Attorney General of Trinidad and Tobago v Antonio Sobers (Trinidad and Tobago)

A consent order embodying a binding test-case agreement should not be reopened merely because an appellate court later considers the chosen categories imperfect. The court must respect party autonomy, the overriding objective and the public interest in finality, giving substantial weight to the nature and substance of the agreement. After the parties have prepared and conducted a trial on its agreed basis, variation or rescission ordinarily requires a compelling legal basis, such as mistake or material change of circumstances. The appellate powers in section 39 of the Supreme Court of Judicature Act are confined to the order and controversy before the lower court. They do not permit an appellate court to introduce an unchallenged issue or rewrite a test-case agreement after trial.

The appeals arose from 54 claims alleging assaults by officers during a disturbance at Golden Grove Prison in Trinidad and Tobago. The parties agreed that three representative claims would determine liability for three categories of claimant, and the agreement was embodied in a consent order. The trial judge found liability in the claims represented by Antonio Sobers and Gabriel Joseph, but dismissed Clint Wilson’s claim. The Court of Appeal dismissed the liability appeals in 2021, then in 2023, by a majority, set aside the test-case agreement for the Sobers and Joseph categories and ordered individual trials. The appellants challenged the Court of Appeal’s jurisdiction and its exercise of power under section 39 of the Supreme Court of Judicature Act.

Appeal allowed. The Board held that the Court of Appeal had no jurisdiction to interfere with the consent order and would in any event have been wrong to set it aside.

1. Section 39(1) of the Supreme Court of Judicature Act does not give the Court of Appeal the High Court’s overall jurisdiction. Its power is confined to orders which the High Court could competently and justly have made in deciding the matter before it. The trial judge could not properly have varied or rescinded the consent order after a trial conducted on its agreed basis, absent mistake or a material change of circumstances. See paras [30]–[36].
2. Section 39(2) is limited to orders arising out of the lower court’s decision and to the real question in controversy on the appeal. The appeals concerned the factual findings on liability, not the validity or suitability of the consent order. Section 39(3) likewise did not assist: the consent order was not an interlocutory order directly or incidentally involving a decision on the point of the liability appeals. See paras [30], [34]–[35].
3. The starting point when considering departure from a consent order is the overriding objective, with appropriate weight given to the parties’ agreement. That weight depends on the nature and substance of the agreement. A substantive compromise usually carries great, often decisive, weight; a procedural agreement carries less, but remains a relevant and substantial factor. The Board endorsed the approach in Pannone LLP v Aardvark Digital Ltd [2011] EWCA Civ 803. Party autonomy, the overriding objective in section 1.1(2) of the Civil Proceedings Rules, alternative dispute resolution and finality all favoured upholding the test-case agreement. See paras [38]–[45].
4. The agreement was not irrational. The respondent’s defence and evidence were generic, representative trials saved time and cost, and the medical-record categories supplied a rational basis for case management. The agreement operated as a whole. The Court of Appeal could not preserve it for one category while rewriting it for the appellants’ categories. Requiring fresh trials after substantial delay, without considering whether fair trials remained possible, was also wrong in principle. See paras [46]–[47].
5. The Board’s normal practice is not to permit a new point of law to be raised for the first time on appeal unless exceptional conditions are met. No reason existed to depart from that practice in this case. See paras [41]–[42].

1. Privy Council — In [2025] UKPC 19, the appeals were allowed. The Court of Appeal’s order setting aside the test-case agreement in the Sobers and Joseph categories could not stand.
2. Court of Appeal of the Republic of Trinidad and Tobago — On 14 February 2023, a majority set aside the test-case agreement for those two categories and ordered individual trials. The agreement was upheld for the Wilson category.
3. Court of Appeal of the Republic of Trinidad and Tobago — On 22 October 2021, the court dismissed the liability appeals and cross-appeal.
4. High Court — On 9 July 2012, the trial judge found liability for the injuries suffered by Sobers and Joseph, and dismissed Wilson’s claim.