IN THE HIGH COURT OF JUSTICE AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV NO IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:08 AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW IN ACCORDANCE WITH PART 56.3 Of THE CIVIL PROCEEDINGS RULES 1998 AS (AMENDED) BETWEEN LESLEY AND ALMARALES Claimant DIRECTOR OF PERSONNEL ADMINISTRATION JUDICIAL AND LEGAL SERVICE COMMISSION CV IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAPTER 7:08 Defendants AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW IN ACCORDANCE WITH PART 56.3 Of THE CIVIL PROCEEDINGS RULES 1998 AS (AMENDED) BETWEEN SVETLANA SAVI AND DASS RAMHIT Claimants DIRECTOR OF PERSONNEL ADMINISTRATION JUDICIAL AND LEGAL SERVICE COMMISSION Defendants Page 1 of 17

2 BEFORE THE HONOURABLE MADAM JUSTICE JONES Appearances: Mr. R. L. Maharaj S.C., and Mr. R. Bissessar instructed by Mr. V. Gopaul- Gosine for the Claimants. Mr. R. Martineau S.C., and Mr. G. Ramdeen instructed by Ms. A. Ramsaran for the Defendants. RULING 1. These two cases together with a related action brought by Nairob Smart ( the Smart claim ) concern a challenge by four public officers to a decision made by the Defendants by which a contract officer, Petal Roopnarine, was promoted /appointed to the post of Senior State Solicitor in their stead. The Claimants allege that the promotion/appointment was contrary to the applicable regulations and in breach of their legitimate expectation that promotions would be made on the basis of the regulations and seniority. 2. In both cases objections have been made by the Claimants and Defendants as to the admissibility of certain of the evidence placed before me by way of affidavits. Introductory matters apart the evidence filed with respect to each of the Claimants, both in support of and in opposition to the claims, are more or less the same. There are however minor differences with respect to the language used and in the numbering of the paragraphs. As well the affidavits in Almarales contain certain additional information relevant only to her claim. 3. To properly treat with these applications it is necessary for me to first briefly recite the history of these proceedings as it deals with the affidavits filed Page 2 of 17

3 before me. On the 10 th June 2014 the Claimants sought leave to bring judicial review proceedings against the Defendants on the basis of affidavits filed in support of the application. On the 1 st July 2014 the Claimants filed supplemental affidavits in support of the applications for leave. On the 7 th July 2014 the Defendants filed an affidavit deposed to by Marcia Pile-O Brady in opposition to grant of leave ( the first O Brady affidavit ). 4. Leave was granted to the Claimants to pursue their application for judicial review and the application, by way of fixed date claim, together with their affidavits in support were filed on the 25 th July On the 2 nd September 2014 the Defendants filed an affidavit of Marcia Pile-O Brady ( the second O Brady affidavit ) in opposition to those filed in support of the fixed date claim. On 19 th September 2014 the Claimants filed affidavits in reply to the second O Brady affidavit. 5. The affidavits of the 19 th September 2014 for the first time raised the existence of three documents: a memorandum dated 25 th July 2012 from the Chief State Solicitor to the First Defendant; a letter dated 20 th December 2012 from the Chief State Solicitor to the Attorney General and a circular memorandum dated 29 th August 2014 from the First Defendant to Permanent Secretaries and Heads of Department. On the 25 th September 2014 permission was sought and granted to the Defendants to file affidavits in reply to new matters raised in the Claimants affidavits of 19 th September 2014 by the 10 th October Page 3 of 17

4 6. Thereafter, as is my practice, a written order was issued confirming the order made on 25 th September Unfortunately in dealing with the affidavits in reply the order did not specify that the permission to reply was granted only in respect of new matters raised. I am satisfied that the order as written up omitted to mention this fact and was deficient in this regard. Accordingly for the avoidance of doubt a corrected order pursuant to Part of the Civil Proceedings Rules 1998 as amended ( the CPR ) will be issued at the same time as the orders reflecting my determination of these evidential objections. 7. The Defendants have since the 25 th September 2014 filed two affidavits: an affidavit of Marcia Pile-O Brady dated the 10 th November 2014 ( the third O Brady affidavit ) and an affidavit of Christophe Grant dated the 27 th October 2014 ( the Grant affidavit ). These two affidavits as well as the affidavits of the Claimants filed on the 19 th September 2014 are the subject of these applications. 8. The Claimants have objected to the contents of the third O Brady affidavit and the Grant affidavit and seek to have the affidavits of or parts thereof struck out as being contrary to the permission granted in that regard and alternatively on the grounds that certain paragraphs are inadmissible by reason of the fact that the paragraphs contain opinion evidence and/or are scandalous, irrelevant or otherwise oppressive and/or are an abuse of the process of the court. 9. The Defendants have filed evidential objections to the affidavits of the Claimants in accordance with a table filed on the 3 rd November These Page 4 of 17

5 objections are based on the more usual objections to admissibility: hearsay, opinion and containing arguments rather than facts. 10. Both the Claimants and the Defendants have also made objections with respect to documents being filed and/or served out of time. Insofar as the objections relate to the affidavits and the notice of objection being filed or served out of time I am satisfied that I have the discretion to extend the time for compliance of any of my directions orders. Accordingly with respect to the service of the Claimants notices of application dated the 4 th November I extend the time to the date of service. I propose to do the same with respect to the Grant affidavit if necessary. 11. In considering the objections I bear in mind that the purpose of affidavits is to present facts relevant to the application before me. I also bear in mind that the Civil Proceedings Rules 1998 as amended vests in me the power or discretion to control the evidence presented 1 which discretion is to be exercised in accordance with the overriding objective 2. This overriding objective requires me to deal with cases justly and in particular so as to save expense; to ensure that the case is dealt with expeditiously and to allot to the case an appropriate share of the court s resources while taking into account the need to allot resources to other cases. Accordingly I have the power to limit the evidence placed before me to facts that are relevant and pertinent to the issues for my determination. 1 Part 29 of the CPR 2 Part 1.1 of the CPR Page 5 of 17

6 The Defendant s objections to the affidavits filed on the 19 th September I will deal with the Defendants objections first simply because it is the contents of the affidavits of the 19 th September 2014 that will determine the contents of any affidavits in reply. In accordance with the notice of objection filed by the Defendants for the purpose of providing the reasons for my ruling I propose to make specific reference only to the affidavits filed in CV with respect to Savi Ramhit. 13. Insofar as the Defendants submit that paragraphs 7, 21, 22, 24, 35, 36 and 38 contain opinion evidence and are argumentative I accept the submissions and accordingly those paragraphs are struck out. The paragraphs clearly seek to place before the Court the opinion of the deponent as to the contents of the second O Brady affidavit and the contents of a letter dated the 20 th September 2012 from the Chief State Solicitor rather than facts for my determination. Further insofar as the positions taken in these paragraphs may be relevant to the issues they are for submissions. 14. Paragraph 20 contains conclusions drawn by the deponent without stating the primary facts that form the basis for these conclusions and are in the circumstances inadmissible. Insofar as paragraph 7 contains a sentence not objected to by the Defendants I am satisfied that the sentence merely repeats what is stated in the second O Brady affidavit and is of no evidential value. 15. The Defendants submit that paragraph 8 contains opinion evidence and that the deponent has given no foundation for this evidence. Paragraph 8 refers to Page 6 of 17

7 evidence already given; places before me evidence given by the Defendants in the Smart claim and thereafter draws a conclusion. I am satisfied that there is no evidential value in the conclusion drawn by the deponent. Rather this is a conclusion open to me to draw after submissions. For this reason the last sentence of the paragraph is struck out. 16. By paragraphs 9, 10 and 11 the deponent seeks to make submissions in law on the interpretation of the Regulations. Similarly paragraph 12 repeats statements made in the second O Brady affidavit and thereafter contains submissions in law as to the powers of the Second Defendant. These paragraphs are struck out. Insofar as paragraph 10 contains an additional statement as to what has already been said by the Defendants I am satisfied that this sentence has no evidential value. 17. With respect to paragraphs 13 and 25 I accept the Defendants submission that these paragraphs merely contain the deponent s opinion. In the circumstances these paragraphs are of no evidential value. These paragraphs are struck out. Similarly by paragraph 37 the deponent purports to give her opinion of the contents of the letter of the Chief State Solicitor dated 20 th of September Insofar as these are conclusions that the deponent seeks to have me draw they properly form the basis of submissions. This paragraph is also struck out. 18. The Defendants also seeks to have struck out paragraph 26 of the said affidavit on the grounds that it is hearsay and contains opinion and conclusions without any primary facts. I do not accept the Defendants submissions in this regard. In my view the fact that both Ms. Roopnarine and Ms. Rampersad were previously Page 7 of 17

8 employed in the department are not facts that are in dispute in these proceedings. Further these are the facts upon which the deponent draws her conclusion that the appointments have not resulted in an increase in the number of Attorneys employed in the department. Paragraph 26 therefore remains. 19. Finally the Defendants seek to have paragraph 36 of the affidavit struck out as being argumentative and containing opinion. Insofar as that paragraph recites the deponent s opinion that her employment on contract did not enable her to jump ahead of persons already employed as State Solicitors in the Department I accept that this statement is inadmissible. It would seem to me however that the rest of the paragraph is a statement of fact that the deponent can properly make. In the circumstances the words: I state that my employment on contract with the Department did not enable me to jump ahead of those persons who were already employed as State Solicitors within the Department, with the result that contained in paragraph 34 is struck out. The rest of the paragraph remains. 20. It would seem to me that although no objections have been made to other paragraphs in the affidavits in accordance with my power to control the evidence and my duty pursuant to the overriding objective it is now incumbent on me to examine the other paragraphs of the affidavits to see whether those paragraphs infringe the requirement of placing before the Court only relevance facts. 21. Put another way I propose to examine the affidavits to see whether, given the issues for my determination, there may be other paragraphs that have no evidential value. The role of the Judge is difficult enough without having to wade through Page 8 of 17

9 paragraphs upon paragraphs of happenings or statements that either repeat facts already before the court or provide no factual assistance to matters for the Court s determination. 22. In these circumstances the following paragraphs of the affidavit or portions thereof are also struck out on the grounds that they contain no evidential value: (i) the second and third sentences of paragraph 5. Here the deponent seeks to raise an inconsistency in positions taken by the Defendants I am satisfied that any inconsistencies raised by the evidence presented is a matter for submissions. Once the facts have been placed before me it is for me, assisted by the submissions of Counsel, to draw conclusions as to the effect of or the inferences to be drawn from these facts. (ii) paragraph 6. Here the deponent adduces no new facts but merely seeks to comment on facts already before me. The Claimant s comments do not constitute facts and, if relevant, are for submissions. (iii) Paragraph 14. This paragraph merely repeats paragraph 13 of the second O Brady affidavit and then concludes that the contents are irrelevant to the deponent s case. Again this is a conclusion which it may be open for me to draw but based on submissions not affidavit evidence. (iv) the last sentence in paragraph 15. Here the deponent seeks to point out deficiencies in the Defendants case. Again this is a Page 9 of 17

10 matter for submissions; (v) paragraph 16. In similar manner this paragraph adduces no new facts but rather seeks to place before me submissions in law; (vi) paragraphs 18,19 and 23. These paragraphs merely repeat evidence already before me and raise no new facts for my consideration; (vii) paragraph 28. This paragraph contains matters properly for submissions; 23. These reasons also apply to the affidavit of Dass and Almarales the contents of which are the same with minor differences in the introductory paragraphs and the numbering of the paragraphs. 24. With respect to the affidavit of Almarales there are some additional differences. In addition for the reasons stated therefore the following paragraphs are struck out: (i) paragraph 3 the last three sentences. This refers to the opinion of the deponent with respect to inconsistencies between the correspondence and the contents of the second O Brady affidavit. The opinion of the deponent is not relevant and in any event this is a matter for submissions; (ii) paragraph 6. This paragraph is irrelevant as it seeks to place before me the deponent s opinion and the whole of the affidavit of the claimant in the Smart claim. The whole of the affidavit Page 10 of 17

11 in the Smart claim is not relevant to this case. Insofar as parts of that affidavit may be relevant the deponent has already specifically referred to those parts; (iii) Paragraph 8. The paragraph adduces the opinion of the deponent on statements made by Marcia Pile-O Brady. The deponent s opinion in this regard is irrelevant. The paragraph also seeks to make submissions on the law. This is impermissible; (iv) Paragraph 30. Again the deponent seeks to place her opinion as to the contents of the memorandum written by the Chief State Solicitor. Her opinion is not relevant. She also impermissibly seeks to make submissions in law as to the interpretation of the regulations; (v) The last sentence in paragraph 31. Here the deponent seeks to place before the court certain rhetorical questions. If relevant at all these are matters for submissions; (vi) the third sentence in paragraph 32 and the word audacious contained in last sentence. These contain the opinion of the deponent and are irrelevant; (vii) paragraphs 33, 34 and 36. These seek to give the opinion of the deponent and in any event are matters properly for submissions; (viii) paragraph 40 except the first sentence. This a matter properly for submissions. Page 11 of 17

12 25. Accordingly the following paragraphs or portions thereof of the affidavits of the 19 th September 2014 are struck out: (a) with respect to the affidavit of Ramhit: paragraphs 6, 7, 9 to 14, 16, 18, 20 to 25, and 35 to 38 and all of paragraph 5 except the first sentence; the last sentence in paragraphs 8 and 15; the first sentence of paragraph 19 and the words I state that my employment on contract with the Department did not enable me to jump ahead of those persons who were already employed as State Solicitors within the Department, with the result that contained in paragraph 34; (b) with respect to the affidavit of Dass: paragraphs 4, 5, 8 to 14, 16, 18, 20 to 25, 34 to 37 and the last sentence of paragraphs 3 and 7, the first and last sentences of paragraph 15, the last sentence of paragraph 19 and the words: I state that my employment on contract with the Department did not enable me to jump ahead of those persons who were already employed as State Solicitors within the Department, as a consequence contained in paragraph 33; (c) with respect to the affidavit of Almarales paragraphs 4, 6, 7, 8, 11 to 16, 18, 19, 21 to 24, 30, 33, 34, 36, the last sentence of paragraph 3, the last sentence of paragraph 10, the first and last sentence of paragraph 17, the first sentence of paragraph 20, the last sentence in paragraph 31, the third sentence and the word audacious in paragraph 32 and paragraph 40 except for the first sentence. Page 12 of 17

13 The Claimant s objections to the affidavits in reply filed on the 10 th and 27 th October. 26. The Defendants were not entitled as of right to respond to the affidavits filed on 19 th September Their entitlement to respond was based solely on the permission granted by me on 25 th September This permission was with respect to new matters raised only. In the circumstances insofar as the affidavits filed by the Defendants subsequent to 25 th September 2014 were filed pursuant to permission granted by me the affidavits ought only to contain a response to the new matters raised by the Claimants in the affidavits of the 19 th September In any event even if the order had not been limited to any new matters raised the fact that certain of the paragraphs have now been struck out makes the need for a reply to those paragraphs unnecessary. Further some of the paragraphs are irrelevant to the issues for my determination and/or are of no evidential value. (a) The affidavit of O Brady dated the 10 th October The Defendants written submissions on the Claimant's objections are based on the affidavit of Almarales dated 19 th September In accordance with my ruling striking out portions of the Almarales affidavit there is therefore no need to reply to those paragraphs which are no longer before me. Accordingly paragraphs 5, 6, 8, 9, 10, 13, 15 and 23 of the third O Brady affidavit are now irrelevant and are struck out. Page 13 of 17

14 29. Further I am of the view that paragraphs 16 to 21 of the third O Brady affidavit are not relevant to the issues for my determination. In my opinion the composition of the Second Defendant and the qualifications and experience of its members have no relevance to the validity of the decision made by them. These paragraphs are therefore struck out. 30. We are therefore left with paragraphs 1-5, 11, 12, 14 and 22 of the affidavit of the 19 th September Of the remaining paragraphs the Defendants submit that paragraphs 5, 11,12, 14 and 22 relate to new matters raised for the first time by the Claimants. With respect to the Defendants submission as to new evidence that: (i) at paragraph 7 of her affidavit the deponent refers to a statement by Almarales at paragraph 5 of her affidavit with respect to a telephone call to the Defendants in December This is new evidence. In the circumstances paragraph 7 of the deponents affidavit remains; (ii) for the first time at paragraph 10 of her affidavit Almarales refers to and annexes the exhibit LA 19. I accept the Defendants submissions in this regard. By LA19 the deponent seeks to place for the first time in these proceedings an affidavit sworn by O Brady in the Smart matter. O Brady replies to this at paragraph 11 of her affidavit. In the circumstances paragraph 11 of this affidavit remains; (iii) there was a settled practice to promote on the basis of seniority. O Brady replies to this at paragraph 12 of the affidavit. I do not Page 14 of 17

15 accept the Defendants submissions that this is a matter raised for the first time. This practice was first raised by the Claimant in the affidavit in support of the claim and replied to in the second O Brady affidavit. Paragraph 12 of this affidavit is therefore struck out as exceeding the remit of the permission granted; (iv) there was lack of experience of Roopnarine in litigation. O Brady replies to this at paragraph 14 of the affidavit. This is not a new fact. In fact it was raised by the Claimant in her affidavit in support of her application and responded to in the second O Brady affidavit. Paragraph 14 of the third O Brady affidavit is therefore struck out as exceeding the remit of the permission granted; (v) her candidacy was not being given suitable consideration. O Brady refers to this at paragraph 22 of her affidavit. This is not a new matter this is in fact the basis of the deponent s application before the Court. Paragraph 22 is therefore out as exceeding the remit of the permission granted. 31. In the circumstances the only new matters in the affidavit of Almarales of the 19 th September 2014 and replied to in the third O Brady affidavit are contained in paragraphs 7 and 11 of the third O Brady affidavit. In accordance with this ruling therefore the only paragraphs of the affidavit that are not struck out are paragraphs 1 to 4 which contain purely introductory matters and paragraphs 7 and 11. Similar orders will be made in the Dass and Ramhit matters. Page 15 of 17

16 (b) The affidavit of Christophe Grant 32. By this affidavit the deponent seeks to provide an explanation for (a) the recommendations made by him to the Defendants; (b) the purpose of his letter of 20 th September 2012 and seeks to respond to allegations of unfairness and improper behavior on his part. 33. The Defendants seek to justify the filing of this affidavit on the grounds that in filing the affidavits the Defendants are fulfilling their duty of candour to the Court and that the affidavit has probative value in that it is in direct response to the matters deposed to at paragraphs 29 to 40 of the Claimants affidavits of 19 th September While I accept that, in the main, his evidence is with reference to the new documents placed before me in the affidavits of the 19 th September 2014 the real issue here is relevance. Insofar as the deponent seeks to refer to specific allegations of impropriety on his part paragraphs 30, 33 and 40 are no longer before me. In the circumstances paragraphs 9, 10 and 11 of the affidavit are no longer necessary. 35. With respect to the duty of candour: while it exists and is an integral part of a defendant s duty to the Court in matters of this nature it cannot, and I am satisfied that it does not, extend to matters irrelevant to the issues for my determination. While the affidavit deals with the letter of the 20 th September 2012 it is solely for the purpose of providing the Court with a justification for the positions taken by Grant in the letter and the recommendations made by him to the Defendants. Page 16 of 17

17 36. Of relevance in these cases are the facts and matters taken into consideration by the Defendants. Unless these explanations or reasons were communicated in some manner to the Defendants they are not, in my opinion, relevant to the issues for my determination. There is no allegation before me that the explanations and justifications presented by Grant in his affidavit of the 27 th October 2014 were placed before the Defendant or in any way formed a part of the Second Defendant s considerations. In my opinion therefore the contents of this affidavit are irrelevant to the issues for my determination. This affidavit is therefore struck out. Dated this 2 nd day of December, Judith Jones Judge Page 17 of 17