the republic of trinidad and tobago in the high court...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No CV2014-02496

BETWEEN

PAMELA HUNT

Claimant

AND

JENNIFER DANIEL

PERMANENT SECRETARY IN

THE MINISTRY OF EDUCATION

1st Defendant

HARRILAL SEECHARAN

CHIEF EDUCATION OFFICER IN

THE MINISTRY OF EDUCATION

2nd Defendant

THE TEACHING SERVICE COMMISSION

3rd Defendant

THE COUNCIL OF ELDERS OF

THE SPIRITUAL SHOUTER BAPTIST FAITH A/C

THE COUNCIL OF ELDERS OF THE

SPIRITUAL BAPTIST FAITH OF

TRINIDAD AND TOBAGO

4th Defendant

AND

MS. ROSEANNE RONDON

1st Interested Party

ARCHBISHOP BARBARA GRAY-BURKE

2nd Interested Party

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THE COMMITTEE FOR THE COUNCIL OF ELDERS OF THE

SPIRITUAL BAPTIST (SHOUTERS) FAITH OF

TRINIDAD AND TOBAGO LIMITED

3rd Interested Party

Before the Honourable Mr. Justice Robin N. Mohammed

Appearances:

Mr. Martin G. Daly S.C. and Mr Christopher Sieuchand instructed by Mr Kendell Alexander for

the Claimant

Mr Avory Sinanan S.C. and Ms Donna Prowell instructed by Ms Amrita Ramsook for the 1st and

2nd Defendants

Mr. Douglas L. Mendes S.C. instructed by Mr Anthony Bullock for the 3rd Defendant

Mr Rajiv Persad and Mr. Kiel Taklalsingh instructed by Mr Ronald Boynes for the 4th

Defendant, the Second and Third Interested Parties

JUDGMENT

I. Background:

[1] The Claimant, Pamela Hunt, filed a claim for Judicial Review against the Defendants and

Interested Parties seeking several declaratory reliefs that relate to the application for her

transfer and/or removal as principal of the St. Barbara’s Spiritual Shouter Baptists

Primary School (the “School”) made on the 3rd December, 2012 and the decision to

commence a formal investigation into several allegations made against her.

[2] After the 3rd Defendant, the Teaching Service Commission (the “TSC”), filed its affidavit

in response, Pamela applied to withdraw several of the reliefs and in particular,

discontinued her entire claim against the TSC. The Court permitted the withdrawal of the

claim, however the parties were in disagreement on the issue of costs and as such

submissions were filed and exchanged.

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[3] A decision on the entitlement of costs for the Claimant’s application to withdraw the

claim against the TSC was delivered on the 10th January, 2018, together with this

decision.

[4] At the date of the submissions, the Court had before it only one affidavit in response to

the Judicial Review claim, being the affidavit of Veronica Creed on behalf of the TSC.

Pamela did not file her supplemental affidavit until the 31st March, 2015 and, in response,

the 2nd Interested Party, Archbishop Barbara Burke (“Mrs. Burke”) filed hers on the 8th

May, 2015. The 1st and 2nd Defendants then put in their affidavit of Zorisha Mohammed-

Ali on the 14th May, 2015.

[5] By an application filed on the 23rd June, 2015, the Claimant sought to strike out several

of the paragraphs of the affidavits of Zorisha Mohammed-Ali and Mrs. Burke.

Pamela’s application also sought an order requiring (i) both deponents to attend Court for

cross-examination on specific paragraphs of their affidavits; and (ii) specific disclosure

of certain letters and documents referred to in each deponent’s affidavit.

Pamela then sought permission to file affidavits of herself and Archbishop Dorothy

Hercules in reply to the affidavits of Mrs. Burke and Zorisha Mohammed-Ali.

[6] The Court is yet to deliver its decision on the above mentioned applications.

[7] Evidential objections of the 1st and 2nd Defendants were filed on the 31st July, 2015

against Pamela’s affidavit and supplemental affidavit of the 15th July, 2014 and the 31st

March, 2015 respectively. The parties exchanged submissions on the 30th November,

2015 and a decision was delivered on the 10th January, 2018 together with this decision.

[8] Also on the 31st July, the 4th Defendants, along with the 2nd and 3rd Interested Parties (the

“Applicants”) applied to have the matter dealt with as a private law claim. The grounds

of this application were that the remaining reliefs sought by the Claimant were academic

and were solely private law in nature and therefore, not resolvable by judicial review

proceedings. The Applicants filed their submissions in support on the 16th November,

2015. Submissions in response were filed by the Claimant on the 30th November, 2015.

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[9] Accordingly, having considered the Applicants application and submissions, the Court

gives its decision as follows:

II. Submissions & Analysis:

[10] The Applicants submitted the following with respect to the remaining reliefs sought by

the Claimant against them:

a. Declaration that the application made against the 4th Defendant for the transfer or

removal of the Claimant from her post as principal of the School is null and void;

That this relief is purely academic at this point.

b. Declaration that the 4th Defendant’s denial of access to the School to the Claimant

was oppressive and unconstitutional;

That this relief is really an employer-employee dispute and is therefore a private

law issue.

c. As against the 4th Defendant and the 2nd Interested Party:

Damages for defamation;

Damages for intentional infliction of emotional stress;

Damages for intimidation;

Damages for unlawful interference with the Claimant’s contract of employment;

Damages for assault;

Damages for procuring a breach of the Claimant’s contract of employment;

That all the above claims are private law claims.

d. As against all the Defendants:

A declaration as to the identity of those persons properly constituting the Board of

Management of the School;

That this is not appropriate for a judicial review court and/or is academic.

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[11] In addition to the above, counsel for the 4th Defendant submitted that the Claimant has

also employed inappropriate procedures to ventilate her claim by joining interested

parties without regard to the CPR.

[12] Essentially, the Applicants have four challenges to the claim and/or reliefs sought by the

Claimant:

a. That the Claimant’s attempt to join other reliefs is not permissible under Part 56.9

CPR as these reliefs amount to breaches of constitutional rights and breaches of

private common law rights in tort and employment law;

b. That some of the reliefs as listed are academic and should be struck off;

c. That the Claimant’s attempt to join the Interested Parties was not done in the proper

procedure and accordingly, amounts to an abuse of the process of the court;

d. That the 2nd and 3rd Interested Parties do not wish to be part of the claim and should

not have been joined considering that (i) only private law claims have been made

against the 2nd Interested Party; and (ii) there has been no claim against the 3rd

Interested Party.

[13] Part 56.9 of the CPR states:

a. “The general rule is that, where permitted by the substantive law, the applicant may

include a claim for any other relief or remedy that arises out of or is related or

connected to the subject matter of an application for an administrative order.

b. The court may, however, at any stage—

i. Direct that any claim for other relief be dealt with separately from the

application for an administrative order; or

ii. Direct that the whole application be dealt with as a claim and give

appropriate directions under Parts 26 and 27; and

iii. In either case, make any order it considers just as to the costs that have

been wasted because of the unreasonable use of the procedure under this

rule.”

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Joinder of private law reliefs:

[14] It is not disputed that the reliefs sought at (c) above against the 4th Defendant and the 2nd

Interested Party are all private law claims for damages. It is also undisputed that there

exist parallel remedies in the common law for most, if not all, of these reliefs that seek

damages. The question is, however, pursuant to Part 56.9, whether the substantive law

justifies the inclusion of these common law claims on the grounds that they were related

or connected to the judicial review claim.

[15] Counsel for the 4th Defendant relied on the cases of Thakur Persad Jaroo v the A.G.1

and Belfonte v the A.G.2 to argue that the judicial review process is not best suited to

private law causes of action since its procedures are not as robust and do not allow for a

wider scope of cross-examination and pleadings. He submitted that, while these cases

refer to constitutional motions, they can similarly be applied to judicial review

proceedings. The Court is inclined to agree with this submission. In fact, Part 56.9 of the

CPR applies to ‘administrative orders’, which encompass both constitutional motions

and judicial review proceedings.

[16] Sharma CJ, along with Warner and Archie JJA in Belfonte supra, summarised the

principles as stated in Jaroo as follows:

“What is evident from Thakur Persad Jaroo and other similar cases is that

the determining factor in deciding whether there has been an abuse of

process is not merely the existence of a parallel remedy but also that the

pursuit of the application to the High Court must be viewed as being made

for the sole purpose of avoiding the normal judicial remedy for unlawful

administrative action”

[17] This principle was further discussed by the Privy Council in Attorney-General v

Siewchand Ramanoop3 where their Lordships stressed on the need to examine the

1 59 WIR 519 2 68 WIR 413 3 [2005] UKPC 15

https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?A=0.84640696952972&service=citation&langcountry=GB&backKey=20_T26098932978&linkInfo=F%23GB%23UKPC%23sel1%252005%25page%2515%25year%252005%25&ersKey=23_T26098932967

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purpose for which the application is made in order to determine whether it is an abuse of

process where there is an available common-law remedy:

“…where there is a parallel remedy, constitutional relief should not be

sought unless the circumstances of which complaint is made include

some feature which makes it appropriate to take that course. As a general

rule, there must be some feature which, at least arguably, indicates that

the means of legal redress otherwise available would not be adequate. To

seek constitutional relief in the absence of such a feature would be a

misuse, or abuse, of the court's process. A typical, but by no means

exclusive, example of a special feature would be a case where there has

been an arbitrary use of State power.”

Their Lordships continued:

“…where several rights are infringed, some of which are common-law

rights and some for which protection is available only under the

Constitution…it would not be fair, convenient or conducive to the proper

administration of justice to require an applicant to abandon his

constitutional remedy or to file separate actions for the vindication of

his rights.”

[18] Lord Hope of Craighead in Jaroo supra4 provided another example of a ‘special feature’

in a case that would justify a joinder of the public and private law actions:

“Their Lordships wish to emphasise that the originating motion

procedure under s 14(1) is appropriate for use in cases where the facts

are not in dispute and questions of law only are in issue. It is wholly

unsuitable in cases, which depend for their decision on the resolution of

disputes as to fact. Disputes of that kind must be resolved by using the

procedures which are available in the ordinary courts under the

common law.”

4 At paragraph 36.

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[19] On a conjoint reading of the substantive law identified above and Part 56.9 CPR, it

appears that the Claimant can be justified in joining the private and/or common law

claims for damages to the judicial review claim if: (i) a special feature exists that would

make it fair and in the interests of the administration of justice to do so; and (ii) that the

common law relief is sufficiently connected and/or related to the judicial review claim.

[20] The Claimant challenged three primary decisions of the Defendants and/or Interested

Parties in the judicial review claim: (i) the decision to institute the Regulation 90

disciplinary investigation against her; (ii) the decision to apply for her transfer and/or

removal; and (iii) the decision to transfer and/or remove her as principal of the School

and prevent her access to the compound.

Damages for defamation

[21] The relief of damages for defamation was sought as a result of various media reports

dated the 28th and 29th August, 2014 and on the 22nd and 23rd April, 2014, in which the

2nd Interested Party, Mrs. Burke, made accusations that Pamela: (i) was negligent in her

duties as principal; (ii) failed to account for monies that she spent; and (iii) strayed from

the religious tenets of the School. These were more or less the same allegations that led

to the decision to apply for her transfer and to institute a disciplinary investigation against

her, both of which Pamela sought judicial review against.

[22] The Claimant submitted that when this Court gave directions at the case management

conference (the “CMC”) on the 21st January, 2015, the Defendants had knowledge of the

contents of the Claimant’s affidavits and therefore, would have known of any disputes of

facts that arose. Nevertheless, no objections were raised nor was the Court ever notified

of any factual disputes.

The Court does not find this submission to be at all persuasive. The primary issue dealt

with at the CMC of the 21st January, 2015, was the Claimant’s application to withdraw

its claim against the TSC along with the attendant issue of costs. There was also the TSC’s

application for permission to file a supplemental affidavit. Therefore, only the reliefs

sought against the TSC were discussed in this CMC.

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[23] In any event, there appears to be no facts in dispute on the claim of defamation in the

affidavit evidence of the Claimant and Mrs. Burke. Pamela, in her supplemental affidavit

of the 31st March, 2015, accused Mrs. Burke of making untrue statements that diminished

her reputation “...among her peers, co-workers, teacher and students at the School,

parents of those students and the public generally.”5 Mrs. Burke, in response, did not

deny that these statements were made. Rather, she stated that “any and all statements

which I have made to the media are based on truth and/or are fair comments which I

have made based on the events and tenure of the Applicant.”

The fact that the statements were made by Mrs. Burke in the media reports is therefore

undisputed. Rather, the issue to be decided is one of law and concerns the availability of

the defences of justification and/or fair comment. Resolution of this issue can be

sufficiently achieved by submissions thereby removing the need for any cross-

examination and/or additional pleadings that are available in an ordinary defamation

claim.

[24] It is therefore this Court’s opinion that the Claimant is permitted under Part 56.9 of the

CPR to include the relief of damages for defamation to the judicial review claim.

Damages for intimidation; unlawful interference; intentional infliction of emotional

distress; and procuring a breach of contract

[25] There exists, within the law of tort, parallel remedies for each of the above reliefs sought6.

This Court must determine whether there is a sufficient connection between these reliefs

and the judicial review claim and whether there is a special feature that enables them to

be joined.

[26] The tort of unlawful interference is one of uncertain ambit and relatively undeveloped.

It consists of “...one person using unlawful means with the object and effect of causing

damage to another.” In this case the unlawful interference occurred with respect to the

Claimant’s contract of employment and was occasioned by the removal of the Claimant

5 Paragraph 19 of the Claimant’s supplemental affidavit dated the 31st March, 2015 6 Clerk & Lindsell on Torts, 17th Edn. Chapter 15.

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from her office as principal and preventing her from accessing the School’s compound.

This relief is connected and/or relative to the order of mandamus and the quia timet order

sought against the 4th Defendant and/or the 2nd Interested Party in the Fixed Date Claim.

Further, Mrs. Burke has not disputed the fact that she, by her actions, prevented the

Claimant from accessing the School compound and/or that she was involved in the

application for the Claimant’s removal. There are therefore no issues of fact that are in

dispute with respect to this relief sought.

Accordingly, this Court finds that there is sufficient justification for the relief of damages

for unlawful interference with the Claimant’s contract of employment being joined to the

judicial review claim.

[27] With respect to the relief sought for the tort of intimidation, the Court notes that there

does exist a factual dispute of whether acts that amounted to intimidation were occasioned

by Mrs. Burke.

Mrs. Burke stated in her affidavit of the 8th May, 2015 that “...I was not in any manner

intimidating or attempting to oppress the Applicant.”

Determining this issue would likely require cross-examination and therefore, would not

be appropriate for judicial review proceedings. The Court will therefore exercise its

discretion under Part 56.9 (2) to direct that the relief of damages for intimidation be dealt

with separately from the judicial review application.

[28] The claim for the intentional infliction of emotional distress arose from the mental and

emotional distress that Pamela experienced as a direct result of the allegations made

against her along with the application made for her removal, both of which form the basis

of the judicial review claim.

In her affidavit, Pamela stated that she first experienced distress after she had been

informed by SS III Mohammed-Ali that the Ministry intended to take disciplinary action

against her. Pamela stated that some 6 days after being so informed, she began to

experience “…difficulties sleeping…” and “…felt emotionally traumatized”7.

7 Paras 81 & 83 of the Claimant’s affidavit of the 15th July, 2014

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Accordingly, there is a connection between the claim of emotional distress and the

judicial review application.

Further, Mrs. Burke never responded to the claims of emotional trauma in her affidavit

and Zorisha merely admitted that Pamela informed her that she was considering sick leave

“…because of the negative toll the situation was having on her health.”

Therefore, as no factual dispute appears in the affidavits on this issue, this relief is

permitted to be joined to the judicial review claim.

[29] The tort of procuring a breach of contract is concerned with inducing a third party to

breach his contract to the damage of the other contracting party, without reasonable

justification or excuse8. The Court does not find that the Claimant has provided sufficient

evidence to justify the bringing of this relief.

The operation of this tort is best explained by a simple analogy: A induces B to break her

contract with C. In such a case, only C can sue A; B cannot. Thus “...where cricket

authorities imposed a ban aimed at persuading players who had entered into contracts

with a promoter, to withdraw from the contracts whether or not it was lawful to do so,

the promoters (not the players) brought an action based on this tort.9”

Accordingly, Pamela, being the party who was induced to break her employment contract

allegedly by the Applicants’ actions and/or decisions, would not be the appropriate party

to bring an action under this head.

The Court therefore moves to strike off this relief.

Academic Reliefs:

[30] In addition to the above, the Applicants sought to strike off the relief sought:

a. Against the 4th Defendant for its decision to apply to transfer the Claimant from her

post as principal; and

8 Clerk & Lindsell ibid at paragraph 15-02 9 Para 15-02 ibid.

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b. Against all Defendants by seeking a declaration as to the identity of the board of

management for the School,

on the ground that they had become academic.

The grounds for both applications were that the Claimant had resigned since December,

2014 and therefore, there was no longer any need for this Court to spend time deliberating

on these issues that had now become academic.

[31] In the English High Court case of the Queen v Liverpool City Council10, the applicants

applied to have their challenge against the respondent discontinued. The applicants had

initially believed that they were threatened with redundancy and filed for judicial review.

However, after leave was granted, some of the applicants were satisfied that they were

no longer under threat. Simon Brown J agreed that the proceedings of these applicants

had become academic.

Similarly, having resigned, Pamela is no longer under any threat of being transferred or

removed and accordingly, this relief is academic. As stated in the Application of

Trinidad and Tobago Information Access11, “Declaratory relief in judicial review will

not be granted if issues raised are academic, hypothetical and/or premature and,

moreover, a combination of all three...”

[32] The other relief, which concerns the composition of the board of management, is not, in

this Court’s opinion a claim appropriate for judicial review. As stated in the text Judicial

Review12, “The question in any particular case is not whether the decision-maker is, on

general terms, amenable to judicial review, but whether a particular decision is.” Part

56.2 (a) of the CPR states that an application for judicial review made by a person, as

opposed to a group or body, must show “…that he has been adversely affected by the

decision which is the subject of the application.”

10 1993 5 Admin L.R. 669 11 HCA No. 1054 of 2004. 12 5th Edn, Sir Michael Supperstone, James Goudie Q.C. & Sir Paul Walker

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The U.K. Courts and Tribunals Judiciary13 describes judicial review as “…a type of

court proceeding in which a judge reviews the lawfulness of a decision or action made

by a public body.”

The emphasis here is that there must be a complaint against the decision of a public body

by the Claimant for there to be a valid claim for judicial review. This particular relief

identifies no decision made by any of the Defendants in this claim to which this Court

must review.

Accordingly, this relief is hypothetical and will not be granted.

Mixing of constitutional relief with judicial review proceedings:

[33] The law applies equally to this issue as it does to the joining of the private law claims.

Part 56.9 of the CPR expressly allows the joining of any other relief provided it is

permitted by substantive law and is related or connected to the judicial review claim.

The relief in question here was sought against the 4th Defendant for denial of access of

the Claimant to the School. It was claimed that this decision contravened sections 4 (a),

(b), (d) & 5 (b) of the Constitution.

The Court agrees that this relief is related to the judicial review claim. Further, the fact

that Pamela was denied access to the school was never challenged by the 4th Defendant

as no affidavit on their behalf was ever submitted.

[34] Accordingly, pursuant to Part 56.9 (1) of the CPR, the Court sees no difficulty in joining

this constitutional relief to the judicial review claim.

Joinder of Interested Parties:

[35] Part 56.14 of the CPR permits a judge, at the hearing of a judicial review application, to

allow any person or body which appears to have a sufficient interest in the subject matter

of the claim to make submissions whether or not he has been served with the application.

13 https://www.judiciary.gov.uk/you-and-the-judiciary/judicial-review/

https://www.judiciary.gov.uk/you-and-the-judiciary/judicial-review/

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[36] In the Civil Court Practice 201714 it is stated that a claim for judicial review may be

brought against one defendant or, in appropriate circumstances, against two or more

defendants.

Further, “if a claimant considers that any person is directly affected by the claim, they

must identify that person as an interested party and serve the claim form on that

person. A defendant must also identify in its acknowledgement of service a person who

the defendant considers is an interested party because the person is directly affected and

the Court will consider making that person an interested party when considering

permission.”

Therefore, the Claimant would be justified in including (i) Ms Roseanne Rondon, the

Acting principal; (ii) Mrs. Burke; and (iii) the Committee of the Council of Elders, as

Interested parties if (a) each has a sufficient interest in the judicial review claim to make

submissions; and/or (b) they are directly affected by the judicial review claim.

[37] At the outset, the Court notes that there were reliefs sought specifically against the 1st and

2nd Interested Parties only, which make them directly affected by the judicial review

claim. However, considering that Pamela was eventually instructed by SS III

Mohammed-Ali to return to the School as Principal and did so on the 29th August, 201415,

it is clear that the relief sought against Ms Rondon, along with her interest in the matter,

had become academic.

[38] With respect to Mrs. Burke, as the 2nd Interested Party, the Court finds that there is

sufficient interest for her to make submissions as an Interested Party in the matter. She

has several reliefs sought against her and has already filed an affidavit in response to the

claim. She is also the person alleged as responsible for both the allegations which led to

the disciplinary investigation against Pamela as well as the application for her removal as

principal.

[39] The Court notes, however, that there was no relief sought against the Committee, the 3rd

Interested Party, and therefore, it cannot be said that they are directly affected by the

14 (The Green Book). Procedure and Guidance: Court guides: Administrative Court Judicial Review Guide at para

2.3 Multiple Claimants/Defendants/Interested Parties. 15 Para 11 of Pamela’s Supplemental Affidavit.

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judicial review claim. Its interest as a party to these proceedings, however, can be seen in

its role. Mrs. Burke described them as “…a committee that was set up to help manage

and oversee the day to day operations of the…” 4th Defendant. Further, Mrs. Burke

claimed that she was the President of the 3rd Interested Party16.

While it can be said that the Claimant was justified in including the 3rd Interested Party

to the claim, the Court retains its discretion to decide whether there is any use in receiving

submissions from them under Part 56.14 (2).

[40] Accordingly, the Court does not view that the Claimant’s decision to include any of the

Interested Parties to the claim to be an abuse of process. However, the inclusion and the

interest to these proceedings of the 1st Interested Party, Ms Roseanne Rondon, has

become academic and the Court shall remove her from the Claim.

The 2nd and 3rd Interested Parties shall remain.

III. Disposition:

[43] Having considered the Applicants’ application and the submissions of both parties,

the Court makes the following orders:

1. The Claims made against the Applicants for the following reliefs are

considered by this Court to be appropriately joined to the Judicial Review

Claim herein:

i. Damages including aggravated and/or exemplary damages for

defamation;

ii. Damages including aggravated and/or exemplary damages for

unlawful interference with the Claimant’s Contract of Employment;

and

iii. Damages including aggravated and/or exemplary damages for

intentional infliction of Emotional Distress.

16 At para 5 of Mrs. Burke’s affidavit.

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2. The Claim for damages including aggravated and/or exemplary damages for

Intimidation is not appropriately joined in the Judicial Review Claim and will

be dealt with separately pursuant to Part 56.9 (2) (a) of the CPR.

3. The Claim for damages including aggravated and/or exemplary damages for

procuring a breach of the Claimant’s Contract of Employment will be struck

out.

4. The Claim against the 4th Defendant seeking a declaration that the application

made for the transfer and/or removal of the Claimant from her post as

Principal (Primary) of the School is null and void and of no effect is struck out

on the grounds that it has become academic.

5. The Claim against all the Defendants seeking a declaration as to the identities

of those persons properly constituting the Board of Management of the School

is struck out on the grounds that it is hypothetical and/or not appropriate for

Judicial Review Proceedings.

6. The Claim against the 4th Defendant for a declaration that the denial of access

of the Claimant from the School is unconstitutional is appropriately joined to

the Judicial Review Claim pursuant to Part 56.9 (1) of the CPR.

7. The 2nd & 3rd Interested Parties shall remain as Interested Parties in the

Judicial Review Claim.

8. The 1st Interested Party shall be removed as an Interested Party from this

Judicial Review Claim.

9. The parties shall the address the Court on the issue of costs.

Dated this 10th day of January, 2018

__________________

Robin N. Mohammed

Judge

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