Sam Maharaj v Prime Minister

The constitutional right to protection of the law is broad and includes procedural fairness and natural justice. It is not an inflexible rule that every breach of natural justice automatically creates a constitutional claim. Such a claim will generally arise where prompt and effective legal redress cannot be or is not provided. The availability of judicial review is relevant but not decisive. A remedy delivered only after substantial delay may be ineffective. Constitutional redress may include damages. Difficulty or speculation in quantifying loss is not, by itself, a reason to refuse an assessment. The local court must determine entitlement and amount, including any pecuniary, loss-of-chance or vindicatory damages.

Sam Maharaj was appointed to the Industrial Court and sought reappointment. The Cabinet did not reappoint him after relying on allegations about his competence without giving him an opportunity to respond or taking reasonable steps to verify them.

Myers J rejected the principal public-law claims and did not determine the arguments concerning section 4(b) of the Constitution or natural justice. The Court of Appeal found that Mr Maharaj had been treated unfairly, but granted declaratory relief only. It refused compensation on the basis that the outcome of reconsideration and the amount of any loss were too speculative.

The central issues before the Board were whether the unfairness and the prolonged absence of effective redress breached the constitutional right to protection of the law, and whether damages could be awarded and assessed.

Appeal allowed. Lord Kerr delivered the judgment of the Board.

1. The Board permitted reliance on section 4(b) of the Constitution. Applying Baker v R [1975] AC 774, the point was formally before the courts below and did not depend on disputed evidence or local judicial opinion.
2. The right to protection of the law is broad and pervasive. It includes natural justice and procedural fairness. It does not follow that every breach of natural justice automatically gives rise to a constitutional claim. In general, such a claim arises where prompt and effective legal redress cannot be or is not provided. The availability of judicial review is a factor, but it is not determinative.
3. The prolonged delay in the proceedings, together with the Cabinet’s continued resistance to an obvious claim, meant that the eventual declaratory relief was not effective protection of the law. The failure to verify serious allegations against a serving judicial office-holder, and to give him a fair opportunity to answer them, engaged the integrity and independence of the judiciary.
4. Under section 14(1) of the Constitution of Trinidad and Tobago, redress may include a declaration, injunction, monetary award or combination of remedies. Following Alleyne v Attorney General of Trinidad and Tobago [2015] UKPC 3, difficulty in quantifying loss or the presence of speculative factors is not a reason to refuse an assessment. Common-law damages provide guidance, and the seriousness of the constitutional breach is relevant. Vindicatory damages may also be considered.
5. The conditions in section 8(4) of the Judicial Review Act 2000 were satisfied. Mr Maharaj had included a claim for damages, and damages could have been awarded had the claim been brought as an action for constitutional redress. The matter was remitted to the High Court for directions and assessment of entitlement and amount, including any pecuniary loss, loss of a chance and vindicatory damages. The parties were invited to make submissions on the precise order and costs within 21 days.

1. Privy Council: in [2016] UKPC 37, allowed the appeal and remitted the matter to the High Court for directions concerning compensation.
2. Court of Appeal of the Republic of Trinidad and Tobago: found that Mr Maharaj had been treated unfairly because the allegations against him were not verified, but granted declaratory relief only and refused compensation as speculative and inappropriate.
3. High Court, Myers J: rejected the claims based on legitimate expectation, representation, separation of powers, illegality and unreasonableness. The judgment did not determine the section 4(b) or natural-justice arguments.