UKPC 32
Privy Council Appeal No 0009 of 2010
Francis Paponette and Others (3) v The Attorney General of Trinidad and Tobago
From the Court of Appeal of Trinidad and Tobago
Sir John Dyson, SCJ
Sir Malachy Higgins
JUDGMENT DELIVERED BY
Sir John Dyson, SCJ
13 December 2010
Heard on 1 and 2 November 2010
Peter Knox QC
Ramesh Lawrence Maharaj SC
(Instructed by Collyer Bristow LLP)
Alan Newman QC
(Instructed by Charles Russell LLP)
SIR JOHN DYSON SCJ
The statutory framework
"4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely-
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
. . .
(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;
. . .
5 (1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared."
"(1) Regulations under section 101 may make provision generally as to the conduct of persons using a station and in particular –
(a) for appointing any place, being the property of the Corporation or being part of a road, a station for public service vehicles;
(b) in the case of a road, for authorising the Corporation to do all thing as are necessary to adapt the station for use as such, and in particular to provide and maintain waiting rooms, ticket offices, refreshment places and lavatories and other similar accommodation in connection therewith;
(c) for authorising the Corporation to make reasonable charges for the use of, or to let on hire to any person, any accommodation so provided; and
(d) for the use of any such accommodation.
(2) In this section 'Corporation' means the Corporation established under the Public Transport Service Act, and 'station' includes bus stops and coach stations and terminals that may be used by public service vehicles belonging to the Corporation as parking places."
"The Corporation is authorised to make reasonable charges for the use of any accommodation on its property so provided."
"(1) The owner or operator of a public service vehicle who desires to use the Transit Centre shall apply to the Corporation in the manner set out in Form 1 of the Schedule.
(2) Upon receipt of an application form under subregulation (1) and the payment of a fee of one hundred dollars from an owner or twenty-five dollars from an operator, the Corporation upon being satisfied that such owner or operator is a fit and proper person to use the Transit Centre shall issue to such owner or operator a permit in the manner set out in Form 2 of the Schedule."
"(a) A declaration that the conduct and/or action of the executive arm of the State in permitting the Public Transport Service Corporation to impose a mandatory $1.00 user fee and/or levy on Maxi Taxi Owners and/or Operators per exit trip from the Port of Spain Transit Centre is unconstitutional, null, void and of no effect in that it contravenes their right and those they represent to the enjoyment of their property as guaranteed to them in section 4(a) of the Constitution of the Republic of Trinidad and Tobago.
(b) A declaration that the Applicants and those they represent have been treated unequally by the executive arm of the State in contravention of section 4(a) (sic) of the Constitution of the Republic of Trinidad and Tobago in that it authorised and/or facilitated that they pay an exit fee for the use of the Taxi stand at the Port of Spain Transit Centre while other Taxi drivers and/or Maxi Taxi Owners and/or operators do not have to pay such a fee."
Breach of section 4(a) of the Constitution
Was there an infringement of the appellants' right to the enjoyment of property?
"They establish clearly that there are limits to the concept of taking property and that some types of state action which could linguistically be so regarded are not to be regarded as justiciable. It is well established that measures adopted for the regulation of activity in the public interest, such as planning control or the protection of public health, will not constitute the taking of property, notwithstanding the fact that they may have an adverse economic effect on the owners of certain properties."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"It is well settled that restrictions on the use of property imposed in the public interest by general regulatory laws do not constitute a deprivation of that property for which compensation should be paid."
"Except by due process of law": substantive legitimate expectation
"It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is 'clear, unambiguous and devoid of relevant qualification': see Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd  1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called 'the macro-political field': see R v Secretary of State for Education and Employment, Ex p Begbie  1 WLR 1115, 1131."
"In applying the law to the facts of this case in my opinion, the first point of reference must be 'the representation'. On the appellants' case (paragraph 7) there was no clear promise not to charge a user fee or transfer 'management' to the Maxi-Taxi Association, and as Mr Maharaj [counsel for the appellants] seems to have accepted, the promise advanced was that the owner/operators 'would not be under the control and/or management' of the PTSC. The [appellants'] argument becomes untenable if one were to ask, what does management involve? Or, what lies within the scope of the promise or representation?"
"Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. "
"49. Whereas in R v North and East Devon Health Authority, Ex p Coughlan  QB 213 it was common ground that the authority had given consideration to the promises it had made, in the present cases, that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be done to assuage the disappointed expectations.
. . .
51. The law requires that any legitimate expectation be properly taken into account in the decision making process. It has not been in the present case and therefore the authority has acted unlawfully."
Breach of section 4(d) of the Constitution
"The owners/operators of route 1, 4 and 5 do not use the City Gate facility—that is the most obvious area of difference which is reflected in the route areas traversed (see the Maxi-Taxi Act). They do not ply for hire in Port of Spain, except on weekends, public holidays or when they are chartered (see the Maxi-taxi Regulations). Their journeys do not begin or end at City Gate, nor do they use the Priority Bus Route. These are the dissimilarities in circumstances which exist. (See Ong Ah Chuan v Public Prosecutor  AC 648, Shamoon v Chief constable of the Royal Ulster Constabulary  2 All ER 26 and Bhagwandeen v Attorney General of Trinidad and Tobago  UKPC 21.). The [appellants] do not therefore pass the 'sameness' test. There has been no denial of the equality."
(i) The Association (the term I shall use to include also the 2,000 odd maxi- taxi owners and operators on routes 2 and 3) agreed to relocate to the PTSC's site at City Gate in 1995.
(ii) The Association's facility there was initially managed by NIPDEC without charge until 1997 or 1998 (the decidedly sketchy agreed statement of facts and issues says inconsistently both that NIPDEC managed the taxi stand until 1997 and that the PTSC took over its management in about 1998).
(iii) In 1997 Regulations were made, giving the PTSC the responsibility for managing the facility and the authority "to make reasonable charges" for its use.
(iv) On 1 August 2001 the PTSC introduced the $1 user fee for each vehicular exit from the facility.
(v) On 24 August 2004 (following an initial letter of claim dated 13 April 2004) the Association issued their constitutional motion.
The case under section 4(a)
The case under section 4(d)