Harding v Attorney General of Anguilla

A fixed-term appointment to a public judicial office expires by effluxion of time unless terminated earlier in accordance with the contract or governing law. Administrative steps taken on the assumption that the office-holder will leave at the contractual expiry date do not, without more, amount to premature dismissal.

An incumbent has no substantive legitimate expectation of reappointment where appointments are expressly opened to competition and that policy has been notified and accepted through successive contracts. Any procedural expectation must relate to a defined appointment procedure. Inordinate appellate delay is not ordinarily a ground for setting aside an order unless it affected the court’s command of the issues.

Mrs Harding held the office of Registrar of the High Court of Anguilla under successive fixed-term contracts. Her final term expired on 10 January 2012. The contract allowed termination without cause on three months’ notice and required the appointment to be advertised before expiry.

She claimed that she had been removed before the end of her term and that she had a legitimate expectation of reappointment. The High Court rejected the claim, and the Court of Appeal of the Eastern Caribbean Supreme Court affirmed that decision. She also challenged the Court of Appeal’s order because judgment was delivered about two years after the appeal had been argued. The central issues were whether she had been prematurely dismissed, whether she had a substantive or procedural legitimate expectation, and whether the appellate delay justified setting aside the order.

The Board unanimously dismissed the appeal and advised Her Majesty accordingly. Submissions on costs were to be made in writing within two weeks.

1. No premature dismissal. Mrs Harding’s appointment expired by effluxion of time on 10 January 2012. The reference in the non-reappointment letter to payment under the contractual termination clause was a mistake. Payment of three months’ salary compensated for the failure to give contractual notice of non-reappointment and did not convert the expiry into summary dismissal. Requiring her to take outstanding holiday, surrender her keys and lose access to computer files was consistent with her remaining on leave until the contractual end date and did not amount to repudiation or premature termination.
2. No substantive legitimate expectation. The Constitution of Anguilla contained no express right to security of tenure. The contractual arrangements were for limited terms and required the office to be advertised. The practice of opening appointments to competition had been formally adopted and notified in 2004, and Mrs Harding had accepted successive contracts on that basis. Any possible expectation of reappointment could not survive that notification and subsequent conduct. The Board referred to Hinds v The Queen [1977] AC 195, 218, for the principle that a holder of lower judicial office may be employed on a fixed-term contract.
3. No procedural legitimate expectation. A procedural legitimate expectation must concern the procedure by which the appointment process is conducted. Where the claimant has no substantive right to reappointment, a requirement reasonably imposed on candidates generally, including attendance at interview, does not ordinarily infringe such an expectation.
4. Appellate delay. The two-year delay was inordinate, particularly given the absence of disputed facts or difficult legal issues. Nevertheless, delay alone could not justify setting aside the Court of Appeal’s order unless it appeared to have affected that court’s command of the issues. Here it had affirmed a correct trial decision.

1. Privy Council: The Board dismissed the appeal and advised that the order of the Court of Appeal should stand.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Anguilla): The Court of Appeal affirmed the High Court’s rejection of Mrs Harding’s claim.
3. High Court of Anguilla: The claim was rejected. The judge held that the payment of three months’ salary adequately compensated for the failure to give contractual notice of non-reappointment.