Attorney General of Trinidad and Tobago v Ayers-Caesar (Trinidad and Tobago)

At the leave stage, the threshold for judicial review is low. The claimant need show only an arguable ground with a realistic prospect of success. A court may refuse leave where the legal position is clear and the claim cannot succeed, but it should not determine unsettled constitutional questions definitively at that stage. A person may be a proper or necessary defendant to a claim for declaratory relief concerning a constitutional office, even if that person made no reviewable decision and is not alleged to have acted unlawfully. The question whether the President had any power or duty to reconsider a judge’s resignation was therefore properly left for a substantive hearing.

The respondent, formerly Chief Magistrate, was appointed a High Court Judge under section 104(1) of the Constitution of Trinidad and Tobago. She resigned after an alleged demand by the Judicial and Legal Service Commission that she resign or face action concerning her appointment. She later alleged that the resignation had been procured by illegitimate pressure and asked the President to treat it as ineffective and reinstate her.

Harris J granted leave for claims against the Commission and for a claim against the President concerning his continuing refusal to set aside the resignation and reinstate her, but refused leave concerning the President’s conduct on the day of resignation. The Court of Appeal, by majority, dismissed the President’s appeal on 29 March 2018. The central issue was whether the remaining claim against the President was properly arguable and whether he was a proper defendant.

1. Appeal dismissed. The Board applied the ordinary leave test for judicial review. The claimant needed an arguable ground with a realistic prospect of success, as stated in Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780, para 14. Public interest could bear on the grant of leave. However, the Board should not make definitive rulings on unsettled constitutional issues at this preliminary stage.
2. The majority considered that the legal position concerning the President’s powers and role was not clear. It was therefore properly arguable that the President might have had power or a duty to reconsider the respondent’s resignation, investigate the circumstances in which it was tendered, or determine whether it remained legally effective. The wider public importance of those questions justified their examination after a substantive hearing.
3. The President was a proper and necessary defendant to the declaratory claim. Under sections 104(1), 137(2), 137(4) and 142 of the Constitution of Trinidad and Tobago, the President appoints, removes or suspends judges and receives their resignations. The continuing validity of the respondent’s appointment was consequently a matter between her and the President. A declaration could not be sought in the abstract against no relevant defendant.
4. Lord Carnwath dissented on the substantive issue, while agreeing that joinder was proper. In his view, the Constitution provided a comprehensive framework and section 142(2) made resignation effective on receipt. The President had no arguable residual power or duty to investigate or set aside the resignation. Any invalidity was for the court to decide. This dissent did not affect the majority’s dismissal of the appeal.

• Privy Council: Appeal dismissed on 9 December 2019. The Board held that the remaining claim against the President was properly arguable and that the President was a proper and necessary defendant.
• Republic of Trinidad and Tobago Court of Appeal: On 29 March 2018, Mendonça JA and Jamadar JA dismissed the President’s appeal and affirmed the grant of leave concerning his continuing refusal to set aside the resignation and reinstate the respondent; Bereaux JA dissented.
• High Court: On 6 October 2017, Harris J granted leave against the Commission and in respect of the President’s continuing refusal, but refused leave concerning the President’s conduct on 27 April 2017.