Avaria Niles v Judicial and Legal Service Commission and another (Trinidad and Tobago)

Judicial review is a remedy of last resort, but an alternative statutory remedy bars review only if it is effective and efficient in cost and convenience. A disciplinary tribunal with a remit confined to facts and evidence cannot determine public-law questions of illegality or vires. Nor is it effective to require an officer to undergo the entire disciplinary process and challenge legal irregularities only on appeal. Whether an alternative remedy is effective is a matter of judicial evaluation, not discretion. At the leave stage, the applicant must show an arguable case with a realistic prospect of success; leave should not be set aside on appeal absent a clean knockout blow. Statutory procedural breaches require assessment of statutory purpose, the circumstances, and prejudice or injustice. The appeal was dismissed.

The respondent, a State Solicitor, faced two disciplinary charges concerning her failure to attend court. She challenged the Commission’s decision to prefer the charges, alleging that the investigating officers had been appointed under the wrong provisions and that the statutory appointment requirements had not been followed.

The High Court set aside ex parte leave to apply for judicial review and struck out the related constitutional claim in CV2022-02851. The Court of Appeal allowed her appeal in Civil Appeal No S295/2023. The Commission and the Attorney General appealed to the Privy Council. The central issues were whether the disciplinary scheme provided an effective alternative remedy, whether the alleged irregularities were arguable with a realistic prospect of success, and whether the constitutional claim should proceed.

The Board dismissed the appeal and affirmed the decision of the Court of Appeal.

1. Leave and appellate thresholds. The threshold for leave to apply for judicial review is low. The applicant must show an arguable ground with a realistic prospect of success, subject to discretionary bars such as delay or an effective alternative remedy. Once leave has been granted, an appellate court should ordinarily allow the claim to proceed. Leave should be set aside only where it plainly should not have been granted, ordinarily requiring a clean knockout blow.
2. Alternative remedy. Judicial review is a remedy of last resort. An alternative remedy must be effective and efficient in cost and convenience. The Disciplinary Tribunal’s statutory remit under regulation 102(1) was confined to investigating factual allegations, considering evidence, making findings of fact, and expressing an opinion on the meaning and value of those facts. It had no inherent jurisdiction to determine public-law issues of illegality or vires.
3. The Commission could not provide an effective remedy by deciding whether it had legal power to prefer charges which it had itself preferred. That would offend the rule against a decision-maker judging its own cause. Nor was it reasonable to require the respondent to complete the disciplinary hearing and rely on a later appeal to the Appeal Board to rectify legal irregularities.
4. Procedural non-compliance. The consequence of breach of a statutory procedural requirement must be assessed by examining the purpose of the requirement in the context of the statutory scheme and the specific facts, including possible prejudice or injustice. The admitted reliance on regulation 87, the failure to appoint the investigator from the Public Service Investigations Unit, and the unresolved scope of the amended appointment provisions raised arguable issues requiring full argument and evidence. The appellants had not shown a clean knockout blow.
5. Constitutional claim. The constitutional claim was separate from judicial review. It required no leave and could be struck out only if it disclosed no grounds or constituted an abuse of process. Although not every procedural irregularity gives rise to a constitutional breach, the interconnection between the claims and the constitutional dimension of the availability of judicial review meant that the constitutional claim should not be struck out.

• Privy Council: On 16 April 2026, the Board dismissed the appellants’ appeal and affirmed the decision of the Court of Appeal.
• Court of Appeal of Trinidad and Tobago: On 27 February 2024, the Court of Appeal allowed the respondent’s appeal in Civil Appeal No S295/2023.
• High Court of Trinidad and Tobago: On 4 October 2023, the High Court set aside leave to apply for judicial review and struck out the constitutional claim in CV2022-02851.