Between (1) The Royal Cayman Islands Police Association (2) Senior Constable Mark Miller (3) Senior Constable Rodrick Evans Applicants v (1) The Commissioner of the Royal Cayman Islands Police Service (2) The Attorney General of the Cayman Islands Respondents
| Jurisdiction | Cayman Islands |
| Judge | Justice Kirsty-Ann Gunn |
| Judgment Date | 31 May 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G0064/2021 |
Hon. Justice Kirsty-Ann Gunn (Actg)
CAUSE NO. G0064/2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Mr G. Dilliway-Parry of Priestleys for the Applicants
Mr J. Alcock and Miss M Brandt of the Attorney General's Chambers for the Respondents
This is the costs application arising from my judgment delivered on 8 December 2022 dealing with this judicial review of the First Respondent's decision to change the manner in which leave for Uniform Shift Officers is calculated under a new Uniform Shift Policy (“USP”) introduced in January 2021.
In the application for leave to apply for judicial review, the Applicants had sought the following relief —
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(a) A Declaration that the decision and actions of the First Respondent in implementing the USP Revised Leave Calculations in accordance with the Uniform Shift Policy were/are unlawful;
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(b) An order of Mandamus that the First Respondents immediately revoke the Uniform Shift Policy as far as it relates to the USP Revised Leave Calculation;
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(c) An order of Mandamus that the policy in place prior to the implementation of the Uniform Shift Policy remains in place;
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(d) Damages sustained due to the unlawful implementation of the Uniform Shift Policy;
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(e) Such further, consequential or other relief that this Honourable Court deems is just; and
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(f) An order that the costs of and incidental to this application be paid by the First and Second Respondent.
Following a one-day trial I made the declaration sought by the Applicant as well as the two orders of Mandamus in the terms sought by the Applicants with one qualification, namely that the USP annual leave calculation was only illegal as it relates to officers employed before 1 January 2021. Items (d)-(f) were adjourned.
The Applicant's case at trial had three components: The decision to change the leave calculation was
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(i) Illegal;
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(ii) Irrational;
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(iii) In breach of a legitimate expectation.
On the issue of illegality I concluded that “the very fact that the leave entitlement is expressed in hours rather than days to be significant; the legislature clearly intended a per hour leave calculation to be adopted and left it open for the Commissioner to determine how that would be applied. If the legislature had intended to maintain the 22 days plus 4 weekends entitlement then there would have been no need to express leave entitlement in hours. The fact that they do so is an acknowledgment that leave should be directly linked to the number of hours worked. By converting the leave entitlement based on the 12-hour shift pattern, the Commissioner is complying with the plain and unambiguous intention of the Regulations. The Commissioner's decision neither contravenes nor exceeds the terms of his power, nor does it pursue an objective other than that for which the power to make the decision was conferred. There was no need to amend the legislation before the Commissioner issued the USP as he was not seeking to change the law. Consequently, the Commissioner's decision does not meet the de Smith definition of illegality. That ground of objection fails.”
On the matter of irrationality I held that “the Commissioner's decision to use a factor of 11 to calculate annual leave falls within the reasonable range of responses in light of the change in shift pattern. He has sought to comply with the strict application of the Regulations. While the USP reduces the number of calendar days afforded by the Regulations this does not in and of itself make the decision unreasonable. Even with the heightened scrutiny test applied, the decision fails to meet the threshold for irrationality.”
It was only on the third limb, namely legitimate expectation, that the Applicants succeeded. I found that “[t]here is no evidence before this court that the Commissioner or any of his predecessors made an express representation that officers would receive 22 weekdays plus 8 weekend days off. What the Applicants' evidence does establish, which the Commissioner does not dispute, is that there was such a practice in place for some 40 years. The authorities are clear that a regular practice can give rise to a legitimate expectation. In this case, I find that a practice developed over more than 15 year to use a factor of 7.5 to calculate annual leave does give rise to a reasonable expectation, and that the officers did rely on that expectation throughout their employment.” I concluded that “the Commissioner's actions of recalculating the leave entitlement did breach Senior Constables Miller and Evans' legitimate expectation without justification and that the result, although well-intended, is ultimately unfair. However, the issue does not end with those two officers. The legitimate expectation that 22 days annual leave would be afforded extends to any shift officer employed prior to 1 January 2021 as they became beneficiaries of this long-standing policy upon joining the RCIPS. The decision to change the formula thereby reducing leave entitlement is, therefore, an abuse of power and in breach of Article 19 in respect of all officers employed before 1 January 2021. The decision must be quashed and the previous policy reinstated with respect to all officers employed prior to 1 January 2021.”
Mr Dilliway-Parry for the Applicants argues that the court having made the orders sought by the Applicants they are the successful party and so are entitled to recover their costs of the proceedings. Mr Alcock, for the Respondents argues that the Applicants were only partially successful as they failed on the irrationality and illegality limbs and the finding that there was a legitimate expectation was limited to officers employed prior to 1 January 2021. He proposes that the court look at the proceedings as a whole and find that on legal points the Respondents won on more points than the Applicants and that, consequently, a cost neutral order should be made.
I start by way of clarification of a preliminary point. Mr Alcock expressed some concern that Ramsay-Hale J. sought to make an...
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