Alleyne and others v The Attorney General of Trinidad and Tobago

Despite the use of may in section 60 of the Municipal Corporations Act 1990, the Commission had a duty to consider what regulations were required for municipal police services and what existing regulations should apply pending delay. Prolonged failure to regulate could breach constitutional equality and protection of the law.

Constitutional redress is flexible. A declaration, injunction, monetary award or combination may be appropriate. Difficulty quantifying loss does not justify refusing an assessment. General or vindicatory compensation may mark serious non-pecuniary constitutional harm, and disobedience of a court order may warrant an additional award.

153 municipal police officers challenged unequal treatment compared with regular police officers, together with the absence of service regulations and recognised representative associations. At first instance, Tiwari-Reddy J dismissed the equal pay complaint but upheld the regulatory and representation complaints, made declarations, ordered compensation to be assessed and awarded costs.

The Court of Appeal upheld the finding concerning section 26 of the Statutory Authorities Act 1966, but set aside the declaration concerning section 60 of the Municipal Corporations Act 1990. It also replaced the compensation order with a direction to enact regulations and varied the costs order. The Board considered the regulatory declaration, constitutional compensation, vindicatory damages, non-compliance with the Court of Appeal’s order and costs.

The appeal was allowed.

1. Regulatory duty. Although section 60 of the Municipal Corporations Act 1990 used the word may, the Commission was under a duty to consider what regulations should govern municipal police services and, if there was significant delay, what parts of the Police Service Regulations should apply meanwhile. The prolonged omission left municipal police officers without a proper regulatory framework. It produced inequality and affected their constitutional rights to equality before the law and protection of the law. The trial judge’s declaration was correct and the Court of Appeal had erred in setting it aside (paras [34]-[36]).
2. Constitutional redress. Section 14(1) of the Constitution permits a declaration, injunction, monetary award or combination of remedies. The object is to uphold and give effect to the right contravened. The Board applied the approach in Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328. Common-law damages are a useful guide only. General or vindicatory compensation may exceed proved pecuniary loss where the breach is serious or loss is difficult to measure. No conventional figure applies, and a nominal or derisory award may be inadequate (paras [37]-[41]).
3. Assessment. The difficulty or speculative nature of quantifying an established head of loss was no reason to deny an assessment. The Board relied on the common-law authorities cited at paragraph [44], including Simpson v London and North Western Railway Co and Parabola Investments Ltd v Browallia Cal Ltd. The evidence justified the original assessment order, and the assessing judge should be able to award general or vindicatory damages if appropriate. The State’s continued failure to obey the Court of Appeal’s order also denied the rule of law and justified a separate award for the period beginning 28 September 2012, when the stay lapsed (paras [42], [44]-[47]).
4. Costs and postscript. The trial judge’s costs order was within her discretion and the Court of Appeal was not justified in interfering. Regulations introduced after the hearing did not cure the identified defects in the regulatory and recognition framework, although the Board accepted that they had been made in good faith. The parties were invited to make written submissions on the form of order, including costs, within 21 days (paras [48], [51]-[53]).

• Privy Council. The appeal was allowed. The Board restored the substance of the trial judge’s compensation approach, directed an additional award for non-compliance with the Court of Appeal’s order and upheld the trial judge’s costs discretion.
• Court of Appeal of Trinidad and Tobago. On 20 December 2011, the court upheld the dismissal of the equal pay complaint and the finding concerning section 26 of the Statutory Authorities Act 1966. It set aside the declaration concerning section 60 of the Municipal Corporations Act 1990, replaced compensation with a direction to enact regulations and varied the costs order.
• First instance. On 9 November 2005, Tiwari-Reddy J dismissed the equal pay complaint, upheld the other complaints, made declarations, ordered compensation to be assessed and awarded 80% of the applicants’ costs.