LORD CLARKE:
Introduction
1.
This is an unusual appeal because the issues raised in it have now been
considered in three different judicial decisions.
2.
The appellant was a Justice of Appeal of the Eastern Caribbean Supreme
Court. It is agreed between the parties (as set out in the agreed statement of
facts and issues (“the SFI”)) that the appeal concerns the interpretation of
the relevant pension legislation of Saint Lucia, in order to determine whether
or not the appellant was entitled to a pension upon his retirement after
serving for three years and five months as a Justice of Appeal of the Eastern
Caribbean Supreme Court (“the ECSC”). The appellant’s case is that he did not
need to have actually served for ten years, or any other qualifying period, in
order to qualify for a reduced pension. The respondent’s case, which succeeded
in the High Court and the Court of Appeal, is that the appellant needed to have
served ten years in order to qualify for a pension.
The agreed facts
3.
The agreed facts as set out in the SFI are these. The prescribed
compulsory retirement ages for judges of the ECSC (subject to the possibility
of extensions of up to three years in total) are as follows: 62 years of age
for a puisne judge, and 65 years of age for a Justice of Appeal: section 8 of
the Supreme Court Act 1996, Cap 2:01 of the Laws of Saint Lucia (as amended),
which is described in the Act as “this Order”. The appellant was born on 8 July
1952. He served as a Justice of Appeal of the ECSC from his appointment on 1
August 2005 until his retirement on 31 December 2008 at the age of 56. He thus
served as a Justice of Appeal for three years and five months. His case is that
the courts below were wrong to conclude that, because he had not served as a
Justice of Appeal for ten years, he was not entitled to a pension. They should
have held that seven years were to be added to the three years and five months’
service under the Supreme Court (Salaries, Allowances and Conditions of Service
of Judges) Order 1974, Cap 2.10 (“the Salaries Order”).
4.
On 13 December 2008, the appellant first made his claim for a pension to
the Chief Justice of the ECSC, who is the Chairman of the Judicial and Legal
Services Commission (“the JLSC”).
5.
On 7 July 2009, the appellant again made his claim for a pension to the
Accountant General, on behalf of the Government of Saint Lucia, which (not the
JLSC) would be responsible for the payment of a pension in the appellant’s
case. Thereafter correspondence took place between the appellant and the
respondent on behalf of the Government. On 22 May 2010, the Solicitor General,
on behalf of the respondent, wrote to the appellant informing him that the
circumstances of his claim, together with those of other members of the
judiciary, had been made the subject of an Attorney General’s Reference to the
Court of Appeal. The Reference had been made in order to seek clarification in
respect of the applicable legislation.
6.
The appellant appeared and was separately represented at the hearing of
the Reference, as were the JLSC, the respondent and some of the puisne judges
as interested parties. On 22 September 2010 the Court of Appeal (Lord Neuberger
of Abbotsbury and Moore-Bick and Bannister JJA (Ag)) gave its opinion (“the
Advisory Opinion”), which, in the appellant’s case, was that he had not
retired in “pensionable circumstances” for the purposes of section 3(1) of the
Eastern Caribbean Supreme Court (Rates of Pension) (Judges) Act, No 12 of 1989
(“the Rates Act”) because he had not met the requirement of service for ten
years, as provided in regulation 4(1) of the Regulations (“the Pensions
Regulations”) in Schedule 1 of the Pensions Act 1967 (“the Pensions Act”). The
Court of Appeal found in the Advisory Opinion that under normal circumstances
this was the minimum qualifying period of service for a pension. On the basis of the Advisory Opinion the
respondent rejected the appellant’s claim to a pension.
The Statutory Framework
7.
As set out in para 3 above, under section 8 of the Supreme Court Act,
the prescribed compulsory retirement ages for judges of the ECSC (subject to
the possibility of extensions of up to three years in total) are as follows: 62
years of age for a puisne judge and 65 years of age for a Justice of Appeal.
8.
Section 13 of the Supreme Court Act provides that for the purposes of
any laws relating to the grant of pensions the judges are to be in the service
of such State as the Chief Justice may direct and that his direction is to have
effect as an appointment to a pensionable office in that service. It was agreed
that the questions raised by the Reference were to be determined on the
assumption that the judges whose position is under consideration have by virtue
of the Chief Justice’s directions been appointed to pensionable office in the
State of Saint Lucia, whose legislation therefore governs their pension rights.
Similar legislation was in force in the other member states and territories.
9.
The Pensions Act came into effect on 1 December 1967. It repealed
earlier Acts. As summarised in the Advisory Opinion, section 2 of the Pensions
Act is concerned with interpretation, and section 2(1) contains a number of
definitions of expressions used “[i]n this Act”, including a detailed definition
of “pensionable emoluments”. Section 3 is concerned with the Pension
Regulations, which are set out in Schedule 1 to the Act, and subsection (3)
states that “pensions, gratuities and other allowances may be granted ... in
accordance with the Regulations contained in the Schedule ...”. Section 4
provides that pensions “under this Act” should be “charged on and paid out of [the]
Consolidated Fund”.
10.
Section 6 of the Pensions Act sets out the circumstances in which
pensions may be granted to those who have been in the public service; that is
to those who are described as public “officers”. Section 6(1) provides that a
pension shall not be granted under the Act to any officer except on his or her
retirement in one or other of a number of defined cases. The primary condition
is that the officer in question has retired from public service on or after
attaining the age of 55 years, but subsections (7) to (10) make provision for
those who have served for at least ten years and have retired before attaining
the age of 55 to receive a reduced pension. The Advisory Opinion correctly
noted that those subsections did not apply here.
11.
The Pensions Regulations, in Schedule 1 to the Act, came into effect on
the same day. Regulation 2 defines “qualifying service” as “service which may
be taken into account in determining whether an officer is eligible by length
of service for pension, gratuity or other allowance”. The Regulation also
defines “pensionable service” as “service which may be taken into account in
computing pension under these Regulations”.
12.
Regulation 4(1) provides for every person who has been in the public
service for ten years or more to be granted a pension on his or her retirement
of 1/480th of pensionable emoluments for each month of service. As the Advisory
Opinion observed, it follows that, at least under normal circumstances, ten
years is the minimum qualifying period of service for a pension. Ten years’
service would entitle an officer to a pension of one quarter of his full
pensionable emoluments, as it would amount to 120 months of service. Those who
have served for less than ten years may receive a gratuity under regulation 5.
13.
Regulation 14(1) defines “qualifying service” by reference to what is in
effect actual service. Regulation 14(2) provides that “[a] period which is not
qualifying service ... shall not be taken into account as pensionable service”.
The effect of regulation 15(1) is that, at least in general, “only continuous
public service shall be taken into account as qualifying service”. Regulation
18(1) deals with cases where an officer has served in different jobs and, as
the Advisory Opinion points out, it refers to “an officer who has had a period
of no less than three years’ pensionable service before his retirement”. The
Pensions Act and Regulations cover all the judges of the ECSC.
14.
The Salaries Order came into force in 1974. It was made by the JLSC as
delegated legislation under section 11(1)(a) of the Supreme Court Act. It is
principally concerned with various allowances payable to judges in addition to
their salaries. For present purposes, the critical provision is section 12,
which is entitled “PENSIONS” and provides:
“In computing the pension of a judge
who on retirement from the service holds one of the offices mentioned in
Schedule 1 to this Order the additions in the said Schedule mentioned shall be
made to his or her period of service.
However, no addition shall be made
which together with the number of years of his or her actual pensionable
service amounts to more than 400 months.”
Schedule 1 identifies the office holders as the Chief
Justice, a Justice of Appeal and a puisne judge and provides that the additions
which “shall be made to his or her period of service” are ten years, seven
years and five years respectively.
15.
The Rates Act was passed in 1989. Its long title is “[a]n Act to provide
for pensions for Judges of the ECSC and for matters connected therewith or
incidental thereto.” Section 3(1)(a) of the Rates Act provides:
“(1) The pension payable to a
Judge upon his retirement in pensionable circumstances shall be computed as
follows:
(a) In the case of the
Chief Justice, if he has had continuous service as a Judge for a period of not
less than ten years, at a rate equivalent to his full annual pensionable
emoluments at the date of his retirement. In any other case he shall receive a
pension at a rate equivalent to three-fourths of his full annual pensionable
emoluments.”
Paragraphs (b) and (c) make identical provision for
Justices of Appeal and puisne judges, save that, instead of ten years, the
periods referred to in the first sentence are 12 years and 15 years
respectively.
16.
Section 3(2) of the Rates Act provides that “nothing contained in this
Act shall operate to prevent a judge from opting to have his pension computed
under the provisions of the Pensions Act ... in lieu of under the provisions of
this Act”.
17.
Section 6(3) of the Rates Act states that “[a] person who retires in
circumstances other than under the provisions of this Act, shall be entitled to
have his pension computed under the provisions of the Pensions Act ...”. The
Advisory Opinion noted that each of the other member states and territories has
enacted laws in terms almost identical to, and to precisely the same effect as,
the Rates Act, save that the Anguillan legislation omitted section 6.
The proceedings
18.
On 24 February 2011 the appellant issued a claim form seeking a
declaration that he was entitled to be paid a pension in accordance with the
Rates Act and, in the alternative, a declaration that he was entitled to be
paid a gratuity in accordance with the Pensions Regulations. The facts were not
(and are not) in dispute and the matter proceeded on affidavits without
cross-examination of the deponents.
19.
The appellant contended that the Advisory Opinion was seriously flawed
inter alia by the failure of the Government to place before the court material
that provided the legislative history of the legislation to be interpreted. He
asserted in particular that the provisions of the Rates Act should be
interpreted as subject to the previous interpretation and application of
section 12 of the Salaries Order, which provides for the computation of
pensions by the addition of set periods (in the case of a Justice of Appeal
seven years) to the period of actual service of the judge concerned. The
appellant argued that these “add-on years” fell to be taken into account in the
calculation of the period of service that qualifies a judge for a pension. He
further argued that at the time of the passing of the Rates Act, the Salaries
Order had been interpreted and applied in this way, which was clearly and
widely known in the Eastern Caribbean regions and by the States’ finance
officers. Further, Parliament was aware of this when it passed the Rates Act.
20.
The respondent did not accept that this was the effect of the Salaries
Order, because (among other things) the evidence of the Chief Registrar and
Secretary of the JLSC was that such “add-on years” were only applied in the
case of judges who had retired upon reaching their prescribed compulsory
retirement age. The respondent argued that section 12 of the Salaries Order
affected only the computation of a pension payable to a judge who had otherwise
retired “in pensionable circumstances” within section 3(1) of the Rates Act.
21.
As reflected in the Grounds of Appeal before the Court of Appeal, the
appellant also argued in the High Court that the effect of the Rates Act was to
remove altogether the need for a judge to serve a number of qualifying years to
become entitled to pension. In reliance on the previous practice, namely that
before the Advisory Opinion was given, the respondent had paid pensions by
taking into account the “add-on years” years under the Salaries Order to enable
a judge to qualify for a pension. The appellant asserted a legitimate
expectation that this practice would be followed in relation to him.
The High Court
22.
In the High Court Wilkinson J (“the judge”) rejected the appellant’s
submissions in a judgment delivered on 12 December 2012. She held that the
effect of section 12 of the Salaries Order was not to apply the “add-on years”
to increase the period of service qualifying a judge for a pension, but was,
instead, limited to the computation of the amount to be paid to a judge who was
otherwise entitled to a pension under the Act and the Regulations. She rejected
the appellant’s claim to a legitimate expectation on the basis that the
practice of granting the “add-on years” had been applied only in those cases
where a judge retired upon attaining the prescribed compulsory retirement age
and not in cases where a judge had retired upon reaching 55 years of age. She
also held that, in the light of her interpretation of the legislation, for the
court to order payment of pension would be to order an unlawful act.
The Court of Appeal
23.
The appellant appealed to the Court of Appeal comprising Baptiste JA and
Thom and Kentish-Egan QC, JA [Ag]. On 27 October 2014 the Court of Appeal
dismissed all the grounds of appeal except on costs. The Court of Appeal
accepted that it was the previously settled practice recommended by the JLSC to
pay pensions to Justices of Appeal whose pensionable service on retirement at
pensionable age fell short of the minimum ten years. However, it noted that the
practice had two features. First, the JLSC construed and applied the “add-on
years” in the Salaries Order as qualifying years; and secondly, “add-on years”
were used to qualify a judge to receive a pension only if he or she retired at
the mandatory age of 62 (for a High Court Judge), or 65 (for a Justice of
Appeal). The Court of Appeal held that for over 30 years the Salaries Order had
been wrongly interpreted and wrongly applied in this way by those responsible
for administering the Rates Act and the Pensions Act. It also held that the
legal meaning of section 12 of the Salaries Order was as found by the judge.
24.
The Court of Appeal acknowledged the appellant’s assertion that the
legislature recognised the problem or mischief of the unattractive level of
remuneration and benefit for judges and that the Rates Act was intended to make
provisions that were “more favourable and advantageous than existing pension provisions”:
para 62. It stated that it agreed with that, but did not agree with the
appellant’s argument that the additional years provided for by section 12 of
the Salaries Order were already included in the unattractive level of pension
benefits that needed to be made more favourable. The Court of Appeal held that
for this to be so it would be necessary to hold that under section 12 the
add-on years were intended to form part of a judge’s period of qualifying
service, which it had found, in agreement with the judge, was not the case.
25.
In this context the Court of Appeal also acknowledged the appellant’s
argument that at the time it passed the Rates Act the Legislature must have
known of the previously applied interpretation of the Salaries Order and must
have considered this practice as part of the unsatisfactory state of the law to
be improved upon or changed altogether by the Rates Act. However the Court of
Appeal dismissed this argument as requiring the drawing of an inference that
was not justified on the evidence before it. The Court of Appeal found that
section 12 of the Salaries Order operated on Regulation 4(1), not to supersede
it, but to vary the formula and augment the rate of pension to be paid to a
judge by adding months to his pensionable service. The Court of Appeal
considered and rejected the appellant’s argument that the Rates Act eliminated
the need for qualifying years of service to become entitled to a pension. As to
legitimate expectation, the Court of Appeal upheld the judge’s decision that
the previous practice was applied only to judges who had reached compulsory
retirement age and the appellant could have no legitimate expectation.
Issues before the Board
26.
The issues before the Board were formulated by or on behalf of the
appellant as follows: (1) On a proper interpretation of the legislation, did
the retirement of the appellant before he had actually served for ten years
mean he had not retired in “pensionable circumstances” and so was not entitled
to a pension? (2) Was the settled practice of adding on years to a judge’s actual
years of service wrong? (3) Was it of any significance or effect in
interpreting the Rates Act that at the time of its passing Parliament knew that
judges were treated as qualifying for pension with the benefit of the add-on
years stated in the Salaries Order? (4) Was the appellant’s expectation to a
pension legitimate having satisfied one of two requirements and the other
requirement having been determined to have been erroneously applied?
27.
The respondent prefers the formulation of the issues as identified by
the judge and the Court of Appeal. They are these: (1) whether the appellant is
entitled to be paid a pension pursuant to either the Pensions Act or the Rates
Act or both; and (2) whether the appellant, if he fails to qualify for a
pension, has made out a case of legitimate expectation based on past
recommendations of the JLSC and payments made by the Government to retired
judges pursuant to those recommendations.
The Advisory Opinion
28.
The Advisory Opinion considered what it described as two central
questions. The first is whether section 12 of the Salaries Order is concerned
with computing the amount of the pension payable to a judge (limited to 400
months of pensionable service) or whether it is also relevant to the
calculation of the period of service that will qualify a judge for a pension;
that is whether it falls to be taken into account for assessing qualifying
service as well as pensionable service.
29.
The second of the central questions identified in the Advisory Opinion
revolves around the meaning of the expression “retirement in pensionable
circumstances” in section 3(1) of the Rates Act. Does it refer back to the
Pensions Act and Regulations, and if so to what extent, and if not what meaning
does it have?
30.
The Advisory Opinion noted at para 21 that, as the argument developed,
it became apparent that there were really two main issues. The first was
whether the Rates Act is a self-contained piece of legislation, which permits
no, or very limited, reference to the Pensions Act and Regulations for the
purpose of determining its meaning and effect. The particular issue was the
effect of the words “retirement in pensionable circumstances” in the opening
part of section 3(1). The Advisory Opinion considered this issue between paras
23 and 42 under the heading “the ambit of the Rates Act”. It considered the
second issue between paras 43 and 54 under the heading “section 12 of the
Salaries Order.” It is convenient to consider those issues in turn.
The ambit of the Rates Act
31.
Under this heading the Advisory Opinion first considered in paras 23 and
24 the three different constructions advanced for the words “retirement in
pensionable circumstances” in section 3(1) of the Rates Act. The JLSC contended
that it means retirement at, as opposed to retirement before, the mandatory
retirement age, as specified in section 8(1) of the Supreme Court Act; that is
retirement, irrespective of length of service, on attaining the age of 62 or
65. The puisne judges argued that it refers to retirement in circumstances in
which a judge would be entitled to receive a pension under the Pensions Act and
Regulations; that is retirement aged at least 55 with at least ten years’
public service. Justice Barrow contended that it means retirement aged at least
55 with no minimum period of service; that is retirement at any time after 55,
with no other requirement.
32.
The Advisory Opinion (in para 26) recognised that there was plenty of
scope for argument as to the meaning of the expression “retirement in
pensionable circumstances” in section 3(1). However it expressed the firm view
that the puisne judges’ contention was correct. It recognised that the JLSC’s
interpretation was attractive on policy grounds but concluded that it involved
attributing to the expression a meaning which it could not support and it also
wrongly treated the Rates Act as embodying a free-standing pension scheme. It
rejected Justice Barrow’s interpretation on the basis that it involved an
impermissibly partial incorporation of the requirements of the Pensions Act and
Regulations into section 3(1) of the Rates Act.
33.
The Advisory Opinion (in para 27) expressed the view that, in the
absence of any definition in the Rates Act of the expression “in pensionable
circumstances”, its meaning must be determined by reference to the legislative
and other context existing at the time that the Rates Act was passed; that is,
by reference to the requirements of the Pensions Act and Regulations. It added
that, giving the language of section 3(1) its natural meaning, it was very hard
to see what else the legislature could have intended. On that basis a judge
must have attained the age of 55 and must have been in the public service
(although not exclusively as a judge, whether of the ECSC or otherwise) for at
least ten years in order to retire “in pensionable circumstances”. The Board
agrees.
34.
Moreover it agrees with the Advisory Opinion expressed in para 28 that
this interpretation of the words “in pensionable circumstances” ties in well
with the use of another undefined expression, namely “pensionable emoluments”,
in section 3(1)(a), (b), and (c). This is because, since the Rates Act gives no
guidance as to how one assesses such emoluments, it is very hard to see an
answer to the point that the obvious way to determine a Judge’s “pensionable
emoluments” for the purposes of section 3(1) is by referring back to the
Pensions Act and Regulations, which use and define that expression. As the
Advisory Opinion put it, if one refers to the Pensions Act and Regulations to determine
the extent of a judge’s “pensionable emoluments”, it is not easy to discern why
one should not perform the same exercise to determine whether a Judge has
retired “in pensionable circumstances”.
35.
As the Advisory Opinion put it at para 29, there is nothing in the Rates
Act which provides how a judge’s pension payable under that Act is to be paid. This
would cause a problem if the Rates Act were seen as introducing a
self-contained regime. If however it is seen as constituting an alternative
basis of assessing the level of pension payable to a judge under the umbrella
of the Pensions Act and Regulations, no problem arises: section 4 of the
Pensions Act applies. It provides for pensions to be charged on and paid out of
the Consolidated Fund.
36.
In para 30 the Advisory Opinion gave its reasons for saying that the
title of the Rates Act and the provisions of section 3(2) also provide some
support for this conclusion. The title suggests that the Rates Act is concerned
with changing the rate, or amount, of pension, not the qualification for a
pension. Section 3(2), with its reference to computation, seems to assume that
a judge who is within section 3(1) will also have a right to a pension under
the Pensions Act and Regulations, which is consistent with the conclusion in
the Advisory Opinion.
37.
See also paras 31 to 37, where the Advisory Opinion gave further reasons
for preferring the submissions of the puisne judges to those of the JLSC. In
particular the Board accepts the summary in para 34 as follows:
“Despite the attraction of the
JLSC’s argument in practice, we are unable to accept it. Quite apart from the
difficulties of treating section 3(1) of the Rates Act as wholly independent of
the requirements of the Pensions Act and Regulations, it is, in our view,
simply impossible to derive that interpretation from the language of the
opening words of section 3(1) of the Rates Act. Retirement ‘in pensionable
circumstances’ is just not capable of meaning retirement which is only at the
compulsory retirement age, irrespective of whether there would then otherwise
be an entitlement to a pension.”
38.
In paras 38 to 42 the Advisory Opinion gave reasons for rejecting the
appellant’s construction of the expression “retirement in pensionable
circumstances”. It is sufficient to refer specifically only to para 38, which
is in these terms:
“For Justice Barrow it was
submitted that the words ‘retirement in pensionable circumstances’ in section
3(1) of the Rates Act only require a judge to have attained the age of 55 when
he retires. This submission can be said to avoid the problem faced by the
submission of the JLSC, as it gives the words ‘in pensionable circumstances’ a
meaning which imports into section 3(1) of the Rates Act the requirement of
section 6(1) of the Pensions Act that a person is at least 55 when he or she
retires. However, it disregards the requirement of regulation 4(1) of the
Pensions Regulations that a person has been in public service for at least ten
years when he or she retires. That is very hard to justify: regulation 4(1)
specifies a condition which requires to be satisfied by a person seeking a
pension just as clearly and firmly as section 6(1).”
The Board agrees.
Section 12 of the Salaries Order
39.
The Advisory Opinion discussed section 12 of the Salaries Order in paras
43 to 54, where it considered and accepted the submission that section 12 relates
only to the computation of the amount of a judge’s pension and does not have
any bearing on the period of service necessary to qualify for a pension. It
correctly concluded that the distinction between qualifying service and
pensionable service is clear from Regulation 2 of the Pensions Regulations. It
noted in para 43 that the puisne judges and the appellant submit that the
additional period is to be taken into account in calculating qualifying service
as well as pensionable service under the Pensions Act and Regulations, and,
moreover, it is to be taken into account in determining pension rights under
section 3(1) of the Rates Act.
40.
In the following paragraphs it reached broadly these conclusions. The
purpose of the Salaries Order was to make additional provision for judges’
emoluments and allowances. Section 12, which deals with pensions, must be
interpreted in the light of the Pensions Act and Regulations, which was the
only legislation governing judicial pensions then in force. It provides that
the additional periods set out in the Schedule are to be added to the judge’s
period of service in “computing” his or her pension. It also provides that the
total pensionable service shall not exceed 400 months. That provision has to be
read and understood in the context of Regulation 4 of the Pension Regulations,
which provides for a pension to be computed at the rate of 1/480th of
pensionable emoluments for each month of pensionable service. It follows that
the maximum pension which can be achieved by the operation of section 12 is five
sixths of pensionable emoluments at the date of retirement.
41.
Section 12 is concerned solely with the computation of pensionable
service, which is the determination of the number of months a judge is treated
as having served for the purposes of calculating the amount of his or her
pension and is not directed to the period that must be served in order to
qualify for a pension. In effect, it is a means of enhancing judicial pensions,
not a means of accelerating them. The Opinion noted that that seems clear from
the natural meaning of the opening words of section 12, which begins, “In computing
the pension of a judge”. The Opinion correctly added that the section is
concerned with the computation of the pension, not with the question of
entitlement to a pension. It assumes that there is a right to a pension. The
Board agrees that this interpretation of section 12 derives support from the
fact that it uses the same word, namely “computing”, as is found in the definition
of “pensionable service” (and which is not to be found in the definition of
“qualifying service”) in Regulation 2 of the Pensions Regulations. The interpretation
is also supported by the last sentence of section 12, which is aimed solely at
the quantum of a judicial pension, not the entitlement to such a pension. Thus
section 12 does not bestow a right to a pension where none existed before.
42.
The Opinion also relied (in para 47) upon the reference to the number of
years of his or her “actual pensionable service”, which harks back to section
14(1) of the Pensions Regulations which defines qualifying service in terms of
the period actually served. The section therefore draws a distinction between
actual service and the additional years in a way which suggests that they are
not intended to count as years of service that would affect qualification for a
pension. All that is required is to add the period stipulated in section 12 of
the Salaries Order to the pensionable service in order to assess the quantum of
the pension for a particular judge. As the Opinion put it in para 50, section
12 is only concerned with pensionable service (which is solely relevant for
calculations under the Pensions Act and Regulations), and has nothing to do
with periods mentioned in the first sentences of section 3(1)(a), (b) and (c).
43.
In conclusion, the Board agrees with the construction placed upon the
relevant statutory provisions in the Advisory Opinion and, indeed, by the judge
and the Court of Appeal, so far as they relate to the ambit of the Rates Act
and section 12 of the Salaries Order.
The appellant’s case
44.
Having set out its conclusions on the construction of the relevant
provisions, the Board turns to the other specific points relied upon in the
appellant’s case. First, criticisms are made as to the process which led to the
Advisory Opinion. In para 4 of the appellant’s case, he relies upon what is
called the exceptional nature of the Reference. He adds that the three members
of the panel were all ad-hoc appointees, that all were non-West Indians and
that two had no known prior awareness of the law, practice, legal traditions or
institutions of the Eastern Caribbean. No evidence was taken. There was no
witness statement, affidavit or oral evidence. There was no disclosure. To the
extent that the Opinion was based on any facts or assumed facts, such facts
were only those that the Attorney General placed before the court.
45.
It is not entirely clear what point is being made. It was not suggested
before the panel or indeed in the High Court or the Court of Appeal that any
member of the panel should have recused himself on the ground that he was not
sufficiently aware of the true position. However, that is not quite the point
being taken. As the Board understands it, the point being taken is that the
respondent did not disclose a full picture to the panel.
46.
This was not however a point taken on behalf of the appellant at the
Reference. That is notwithstanding the fact that the appellant played a full
part in the Reference. He lodged written submissions and was represented at the
Reference on 20 and 21 September 2010 by leading counsel and two juniors. No
attempt was made to seek disclosure of more material.
47.
In the High Court proceedings, the appellant did not make the ad hominem
points now made against the members of the panel, although he could have done. In
any event, as is pointed out on behalf of the respondent, the judge and the
Court of Appeal reached the same conclusions as the panel, even though no such
criticisms could be made of them. The Board is firmly of the view that it
should focus on the issues of construction, as it has done above.
48.
The appellant did however accuse the Attorney General of concealing
critical facts from the court in the Reference. These were facts that showed
that the law and practice have always been applied by the decision makers as
not requiring a judge to serve a qualifying period of ten years. The Attorney
General responded in the High Court to say that the facts which were not
disclosed to the Court were never in his possession but were in the possession
of the JLSC, which participated in the Reference. The appellant submits that,
however responsibility is apportioned for that conduct, if this “seminal
information” had been disclosed to the Reference, it is virtually certain that
the Reference would have produced a different opinion.
49.
The Board does not accept this submission. This material could have been
put before the Reference on behalf of the appellant. In any event, the Board
accepts the submission on behalf of the respondent that the panel had regard to
the local context and had the assistance of local counsel on all sides. Moreover,
there is no basis upon which the appellant can challenge the decisions of the
judge or the Court of Appeal on these grounds. There is no evidence that they
were unaware of the previous practice. Further, much of the material which the
appellant now submits should lead to a different construction of the relevant
legislation was, as a matter of fact, before the panel.
50.
Paragraph 51 of the Advisory Opinion is in these terms:
“We were presented with some
extra-statutory material (which was not relied on by [counsel for the appellant]
… in argument) consisting of the Report briefly referred to above, which
preceded the passing of the Rates Act. The Report referred to submissions made
by the Chief Justice, which stated that the effect of section 12 of the
Salaries Order ‘is that the Chief Justice acquires pensionable status on the
day after his appointment, a Justice of Appeal after three years’ service, and
a Puisne Judge after five years’ service’. The Report was referred to by the
Prime Minister in Parliament when introducing the Bill which became the Rates
Act.”
As was correctly submitted on behalf of the respondent,
the Report there referred to by the Court of Appeal is the same Report as that
now relied upon by the appellant.
51.
The appellant submitted that the views of the Chief Justice should be
given particular weight due to his role as chairman of the JLSC, the body
responsible for the administration of pensions and for making the Salaries
Order. However, as the Advisory Opinion states in paras 52 and 53:
“52. The Report and Parliamentary
debate, both in 1988, plainly cannot be relied on to construe the Pensions Act
and Regulations which were enacted more than a decade earlier. We are also
unpersuaded that the contents of the Report can be relied on in relation to the
interpretation of the Rates Act, although the point is not quite so
straightforward. As Mr Bennett [counsel for the JLSC] said, what the Chief
Justice said outside court about certain legislation, though deserving of
respect, is not admissible in court when construing that legislation. Further,
it is one thing to interpret legislation by taking into account express and
unambiguous statements made in Parliament by the member sponsoring that
legislation; it would be quite another to rewrite legislation to accord with a
mistake in interpretation of an earlier statute which that member made
according to what he said in Parliament. The rule in Pepper v Hart is
concerned with the construction of statutes, not with the equivalent of
rectification of statutes.
53. Quite apart from this, it is not by any
means clear that the committee accepted the Chief Justice’s argument as
recorded in para 3 of the Report. The Report followed an earlier ‘Report and
recommendations’, which we have not seen, and which may throw further light on
the issue. Anyway, it is the understanding of the Prime Minister, and indeed
the legislature, not the understanding of the Committee, which would be
relevant for the purpose of this argument. Although the Prime Minister stated
that the Government was seeking to implement the recommendations of the
Committee in the Rates Act, it does not follow that he, or the Government,
agreed with the view of the Committee as to the effect of the Pensions Act and
Regulation. Quite apart from this, as Mr Astaphan [counsel for the appellant]
fairly pointed out, the Rates Act did not in fact implement the recommendations
of the Committee - at least if those recommendations were as contained in the
Report.”
52.
It was noted on behalf of the respondent before the Board that the
report referred to in para 53, which is available to the Board, was prepared in
1985 by Chief Justice Robotham. The Board accepts the respondent’s submission
that it does not affect the construction of the Rates Act any more than the
later report for similar reasons to those set out in paras 52 and 53 of the
Advisory Opinion quoted above. It further accepts the submission that the panel
was fully aware of the parliamentary context.
53.
In all these circumstances the Board is not persuaded that any of the
material relied upon is sufficient to alter the opinion expressed above that
the construction of the statutory material reached in the Advisory Opinion and
by the courts below is correct. Accordingly the Board answers the first
question posed in para 27 above, namely whether the appellant is entitled to be
paid a pension pursuant to either the Pensions Act or the Rates Act or both in
the negative. It also answers questions (1) to (3) posed in para 26 above in
the negative.
Legitimate expectation
54.
The Board turns to the question whether the appellant is entitled to a
pension based on the principle of legitimate expectation. This is in essence
the question posed by both question (4) in para 26 above and by question (2) in
para 27. In the latter formulation it asks whether the appellant, if he fails
to qualify for a pension on the true construction of the statutory provisions,
has made out a case of legitimate expectation based on past recommendations of
the JLSC and payments made by the Government to retired judges pursuant to
those recommendations.
55.
This question was expressly considered by both the judge and the Court
of Appeal. It was not considered as part of the Reference. Both the judge and
the Court of Appeal held that the appellant had not established a right based
upon legitimate expectation. The judge summarised her conclusions in para 63 of
her judgment as follows:
“… the court on examination of the
evidence of the claimant and the Secretary of the JLSC finds that while one
factor might have been common with the facts surrounding the claimant’s
retirement, namely the short period of service, there was one factor that was
certainly dissimilar and that was that the JLSC only recommended payment on the
achievement of sixty two (62) years for a Puisne Judge and 65 for a Justice of
Appeal. No payments had been recommended to a Judge retiring at the age of
fifty five (55) years or fifty six (56) years as was the case of the claimant.
Admittedly the claimant could hold the position that he was retiring pursuant
to the age fixed by the Pensions Act and not the Supreme Court Act. The factors
not being on all fours with each other, the Court finds that there could be no
legitimate expectation.”
56.
As was correctly submitted on behalf of the respondent, the Court of
Appeal, in a further detailed analysis, confirmed the judge’s conclusion at
paras 84 to 89. In particular it was submitted that no judge who had retired in
similar circumstances to the appellant (ie below the prescribed retirement ages
of 62 years for a puisne judge, and 65 years for a Justice of Appeal) had been
paid a pension. Reliance was placed in particular upon the following conclusions
of the Court of Appeal. It said at para 86:
“The promise or representation
held out to the appellant based on the practice of the JLSC was this: on his
retirement as a justice of appeal at the mandatory age of 65 with three years’
service, seven years would be added to his service to give him the necessary
qualifying years. The promise or the practice was built on the fulfilment of an
essential condition, attaining the mandatory retirement age of 65. The
appellant could readily prove the legitimacy of his expectation to be paid a
pension if, based on this practice, he had retired at age 65 and had served for
only three years and five months.”
In fact the appellant had retired at the age of 56 and at
para 89 the Court of Appeal continued:
“The evidence showed that for its
part, the JLSC unequivocally applied the practice so that a High Court judge or
justice of appeal who retired before reaching the mandatory retirement age did
not get the benefit of the add-on years and was not paid a pension. I agree
with the finding of the learned trial judge that the appellant could have no
legitimate expectation in this case.”
57.
In these circumstances the Board accepts that, in the face of concurrent
findings of fact, however it is formulated, the appellant’s claim based on
legitimate expectation cannot possibly succeed.
Conclusion
58.
For these reasons the Board concludes that the appellant’s appeal must
be dismissed and will humbly advise Her Majesty to that effect. Subject to any
submissions made on behalf of the appellant within 28 days of the hand down of
this judgment, the respondent’s costs before the Board must be paid by the
appellant.
