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URL: http://www.bailii.org/uk/cases/UKPC/2002/20.html
Cite as: [2003] 1 AC 405, [2002] 3 WLR 955, [2003] AC 405, [2002] UKPC 20

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Durity v Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2002] UKPC 20 (13 May 2002)

Privy Council Appeal No. 52 of 2000

Felix Augustus Durity Appellant

v.

The Attorney General of Trinidad and Tobago Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 13th May 2002

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hutton

Lord Hobhouse of Woodborough

Lord Millett

Lord Scott of Foscote

[Delivered by Lord Nicholls of Birkenhead]

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1. This appeal raises a point of interpretation of the Constitution of Trinidad and Tobago. The point at issue, and it is the sole point for decision on this appeal, is whether section 14(3) of the Constitution renders the appellant’s constitutional motion subject to the twelve months’ limitation period contained in section 2(1) of the Public Authorities Protection Act, chap 8:03. This Act has now been repealed by the Limitation of Certain Actions Act 1997, but only as to causes of action accruing in the future: see section 20. This change in the law does not affect the present case.
2. The appellant, Mr Felix Durity, was appointed a magistrate in 1981 and a senior magistrate in 1986. He was a senior magistrate at the Arima Magistrates Court from October 1988 until he took early retirement in April 1997. The proceedings arose out of Mr Durity’s suspension from office for nearly seven years, from August 1989 to May 1996. The suspension had its origin in an incident which occurred on a bail application made to Mr Durity in his judicial capacity in February 1989. One Clement Boodoo appeared before Mr Durity on two charges of larceny. On 20 February, on the application of counsel, Mr Devenish, Mr Durity fixed bail at $25,000 by way of cash deposit with the court. The matter was adjourned until 20 March. On 3 March another counsel, Mr Selwyn Ross, acting or purporting to act on behalf of Boodoo applied to a judge in chambers to review Mr Durity’s bail decision. Lucky J ordered that this decision should be varied to bail with a surety in the increased amount of $50,000.
3. On 20 March, when Boodoo next appeared before Mr Durity, he was represented once more by Mr Devenish. Mr Devenish, in the presence and in the hearing of Mr Ross, told Mr Durity of Lucky J’s order. Counsel said that the application to Lucky J had been made without the authority of Boodoo, and he asked Mr Durity to continue his bail order of 20 February. Mr Durity acceded to this application. The prosecution raised no objection.
4. On the following day, 21 March, the matter was reported in the Trinidad Guardian newspaper under the headline “Magistrate reverses judge’s bail decision”. The Chief Magistrate, on the direction of the Chief Justice, sought an explanation from Mr Durity. Mr Durity responded by sending him a statement from Mr Devenish, to the effect that the application to Lucky J had not been authorised by Boodoo. Mr Durity said he had acted judicially in accordance with his authority as an Inquiring Magistrate.
The disciplinary proceedings
5. By a letter dated 10 August 1989 the Judicial and Legal Service Commission informed Mr Durity that the Commission had decided he should be suspended from duty. The Commission had power to suspend a senior magistrate, among others, when it became aware of any indiscipline or misconduct and considered the public interest or the repute of the public service required he should cease to perform the functions of his office forthwith: see regulation 88 of the Public Service Commission Regulations. The grounds of Mr Durity’s suspension were twofold: on 20 March he had disobeyed Lucky J’s order and purported to reverse it, and he had remanded (unnamed) accused persons without their consent to dates beyond the statutory period.
6. This letter was received by Mr Durity on 17 August 1989. On the evidence before the Board, the Judicial and Legal Service Commission seems then to have taken no steps to investigate the complaints, or pursue the matter at all, for the next two and a half years. Throughout this period the Commission did not get in touch with Mr Durity, who remained suspended on full pay.
7. Eventually, in March 1992, Mr Durity’s lawyers wrote to the Attorney General and asked him to intervene. They sent a copy of the letter to the chairman of the Commission. Action followed some weeks later. On 28 May 1992 the Commission appointed a master of the High Court, Master Doyle, to investigate the allegations. Master Doyle provided Mr Durity with particulars of the two matters mentioned in the letter of suspension dated 10 August 1989. Mr Durity responded on 10 June. He had not, save by consent, remanded anyone named in the particulars in custody for periods beyond those permitted. He had formed the opinion that the application made to Lucky J was “fraudulent” because counsel had no instructions to make the application. He had spoken to Lucky J, who said he was satisfied with the explanation.
8. Six months later, after two reminder letters from Mr Durity’s lawyers, the Commission wrote to Mr Durity, on 15 December 1992. The Commission had considered Master Doyle’s report and was preferring a disciplinary charge against Mr Durity. The charge was that he had conducted himself in a manner such as to bring the judicial and legal service into disrepute, contrary to his implied terms and conditions of service as a senior magistrate. The conduct comprised failing to follow or purporting to reverse Lucky J’s bail decision on Clement Boodoo’s bail application. There was no allegation that Mr Durity had acted in bad faith. No mention was made of the other matter, concerning remands in custody for excessive periods, which had earlier been the subject of complaint and investigation. On 18 February 1993 the Commission appointed Deyalsingh J as a disciplinary tribunal to hear the evidence and find the facts.
The judicial review proceedings
9. The disciplinary proceedings did not proceed because on 16 March 1993 Mr Durity sought leave from the High Court to apply for judicial review of the Commission’s decisions to prefer the disciplinary charge and to appoint a tribunal to hear the charge, and of Deyalsingh J’s decision to call upon Mr Durity to answer the charge. Seely J refused leave. She held that Mr Durity did not have an arguable case.
10. Mr Durity renewed his application to the Court of Appeal. On 30 November 1994 the Court of Appeal, comprising Hamel-Smith, Gopeesingh and Permanand JJA, refused this application: see (1994) 47 WIR 424. In the course of the Court of Appeal hearing Mr Durity sought leave to amend his application to include a challenge to the Commission’s decision to suspend him from performing his duties as a magistrate pending the outcome of the disciplinary charge: see (1994) 47 WIR 424, 437g-i. The Court of Appeal refused the application to amend. The Commission’s suspension decision was taken five years previously, and Mr Durity had not made any earlier attempt to impugn the decision.
11. On 26 July 1995 the Court of Appeal, Sharma JA dissenting, refused an application by Mr Durity for leave to appeal to the Judicial Committee: see (1995) 49 WIR 433. In September 1995 Mr Durity discontinued an application to their Lordships’ Board for special leave when the parties entered into negotiations to resolve the dispute by agreement.
12. Negotiations continued for some months but did not come to fruition. In May 1996 Mr Durity decided to take early retirement, effective from 1 April 1997. He was granted permission to take up paid employment during his period of pre-retirement leave, from 1 May 1996 onwards. The suspension order was formally lifted from the same date, 1 May 1996. The disciplinary proceedings, held in abeyance while the judicial review proceedings were on foot, were discontinued.
The constitutional proceedings
13. On 24 February 1997 Mr Durity started constitutional proceedings claiming declarations that the Commission’s decision to suspend him from his office contravened several provisions of the Constitution: section 4(a) (the right to the enjoyment of property), section 4(b) (the right to the protection of the law), section 5(2)(e) (the right to a fair hearing) and section 5(2)(h) (the right to procedural safeguards). He also claimed damages. The grounds he relied upon were set out in 29 paragraphs. These went far beyond a challenge to the Commission’s original suspension decision made in August 1989. The grounds covered the whole history of Mr Durity’s suspension, as outlined above.
14. The Attorney General filed a cross motion raising four preliminary objections: res judicata, abuse of the process of the court, statute of limitations and inordinate delay. On 29 April 1998, having heard argument on these objections, Sinanan J dismissed the constitutional motion. He ruled, in favour of Mr Durity, that the matters raised were not res judicata. Nor was there any abuse of process. But he ruled against Mr Durity on the other two preliminary objections. The matters raised were time-barred, by the joint operation of section 14(3) of the Constitution, section 33(1) of the State Liability and Proceedings Act and section 2(1) of the Public Authorities Protection Act. The twelve months’ limitation period prescribed by the latter statutory provision was applicable to Mr Durity’s claims. Additionally, inordinate and unexplained delay disentitled Mr Durity to constitutional relief. His cause of action accrued on 17 August 1989. His constitutional proceedings were started on 24 February 1997, more than seven years later.
15. Mr Durity appealed. In the Court of Appeal he appeared in person. He conceded that section 2(1) of the Public Authorities Protection Act applied to his constitutional claims. He also accepted that the sole issue was whether his cause of action accrued, as he contended, on 1 May 1996 when the Commission’s final decision was given. On 28 July 1999 the Court of Appeal, comprising Ibrahim, Warner and Nelson JJA, dismissed the appeal. On 2 May 2000 the court gave its reasons. Time began to run when the Commission made its decision to suspend Mr Durity. So the claim was statute-barred. Although the point had not been in issue or argued before the court, Ibrahim JA added that in his view constitutional proceedings were subject to the provisions of the Public Authorities Protection Act.
16. With the leave of the Court of Appeal Mr Durity then appealed to the Board against the Court of Appeal’s decision. Before the Board Mr Durity’s case was presented much more widely than in the Court of Appeal. In particular, Mr Blake QC on behalf of Mr Durity challenged the application of section 2(1) of the Public Authorities Protection Act to constitutional motions.
The statutory provisions
17. Chapter 1 of the Constitution makes provision for the recognition and protection of fundamental human rights and freedoms. Part I sets out the rights enshrined. Parts II, III and IV make provision for exceptions: for existing law, for emergencies and for certain legislation. Part V, comprising section 14, provides machinery for enforcement of the rights and freedoms recognised, declared and protected by Chapter I. Section 14 empowers the High Court to hear and determine disputes about contraventions of Chapter I provisions and to grant appropriate relief. Section 14 provides:

“(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.

(2) The High Court shall have original jurisdiction –

(a) to hear and determine any application made by any person in pursuance of subsection (1), and

(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4),

and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.

(3) The State Liability and Proceedings Act shall have effect for the purpose of any proceedings under this section.”

The words italicised above did not appear in the earlier (1962) Constitution of Trinidad and Tobago. Necessarily so, because the State Liability and Proceedings Act, Chap. 8:02, was not enacted until 1966.
18. The State Liability and Proceedings Act, originally known as the Crown Liability and Proceedings Act, was modelled closely on the (United Kingdom) Crown Proceedings Act 1947. Its purpose was broadly similar. Primarily, its purpose was to modernise the law in two related fields: the substantive law relating to the civil liabilities and rights of the State, and the procedural law relating to bringing civil proceedings by and against the State. Thus, as a matter of substantive law, claims formerly brought against the State with the fiat of the President, in future could be enforced as of right: section 3. These claims consisted principally of claims relating to land or goods in the hands of the Crown, and claims for payments due under contracts or for damages for breach of contract. Again, and this was a radical change in the law, in prescribed respects the State was to become subject to the same liabilities in tort as those to which it would be subject if it were an individual: section 4. As a matter of procedural law, ancient forms of proceedings against the State, such as Latin information, English information and petitions of right, were abolished. In future, proceedings against the State were to be instituted and pursued in accordance with rules of court: section 15. The statute itself made provision on many procedural matters, such as the method of making the State a party to proceedings (the Attorney General should be the plaintiff or defendant) and the service of documents, and concerning judgments and execution. Section 33, part of a fasciculus of “Miscellaneous” sections, provides:

“(1) This Act shall not prejudice the right of the State to take advantage of the provisions of a written law although not named therein; and it is hereby declared that in any civil proceedings against the State, the provisions of any written law which could, if the proceedings were between subjects, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part or otherwise, may, subject to any express provision to the contrary be so relied upon by the State.”

19. Section 2(1) of the Public Authorities and Protection Act, Chap 8:03, is a provision of a “written law”. It provided:

“No action shall be brought against any person for any act done in pursuance, or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued except that where the act, neglect or default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued for the purposes of this subsection, until the act, neglect or default has ceased.”

20. This statutory provision, it may be noted in passing, or its equivalent in the United Kingdom legislation, had a somewhat inglorious life. The (United Kingdom) Public Authorities Protection Act 1893, until its eventual repeal by the Law Reform (Limitation of Actions) Act 1954, attracted judicial criticism, in respect of both content and drafting. Most actions against public authorities were actions for personal injuries arising out of accidents. It was seen as unfair that plaintiffs injured by a public authority should have a far shorter time in which to commence a claim than if they had been injured by someone in the private sector: see Stubbings v Webb [1993] AC 498, 502, per Lord Griffiths. The difficulties arising in the interpretation of the Act, and deciding which types of case fell within its scope and which did not, were repeatedly the subject of critical observations by the House of Lords: see Bradford Corporation v Myers [1916] 1 AC 242, 250, 251, Griffiths v Smith [1941] AC 170, 176, 181, 184, and Firestone Tire and Rubber Co (SS) Ltd v Singapore Harbour Board [1952] AC 452, 463-464. In the result the Act was always construed restrictively, lest “what was intended as a reasonable protection for a public authority would become an engine of oppression”: see Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1963 SC 410, 448, per Lord President Clyde.
Section 33 of the State Liability and Proceedings Act and constitutional proceedings
21. The submission advanced on behalf of Mr Durity is that, on the proper interpretation of section 14 of the Constitution, the limitation period prescribed by the Public Authorities Protection Act has no application to a constitutional motion brought in respect of fundamental human rights and freedoms. The Attorney General submitted otherwise. His case is that section 14 expressly incorporates the State Liability and Proceedings Act into the Constitution for the purpose of constitutional proceedings. The effect of this incorporation is that, by virtue of section 33 of the State Liability and Proceedings Act, the limitation provision in section 2(1) of the Public Authorities Protection Act applies to constitutional proceedings. It is incorporated indirectly into the Constitution for the purpose of proceedings brought under section 14.
22. This question has given rise to some difference of judicial opinion in Trinidad and Tobago. The interpretation propounded by the Attorney General was rejected by Maharaj J in Ferguson v Attorney General (unreported) Case 907 of 1982, by Edoo J in Ramdhan v Attorney General (unreported) Case 1919 of 1984 and by Jamadar J in Dupont v Attorney General (unreported) Case 1597 of 1997. Dicta by Braithwaite JA in Attorney-General v Bansraj (1985) 38 WIR 286, 301, are also inconsistent with this interpretation of section 14(3). On the other hand, the Attorney General’s interpretation found favour with Blackman J in Phillips v Attorney General (unreported) Case 701 of 1989, Ventour J in Smith (Alvin) v Commissioner of Police (1997) 51 WIR 409, and Sinanan J and the Court of Appeal in the present case. It should be noted, however, that Ventour J reached his conclusion “with great reluctance”. He said it was “inconceivable” that the framers of the Constitution would have intended this result by their incorporation of the State Liability and Proceedings Act in section 14(3) of the Constitution: see (1997) 51 WIR 409, 418. In the present case Sinanan J associated himself with this view.
23. Their Lordships have no hesitation in rejecting the Attorney General’s argument on this point. The question before the Board is whether, on a proper interpretation of section 14 of the Constitution, the incorporation of the State Liability and Proceedings Act into the Constitution by section 14(3) (“shall have effect for the purpose of any proceedings under this section”) has the effect of rendering constitutional proceedings subject to the limitation provisions of section 2(1) of the Public Authorities Protection Act.
24. On this the first point to note is that the express but general reference to the State Liability and Proceedings Act in section 14(3) of the Constitution cannot be read as meaning that every provision of that Act is incorporated into the Constitution for the purpose of constitutional proceedings. On even a cursory reading of the State Liability and Proceedings Act it is at once apparent that some of its provisions can have no application to constitutional proceedings. They are not apposite. For instance, the changes in substantive law, already mentioned, made by the State Liability and Proceedings Act have no direct relevance to constitutional proceedings brought to enforce Chapter 1 rights and freedoms. Thus, section 14(3) of the Constitution has to be read as applying to constitutional proceedings such of the provisions of the State Liability and Proceedings Act as are capable of being applied for this purpose.
25. This gives rise to no difficulty with some of the provisions of the State Liability and Proceedings Act. Some at least of the procedural changes introduced by this Act can and do have a place in the conduct of constitutional proceedings. This is most obviously so regarding the remedial powers conferred upon the High Court by section 14(2) of the Constitution. These remedial powers are qualified by the provisions of the State Liability and Proceedings Act. Section 14(2) expressly so provides by its use of the phrase “subject to subsection (3)”. This qualification on the court’s powers of granting redress readily finds explanation in section 22 of the State Liability and Proceedings Act, which limits the power of the court to grant injunctions and certain other forms of relief in proceedings against the State. In such instances the remedy available against the State is a declaratory order. The effect of section 14 of the Constitution and its incorporation of the State Liability and Proceedings Act for the purpose of constitutional proceedings is that in constitutional proceedings there is a like limitation on the court’s remedial powers. The context permits this application of section 22 in constitutional proceedings.
26. On the present appeal it is not necessary to attempt to identify, one by one, the provisions in the State Liability and Proceedings Act which have scope for application in the conduct of constitutional proceedings and those which do not. For the purposes of the present appeal it is sufficient to state that their Lordships consider the crucial provision in section 33 of the State Liability and Proceedings Act can have no place in the conduct of such proceedings. Their Lordships’ reasons are as follows.
27. Section 33 of the State Liability and Proceedings Act is of the nature of a saving provision. This is expressly so with the first limb of section 33 (“This Act shall not prejudice the right of the State …”). Likewise the second limb (“it is hereby declared …”) is intended to ensure that the extension of civil liability of the State should not preclude the State from relying on statutory defences which would have been available had the proceedings been between subjects.
28. Affording this protection to the State makes sense easily enough in cases where, before the State itself became liable in tort, negligent employees of the State if sued personally would have had a limitation defence available to them. The Public Authorities Protection Act is an example of this. Despite the imperfections of the Public Authorities Protection legislation, while it remained on the statute books of the United Kingdom and Trinidad and Tobago there was undeniable logic in carrying forward its provisions into the (United Kingdom) Crown Proceedings Act and the equivalent statute of Trinidad and Tobago when the Crown, or the State, became liable in tort. A limitation defence available to a negligent employee of the government should equally be available to the government when the government was sued directly as vicariously liable for its employee’s negligence. Hence, section 33 of the State Liability and Proceedings Act, echoing section 31 of the (UK) Crown Proceedings Act 1947, provides that the State, when sued, may rely upon any statutory defence which could be relied upon by the defendant “if the proceedings were between subjects”.
29. However, none of this rationale has any place in the context of constitutional proceedings. Nor is the language of section 33 really apt to provide the State with any additional defences in constitutional proceedings. If section 33 were sought to be applied to constitutional proceedings it would lead nowhere. It would achieve nothing. If section 33 were applied to constitutional proceedings, the defences thereby made available to the State would be those which would have been available to a defendant “if the proceedings were between subjects”. But, in the case of constitutional proceedings, there are no such defences. Constitutional proceedings are not capable of being brought between subjects. Of their nature they concern claims brought by a claimant against the State in respect of the failure, or alleged failure, of the State to secure to the claimant the fundamental human rights and freedoms and protections enshrined in Chapter 1 of the Constitution. This being so, there is no question of section 2(1) of the Public Authorities Protection Act applying to constitutional proceedings. The limitation period prescribed by the Public Authorities Protection Act rides into constitutional proceedings, if at all, only on the back of section 33 of the State Liability and Proceedings Act. Once it is appreciated that, for the reason just given, section 33 of the State Liability and Proceedings Act does not apply to constitutional proceedings, then it follows that the Public Authorities Protection Act also does not apply to constitutional proceedings.
30. If there should be any lingering doubts on this score, they are disposed of by a further, vitally important consideration. At the forefront of the Constitution is a resounding declaration of fundamental human rights and freedoms. It is axiomatic that these rights and freedoms, expressly declared, are not to be cut down by other provisions in the Constitution save by language of commensurate clarity. The Constitution itself so declares. The rights and freedoms recognised and declared in section 4 are not to be abrogated, abridged or infringed by any law except as expressly provided in Chapter 1 of the Constitution or in section 54 (amendment of the Constitution): see section 5. Clearly, the inherent jurisdiction of the High Court to prevent abuse of its process applies as much to constitutional proceedings as it does to other proceedings. And the grant or refusal of a remedy in constitutional proceedings is a matter in respect of which the court has a judicial discretion. These limitations on a citizen’s right to pursue constitutional proceedings and obtain a remedy from the court are inherent in the High Court’s jurisdiction in respect of alleged contraventions of constitutional rights and freedoms. But the Constitution itself contains no express limitation period for the commencement of constitutional proceedings. The court should therefore be very slow indeed to hold that by a side wind the initiation of constitutional proceedings is subject to a rigid and short time bar. The very clearest language is needed before a court could properly so conclude. Such language is noticeably absent in the present case. The suggested incorporation of the inflexible, one year time limit in section 2(1) of the Public Authorities Protection Act, not itself mentioned in the Constitution, via section 33 of the State Liability and Proceedings Act lacks the clarity of intent necessary for this purpose.
31. One further feature, pointing in the same direction, also merits mention. The statutory defences to which section 33 of the State Liability and Proceedings Act applies, and of which the State can take advantage when sued, are capable of amendment and enlargement. If, contrary to the view expressed above, section 33 could be applied to constitutional proceedings in any meaningful way, any such alterations in the law would feed automatically into the conduct of constitutional proceedings. The enactment of section 14(3) of the Constitution cannot have been intended to have this result. This consideration provides additional support for the view that section 33 has no place in the conduct of constitutional proceedings.
32. In their Lordships’ view the Attorney General’s preliminary objection based on the Public Authorities Protection Act fails.
Other preliminary objections
33. The limited basis on which the Public Authorities Protection Act point was argued before the Court of Appeal made it unnecessary for that court to address the other grounds of preliminary objection: res judicata, abuse of process and delay. The Board’s decision on this point makes it necessary now for these other points to be considered. In the circumstances the appropriate course is for the Board to set aside the order of the Court of Appeal dismissing Mr Durity’s appeal from the order of Sinanan J, and to remit the proceedings to the Court of Appeal to continue with the appeal in the light of this judgment.
34. In remitting the matter there is one aspect of the history to which their Lordships wish to invite the attention of the Court of Appeal. In the course of his judgment in the judicial review proceedings Hamel-Smith JA expressed extreme concern at the tardiness of the Judicial and Legal Service Commission over a lengthy period, throughout which Mr Durity remained suspended. It was not until December 1992, more than three years from Mr Durity’s suspension, that the Commission preferred a disciplinary charge against him. Their Lordships share Hamel-Smith JA’s disquiet at this delay, as yet unexplained.
35. In this context the Board consider it may be helpful if they make certain general observations. When a court is exercising its jurisdiction under section 14 of the Constitution and has to consider whether there has been delay such as would render the proceedings an abuse or would disentitle the claimant to relief, it will usually be important to consider whether the impugned decision or conduct was susceptible of adequate redress by a timely application to the court under its ordinary, non-constitutional jurisdiction. If it was, and if such an application was not made and would now be out of time, then, failing a cogent explanation the court may readily conclude that the claimant’s constitutional motion is a misuse of the court’s constitutional jurisdiction. This principle is well established. On this it is sufficient to refer to the much repeated cautionary words of Lord Diplock in Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC 265, 268. An application made under section 14 solely for the purpose of avoiding the need to apply in the normal way for the appropriate judicial remedy for unlawful administrative action is an abuse of process.
36. In the present case Sinanan J held this was the position regarding Mr Durity’s application for constitutional relief in respect of the Commission’s decision to suspend him from office. The Commission made this decision in August 1989. It was over five years later that Mr Durity first sought to challenge this decision. As already noted, the Court of Appeal refused an application by Mr Durity to amend his judicial review proceedings to introduce such a challenge. Given the lapse of time and the absence of explanation, that decision by the Court of Appeal was plainly correct.
37. More questionable is the summary dismissal by the Court of Appeal of the primary basis of Mr Durity’s claim that his suspension was unlawful. He claimed that when dealing with Boodoo’s bail application he was exercising a judicial discretion. Whether that was strictly accurate, given Lucky J’s order, may be doubtful. But, plainly, he was exercising a judicial function in good faith. A mistaken discharge of this function could not constitute the offence of “indiscipline”, defined in regulation 84 as disobedience to some administrative direction. And a finding that Mr Durity was guilty of “misconduct” could hardly be made in this case without causing damage to the independence of the judiciary.
38. Be that as it may, this is only part of the story. It is one matter to suspend a magistrate from office while an allegation of misconduct is being investigated and determined. To maintain such a suspension in force for a prolonged period, without reaching any determination, is a separate and distinct matter. The continuation of a suspension from office, even if lawful at its origin, for an unreasonably and unnecessarily long period may be an abuse of power. The absence of progress with the disciplinary proceedings against Mr Durity is readily explicable from March 1993 onwards, because Mr Durity then launched judicial review proceedings in which he sought to prevent the further prosecution of the disciplinary charge. The Commission could not get on with the disciplinary charges while Mr Durity’s judicial review proceedings were pending before the courts. But what of the lengthy period of delay before then? And what of the Commission’s apparent failure to reconsider the suspension when the first charge was dropped in December 1992?
39. One of the matters on which Mr Durity relies in his constitutional proceedings, which include a claim for damages, is that between August 1989 and March 1992 the Commission “did nothing to investigate or charge the Applicant for anything while the Applicant remained on indefinite suspension” (paragraph 12). This is one aspect of this unfortunate history which will be material for consideration by the Court of Appeal. Of its nature a complaint regarding an allegedly unlawful continuation of a suspension is a complaint regarding a past and irreversible event. Whether judicial review proceedings could have afforded adequate relief in respect of this period of past suspension must be open to question in this case. Accordingly the question which arises, so far as this aspect of the constitutional proceedings is concerned, is this: in the circumstances, does the existence of the judicial review proceedings and the negotiations sufficiently explain Mr Durity’s delay in commencing his constitutional proceedings? This is one of the questions for determination by the Court of Appeal.
40. Their Lordships will allow this appeal. The respondent must pay the appellant’s costs of the appeal to their Lordships’ Board. The costs incurred in the Court of Appeal will be costs in the appeal.