Harold Chang v The Hospital Administrator and 2 others (Trinidad and Tobago)

In adversarial judicial review proceedings, active case-management powers do not require a judge to identify and join a public authority whose decision is material to the claim, particularly where the claimant is legally represented and has not sought joinder. Relief impugning a non-party authority’s decision should not be granted without giving that authority an opportunity to answer the challenge. The court’s function is to do justice between the litigants on the available evidence and law, not to investigate an independent or complete truth. A party that introduced documents as fresh evidence cannot ordinarily claim procedural unfairness merely because the opposing party relies on them, where there was an opportunity to respond. Joinder and case-management powers remain discretionary and do not authorise the judge to advise a party how to conduct its case.

Dr Chang, a medical doctor employed in the public service, applied for early retirement and later sought to withdraw that application. His salary was stopped, and he commenced judicial review proceedings against the respondents. During the proceedings, four letters were admitted as fresh evidence. They indicated that the Public Service Commission had treated his retirement as effective from 9 September 2002.

Dr Chang sought relief which depended on treating that decision as invalid, although the Commission was not a party. Rampersad J held that the salary stoppage was unlawful but refused reinstatement and declarations affecting the Commission’s decision. He awarded 90 days’ salary for accrued vacation leave, with interest. The Court of Appeal unanimously dismissed Dr Chang’s appeal. The central issue before the Board was whether the trial judge was required, of his own motion, to join the Commission or otherwise arrange for its decision to be fully investigated.

The Board, in the judgment of Lord Hodge, unanimously dismissed the appeal.

1. Joinder and case management. The Civil Proceedings Rules 1998 introduced active case management and powers to add parties, but those powers did not impose a duty on the judge to identify and join a new defendant of the judge’s own motion. In adversarial proceedings, the judge is not an adviser to a legally represented party and should not direct that party how to frame or conduct its case. Joinder may involve costs and adverse-costs risk.
2. Non-party decision. Dr Chang’s legal team knew that the purported decision of the Public Service Commission was an obstacle to the claim for continuing salary. They could have sought joinder, but instead asked the court to treat the decision as a nullity without the Commission being present. The Commission’s actions could not properly be impugned in its absence. Rampersad J was therefore entitled, and correct, to conclude that the retirement decision had not been effectively challenged and stood for the purposes of the proceedings. It was unnecessary for the Board to determine whether regulation 51(1)(c) of the Public Service Commission Regulations, together with section 15(1) of the Pensions Act, made the Commission the proper body to approve early retirement.
3. Procedural fairness. The four letters had been admitted at Dr Chang’s own request. The respondents then stated clearly that they relied on the Commission’s decision. Dr Chang had time to lodge reply submissions and seek joinder. There was consequently no procedural unfairness in the judge taking the letters and the respondents’ case into account.
4. Authorities. The Board distinguished Dookeran v Dookeran (executor of the Last Will and Testament of Clyde Dookeran, deceased) (Claim no CV 2008-00287; unreported, 15 April 2010), which concerned an application by parties to be joined and did not establish a duty on a judge to order joinder without an application. The Board approved the recognition in Super Industrial Services Ltd v National Gas Company of Trinidad and Tobago Ltd [2018] UKPC 17 of the CPR’s active case-management powers. It applied the principle stated in Air Canada v Secretary of State for Trade [1983] 2 AC 394, 438, that the court’s task in adversarial litigation is to do justice between the litigants on the available evidence and law, rather than to ascertain an independent truth.
5. Relief and advocacy. The judge was entitled to confine the remedy for the unlawful salary termination to 90 days’ salary and interest, refusing reinstatement and declarations affecting the Commission. The Board also observed, obiter, that speaking notes supplied at short notice are unhelpful and may cause unfairness when they introduce new legal or factual submissions. Counsel should ordinarily rely on the written case and oral submissions.

• Privy Council: In [2023] UKPC 44, the Board unanimously dismissed the appeal.
• Court of Appeal of the Republic of Trinidad and Tobago: On 27 July 2021, Mendonça, Kokaram and Boodoosingh JJA unanimously dismissed Dr Chang’s appeal and accepted that relief affecting the Public Service Commission’s decision could not be granted while the Commission was not a party.
• High Court: Rampersad J held on 1 December 2015 that the salary stoppage was unlawful, awarded 90 days’ salary for vacation leave with interest, and refused relief affecting the Public Service Commission’s retirement decision.