Winston Gibson v Public Service Commission (Trinidad and Tobago)

A public authority must comply with a court declaration according to its terms. It cannot recast a declaration of eligibility as a direction to apply later criteria, even where the declaration rested on incomplete facts or an erroneous concession. A declaration that a person was eligible for appointment therefore required the appointing body to consider that person in the appointment process. A regulation requiring notice of vacancies did not prescribe personal notification or a particular method of circulation. Sending a circular to heads of department and relying on them to inform eligible officers was not, without more, unreasonable. Fairness did not require reopening an assessment process already well under way, although different considerations followed once the court had declared the applicant eligible.

Winston Gibson v Public Service Commission concerned the appointment of senior public-service officers. During Mr Gibson’s absence, the Public Service Commission introduced an Assessment Centre Exercise (ACE) and used participation in it as the gateway to appointment. He was not informed of the scheme and was not considered for appointments made in October 2005.

In earlier judicial-review proceedings, Dean-Armorer J declared that he was eligible to be considered for appointment to, or to act in, the offices of Permanent Secretary and deputy Permanent Secretary. In the second proceedings, Bereaux J dismissed his challenge to the appointments, and the Court of Appeal dismissed his appeal. The central issues before the Board were the legal effect of the earlier declaration, the adequacy of the notice of vacancies, and whether fairness required Mr Gibson to be included in the ACE process.

Disposition

The Board, in the judgment delivered by Lord Kerr, allowed the appeal. It declared that Mr Gibson ought to have been treated as eligible for appointment to Permanent Secretary or deputy Permanent Secretary in the appointment process culminating in the appointments made in October 2005. The Board refused the other relief sought, including certiorari quashing those appointments, because the actual circumstances did not make that appropriate.

Notice and procedural fairness

1. Public Service Commission Regulations, regulation 13(4), required the Director of Personnel Administration to give notice of vacancies by circular memorandum or publication in the Gazette. It prescribed neither a particular method of circulation nor personal notification to every potentially eligible officer. Sending the memorandum to heads of department and relying on them to inform eligible officers was not unreasonable.
2. The failure to inform Mr Gibson of ACE after his return from Guyana and during his correspondence with the Commission was not shown to be unreasonable or contrary to the duty of fairness. By then the process was well under way, its first phase had been completed, and including him would have required substantial modification. The Commission could have modified the process, but was not obliged to do so at that stage.

Effect of the earlier declaration

3. The correspondence did not contain an unequivocal undertaking creating a legitimate expectation that Mr Gibson would be considered. That did not determine the appeal. The unappealed declaration made by Dean-Armorer J imposed a legal obligation on the Commission to treat him as eligible.
4. The declaration could not be construed as requiring eligibility to be assessed under whatever criteria prevailed from time to time. It pronounced that Mr Gibson was eligible for appointment. The Commission therefore had no lawful basis for appointing others without considering him in the relevant appointment process.

• Privy Council: Allowed the appeal and granted a declaration that Mr Gibson ought to have been treated as eligible for appointment in the process culminating in the October 2005 appointments: [2011] UKPC 24.
• Court of Appeal of the Republic of Trinidad and Tobago: Archie CJ, Warner JA and Kangaloo JA dismissed Mr Gibson’s appeal from the dismissal of his second judicial-review application.
• High Court: Bereaux J dismissed the second judicial-review application. In earlier proceedings, Dean-Armorer J had made declarations concerning Mr Gibson’s eligibility to be considered for appointment.