Francis Paponette and others v The Attorney General of Trinidad and Tobago (Trinidad and Tobago)

A substantive legitimate expectation based on a promise arises where the claimant proves a clear, unambiguous and unqualified representation. Reliance and detriment may strengthen the claim. The public authority must then identify and prove a sufficient overriding public interest for frustrating the expectation. The court weighs that interest against fairness.

The authority must consider its promise before acting inconsistently with it and normally must provide evidence explaining the change. The court should not infer an overriding public interest merely from the inconsistent decision itself. A substantial interference with the enjoyment of business property may engage constitutional protection even though the business remains capable of operating.

A promise limited expressly, or by implication to a reasonable period, ceases to bind when that period expires.

Maxi-taxi owners and operators moved from a public-road taxi stand to City Gate after a minister assured them that they would not be managed or controlled by the Public Transport Service Corporation and that management would pass to their association. Regulations later placed City Gate under the Corporation's control and authorised permits and charges.

The High Court declared that the arrangements infringed the appellants' property and equality rights under sections 4(a) and 4(d) of the Constitution of Trinidad and Tobago, ordered relief from the user fee and awarded compensation. The Court of Appeal reversed that decision on 23 February 2009. The central issues before the Board were whether the substantial interference with the appellants' businesses was effected by due process of law, given their substantive legitimate expectation, and whether their different treatment from other maxi-taxi operators was justified.

1. By a majority, the appeal was allowed and the High Court's order restored. Sir John Dyson SCJ delivered the Board's majority judgment: para 53.

2. Requiring the appellants to submit to management by a competitor, obtain permits subject to a fit-and-proper-person assessment, and pay an exit fee substantially interfered with enjoyment of their businesses. Section 4(a) of the Constitution of Trinidad and Tobago did not require the interference to make operation of the businesses impossible. The government therefore had to justify the interference as being in the public interest: paras 23–25.

3. The minister's representations were clear, unambiguous and devoid of relevant qualification when read as their recipients would reasonably have understood them. They promised continued self-management and freedom from the Corporation's control. The permitted charges were incidental to, and a direct consequence of, the management arrangement that breached the promise: paras 30–33. A promise expressly limited, or impliedly limited to a reasonable period, ceases to bind when that period expires, but no such case had been advanced: para 44.

4. Once a claimant proves a legitimate expectation, the onus shifts to the public authority. It must identify and prove an overriding public interest justifying frustration of the expectation. The court then weighs fairness against that interest. An authority which supplies no explanatory material risks a finding that its conduct was so unfair as to constitute an abuse of power. The bare fact that the authority changed policy cannot support an inference of overriding public interest: paras 34–43.

5. Good administration and elementary fairness also require the authority to take its promise, and the proposed breach of it, into account as relevant considerations. The government failed to show either that it had done so or that an overriding public interest justified the 1997 Regulations. The appellants' section 4(a) claim therefore succeeded: paras 45–49.

6. The majority also allowed the section 4(d) claim. Although operators on other routes used different facilities, the materiality of those differences was not self-evident. The government had supplied no evidence explaining the unequal treatment, leaving the court to speculate: paras 50–52.

7. The High Court's compensation order stood because its form had not been appealed. The Board nevertheless observed that compensation for breach of constitutional rights was not a restitutionary claim for reimbursement of the fees. The assessment should have accounted for costs the operators would have incurred under a lawful alternative arrangement. Written costs submissions were directed within 28 days: paras 53–54.

8. Lord Brown dissented. He regarded the assurances as insufficiently lasting and considered that a reasonable charge introduced after years of free use was lawful without direct evidence of justification. He also considered use of the Corporation's facility a self-evident justification for the difference in treatment: paras 55–66.

1. Privy Council: In [2010] UKPC 32, allowed the appeal by a majority and restored the High Court's order.
2. Court of Appeal of Trinidad and Tobago: On 23 February 2009, allowed the Attorney General's appeal and held that neither section 4(a) nor section 4(d) of the Constitution of Trinidad and Tobago had been breached.
3. High Court of Trinidad and Tobago: On 20 June 2008, Ibrahim J granted declarations of breach of sections 4(a) and 4(d) of the Constitution of Trinidad and Tobago, ordered relief from the user fee, and awarded compensation and costs.