Dennis Graham v Police Service Commission and the Attorney General of Trinidad & Tobago (Trinidad and Tobago)

Constitutional redress is discretionary. A breach of a constitutional right does not automatically require monetary compensation or a separate vindicatory award. Such an award is justified only where the circumstances require additional recognition of the right, the gravity of the breach, public outrage or deterrence. A public authority’s duty of candour in judicial review assists the court in supervising administrative legality. It does not transfer to the authority the claimant’s burden of proving compensatory loss. A separate damages assessment is appropriate only where the claimant has first shown damage requiring investigation. Where the evidence does not establish substantial undervaluation, the award may remain undisturbed.

The appellant, a career police officer, established in the High Court that the Police Service Commission had breached his constitutional right to equality of treatment by failing to backdate his promotion to Superintendent to the date given to junior officers. He was awarded TT$35,000 and the Commission was directed to take the lost seniority into account in future decisions.

The Court of Appeal dismissed the appellant’s challenge to the amount of damages and the Commission’s challenge to the amendment permitting the constitutional claim. The appeal to the Privy Council concerned damages only. The central issues were whether a further vindicatory award was required, whether the Commission bore the evidential burden concerning pecuniary loss, and whether damages should be assessed separately by a Master or judge.

1. Appeal dismissed. The constitutional breach involved procedural unfairness: the appellant was not given an opportunity to be heard before material was considered in deciding his promotion. There was no finding of bad faith or deliberate wrongdoing. The circumstances therefore did not require an additional vindicatory award, and compensation for distress and hurt feelings was already more than adequate.
2. Redress under section 14 of the Constitution of Trinidad and Tobago is discretionary. Compensation may be awarded where damage is shown, but a constitutional violation does not automatically entitle the claimant to monetary compensation. An additional vindicatory award may be made where necessary to vindicate the right, emphasise its importance and gravity, or deter further breaches. It is distinct from common-law exemplary damages.
3. The duty of candour owed by a public authority in judicial review requires disclosure of material reasonably needed to enable the court to supervise the legality of administrative decisions. It does not impose on the authority the burden of adducing evidence relevant to compensatory damages. The claimant who asserts pecuniary loss must prove it.
4. A separate damages assessment should not be ordered merely because such a practice may exist in constitutional cases. It presupposes evidence of damage which warrants investigation. Here, the evidence of pecuniary loss was meagre and incomplete, but did not provide a firm basis for concluding that TT$35,000 was a substantial undervaluation. No foundation for remission to a Master was established.
5. The appellant was ordered to pay the respondents’ costs.

• Privy Council: The Board dismissed the appeal against the damages award and ordered the appellant to pay the respondents’ costs under [2011] UKPC 46.
• Court of Appeal of the Republic of Trinidad and Tobago: On 26 March 2010, the court dismissed the appellant’s appeal concerning quantum and the Police Service Commission’s appeal against permission to amend the judicial review statement.
• High Court of Trinidad and Tobago: On 10 December 2007, Deyalsingh J found a breach of the constitutional right to equality of treatment, awarded TT$35,000, and directed the Commission to take the lost seniority into account in future decisions.