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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE Claim No. CV 2017-01720

IN THE MATTER OF A CLAIM BY KHADIJA SINANAN

FOR JUDICIAL REVIEW UNDER PART 56 OF THE CIVIL RULES 1998 AS AMENDED AND THE JUDICIAL REVIEW ACT 2000

AND

IN THE MATTER OF A DECISION BY THE JUDICIAL AND LEGAL SERVICE

COMMISSION TO REMOVE KHADIJA SINANAN FROM THE LIST OF PERSONS SHORTLISTED TO BE INTERVIEWED FOR THE POSITION OF

STATE COUNSEL I, IN THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

BETWEEN

KHADIJA SINANAN

Claimant

AND

THE JUDICIAL AND LEGAL SERVICE COMMISSION Defendant

BEFORE THE HONOURABLE MADAME JUSTICE JOAN CHARLES

Appearances:

Claimant: Mr. Aaron Seaton

Defendant: Ms. Nadine Nabie

Instructed by Ms. Savi Ramlal

Delivery Date: 8th March 2018

JUDGMENT

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THE CLAIM

[1] By Fixed Date Claim Form filed on 29th May 2017, the Claimant.

Khadija Sinanan applied for Judicial Review of the decision of the

Judicial and Legal Service Commission (the Defendant) to remove the

Claimant’s name from the list of persons shortlisted to be interviewed

for the position State Counsel I in the Office of the Director of Public

Prosecutions. The Claimant claimed that she was denied the

opportunity to interview for the said position for which she had applied

and been duly shortlisted.

[2] The Claimant alleged that there was a failure by the Defendant to

provide any substantive response, clarification or redress to the

Claimant’s written complaint against its decision within a reasonable

time. The application essentially challenged the lawfulness of the

decision of the Defendant to remove the Claimant’s name from the list

of persons shortlisted to be interviewed for the position of State Counsel

I in the Office of the Director of Public Prosecutions.

[3] The reliefs sought on the Fixed Date Claim Form are as follows:

i. A Declaration that the Defendant’s decision to remove the

Claimant’s name from the list of persons shortlisted to be

interviewed for the position of State Counsel I in the Office of the

Director of Public Prosecutions was unfair and made in breach of

the principles of Natural Justice and procedural fairness;

ii. A Declaration that the Defendant unreasonably, irregularly

and/or improperly exercised its discretion by removing the

Claimant’s name from the list of persons shortlisted to be

interviewed for the position of State Counsel I in the Office of the

Director of Public Prosecutions;

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iii. A declaration that the Defendant’s decision and Defendant’s

continuing failure to provide any substantive response,

clarification or redress further to the Claimant’s written

complaint against its decision within a reasonable time

constitutes a breach or omissions to perform its duty;

iv. A Declaration that the decision of the Defendant to remove the

Claimant from the list of persons to be interviewed was made in

the absence of evidence on which a finding or assumption of fact

could reasonably be based;

v. A Declaration that the Defendant’s decision was based on

information or instructions received from an unauthorized

person who is not known by the Claimant;

vi. A Declaration that the Claimant was deprived of her Legitimate

Expectation as a shortlisted person. To be interviewed, compete

and potentially secure a job for which she was reasonable

qualified as a result of the Defendant’s decision;

vii. An Order of Certiorari quashing the Defendant’s decision to

remove the Claimant’s name from the list of shortlisted persons;

viii. Damages;

ix. Costs;

x. Such further and other relief as may seem just and equitable.

CLAIMANT’S EVIDENCE

[4] The Claimant filed an affidavit in support of her Fixed Date Claim Form

on the 29th May 2017. The Defendant in turn, filed three affidavits in

response on the 7th August 2017 – that of Helen Warner, Executive

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Director, Human Resources Management (Ag) Service Commission

Department, Tynelle De Bique and Brendon Forrester, also of the

Service Commission Department.

[5] In reply to the Defendant’s affidavits, the Claimant filed two (2) affidavits

in reply on the 7th September 2017, one in reply to Ms. Helen Warner

and one in reply to Mr. Brandon Forrester.

[6] The Claimant stated that on the 29th September 2014, she submitted

applications to the Service Commission Department, one such

application being for the post of State Counsel I in the Criminal Law

Department of the Office of the Director of Public Prosecution. The

Service Commission Department acknowledged receipt of same by letter

dated 16th October 2014.

[7] The Claimant indicated that around the 21st November 2016, the said

Service Commission published a notice in the daily newspapers wherein

the Claimant’s name was listed along with seventy four (74) other

individuals with the instruction to contact the Service Commission

Department.

[8] The Claimant asserted that in response to this notice she sent an email

on the 23rd November to the Defendant’s secretariat submitting her

email address, contact number and résumé.

[9] Ms. Tynelle De Bique of the said Service Commission Department

acknowledged receipt of same on the same date and informed the

Claimant that interviews would be held based on the dates of

application and further that the Claimant would be contacted when

they reached her name on the list.

[10] Ms. De Bique and the Claimant engaged in several email exchanges

regarding the interview and Ms. De Bique informed the Claimant that

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she would be contacted by one Mr. Forrester regarding the scheduling

of the interview.

[11] The Claimant stated further that on the 10th February 2017 she spoke

to Ms. De Bique via telephone and enquired about the scheduling of her

interview. Ms. De Bique told the Claimant that she had been informed

by Mr. Forrester that he spoke to the Claimant who indicated that she

was no longer interested in the position for which the interview was

being conducted; as a result, her name was taken off the list and she

was not scheduled for an interview.

[12] The Claimant alleges that she did not receive a phone call or any

communication from Mr. Forrester or any other person acting on behalf

of the Service Commission Department regarding the scheduling of an

interview. Further, she would have informed Ms. De Bique of same.

[13] On the said 10th February 2017 the Claimant spoke to one Ms.

Coomarie Goolabsingh, the Acting Deputy Director of Personnel

Administration and disputed Mr. Forrester’s claim that he had called

her and that she had expressed a disinterest in the position; she also

objected to the fact that her name had been removed from the list of

persons to be interviewed for the post. The Claimant reduced her

complaint in writing by a letter to both Ms. Goolabsingh and the

Honourable Chief Justice dated 10th February 2017 and 15th February

2017 respectively.

[14] On the 9th May 2017 the Service Commission Department wrote to the

Claimant and indicated that the Defendant would reconvene a selection

panel to interview the Claimant for the said post. She received this letter

on the 18th May 2017. However, by the date of receipt of the Defendant’s

letter aforesaid, the Claimant had already instituted proceedings for

Judicial Review herein; her application was filed on the 10th May 2017

and she was granted leave on the 12th May 2017.

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[15] Thereafter, the Claimant’s attorney at law wrote to the Service

Commission Department by letter dated 23rd May 2017 seeking

clarification about the decision to remove the Claimant from the list of

persons to be interviewed, when the decision was taken to reconvene a

panel to interview her, her placement is successful, and the

composition of the panel to interview her.

[16] The Service Commission Department replied to the Claimant by letter

dated 25th May 2017 via email but the Claimant alleged that the

Defendant failed to address the issues raised in her letter; as a result,

she decided to initiate these proceedings. The Fixed Date Claim Form

was filed on the 29th May 2017.

DEFENDANT’S EVIDENCE

[17] The Defendant filed three affidavits in response. These are the affidavits

of Ms. Tynelle De Bique, Mr. Brandon Forrester and Ms. Helen Warner

filed on the 7th August 2017.

[18] The Claimant applied for the post of State Counsel I in the Office of the

Director of Public Prosecutions on the 29th September 2014. The Service

Commission acknowledged receipt of same by letter dated the 16th

October 2014.

[19] The Defendant considered unsolicited applications from persons to fill

the vacancies of State Counsel I in the Office of Director of Public

Prosecutions. There were 138 unsolicited applications which dated from

3rd November 2009 to 30th November 2015. From those unsolicited

applications, 107 individuals indicated their interest. In late 2016, 75

individuals could not be contacted and a public notice was issued for

the said persons to contact the Service Commissions Department.

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[20] On the 24th November 2016, by public notice a list containing the

names of 75 individuals was published on the Service Commission

Department’s website. It was also published in the Trinidad Express

Newspapers on the 25th November 2016. The Claimant’s name was

listed in the said notice.

[21] Thereafter, the Claimant made contact by email with Ms. De Bique, a

Temporary Clerk I in the Service Commission Department.

[22] Mr. Forrester, a Clerk II (Acting) in the Service Commission Department

indicated that on the 6th January 2017, he received an email from Ms.

Tynelle De Bique dated the 5th January 2017 wherein she forwarded

emails from the Claimant in connection with an interview for the office

of the State Counsel I, Office of the Director of Public Prosecutions,

Ministry of the Attorney General and Legal Affairs.

[23] Mr. Forrester stated that he called the contact number 735-2693 given

for the Claimant on the 6th January 2017. Ms. Warner’s evidence is that

the usual procedure is that applicants are contacted by telephone

unless the applicants had indicated otherwise. Mr. Forrester’s evidence

is that when he contacted the Claimant, he informed her that she was

invited to be interviewed for the post of State Counsel I, Office of the

Director of Public Prosecutions on Thursday 12th January 2017. He

stated the Claimant informed him that she was no longer interested in

being interviewed for that position and preferred to be interviewed for

the other two civil posts which are State Counsel I, Solicitor General,

Ministry of Attorney General and Legal Affairs and State Solicitor I,

Chief State Solicitor’s Department, Ministry of the Attorney General and

Legal Affairs.

[24] As a result of what the Claimant said, Mr. Forrester did not schedule

her for the interview on 12th January 2017. Upon the request of the

Executive Director, Human Resource Management, Service

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Commissions Department Mr. Forrester prepared a report dated the 3rd

July 2017 on the matter.

[25] The Claimant spoke to Ms. De Bique via telephone on the 10th February

2017 and was informed that she was not scheduled for interview

because of her conversation with Brandon Forrester aforesaid. The

Claimant denied ever having spoken with Mr. Forrester about the

interview or at all. Further, she complained by letter dated the 10th

February 2017 to Ms. Coomarie Goolabsingh, Deputy Director of

Personnel Administration (Ag.) after speaking to her via telephone.

Thereafter the Claimant wrote the Honourable Chief Justice on the 15th

March 2017 setting out her complaint; this letter was received by the

Service Commission Department on the 19th April 2017.

[26] On the 2nd May 2017, at a meeting of the Defendant, the issue relating

to the Claimant’s complaint above was considered – namely that she

had been improperly removed from the list of persons to be interviewed

for the position of State Counsel I. Before the Defendant was her letter

dated 10th February 2017.

[27] After due consideration of the matter the Defendant, in the interest of

fairness, decided that the Claimant should be interviewed for the post

of State Counsel I, Office of the Director of Public Prosecutions and the

selection panel be reconvened to interview the Claimant. Furthermore,

it was decided that one office of State Counsel I, Office of the Director

of Public Prosecutions not be filled pending the outcome of the

Claimant’s interview.

[28] The Defendant decided that the Claimant should be informed that the

contents of the letter dated 10th February 2017 was noted, a selection

panel would be reconvened to interview her for the said post, and that

her applications for other posts would be considered when interviews

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are scheduled. This was communicated to the Claimant by letter dated

9th May 2017.

[29] On the 23rd May 2017 the Claimant’s attorney wrote to the Defendant

requesting the following information1:

1. clarification be provided as to what process was employed to

make the decision to remove her name from the list of shortlisted

persons, as she requested in her letter of the 10th February 2017;

2. state when the decision was taken by the Judicial and Legal

Service Commission to proceed by way of a reconvened Selection

Panel;

3. provide details for the proposed interview including the proposed

date and place for the interview as well as the date on which a

decision may be made on whether to hire her;

4. the cycle of interview for which the Claimant was originally listed

has been concluded and vacancies were filed; the effect this will

have on the proposed interview with the Claimant;

5. should the Claimant be hired, what measures will be

implemented, if any, to eliminate the disadvantage she will suffer

by being hired later than she ought to have been;

6. whether the composition of the panel for the interview and the

procedure it adopts will be different from the process for the

original interview.

1 Letter from Attorney at Law Mr. Aaron Seaton dated 23rd May 2016

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[30] Around the 31st May 2017 Mr. Forrester contacted the selection panel

comprising retired Madame Justices Permanand and Madame Justice

Sealey and made arrangements for the panel to attend the second floor,

Service Commissions Department, Cipriani Plaza on the 2nd June 2017

to interview the Claimant.

[31] On 1st June 2017 the Claimant’s attorney contacted Ms. Goolabsingh

and stated that the Claimant would proceed to initiate Judicial Review

proceedings if the Defendant did not answer the questions posed in his

letter dated the 23rd May 2017.

[32] On the 1st June 2017 Ms. Warner contacted the Claimant to ascertain

whether she would be attending the interview. The Claimant indicated

that she would not be attending same until her attorney’s questions

were answered. Ms. Warner proceeded to have the interview cancelled.

[33] Ms. Warner informed Mr. Forrester on the morning of the 2nd June 2017

that the interview was cancelled because the Claimant indicated that

she was not attending the interview. He therefore contacted the panel

members and informed them of this.

[34] Ms. Warner’s evidence is that the Defendant never made a decision to

remove the Claimant’s name from the list of candidates to be

interviewed. She was not scheduled for the interview by an employee of

the Service Commission Department, but no decision was taken by the

Defendant to remove the Claimant from the interview list or not to

schedule her for interview.

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ISSUES

i. Whether the Defendant made a decision to remove the

Claimant’s name from the list of persons to be interviewed

for the post of State Counsel I, Office of the Director of

Public Prosecutions

ii. Whether there was a breach of the principles of Natural

Justice and procedural fairness

iii. Whether there was an unreasonable, irregular or improper

exercise of discretion

iv. Whether there was a breach of or omission to perform a duty

v. Whether the Claimant had a Legitimate Expectation to be

interviewed, compete and potentially secure a job for which

she was reasonable qualified

Issue (i)

Whether the Defendant made a decision to remove the Claimant’s

name from the list of persons to be interviewed for the post of

State Counsel I, Office of the Director of Public Prosecutions

[35] The main issue in contention is whether the Claimant was contacted by

Mr. Forrester and informed that she was scheduled for interview on the

12th January 2017, whereupon the Claimant indicated that she was no

longer interested in interviewing for the office of State Counsel I, Office

of the Director of Public Prosecutions. The evidence of the Claimant and

that of Mr. Forrester is in dispute on this issue. Neither counsel for the

Defendant nor the Claimant sought leave to cross examine these

witnesses on the disputed facts.

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[36] At paragraphs 7-8 of Mr. Forrester’s principal affidavit, he states:

“7. I called the contact number given for Ms. Sinanan which was

735-2693 on the 6th January 2017. When I contacted her, I

informed her that she was invited to be interviewed for the post

of State Counsel I, Criminal Law Department on Thursday 12th

January 2017. Ms. Sinanan informed me that she is no longer

interest in being interviewed for that position and preferred to be

interviewed for the other two (2) civil posts which are State

Counsel I, Solicitor General, Ministry of Attorney General and

Legal Affairs and State Solicitor I, Chief State Solicitor’s

Department of the Ministry of the Attorney General and Legal

Affairs.

8. When Ms. Sinanan informed me of this, I did not schedule her

for the 12th January 2017. Thereafter, certain representations

were made by Ms. Sinanan and I was instructed by Ms. Warner

to call the panel to interview Ms. Sinanan.”

[37] At paragraphs 4-8 of the Claimant’s affidavit in reply to Mr. Forrester’s

affidavit, the Claimant states:

“4. At paragraph 7 of his affidavit, Mr. Forrester avers that on

6th January 2017 he contacted me via telephone and informed

me that I was invited to an interview for the post of State Counsel

I, Criminal Law Department on Thursday 12th January 2017.

5. The phone call which Mr. Forrester claims to have made, the

conversation which he claims to have engaged in and the

identity of the person whom he claims to have spoken to are not

facts within my knowledge and therefore I cannot speak to the

truth of them. However, with respect to his assertion that he

spoke to me on the telephone on the 6th January 2017, I can and

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do maintain that this allegation is false. I did not speak to Mr.

Forrester on the telephone on 6th January 2017 nor have I ever

spoken to him on the phone or in person.

6. Accordingly, contrary to the assertions made by Mr. Forrester

in paragraph 7 of his affidavit, I was never informed by him or

any representative of the Defendant, that I was invited to be

interviewed for the post of State Counsel I on 12th January 2017.

It was only on reading this affidavit that I was made aware that

an interview was scheduled for 12th January 2017 at all. This

information was not provided to me then nor was it ever provided

to me, even after I made repeated complaints in writing to the

Defendant since 10th February 2017 seeking clarification on the

interview. Even by the letter from the Defendant dated 9th May

2017 in reply to my letter of complaint sent since 10th February

2017, no mention was made of any interview having been

scheduled for the 12th January 2017.

7. In paragraph 7 of his affidavit, Mr. Forrester also avers that

during his alleged conversation with me on the 6th January

2017, I informed him that I was no longer interested in being

interviewed for the position of State Counsel I, Criminal Law

Department and preferred to be interviewed for the other two

civil posts which are State Counsel I, Solicitor General and State

Solicitor I, Chief State Solicitor’s Department.

8. Similarly, this allegation is false, as I have never spoken to

Mr. Forrester nor have I ever indicated to him or any person at

the Service Commissions Department that I was not interested

in being interviewed for the position of State Counsel I in the

Criminal Law Department. I applied in earnest for all three

positions since September 2014 and I was keen on interviewing

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for all positions for which I applied in order to maximize my

chances of securing a State Counsel I position.”

[38] Ms. De Bique confirmed in her affidavit that she had communicated

with the Claimant as the latter deposed to in her principal affidavit2.

[39] The Claimant submitted that the Defendant provided no documentary

evidence of the alleged conversation between Mr. Forrester and herself,

nor have they provided any evidence with respect to the verification of

the identity of the person with whom Mr. Forrester spoke over the

telephone.

[40] She submitted further, that the Defendant’s decision to remove her

name from the list of persons to be interviewed on the 12th January

2017, was based on instructions received from an unauthorised person

who is not known to the Claimant and was made in the absence of

evidence on which such a finding or assumption of fact could be

justified. She also contended that the Defendant failed to take any

action after it became aware that the alleged conversation was disputed

by the Claimant3.

Analysis of Issue (i)

Conflict in Evidence

[41] In the text Judicial Remedies in Public Law4 the Learned Authors

opined:

“If there is a dispute of fact and no cross-examination is

allowed, the courts will proceed on the basis of the written

2 Paragraphs 14 of the Claimant’s principal affidavit filed herein 10th May 2017 ““14. On 10th February 2017 Ms. De Bique returned my phone call and I inquired about the scheduling of the interview. She stated that she had been informed by a Mr. Brandon Forrester that he spoke to me on the phone and that I indicated that I was no longer interested in the position as a result of which my name was removed from the list of shortlisted candidates and no interview was scheduled.” 3 Paragraphs 46 & 47 of the Claimant’s submissions filed on 5th October 2017 4 3rd Ed. 2004 by Clive Lewis pg 354 para 9-096

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evidence presented by the person who does not have the

onus of proof. As the onus is on the claimant to make out

his case for judicial review, this means that in cases of

conflict in a crucial matter which are not resolved by oral

evidence and cross-examination, the courts will proceed

on the basis of the defendant’s written evidence.”

[42] In the matter of an application by Malcolm Johnatty5 the Applicant

sought Judicial Review of, inter alia, the decision of the Permanent

Secretary of the Ministry of Education to stop payment of his salary. In

response the Director of Human Resource Management in the Ministry

of Education deposed on behalf of the Respondent that no direction had

been given to stop the salary of the Applicant. In determining this issue

the Court6 held that:

“Where there is conflict in the affidavit evidence on critical

issues which are not resolved by oral evidence and cross-

examination, the Court will proceed on the basis of the

respondent’s evidence.”

[43] In determining this issue I had regard to the following facts:

a) It was not in dispute that the telephone number in the

possession of Ms. De Bique and Mr. Forrester of the Service

Commission Department was the Claimant’s;

b) The Claimant had called and received a call from Ms. De Bique

of the Service Commission Department on that telephone

number.

5 HCA No 2016 of 2004, pg 5 6 per Mr. Justice Rajendra Narine pg 5

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[44] It is not sufficient for the Claimant to state that she did not know who

Mr. Forrester spoke to on the 6th January 2017 or the content of his

conversation with that person. The onus was on her to establish that in

fact no call from the Service Commission Department had been made

to her phone on the 6th January 2017 in light of the conflict in evidence

between herself and Mr. Forrester. Having regard to the fact that there

was no cross examination on the issue, and in light of the authorities

referred to above, I must proceed on the basis of the Defendant’s

evidence that the said telephone call had been made to the Claimant

and that she had indicated during that telephone conversation that was

no longer interested in being interviewed for the position of State

Counsel I, Director of Public Prosecutions Department.

[45] In light of the conclusion that I have arrived at above, it therefore follows

that there was no unlawful decision to remove the Claimant’s name

from the list of persons to be interviewed for the post; her name was not

included in the list because of the indication given to Mr. Forrester.

[46] Additionally, there is no evidence to support the Claimant’s contention

that the Defendant met and made a decision to remove her from the list

of interviewees. The burden of proof on this issue is the Claimant’s and

she has not discharged this burden.

Issue (ii)

Whether there was a breach of the principles of Natural Justice

and procedural fairness

[47] The Claimant contended that the Defendant failed to confirm the

reason(s) why the decision was taken to remove her name from the list

of shortlisted participants. She argued further, that the procedure

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adopted by the Defendant in removing the Claimant’s name did not

provide her with any opportunity to be heard7.

[48] The Claimant argued that the Defendant was in breach of the Rules of

Natural Justice in that:

a) the Defendant’s decision to remove her name from the list of

interviewees was based on ‘the unsubstantiated allegations of an

unverified person’ in that they failed to provide evidence of the

alleged communication with this person or of any verification of

the identity of the person;

b) the Defendant failed to consult with the Claimant in writing in

order to confirm the information that she was no longer

interested in being interviewed for the post;

c) the Defendant failed to provide the Claimant with any ‘further

explanation’ as to why this decision was made despite repeated

enquiries by her and the fact that the Defendant’s decision

continued to affect her adversely.

[49] As indicated above, I found that there was no evidence before me that

the Defendant had made a decision to remove the Claimant from the

list of persons to be interviewed for the post of State Counsel I, Office of

the Director of Public Prosecution. I also found that it was the Claimant

who declined the interview carded for the 12th January 2017. Further,

the undisputed facts before me are that the Claimant wrote a letter of

complaint on 2nd February 2017. At the Defendant’s meeting held on

the 2nd May 2017, the Claimant’s complaint was considered and a

decision taken that she be interviewed for the position. It was also

decided that an office of State Counsel I not be filled pending the

outcome of the Claimant’s interview. The Defendant also determined

7 Para 6.4 of the Grounds of Application filed on 10th May 2017

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that the Claimant would be informed that a selection panel would be

reconvened to interview her for the said post and this was

communicated to the Claimant by letter dated 9th May 2017.

[50] Pursuant to the decision above, on the 31st May 2017, Mr. Forrester

contacted retired Permanand J and Sealey J, members of the selection

panel to convene on the 2nd June 2017 to interview the Claimant.

The events that followed are not in dispute by the parties.

[51] On 1st June 2017, the Claimant’s attorney contacted the Defendant and

indicated that the Claimant would proceed to initiate Judicial Review

proceedings if the Defendant did not answer the questions posed in his

letter dated the 23rd May 20178.

[52] On the 1st June 2017 Ms. Warner contacted the Claimant to ascertain

whether she would be attending the interview. The Claimant indicated

that she would not be attending same until her attorney’s questions

were answered. Ms. Warner proceeded to have the interview cancelled.

The Claimant’s letter dated the 23rd May 2017 came before the

Defendant at its meeting of the 8th June 2017 after the Claimant had

already filed for Judicial Review.

[53] In Furnell v. Whangarei High Schools Bd.9 Lord Morris of Borth-y-Gest

opined:

8 [1] Clarification be provided as to what process was employed to make the decision to remove her name from the list

of shortlisted persons, as she requested in her letter of the 10th February 2017; [2] State when the decision was taken

by the Judicial and Legal Service Commission to proceed by way of a reconvened Selection Panel; [3] Provide details

for the proposed interview including the proposed date and place for the interview as well as the date on which a

decision may be made on whether to hire her; [4] The cycle of interview for which the Claimant was originally listed

has been concluded and vacancies were filed; the effect this will have on the proposed interview with the Claimant; [5]

Should the Claimant be hired, what measures will be implemented, if any, to eliminate the disadvantage she will suffer

by being hired later than she ought to have been; [6] Whether the composition of the panel for the interview and the

procedure it adopts will be different from the process for the original interview.

9 p 679 g

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"Natural justice is but fairness writ large and juridically.

It has been described as 'fair play in action.'"

[54] On the facts before me, I do not consider that there was any breach of

the Rules of Natural Justice insofar as this issue was concerned. When

the Claimant’s letter of complaint was brought to the attention of the

Defendant, the latter sought, in fairness, to give her an opportunity to

be interviewed and to keep one spot open for her in the event that she

were successful at the interview. Given their position which I have

accepted, that it was the Claimant who declined the first interview listed

for 12th January 2017, I am of the view that they acted in all fairness to

ensure that she had another opportunity to be considered for the post.

Further, fairness did not require that the Defendant answer the

questions posed by the Claimant before she was interviewed. At best

her enquiry as to whether her appointment to the post, if successful,

would take effect from the same date as the other persons interviewed

in January is a question which could have easily been asked at at

interview. There was no obligation on the Defendant to respond to these

questions before interviewing the Claimant for the post. The method of

contacting parties shortly before interview appears to be the usual

practice of the Service Commissions Department who managed the

process for the Defendant. There appears to be nothing unusual in an

applicant being contacted for an interview mere days before.

Accordingly, this ground of complaint also fails.

Issue (iii)

Whether there was an unreasonable, irregular or improper

exercise of discretion

[55] In Halsbury’s Laws of England10, the Learned Authors considered the

issue of unreasonableness. There it was defined as:

10 5th Ed. Vol 61 para 617

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“A decision of a tribunal or other body exercising a statutory discretion

will be quashed for 'irrationality’, or as is often said, for 'Wednesbury

unreasonableness'. As grounds of review, bad faith and improper

purpose, consideration of irrelevant considerations and disregard for

relevant considerations and manifest unreasonableness run into one

another. However, it is well established as a distinct ground of review

that a decision which is so perverse that no reasonable body, properly

directing itself as to the law to be applied, could have reached such a

decision, will be quashed.

[56] The Claimant contended that the Defendant’s decision to remove the

her name from the list of shortlisted candidates on the alleged basis of

a phone call made by someone purporting to be the Claimant was based

on an improper or irregular exercise of this discretion. The Defendant

submitted that there has been no exercise of discretion in removing the

Claimant’s name from the interview list or not scheduling her for

interview.

[57] I have already concluded that the Defendant did not exercise a

discretion to remove the Claimant’s name from the schedule of persons

to be interviewed and the Claimant has adduced no evidence before me

in support of this contention. In any event I hold that on the facts of the

case before me the Defendant’s actions were reasonable in the

circumstances of this case. Indeed, from my assessment of the

situation, it would appear that it was the Claimant who acted

unreasonably in refusing the Defendant’s offer of the opportunity to be

interviewed for the post and insisting that the Defendant respond to her

attorney’s questions before she would agree to such interview. As

already noted, there was no decision to remove her name from the list

other than in the circumstances outlined by Mr. Forrester. The

Defendant’s actions upon being made aware of the Claimant’s denial

that she had declined the interview was entirely reasonable in the

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circumstances. I do not consider that the course adopted by the

Defendant in the circumstances of this case to be one which interferes

with fundamental human rights of the Claimant.

[58] The Claimant wrote two letters to the Defendant dated 10th February

2017 and 19th April 2017 respectively. The Defendant replied on 9th May

2017. The Defendant would not have been aware that its reply was sent

the day before the institution of proceedings herein. The matter came

before the Defendant on the 2nd May 2017 and they responded by letter

dated the 9th May, 2017. On the basis of the foregoing I hold that there

was not improper conduct or bad faith by the Defendant. The matter

was considered by the Defendant at its meeting and they proposed a

reasonable course in order to treat with it. The attorney’s letter came

before them on 8th June 2017 after the Fixed Date Claim Form was filed.

The Defendant had no opportunity to answer those questions, the

answers to some of the questions would have been highly speculative.

Ms. Warner’s affidavit did address some issues in paragraph 22 and 26.

Issue (iv)

Whether there was a breach of or omission to perform a duty

[59] The Claimant claimed that the Defendant failed to provide any

substantive response, clarification or redress in relation to the

Claimant’s written complaint against its decision within a reasonable

time.

[60] It is to be noted that Mr. Forrester was an employee of the Service

Commission Department. There is no evidence before me that the

Judicial and Legal Service Commission investigated what transpired

between him and the Claimant on the 6th January 2017 or made any

findings as to whether he did in fact call the Claimant or whether the

Claimant declined to attend the interview on the ground that she was

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no longer interested in the position. The fact is that upon consideration

of the issue the Defendant decided in fairness to grant the Claimant an

opportunity to be interviewed. In my view this was a reasonable and fair

course to adopt in all the circumstances. There was no obligation upon

the Defendant to conduct an investigation into the issue and to report

on the outcome of such investigation to the Claimant.

[61] From the evidence before me I conclude that the Defendant was always

ready and willing to interview the Claimant on two (2) occasions, the

12th January 2017 and 2nd June 2017 for the post of State Counsel I,

Office of the Director of Public Prosecutions.

Issue (v)

Whether the Claimant had a Legitimate Expectation to be

interviewed, compete and potentially secure a job for which she was

reasonably qualified

[62] The Claimant alleged that Defendant’s wrongful removal of her name

from the list of shortlisted candidates deprived her of a Legitimate

Expectation to interview, compete and potentially secure a job for which

she was reasonably qualified.

[63] The short answer on this issue is as already given – that there was no

decision, wrongful or otherwise, by the Defendant to remove the

Claimant’s name from the list of candidates to be interviewed. I have

already found that it was the Claimant who declined to attend the

interview on 12th January 2017; further, that she also declined the

opportunity of an interview for the post on the 2nd June 2017. I therefore

hold that there was no breach of the Claimant’s Legitimate Expectation

to be interviewed for the post or to compete and potentially secure the

position. In light of the fact that one position has been held open for her

it is still open to the Claimant to exercise the option to be interviewed

for the position. Additionally, interviews for the position of State

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Counsel I in the Civil Department for which the Claimant applied may

still be open and the Claimant has not been deprived of any opportunity

to freely pursue those positions.

CONCLUSION

[64] In the circumstances I grant judgment for the Defendant against the

Claimant. I order further that:

a) the Claimant’s claim is dismissed;

b) the Claimant to pay one half of the Defendant’s costs to be

assessed in default of agreement by the Registrar.

Joan Charles

Judge