Darkoh-Agyeman v Cayman Islands Law School

• Jurisdiction: Cayman Islands
• Judge: (Graham, J.)
• Judgment Date: 15 September 1998
• Court: Grand Court (Cayman Islands)
• Date: 15 September 1998

Grand Court

(Graham, J.)

DARKOH-AGYEMAN

and

DIRECTOR OF LEGAL STUDIES, CAYMAN ISLANDS LAW SCHOOL, CHIEF SECRETARY, CHAIRMAN OF PUBLIC SERVICE COMMISSION and GOVERNOR

S.G. Hellman for the applicant;

S.W. Bulgin, Solicitor General, and Ms. J. Wilson, Crown Counsel, for the respondents.

Cases cited:

(1) -McClaren v. Home OfficeICR, [1990] I.C.R. 824; sub nom. McLaren v. Home Office, [1990] I.R.L.R. 338.

(2) -R. v. Civil Service Appeal Bd., ex p. Bruce, [1989] I.C.R. 171; [1989] 2 All E.R. 907, considered.

(3) -R. v. Crown Prosecution Service, ex p. Hogg(1994), 6 Admin. L.R. 778; [1994] T.L.R. 212, followed.

(4) -R. v. Derbyshire County Council, ex p. Noble, [1990] I.C.R. 808, dicta of Woolf, L.J. applied.

(5) -R. v. East Berkshire Health Auth., ex p. Walsh, [1985] Q.B. 152; [1984] 3 All E.R. 425, followed.

(6) -R. v. Lord Chancellor”s Dept., ex p. Nangle, [1992] 1 All E.R. 897; [1991] I.C.R. 743, followed.

(7) -Roy v. Kensington & Chelsea & Westminster Family Practitioner Cttee., [1992] 1 A.C. 624; [1992] 1 All E.R. 705.

Legislation construed:

Public Service Commission Regulations, 1985, reg. 30(1), as amended by the Public Service Commission (Miscellaneous Amendments) Regulations 1992, reg. 5(a): The relevant terms of this sub-regulation are set out page 270, lines 12–29.

Third Schedule, para. 2: The relevant terms of this paragraph are set out at page 269, lines 38–39.

Administrative Law-judicial review-amenability to review-no public law remedy for breach of private law rights-judicial review of contracted public officer”s dismissal inappropriate since issues properly determined by proceedings for wrongful dismissal

The applicant applied for judicial review of the respondents” decision to dismiss him from his employment and damages for breach of contract.

The applicant was employed as a law lecturer at the Cayman Islands Law School, under a fixed-term contract. Allegations of sexual harass-ment were made against him by a student, which were conveyed to him in writing and which he denied in a meeting with the first respondent and the head of personnel, but he declined to give a written response. In the light of similar allegations previously made against him before the renewal of his contract, the first respondent recommended to the second respondent that the contract be terminated prematurely. The applicant was given two weeks” notice of dismissal.

He submitted that (a) he was not precluded from seeking judicial review simply because he also sought damages for breach of contract and had commenced a separate action for defamation against the first respondent, since his service as a public officer, being governed by statute, afforded him both public and private law remedies; (b) his dismissal was unlawful since the respondents had adopted the procedure for premature termination under reg. 30(1) of the Public Service Com-mission Regulations, 1985 rather than the investigatory and disciplinary procedures applicable to pensionable public officers under regs. 47 and 48; and (c) he was entitled in any event to three months” notice of dismissal or one month”s salary under his contract.

The respondents submitted in reply that (a) it was not open to the applicant to obtain judicial review, since the private law remedies of damages for breach of contract and defamation were available to him; (b) none of the procedures set out in the 1985 Regulations applied to the applicant, since he was not a pensionable public officer but only a contracted one and, in fact, his position as a law lecturer was excluded from the Public Service Commission”s remit as an ‘office subordinate to the Attorney General for which a legal qualification is required’ under para. 2 of the Third Schedule to the Regulations; and (c) in any event,

under the terms of the applicant”s contract, his express contractual rights and remedies prevailed over the provisions of any regulations or statutory conditions of service.

Held, dismissing the application:

(1) Judicial review was not available to the applicant, since he was not entitled to a public law remedy for the infringement of a private law right. He was employed under a contract of service with the Law School and therefore the appropriate remedies were private law remedies, notwithstanding that his employment was governed by statute. Furthermore, the applicant had disputed matters of fact which could only be resolved by a full trial following the discovery of relevant documents and the hearing of witnesses. This would be achieved in the context of the proceedings for wrongful dismissal and defamation (page 272, lines 31–42; page 273, lines 15–25; page 274, lines 10–23).

(2) In any event, the applicant was not a pensionable public officer for the purposes of regs. 47 and 48 of the 1985 Regulations, but merely a contracted officer. Furthermore, his was an ‘office subordinate to the Attorney General for which a legal qualification is required’ under para. 2 of the Third Schedule so that various matters relating to it were excluded from the Commission”s consideration. Accordingly, he was probably not entitled to the benefit of the disciplinary procedure to which he had already been subject (page 269, lines 36–45; page 270, lines 30–35; page 271, lines 1–13).

GRAHAM, J.: The applicant, Andy Darkoh-Agyeman, was employed
by the Cayman Islands Government as a lecturer in law at the Cayman
10	Islands Law School on a two-year contract. The appointment required-
as I understand, although there is no specific evidence on the point-the
applicant to possess a degree in law and to be legally qualified. The
possible relevance of that will be dealt with later in this judgment. The
contract was dated July 22nd, 1991. The applicant commenced his tour of
15	duty in September of that year, the contract being renewed for a further
two-year period in or about September 1993.
On November 7th, 1994, an allegation of sexual misbehaviour was
made against the applicant by a female undergraduate whom he taught.
As a result of that complaint, the Director of the Law School sent a
20	written memorandum to the applicant on November 8th, 1994. In the
light of that complaint and others of a similar nature, there was con-
siderable debate between the Director of the Law School and the Acting
Permanent Secretary of Personnel as to whether the applicant”s contract
should be renewed for more than one year. In the event, and on the basis
25	that the applicant agreed to accept professional advice and undertook to
conduct himself properly in the future, his contract was renewed from
September 1996 to September 1998.
Unfortunately, further allegations surfaced in late 1996 and a written
complaint was made by a recent graduate of the school. That written
30	complaint was dated June 30th, 1997. It contained allegations of con-
siderable substance, if true. On October 7th, 1997 the Director met the
applicant and discussed the various allegations which had been made. He
was handed a memorandum setting out in detail the allegations which had
been made, without specifically identifying each complainant. There was
35	a discussion however, in which it is agreed by both sides that Mr. Darkoh
knew precisely who was making which allegation, as a result of hints
given by the Director.
On October 10th, 1997, the Director and the Acting

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