights and not a claim in restitution for the

reimbursement of the fees. Accordingly, Lord Dyson found that in assessing the compensation,

the judge should have taken into account the cost that the owners and operators would have

incurred if they had not been subjected to the management and control of PTSC at City Gate.

71. Section 8(4) of the Judicial Review Act essentially codified the law which had been set

out by the Court of Appeal in the unreported case of Josephine Millette v Sherman McNicolls

Civ. Appeal No. 155 of 1995. de la Bastide C.J. delivering the judgment of the court said:

If one analyses Order 53 rule 7, one notes that it imposes three

conditions for the award of damages in judicial review proceedings viz:

Page 27 of 29

(1) there must be a claim for damages included in the

statement – this is a pleading requirement which was satisfied in

the instant case as a result of the amendment of the statement.

(2) the claim for damages must arise from the same matter

that forms the basis for the application for judicial review. In

this case the application was for certiorari to quash the decisions

of the magistrate to convict the appellant and impose two fines on

her, and to order her imprisonment if she did not pay those fines.

Though this is not expressly pleaded, the appellant’s claim to

damages arose from the imprisonment which she suffered as a

result of the decisions to which her application for judicial

review related.

(3) If the applicant had brought an action for damages at the

time when he made his application for judicial review, he could

have been awarded damages. This is the only condition which

was not obviously satisfied in this case. There is no doubt that

damages can be recovered at common law for wrongful

imprisonment or, as it is called in the law of tort, false

imprisonment. Such imprisonment may also constitute a breach

of a person’s constitutional rights under our Constitution and

give rise to a right to claim for damages in a constitutional

motion.11

72. Taking into consideration section 8(4) of the Judicial Review Act and adopting the

approach of the court in the case of Josephine Millette, I am satisfied that if Ms. Ali, at the time

of making the application for judicial review, had begun an action at common law either for

breach of contract or in tort for wrongful dismissal, she could have been awarded damages. In

my view, therefore, Ms. Ali is entitled to damages for the unlawful frustration of her substantive

legitimate expectation beyond the term of her secondment, that is, beyond the 7th

September,

11

Pages 7-8

Page 28 of 29

2003. In assessing the damages to be awarded to Ms. Ali, the trial judge should have taken into

account the loss that Ms. Ali suffered by reason of not being afforded the opportunity to be

transferred to the NWRHA in accordance with section 29(4) of the Regional Health Authorities

Act. Since I am of the view that Ms. Ali is entitled to damages beyond the term of her

secondment, I do not consider that “compensation” as argued by Mr. Maharaj needs to be

addressed as a separate issue in this case.

The case against the Minister of Health and the Permanent Secretary, Ministry of Health

73. The trial judge considered the evidence of Mr. Hamid O’Brien, Permanent Secretary in

the Ministry of Health. Mr. O’Brien deposed that it was his understanding based on the contents

of the letters of the 21st May, 2003 and the 3

rd June, 2003, received from the Chief Executive

Officer of the NWRHA, that Ms. Ali’s period of secondment had effectively come to an end on

the 5th

June, 2003. He considered therefore that there were two options available to him: the

first, to allow Ms. Ali, on her own volition, to report for duty in her substantive post in the

Ministry of Health. If she failed to report for duty, her absence could be reported to the Public

Service Commission which had the power to terminate her services on the basis of abandonment.

The second option was to write to Ms. Ali advising her to resume the duties of her substantive

office at the Ministry of Health. Mr. O’Brien chose the second option and it was in those

circumstances that the letter dated the 16th

July, 2003, was written to Ms. Ali advising her to

report for duty in her substantive post at the Ministry.12

74. The trial judge reasoned inter alia that it was not for the Minister of Health or his

Permanent Secretary to dictate to the NWRHA who it should or should not employ. The trial

judge found that on the evidence presented before him, it could not be argued that the Minister of

Health and/or his Permanent Secretary failed to allow Ms. Ali to exercise her option to be

transferred to the service of the NWRHA. The trial judge concluded that the course of action

followed by Mr. O’Brien could not be impugned and that he had acted lawfully and responsibly

in all the circumstances. He found no action or decision of either the Minister of Health or the

Permanent Secretary which could give rise to a claim in judicial review. I agree with the trial

judge for the following reasons:

12

See paragraph 15 of this judgment

Page 29 of 29

(1) There was nothing irrational, unfair or illegal in the decision of Mr. O’Brien, the

Permanent Secretary, directing Ms. Ali to report for duty in her substantive post in the Ministry

of Health. It would be harsh of this court to think otherwise, in the circumstances of this case

and in the light of his evidence.

(2) It could not be said that the Minister of Health or the Permanent Secretary used their

discretion to thwart or run counter to the policy and objects of the Regional Health Authorities

Act. Whilst the Minister and the Permanent Secretary have a general duty to ensure that the

policy and objects of the Act are not frustrated, there is nothing in the circumstances of this case

which suggests that they failed to carry out that duty. In my view, the case of Padfield v

Minister of Agriculture [1968] A.C. 997 is not applicable.

DISPOSITION

(1) The appeal of the North West Regional Health Authority in Civil Appeal No. 11 of 2005

is dismissed.

(2) The appeal of Ameena Ali in Civil Appeal 14 of 2005 is allowed in part as to the issue of

damages. The appeal against the finding of Ventour J. in favour of the Minister of Health

and the Permanent Secretary, Ministry of Health, is dismissed.

(3) The order of Ventour J. is affirmed, save that there shall be an assessment of damages in

favour of Ameena Ali.

(3) We will hear the parties on the issue of costs.

…………………………..

M. Rajnauth-Lee

Justice of Appeal