UKPC 46
Privy Council Appeal No 01080 of 2010
Dennis Graham (Appellant) v Police Service Commission and the Attorney General of Trinidad & Tobago (Respondents)
From the Court of Appeal of the Republic of Trinidad and Tobago
Sir John Laws
Sir Patrick Elias
JUDGMENT DELIVERED BY
SIR JOHN LAWS
20 December 2011
Heard on 16 November 2011
Sir Fenton Ramsahoye SC
(Instructed by Bankside Commercial Solicitors)
Ms Rachel Thurab
(Instructed by Charles Russell LLP)
SIR JOHN LAWS :
Provisions of the Constitution
"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 –
(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;..."
Section 14 provides ("for the removal of doubts") that redress may sought in the High Court for violation of any person's constitutional rights. Damages are discretionary; as was stated by Lord Kerr giving the judgment of the Judicial Committee in James v Attorney General of Trinidad and Tobago  UKPC 23 at paragraph 36, "[t]o treat entitlement to monetary compensation as automatic where violation of a constitutional right has occurred would undermine the discretion that is invested in the court by section 14 of the Constitution".
The proceedings in the High Court and Court of Appeal
"94. The difficulty however in arriving at a compensatory award in this case is that there is no evidence on which the Court can come to any assessment of what Graham may have lost. There is no evidence of what salary the various ranks attracted so that one could begin to determine what monetary sum he might have lost. So too there is no evidence of what acting appointments he might have been appointed to and over what period so that it could be determined what he might have had a chance to earn. Nor is there any evidence of how all this might have impacted, if it did, on Graham's pension. The onus was upon Graham to produce and provide this evidence."
"97. In my judgment on the facts of this case an additional award was not called for. The circumstances and facts of this case do not demand an award to reflect a sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach or to deter further breaches. What was required was an appropriate compensatory award. However on the evidence it was not possible to arrive at an appropriate figure or to say that the sum awarded by the Judge is not that figure. If consideration is given to distress and hurt feelings I think that the award is more than adequate to compensate for this. Of course no consideration is to be given to a reduction of the award as there is no appeal in this regard. However I see no basis on which the award can be reviewed upwards. In these circumstances the award of the Judge will remain as it is. This however means that Graham's appeal fails and must be dismissed."
The Appellant's Case
"18. When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.
19. An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. 'Redress' in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions 'punitive damages' or 'exemplary damages' are better avoided as descriptions of this type of additional award."
"18. These principles apply, in their Lordships' opinion, to claims for constitutional redress under the comparable provisions of the Bahamian constitution. If the case is one for an award of damages by way of constitutional redress – and their Lordships would repeat that 'constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course' (para 25 in Ramanoop) – the nature of the damages awarded may be compensatory but should always be vindicatory and, accordingly, the damages may, in an appropriate case, exceed a purely compensatory amount. The purpose of a vindicatory award is not a punitive purpose. It is not to teach the executive not to misbehave. The purpose is to vindicate the right of the complainant, whether a citizen or a visitor, to carry on his or her life in the Bahamas free from unjustified executive interference, mistreatment or oppression. The sum appropriate to be awarded to achieve this purpose will depend upon the nature of the particular infringement and the circumstances relating to that infringement. It will be a sum at the discretion of the trial judge. In some cases a suitable declaration may suffice to vindicate the right; in other cases an award of damages, including substantial damages, may seem to be necessary."
Plainly the statement that "the nature of the damages... should always be vindicatory" does not imply a rule that a distinct vindicatory award should be made in every case of constitutional violation; as the balance of the passage shows, it merely serves to indicate the overall purpose of any award of damages in constitutional cases.
The burden of adducing evidence as to pecuniary loss
"a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration".
Mr Beharrylal relied in particular on observations in the cases to the effect that in judicial review litigation the critical facts will often be within the respondent's particular knowledge: Huddleston at 945G, R v Barnsley Metropolitan BC  1 WLR 1052 at 1058, and Lancashire CC v Taylor  EWCA Civ 284;  1 WLR 2668 at paragraph 60. Mr Beharrylal submits that that applies here: rates of pay and pensions in the Police Service and other financial details likely to be relevant to the appellant's claim for compensation would be kept by the PSC. Accordingly he submits that it was the PSC's duty to disclose, unasked, all such materials.
"28. In my view, it does not lie in the mouth of the appellant to say that he is not obliged to place evidence of damage suffered before the constitutional court before liability is determined. I say so because it must first be shown that there has been damage suffered as a result of the breach of the constitutional right before the court can exercise its discretion to award damages in the nature of compensatory damages to be assessed. If there is damage shown, the second stage of the award is not available as a matter of course. It is only if some damage has been shown that the court can exercise its discretion whether or not to award compensatory damages. The practice has developed in constitutional matters in this jurisdiction of having a separate hearing for the assessment of the damages, but it cannot be overemphasized that this is after there is evidence of the damage. In the instant case there is no evidence of damage suffered as a result of the breaches for which the appellant can be compensated."
The appellant accepted that this required him to prove some damage, but claimed he had established as much by demonstrating the failure to promote him. Thereafter, he submitted that the onus was on the PSC to produce evidence going to the assessment of damage. In the Board's view this passage tends to contradict that submission which, for the reasons given, the Board regards as erroneous and contrary to the fundamental principle that he who asserts must prove.
Should the assessment of damages be referred to a master?
"30. It must be noted however that there has been no similar excoriation as far as constitutional matters are concerned, but it is hoped that if damages are going to be a live issue in a case, this needs to be made explicit at the first opportunity under the new Civil Procedure Rules... so that the problems which arose in this case are not repeated. It is always so tempting to litigants after liability has been determined, whether in running down matters or otherwise, to exaggerate and insist on the highest damages. This is extremely unfair to the State in constitutional matters, especially when its case is tenuous and its representatives do not wish to use the State's resources to defend virtually indefensible positions."
Mr Stevens accepted that damages issues in constitutional cases are frequently, but not invariably, referred for a separate hearing.