Barrow v Attorney General of Saint Lucia

Under the Pensions Act 1967 and the Pensions Regulations, qualifying service for a pension is distinct from service used to calculate its amount. “Retirement in pensionable circumstances” under the Eastern Caribbean Supreme Court (Rates of Pension) (Judges) Act 1989 incorporates the statutory requirements, including age and qualifying public service. Section 12 of the Supreme Court (Salaries, Allowances and Conditions of Service of Judges) Order 1974 enhances pensionable service for calculation purposes. It does not confer entitlement where the qualifying period has not been met. A legitimate expectation based on past practice fails where the claimant has not satisfied a material condition on which that practice operated.

The appellant, a Justice of Appeal of the Eastern Caribbean Supreme Court, served for three years and five months and retired aged 56. He sought a pension under the Rates Act, alternatively a gratuity under the Pensions Regulations, arguing that seven add-on years under the Salaries Order counted towards the qualifying period. The High Court rejected his claims on 12 December 2012. The Court of Appeal dismissed the appeal on 27 October 2014, holding that the add-on years affected pension calculation only and that the previous practice applied only at compulsory retirement age. The Board considered statutory construction, legislative history and legitimate expectation. The central issue was whether ten years’ actual public service was required for pension entitlement.

The appeal was dismissed. The Board agreed with the Advisory Opinion and the concurrent conclusions of the High Court and Court of Appeal.

1. Section 3(1) of the Eastern Caribbean Supreme Court (Rates of Pension) (Judges) Act 1989 was not a self-contained pension scheme. The expression “retirement in pensionable circumstances” referred to the requirements of the Pensions Act 1967 and the Pensions Regulations. A judge therefore had to have attained 55 and have at least ten years’ public service.
2. Regulation 2 distinguished qualifying service, which concerned eligibility, from pensionable service, which concerned computation. Section 12 of the Supreme Court (Salaries, Allowances and Conditions of Service of Judges) Order 1974 operated only on pensionable service. The additional seven years for a Justice of Appeal could increase the amount of a pension, subject to the 400-month limit, but could not satisfy the ten-year qualifying period or create entitlement where none existed.
3. Reports and parliamentary material concerning an earlier administrative interpretation could not rewrite the statutory language. The rule in Pepper v Hart concerned statutory construction, not rectification of legislation to reflect an earlier interpretive mistake. Nothing in the material justified departing from the statutory construction.
4. The claim based on legitimate expectation also failed. The settled practice had operated only where a judge retired at the applicable compulsory retirement age. The appellant retired aged 56, and no comparable judge retiring below the prescribed age had received a pension. The concurrent findings therefore defeated the claim.

The Board advised that the appeal be dismissed. Subject to submissions within 28 days of hand-down, the appellant was ordered to pay the respondent’s costs before the Board.

• Privy Council — Appeal dismissed on the proper construction of the pension legislation and on the legitimate-expectation issue.
• Court of Appeal of the Eastern Caribbean Supreme Court — On 27 October 2014, dismissed all grounds of appeal except the costs issue.
• High Court — Wilkinson J rejected the pension and legitimate-expectation claims on 12 December 2012.
• Court of Appeal reference — On 22 September 2010, the Advisory Opinion concluded that the appellant had not retired in pensionable circumstances because he lacked ten years’ service.