Between: John Sidney Bodden Plaintiff v Civil Service Appeals Commission Defendant The Chief Officer, Ministry of Home Affairs Interested Party

• Jurisdiction: Cayman Islands
• Judge: Justice Margaret Ramsay-Hale
• Judgment Date: 03 October 2023
• Docket Number: CAUSE NO. GC177 OF 2021 & LACV0169/2021
• Court: Grand Court (Cayman Islands)

Between:

John Sidney Bodden

Plaintiff

and

Civil Service Appeals Commission

Defendant

The Chief Officer, Ministry of Home Affairs

Interested Party

Before:

The Chief Justice, the Hon. Justice Margaret Ramsay-Hale

CAUSE NO. GC177 OF 2021 & LACV0169/2021

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CIVIL DIVISION

HEADNOTE

Administrative Law — allegation of bias in the statutory recruitment process in s. 53 of the Public Service Management Act—whether test for apparent bias applicable to the statutory decision-making process — whether statutory tribunal making error of law — whether Court's jurisdiction ousted by clause stating tribunal's decision shall be final — whether tribunal proper Respondent to the application — remedies discretionary — principles governing exercise of discretion to quash decision of an inferior tribunal — when damages available as a remedy in judicial review

Appearances:

Mr. Pramod Joshi of McGrath Tonner for the Plaintiff

Mr. Rupert Wheeler, of KSG Law for the Civil Service Appeals Commission

Ms Marilyn Brandt, Deputy Solicitor General, for the Chief Officer, Ministry of Home Affairs

IN CHAMBERS AS OPEN COURT

Introduction

1 These proceedings have their genesis in a recruitment exercise to identify three candidates for appointment to certain posts within the Cayman Islands Fire Service (“CIFS”). The posts were for Deputy Chief Fire Officer (“DCFO”) in three separate areas of operations: DCFO Administration, DCFO Aerodrome and DCFO Domestic.

2 The Applicant, Mr. John Sidney Bodden, who has been a Fire Officer since 1987 and has served as Acting Chief Fire Officer on four prior occasions, competed for all three posts in a recruitment exercise which began in December 2018. He was short-listed and subsequently interviewed by a Panel which included then Chief Officer in the Ministry of Financial Services and Home Affairs, Dr. Dax Basdeo (“the Chief Officer”).

3 The Applicant was unsuccessful in his bid to be appointed to any of the posts and mounted a challenge to the recruitment exercise in an appeal to the Civil Service Appeal Commission (the “CSAC”) in which he alleged, inter alia, that the Chief Officer was biased against him which rendered the recruitment process unfair and inconsistent with s.54 of the Public Service Management Act (the “PMSA”).

4 The CSAC determined that, although errors were made within the recruitment process and that the Chief Officer had not appropriately responded to various grievances aired by the Applicant in the months preceding the recruitment exercise, taken together they did not rise to the level of establishing bias on the part of the Chief Officer or unfairness or any other breach of Part VII of the PSMA.

5 Leave to move for judicial review was granted on the ground that the Applicant had a case worth investigating at an inter partes hearing that the CSAC had made an error of law in failing to articulate and apply the test for apparent bias when determining the question of whether the Chief Officer was biased and had, therefore, come to the wrong conclusion.

Submissions in limine

6 Although not taking an adversarial stance in the proceedings, the CSAC raised two procedural points in limine for the consideration of the Court.

7 The first was that the proper Respondent to the proceedings was the Chief Officer and not the CSAC and the second was that the jurisdiction of this Court was ousted by s.54(3) of the PSMA which provides:

“(3) The Civil Service Appeals Commission shall render a decision on the appeal within thirty days, and such decision shall be based on the information provided by the appellanttogether with information provided by the chief officer and any other information that the Commission considers relevant, and its decision shall be final.”

8 Taking them in turn, the decision which is being challenged in this application is not the decision of the Chief Officer, but the decision of the CSAC. The CSAC is, therefore, the proper Respondent to the application. That said, Mr. Wheeler, who appeared on behalf of the CSAC, correctly submitted that the Chief Officer should have been made a Respondent to the proceedings as the issues in controversy were between the Applicant and the Chief Officer.

9 Authority for that proposition is to be found in the Grand Court Rules which sets out the procedure on judicial review: after leave is granted, the applicant institutes the substantive judicial review application by serving an originating motion on all persons directly affected: see GCR O53, r.5. The explanatory notes to the White Book state that, in addition to the court or tribunal whose proceedings are in question, the notice of motion should also bear the name, as respondent, of the other party to the proceedings before the tribunal: note White Book note 53/14/69 at p 920.

10 With respect to the role the adjudicative tribunal plays in a statutory appeal, which applies by analogy to judicial review proceedings, Henderson J in ( Final Touch Ltd v The Labour Appeals Tribunal and Norman Wilkins Cause No.463 of 2008, unreported) said this at p. 6:

“The LAT… is not a party to the appeal in the fullest sense. As an adjudicative body whose decision is being questioned, the LAT should assume a neutral stance and not seek to advance arguments in support of its own decision…. It would be wrong in principle and might serve to taint the future independence of the tribunal for it to advance affirmative arguments in favour of its ruling or in particular, to supplement the reasons it has already given.”

11 Nothing turned, however, on the failure to name the Chief Officer as a Respondent as he was represented in the proceedings and the CSAC was not required to take an active role except to the extent it sought to assist the Court on matters of its procedure.

12 Turning to the second submission, that the supervisory jurisdiction of this Court is ousted by s. 53(4), the effect of a clause in similar terms was considered by the House of Lords in the seminal case of Anisminic Ltd v Foreign Compensation Commission[1969] 2 AC 147. Section 4(4) of the Foreign Compensation Act 1950 provided that,

“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.”

13 The House of Lords decided by a majority held that a clause purporting to oust the jurisdiction of the courts to review any “determination” of the Commission was ineffective in respect of a decision tainted by legal error.

14 In O'Reilly v Mackman[1983] 2 AC 237 Lord Diplock, restating the decision of the Court in Anisminic said this at p. 278:

“…if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e. one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination’, not being a ‘determination’ within the meaning of the empowering legislation, was accordingly a nullity.”

[emphasis added]

15 In R v Lord President of the Privy Council, ex parte Page[1993] A.C. 682 the House of Lords, affirming the decision in Anisminic, said this at p.701:

“…the decision in [Anisminic] rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires. Thenceforward it was to be taken that Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires.”

[emphasis mine]

16 The approach of the Court to ouster clauses was revisited by the Supreme Court in R (Privacy International) v Investigatory Powers Tribunal[2019] UKSC 22. The clause under consideration there was:

“ Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal ( including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”

17 The majority held that there was no “ouster” of the High Court's jurisdiction to review a decision of the Tribunal for an error of law.

18 Citing R (Cart) v The Upper Tribunal[2011] UKSC 28, the majority noted that there is a strong interpretative presumption against the exclusion of judicial review, other than by “the most clear and explicit words” per Laws LJ in Cart at the Court of Appeal (at [37]). In his opinion in Privacy, Lord Carnwath made clear that this presumption against ousting the supervisory role of the High Court over other adjudicative bodies operated even where the Tribunals arguably had the “equivalent status and powers to those of the High Court” (at [99]).

19 Mr. Wheeler submitted that the authorities establish that judicial review was only available where the decision was vitiated by an error of law such that no legally valid ‘determination’ had been made. He contended, however, that a failure to articulate the test for apparent bias was not a legal error and, therefore, the Court's jurisdiction was ousted.

20 That, with respect, is the very the issue before the Court for determination: whether the CSAC was required to articulate and apply the test of apparent bias. If it was, and it failed to do so, as alleged by the Applicant, then it would have fallen into reviewable error subject to correction by this Court.

The Evidence Relied on by the Applicant before the CSAC

21 Before the CSAC, the primary evidence on which the Applicant relied as raising the issue of bias was the evidence of the conduct of the Chief Officer prior to the recruitment exercise. The evidence did not consist of any positive acts but rather a number of failures to act on the part of the Chief...