Legal Officers' Staff Association v The Attorney General

• Jurisdiction: Jamaica
• Judge: King J,McDonald-Bishop J,F. Williams J
• Judgment Date: 17 July 2015
• Court: Court of Appeal (Jamaica)
• Docket Number: CLAIM NO. 2009HCV00660
• Date: 17 July 2015

[2015] JMFC Full 3

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Before:

The Hon Mr Justice King J

The Hon Mrs Justice McDonald-Bishop J

The Hon Mr Justice Williams J

CLAIM NO. 2009HCV00660

Between

Legal Officers' Staff Association

1st Claimant

and

Tasha Manley

2nd Claimant

and

Mellisa Simms

3rd Claimant

and

Thalia Francis

4th Claimant

and

Maurice Bailey

5th Claimant

and

Khandrea Folkes

6th Claimant

and

Trudy-Ann Dixon-Frith

7th Claimant

and

Susan Watson Bonner

8th Claimant

and

The Attorney General

1st Defendant

and

The Minister of Finance and Planning

2nd Defendant

Patrick Foster QC and Mrs Simone M Mayhew instructed by Simone M. Mayhew for the claimants

Allan Wood QC, Mrs Daniella Gentles-SilveraandMiguel Williamsinstructed by Livingston, Alexander & Levy for the defendants

JUDICIAL REVIEW — LEGITIMATE EXPECTATION — GOVERNMENT'S POLICY FOR COMPUTATION OF SALARIES OF LEGAL OFFICERS — POLICY LINKING LEGAL OFFICERS' SALARIES TO JUDGES' SALARIES — CHANGE OF POLICY BY GOVERNMENT — LEGISLATION EFFECTING CHANGE IN POLICY — NO NOTIFICATION TO LEGAL OFFICERS — NO CONSULTATION BEFORE CHANGE EFFECTED — BREACH OF LEGAL OFFICERS' LEGITIMATE EXPECTATION — WHETHER BREACH OF LEGITIMATE EXPECTATION JUSTIFIED — WHETHER LEGITIMATE EXPECTATION OVERRIDDEN BY LEGISLATION — APPROPRIATENESS OF CASE FOR JUDICIAL REVIEW — WHETHER ALTERNATIVE REMEDY EXISTS — WHETHER DECLARATORY RELIEF APPROPRIATE

King J

1 The delay in the delivery of this judgment, for which I must take personal responsibility, is deeply regretted.

2 The Administrative Orders sought in these proceedings and the relevant background have been thoroughly described in the judgments of my learned brother and sister.

Judicial Review

3 Orders 1, 2, and 3 being the Orders of Certiorari, Mandamus and Prohibition are sought by way of judicial review.

4 The eventual deciding issue in this application for judicial review was not whether the claimants enjoyed the legitimate expectations which they claim, nor even whether those expectations, both procedural and substantive were frustrated, but rather whether there existed a public interest of sufficient weight to properly override those legitimate expectations.

5 As unfair as a breach of legitimate expectation might be, that unfairness can be outweighed and overridden by a sufficient compelling reason for the change in the policy or practice in question.

6 I find as I understood my learned brother and sister to have found, that the reason put forward by the defendants to justify the change in policy are sufficiently cogent to have properly overridden the legitimate expectations of the claimants.

7 On that basis, I find that the applicants are not entitled to the Orders sought at 1, 2 and 3.

Declarations

8 Under part 56.1 of the Civil Procedure Rules apart from judicial review or relief under the Constitution, an administrative order may be sought in the form of a declaration where a party is the state, a court, a tribunal, or any other public body. It is the by virtue of this provision that the declarations are sought in orders 4, 5 and 6.

9 Under Part 8.6 of the CPR

“a party may seek a declaratory judgment and the court may make a binding declaration of right whether or not any consequential relief is or could be claimed.”

The court has a general power to make declarations although a claim to consequential relief has not been made, or has been abandoned or refused see Halsbury para. 1610 The fact that the applicant is no longer entitled to other relief is also no bar to the grant of a declaration see De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5 ^th Edition, para 18–023. As would be apparent from what I had said earlier I am of the view that there was no real contest in relation to the existence or breach of legitimate expectations set out in the application for these declarations. As such the claimants are entitled to the declarations sought.

10 However, having regard to the refusal of the Orders sought at 1, 2 and 3, I would make no order for the reversal of policy changes which entitled the claimants to those declarations.

11 I too do not think that an order for costs is warranted.

McDonald-Bishop J

Introduction

12 This claim concerns the remuneration of legal officers employed to the public service. The Legal Officer's Staff Association (“LOSA”), the 1 ^st claimant, has joined forces with the seven other claimants, its executive members, acting in their personal capacity, to bring a claim for administrative orders (by way of judicial review and declarations) against the Minister of Finance and Planning (now the Minister of Finance and the Public Service), the 2 ^nd defendant.

13 LOSA is an unincorporated body that was formed prior to 1992 to represent the interests of legal officers that fall at certain levels within the various departments of the public service, including clerks of courts and deputy clerks of courts in the Resident Magistrates' Courts. LOSA, over the years, has undertaken collective bargaining with the government on behalf of these public officers with respect to remuneration, benefits and conditions of work. LOSA, however, had been dormant for some time.

14 All the other claimants at the time of commencement of these proceedings held positions of responsibility as executive members of LOSA following its revival in or around July 2008. Tasha Manley, the 2 ^nd claimant, was elected as president of the Association and gave evidence for and on behalf of LOSA and herself in these proceedings.

15 The 2 ^nd defendant, pursuant to section 77 of the Constitution of Jamaica, is, among other things, charged with responsibilities for the public service relative to collective bargaining/industrial relations, compensation policy, pay planning, employment benefits, staff orders and conditions of service.

16 The Attorney General, named as 1 ^st defendant, is joined by virtue of the Crown Proceedings Act.

The background

17 The claimants' grouse with the defendants has its roots in a decision taken by Cabinet in or around 1994 that the salaries of legal officers would be linked to those of the judges of the Court of Appeal and the Supreme Court (the higher judiciary). This decision was arrived at consequent on negotiations between LOSA executives and representatives of the government for the period 1991–1993. The decision to link the salaries gained formal expression in what was called the Heads of Agreement with the Government of Jamaica executed on 24 December 1992.

18 Clause 2 (f) of that Agreement stipulated a mechanism for the upward adjustment of salaries payable to the legal officers, which was proportionately linked to the salaries payable to the higher judiciary. It provided with respect to the basic salaries of legal officers as follows:

“In the event any upward adjustment is made to the basic salary and allowances of Legal Officers at Level VII in keeping with the understanding between the Heads of Departments and the Ministry of Public Service regarding parity with Judges of the Court of Appeal adjustments will be made as appropriate to the basic salary and allowances of other levels of the group.”

19 Following on that Agreement, Cabinet, by its decision dated 14 March 1994, instructed that the policy whereby the salary increases due to legal officers were linked to that of the higher judiciary was to be formalised. That decision resulted in the scheme whereby the basic salaries of the legal officers were calculated by reference to the salaries of the higher judiciary without the need for any further negotiations.

20 Several pieces of correspondence were exchanged between the government and LOSA over the years that serve to reflect the linkage policy. In fact, the existence and application of this policy that formed the basis of the remuneration of the legal officers was again re-affirmed by the government through a letter dated 4 June 2002 issued under the hand of the then Financial Secretary. This letter was in response to the written request of LOSA for clarification in relation to the policy applicable to the determination of the salaries of its members.

21 After 2002, there was no salary negotiation by LOSA with the government as the body went into dormancy for some time. As a result, there was no duly elected executive to act on its behalf. It was not until between July and September 2008 that steps were taken to revive LOSA commencing with its re-launch and the appointment of an interim executive. An executive was subsequently put in place with the 2 ^nd – 8 ^th claimants elected as its members.

22 By the time LOSA was revived, a new Cabinet had already been formed in or around September 2007, following the general elections of that year. It was then that the Ministry of Finance and Planning was renamed the Ministry of Finance and the Public Service (the Ministry) with the then Minister being the Honourable Audley Shaw. The formulation of policies pertinent to the increase of salaries for public sector workers fell within the purview of the Public Service Establishment Division in the Ministry. At the time, the Honourable Senator Dwight Nelson, Minister without Portfolio in the Ministry, assumed responsibility for that Division. Senator Nelson was charged with the responsibility to formulate the government's policy relating to salary increases for the judiciary and other public sector workers, including the legal officers.

23 In or around late 2007, the 6 ^th Independent Commission for the Judiciary (the Independent Commission) was appointed pursuant to the Judiciary Act to consider issues pertaining to the salaries, benefits and conditions of service of the judiciary and to make recommendations for, inter alia, increases in the judges' salaries. Section 4 of the Judiciary Act delegates power to the 2 ^nd defendant to issue orders to...