John Calder Hart v Dr Myron Wing-Sang Chin (Trinidad and Tobago)

In a public inquiry, procedural fairness is fact-sensitive. It will often require a person who may be adversely affected by a report to receive the gist of the proposed criticism or findings and a fair opportunity to respond before publication. That duty may arise even if the person declined to give evidence. The court must not speculate about what response might have been made, and practical prejudice need not be shown. Serious, final and strongly expressed findings require especially careful compliance. Concerns about delay do not ordinarily outweigh fairness. Terms of reference alone do not disclose the proposed conclusions. Salmon letters and Maxwellisation are distinct procedural practices and do not replace the broader common-law duty, reflected in section 20 of the Judicial Review Act 2000.

The respondent was formerly chairman of a state-owned enterprise responsible for a publicly funded housing project. A Commission of Enquiry investigated the project and published serious adverse comments, findings and recommendations concerning him.

He sought judicial review, arguing that he had been denied natural justice and procedural fairness because he had not received notice of the proposed adverse findings or an opportunity to respond. Harris J dismissed the claim. The Court of Appeal allowed his appeal, held that the findings had been reached in breach of natural justice, and quashed them. The Privy Council considered whether the common-law duty of fairness, embodied in section 20 of the Judicial Review Act 2000, required advance notice despite his failure to provide evidence, and whether separate arguments based on legitimate expectation were necessary.

Lord Clark, delivering the judgment of the Board, dismissed the appeal.

1. Applicable standard. The requirements of natural justice and procedural fairness are neither immutable nor identical in every situation. They depend upon the particular facts and circumstances. The principles stated in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, Permanent Secretary, Ministry of Foreign Affairs v Ramjohn [2011] UKPC 20, and Pyaneandee v Lam Shang Leen [2024] UKPC 27 were applicable in the public-inquiry context.
2. Fairness will often require an affected person to have an opportunity to make representations and to be informed of the gist of the case to be answered. The more final and strongly expressed the conclusions of an inquiry, the more is required to ensure a fair process.
3. The Commission’s report contained serious, final and strongly expressed criticisms and findings. The respondent’s failure to give evidence did not remove his entitlement to notice and an opportunity to respond. It was inappropriate to speculate about whether he would have responded or what he would have said. Under R v Chief Constable of the Thames Valley Police, Ex p Cotton [1990] IRLR 344, fairness could be breached even without proof that a different response would have changed the result.
4. The Commission’s terms of reference identified the questions under investigation but did not disclose the proposed adverse findings. Concerns about extending the inquiry could not outweigh fairness in the circumstances.
5. Section 20 of the Judicial Review Act 2000 embodied these requirements. The Commission had breached them. The Board therefore did not need to determine whether the respondent had a legitimate expectation arising from the Commission’s letter or rules 43 and 44.
6. Salmon letters and Maxwellisation are distinct procedural practices directed to compliance with the broader duty of fairness. The Salmon-letter issue was irrelevant to this claim. The Board observed that Maxwellisation is not confined to witnesses, but considered it unnecessary to give wider guidance on that subject. The Court of Appeal’s findings and orders accordingly remained in force.

1. Privy Council. The appeal by Dr Chin was dismissed.
2. Court of Appeal of the Republic of Trinidad and Tobago. The appeal from Harris J was allowed. The orders of the first-instance judge were set aside, and the Commission’s decisions, findings and recommendations concerning Mr Hart were quashed as reached in breach of natural justice and procedural fairness.
3. First instance, Harris J. The application for judicial review was dismissed.