The Special Tribunal v The Estate Police Association (Trinidad and Tobago)

A court or tribunal whose decision is challenged by judicial review has no interest of its own in defending that decision. If it participates, it must maintain a strictly neutral stance and should ordinarily leave its reasons to speak for themselves. It may assist the reviewing court on relevant law or difficult points, but must not act adversarially or add reasons to its original decision. An appellate court should generally refuse a new point not raised below where it is academic on the facts and would require an advisory opinion. The appeal was dismissed because the Association could represent estate constables through its Central Committee without a Branch Board.

Forty-two estate constables dismissed by RBC Royal Bank (Trinidad and Tobago) Ltd after the Bank outsourced security services were represented by the Estate Police Association in a dispute referred to the Special Tribunal. The Tribunal held that it lacked jurisdiction because no Branch Board had been established.

The High Court held that the Tribunal was amenable to judicial review but upheld its jurisdictional ruling. The Court of Appeal dismissed the Tribunal’s appeal on amenability, allowed the Association’s cross-appeal on jurisdiction, and remitted the dispute. Before the Board, the Tribunal abandoned its amenability ground and advanced a new, academic argument about the scope of judicial review. The issues were whether that argument should be entertained and whether the absence of a Branch Board prevented the Association from representing the constables.

1. Appeal dismissed. The Court of Appeal’s order remitting the dispute to the Special Tribunal stood. Any further hearing should take place before a fresh panel, if possible without members who previously heard the dispute or participated in the judicial review proceedings.
2. The Board declined to entertain the Tribunal’s new argument that judicial review should be confined to grounds corresponding to statutory appeals from the Industrial Court. Parties should generally bring their whole case at first instance: Barrow v Bankside Members Agency Ltd [1996] 1 WLR 257, 260; Jones v MBNA International Bank Ltd [2000] EWCA Civ 514, para 52. A new pure point of law may exceptionally be allowed where the facts are complete and the other party will not be prejudiced: Primeo Fund v Bank of Bermuda (Cayman) Ltd [2023] UKPC 40; [2023] 3 WLR 1007, paras 150–155. That exception did not apply because the point was never live and could not affect the outcome.
3. The Board would not give an advisory opinion on a hypothetical issue. Courts decide live disputes between the parties: Ainsbury v Millington [1987] 1 WLR 379, 381; Sun Life Assurance Co of Canada v Jervis [1944] AC 111, 113–114. The cautious discretion to hear an academic appeal in the public interest did not arise because this issue had always been academic.
4. On the construction of sections 38 and 42 of the Supplemental Police Act and rules 2, 9 and 10 of the Estate Police Association Rules, the Association could act through its Central Committee. A Branch Board was not a precondition to representation. The Central Committee had the same representational powers as a Branch Board, including authority implicit in the statutory scheme to report disputes and represent members before the Special Tribunal. The Tribunal’s contrary ruling was manifestly wrong.
5. In any event, a dispute properly referred under section 40 of the Supplemental Police Act had to be heard and determined under section 42. Refusing to determine it was, on its face, a breach of that statutory obligation.
6. A judicial body challenged by judicial review is not an ordinary litigant. Its usual role is neutral, comparable to that of an amicus or advocate to the court. It may assist on relevant law where necessary for fully informed adjudication, but must not align itself with a successful party, defend its decision adversarially, or add new reasons to those originally given. These requirements arise from judicial independence and impartiality.

• Privy Council: The Special Tribunal v The Estate Police Association (Trinidad and Tobago) [2024] UKPC 13 dismissed the Tribunal’s appeal and upheld the remittal.
• Court of Appeal of the Republic of Trinidad and Tobago: On 30 July 2021, the court dismissed the Tribunal’s appeal on amenability to judicial review, allowed the Association’s cross-appeal on jurisdiction, and remitted the dispute.
• High Court: On 13 June 2019, Rampersad J held that the Tribunal’s decisions were reviewable but upheld its conclusion that it lacked jurisdiction.
• Special Tribunal: The Tribunal ruled that it lacked jurisdiction because no Branch Board had been established when the dismissals occurred.