Claude Skelton-Cline v The Cabinet of the Virgin Islands

• Jurisdiction: British Virgin Islands
• Judge: Ellis J
• Judgment Date: 23 May 2019
• Judgment citation (vLex): [2019] ECSC J0523-2
• Docket Number: Claim No. BVIHCV 2016/0063
• Court: High Court (British Virgin Islands)
• Date: 23 May 2019

[2019] ECSC J0523-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. BVIHCV 2016/0063

Between:

Claude Skelton-Cline

Claimant

and

The Cabinet of the Virgin Islands

Defendant

Appearances:

Tana'ania Small-Davis, Pauline Mullings and Christine Hart, Counsel for the Claimant

Giselle Jackman Lumy, Principal Crown Counsel, Counsel for the Defendant

Ellis J

1 The Claimant herein is aggrieved by the decision of the Cabinet of the Virgin Islands (“Defendant”) not to approve the renewal of his appointment as Managing Director of the British Virgin Islands Ports Authority (“BVIPA”) and makes a claim for judicial review of that decision and for the following relief:

• (1) An order of certiorari quashing the decision of the Cabinet in failing to approve the renewal the Claimant's contract of employment as Managing Director of the BVI Ports Authority.

• (2) Damages for failure to renew the Claimant's contract of employment as Managing Director of the BVI Ports Authority including loss of earnings and diminution of job prospects;

• (3) General Damages;

• (4) Further or other relief as the Court deems just;

• (5) Costs.

2 The Claimant was appointed as Managing Director in accordance with section 20 of the British Virgin Islands Ports Authority Act 1 (“the Act”) which provides that:

• 20. (1) The Authority shall, with the approval in writing of the Governor in Council appoint a Managing Director and a Deputy Managing Director.

• (2) The Managing Director shall, subject to the general direction of the Authority, be the Chief Executive Officer and be charged with the direction of the business of the Authority, the organisation and the exercise, performance and discharge of its powers, duties and functions and the administrative control of the employees of the Authority.

• (3) —

• (4) —

• (5) —

3 By an agreement dated 4 ^th December 2012, between the BVIPA and the Claimant, the Claimant agreed to serve for a period of three (3) years commencing on 1 ^st December 2012 and terminating on 30 ^th November 2015. In or about January, 2015 and in accordance with clause 9 of the Agreement, the Claimant communicated to the BVIPA his desire to continue in employment for a further term.

4 On 22 ^nd January 2015, the BVIPA Board passed a resolution approving the extension of the Claimant's contract of employment as Managing Director for a further period of three years (1 ^st December 2015 to 30 ^th November 2018) with a one (1) year option to extend. This resolution was communicated to the Ministry of Communications and Works (“the Ministry”) in or about 28 ^th January, 2015.

5 The Claimant asserts that during the period March 2015 – November 2015, the Minister of Communications and Works and several other minsters of Government, both publicly and privately expressed confidence in the Claimant's performance of his duties during his period of employment and assured him that his employment contract would be renewed.

6 Notwithstanding this, the Claimant's contract of employment was allowed to expire on 30 ^th November 2015 without confirmation of approval. Nevertheless, the Claimant asserts that he continued to perform his duties as Managing Director until 7 ^th December 2015. On 8 ^th December 2015, the Acting Chairman of the BVIPA Board informed the Claimant that it had received no

approval of the resolution for the continuation of his employment and informing him that the Permanent Secretary in the Ministry had advised that the Deputy Managing Director had been appointed to act as Managing Director

7 By letter dated 16 ^th December 2015, the Board acknowledged that the Claimant's contract of employment had ended. Paragraph 1 of the letter is relevant and provided as follows:

“As you are aware, the Board of the British Virgin Islands Port Authority (“the Ports Authority”) made recommendation to the Ministry of Communications and Works in March 2015 to retain your services as Managing Director for a further contract term of three years. To date, Cabinet which is required to approve the recommendation has not communicated a decision regarding renewal of the contract and your appointment. The Board therefore considers that your relationship with the BVI Ports Authority as Managing Director has ended pending a decision by Cabinet. In light of the developments, we are constrained to ask for your full cooperation in ensuring a smooth transition of matters to the Deputy Managing Director.”

8 The Claimant asserts that when he sought to determine what had occurred, he was informed by several ministers of Government that his contract had not been deliberated upon and that the relevant Cabinet Paper had in fact been withdrawn from consideration on 2 ^nd December 2015. This evidence was neither admitted nor denied by the Defendant or indeed by the individual ministers, however, the Cabinet Secretary, Ms. Sandra Ward averred that no Cabinet decision which touches and concerns these proceedings was taken on 2 ^nd December 2015.

9 The Claimant filed an Application for leave to make a judicial review claim on 23 ^rd February 2016. Prior to doing so, he recounts a meeting with the Honourable Premier on 31 ^st December 2015 in which he indicated that in the public interest, he did not see how his contract could be renewed.

10 On 6 ^th April 2016, the Minister of Communications and Works submitted a Paper to Cabinet seeking a determination of the BVIPA's Resolution. On that date, Cabinet met and decided not to renew the Claimant's contract of employment. The Cabinet Secretary asserts that the rationale for Cabinet's decision is set out at paragraph 4 of the Cabinet Paper which states:

“…it is in the best interest of the Territory to utilize other arrangements for the human resource needs of the Managing Director's position. The additional qualities required of the person holding the portfolio of Managing Director should include specialized management and strategic skills sets that can assist in harmonizing the function of the Ports Authority with the operations and functions of the new multi-million dollar cruise pier and landside development and harmonizing the two (2) operations. This will no doubt require legislative changes as the present Act does not provide for large scale commercial and retail landside services operated on ports property.”

11 The Claimant states that he only became aware of Cabinet's decision through the Affidavit filed for the Permanent Secretary in the Ministry, Mr. Anthony McMaster filed on 3 ^rd May 2016. The Claimant asserts that it was only later, on 28 ^th June, 2016, that the Claimant became aware of Cabinet's reasons for its decision when he was served with the Second Affidavit of Mr. McMaster.

12 On 27 ^th September 2016, after a contested hearing, the Court granted leave to the Claimant to pursue judicial review of the Defendant's decision to refuse to approve his appointment as Managing Director of the BVIPA on the grounds of:

• (a) Irrationality/unreasonableness;

• (b) Failure to give reasons; and

• (c) Natural justice/want of procedural fairness.

13 The Claimant maintains that:

• (a) The Defendant, pursuant to the statutory power given to it by section 20 of the Act, had a duty to:

  • (i) Act fairly and reasonably;

  • (ii) Take into account all proper matters/not taking into account improper matters;

  • (iii) Act rationally;

  • (iv) Adopt a fair and reasonable procedure in the carriage of its duty to properly consider the continuation of appointment and employment of the Claimant which it has failed to do.

• (b) The Defendant's decision is unreasonable and irrational;

• (c) The Defendant's treatment of the Claimant has caused him damage and loss, in particular damage to his reputation and career prospects.

14 The Parties agree that the following issues arise for determination:

• a. Whether the decision of Cabinet to refuse to approve the reappointment of the Claimant is amenable to judicial review?

• b. Whether Cabinet has failed to provide adequate reasons for its decision to refuse to approve the BVIPA's recommendation?

• c. Whether Cabinet's refusal to approve the BVIPA's recommendations was irrational/unreasonable?

• d. Whether Cabinet failed to have regard to the principles of natural justice or procedural fairness when refusing to approve the BVIPA's recommendation?

• e. If the response to questions (b), (c), or (d) is yes, what is the appropriate measure of damages?

A. Whether the decision of Cabinet, to refuse to approve the reappointment of the Claimant is amenable to judicial review?

THE PARTIES' ARGUMENTS

15 Counsel for the Defendant commenced her arguments by referencing the nature and classification of public authorities. She conceded that generally, all public authorities serve a public function which would inure to the benefit of a public interest and so therefore the decisions of public authorities are prima facie susceptible of review. However, Counsel submitted that not all public bodies constitute central government. Public authorities could be divided into two discrete classifications; those which fall under the chapeau of the public/civil service and those which are classified as statutory bodies/bodies corporate. Counsel for the Defendant submitted that only those persons employed in central government are designated as public servants and she submitted that this distinction is fundamental to the determination of this issue.

16 To illustrate this point, Counsel pointed to section 2 of the Virgin Islands Constitution, where the term “public service” is defined as “the service of the Crown in a civil capacity in respect of the Government of the Virgin Islands”. This acknowledges a distinction between members of the civil service and those appointed to statutory corporation/bodies corporate which has long been recognized at common law. In Tamlin v Hannaford 2, Lord Denning made the following...