Mary Williams Claimant v Attorney General Defendant

• Jurisdiction: British Virgin Islands
• Judge: Hariprashad-Charles J,Indra Hariprashad-Charles
• Judgment Date: 22 June 2011
• Judgment citation (vLex): [2011] ECSC J0622-2
• Court: High Court (British Virgin Islands)
• Docket Number: Claim No. BVIHCV2010/0048
• Date: 22 June 2011

[2011] ECSC J0622-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Claim No. BVIHCV2010/0048

Mary Williams

Claimant

and

Attorney General

Defendant

Appearances:

Mr. Lewis S. Hunte QC and Mr. Richard Arthur of Hunte & Co. Law Chambers for the claimant

Ms. Karen Reid, Senior Crown Counsel and Ms. Vareen Vanterpool, Senior Crown Counsel, Attorney General's Chambers for the defendant

Constitution -Public Services Commission -Public Service Regulations -disciplinary proceedings -dismissal by Governor -Judicial Review -Certiorari -Revocation of dismissal -Whether Governor has power to revoke -Whether claim academic

Administrative law -Judicial Review -Procedural Irregularity -Error of law -breach of constitutional right -section 16(9) -Hearing within a reasonable time -Independent and impartial authority -Whether guilty of offence not charged -Whether charge based on false premise -Public Authorities and Protection Act -Whether claim statute barred -Undue delay -Restoration to post

The claimant instituted a claim for judicial review seeking an order of certiorari to quash a decision by the Public Service Commission ("the PSC"), which was approved by the Governor and communicated to her by letter dated 20 January 2010 ("the decision") which resulted in her dismissal from the Public Service. The decision has since been revoked and the claimant was so advised by letter dated 21 June 2010. She was also advised that dismissal proceedings are to continue against her in light of her continual refusal to submit the letters of apology as directed. Notwithstanding the revocation of the decision, the claimant persists with her claim for judicial review. She also seeks an order to restore her to her post in the Public Service together with all benefits thereto and costs.

The Attorney General alleged that the claim for judicial review has become academic and it is an abuse of the process of the court and ought properly to be struck out. Further, that the claimant is not entitled to an order for restoration to her post with full benefits.

The claimant submitted that she is entitled to judgment on admission in light of the decision to revoke her dismissal for procedural irregularity.

HELD:

• 1. The Governor's offer to revoke the dismissal and reconstitute a fresh disciplinary tribunal, if the claimant accepts it, it will put her in the same position the court would be able to if certiorari were to be granted. The court is not required to issue a grant of certiorari where to do so would be a pointless exercise: Dennis Graham v Commissioner of Police, Trinidad and Tobago Civil Appeal No. 67 of 2005 (Hamel-Smith CJ (Ag.), Warner JA, Mendonca JA), Judgment 1 ^st December 2006 (unreported).

• 2. In his defence, the defendant did not plead an abuse of the process of the court. To do so belatedly is improper: Odgers' Principles of Pleadings and Practice, 22 ^nd edition, page 120 and Halsbury's Laws of England, 4 ^th ed. Vol 37 para. 434.

• 3. All challenges to the disciplinary proceedings held on 22 April 2008 culminating in and including the decision of the PSC to impose a penalty on the claimant are statute-barred by virtue of section 2 of the Public Authorities Protection Act, Cap. 62 of the Laws of the Virgin Islands: Quorum Island (BVI) Limited and the Attorney General v Virgin Islands Environmental Council (HCVAP 2008/004) -judgment delivered on 27 October 2008 and Ronex Properties Ltd v John Laing Construction Ltd (1983) QB 398, 404 referred to.

• 4. The admission of a procedural irregularity does not "entitle" the claimant to judgment on admission. Certiorari is a discretional remedy, not one as of right. CPR 14.1 (2) and 14.4 are inapplicable in these circumstances.

• 5. Although the claim is borne out on the grounds of improper procedure, the court declines to issue an order of certiorari for the following additional reasons.

  • 1. The claimant is guilty of undue delay in seeking to avoid the dismissal on the basis of proceedings, which she knew were flawed when they occurred seven months before filing her claim. The court declines to exercise its jurisdiction in her favour: R v Secretary of State for Education ex parte B (A Minor) [2001] ELR 333.

  • 2. There was no unreasonable delay sufficient to amount to a breach of the constitutional right to a hearing within a reasonable time. There was no breach of the right to a hearing before a fair and impartial tribunal. There is no basis for a finding of an error of law or that the charge was based on a false premise.

  • 3. Quashing the decision of the PSC would not entitle this court to order that the claimant be restored to her post. On a claim for judicial review, the court is limited to remitting the decision to the decision-maker to make a fresh decision in accordance with the law: CPR 56.14(2). Under the Constitution, the Governor, acting on advice of the PSC, is the authority vested with the power to appoint, discipline and dismiss public servants. It is no function of the court to usurp the powers of the Governor and the PSC to determine whether the claimant ought to be dismissed or appointed to a particular post in the public service or on what terms.

Introduction

Hariprashad-Charles J

1 This is a claim for Judicial Review. The claimant, Mary Williams seeks an order of certiorari to quash a decision by the Public Service Commission ("the PSC"), which was approved by His Excellency Governor David Pearey and communicated to her by letter dated 20 January 2010 ("the decision") which resulted in her dismissal from the Public Service. The decision has since been revoked and Ms. Williams was so advised by letter dated 21 June 2010. She was also advised that dismissal proceedings are to continue against her in light of her continual refusal to submit the letters of apology as directed. Notwithstanding the revocation of the decision, Ms. Williams persists with her claim for judicial review. Ms. Williams also seeks an order to restore her to her post in the Public Service together with all benefits thereto and costs.

2 The Attorney General, the defendant in these proceedings, enjoins the court to find that (i) the claim has become academic and (ii) it is an abuse of the process of the court and ought properly to be struck out. Further, that Ms. Williams is not entitled to an order for restoration to her post with full benefits and that she should pay the Attorney General the costs incurred subsequent to the filing of his defence.

Factual background

3 Ms. Williams is a public officer of some 21 years. Most recently, she was assigned to the post of clerical officer in the Department of Inland Revenue. Disciplinary proceedings were instigated against her in respect of an incident which occurred in the office on 13 February 2007. Allegedly, a senior officer asked her to do a task and she refused. Meetings with senior officials were held and Ms. Williams was asked to apologize to certain officers. She refused to do so because she felt she had done nothing wrong.

4 The matter progressed along a certain course and Ms. Williams was placed on administrative leave pending further notice by letter dated 7 May 2007. 1 On 13 February 2008 2, Ms. Williams was informed that she was interdicted from duty at half salary with effect from 16 October 2007. She was provided with specific details of the charges against her namely:

• 1. General Misconduct Prejudicial to Proper Administration of Government Business and

• 2. General Misconduct Prejudicial to Discipline.

5 Briefly, the particulars of Misconduct Prejudicial to Discipline were given as:

• (i) You were insubordinate to a senior officer…in that you refused to carry out a duty requested by the said senior officer….

• (ii) You were verbally abusive, insubordinate and disrespectful to the Commissioner Inland Revenue in the presence of the Ag. Deputy Commissioner of Inland Revenue …

• (iii) You were insubordinate to and disrespectful to your Head of Department in the presence of Ag. Commissioner and Ag. Deputy FS …

• (iv) You were verbally abusive and disruptive in the general area of the Department of Inland Revenue in the presence of other members of staff and the general public…."

6 A hearing before the PSC took place on 22 April 2008. Ms. Williams attended the hearing with her legal counsel, Mr. Lewis Hunte QC. She called witnesses.

7 On 17 June 2008, 3 Ms. Williams was informed that the Governor, after consultation with the PSC, has concluded that "you did act inappropriately to senior management namely the former acting Deputy Financial Secretary, the Commissioner of Inland Revenue and the Collections Supervisor." She was advised that " you are reprimanded pursuant to section 42(f) of the PSC Regulations which states, "The Penalties which may be imposed on an officer against whom a disciplinary charge has been established is (f) reprimand."" She was directed to submit written letters of apology to (i) the former Acting Deputy Financial Secretary; (ii) the Commissioner of Inland Revenue and (iii) the Senior Collections Officer, Inland Revenue on or before 25 June 2008.

8 On 23 June 2008, 4 Ms. Williams wrote to the Director of Human Resources ("the HR Director") asking which of the four charges, communicated to her on 13 February 2008, she had been found guilty of, since she had not been charged with "inappropriate conduct" and had not had the opportunity to defend against it. She repeated this request for "clarification" in two further letters dated 3 Aug 2008 5 and 21 November 2008 6 respectively. In the latter letter, she also formally requested to be furnished with a "copy of proceedings" of her hearing before the PSC. That request was repeated on 23 December 2008. 7

9 The Department of Human Resources ("HR") responded in three letters. The first, dated 28 July 2008, 8 stated that the details of the charges were in numbered...