Boyce et Al v Commissioner of Police et Al; Robinson v Commissioner of Police et Al; Ellis v Commissioner of Police et Al

• Jurisdiction: Barbados
• Judge: Reifer, J.
• Judgment Date: 23 December 2016
• Neutral Citation: BB 2016 HC 37
• Docket Number: 1280 of 2012; 1281 of 2012; 1316 of 2012
• Court: High Court (Barbados)
• Date: 23 December 2016

High Court

Reifer, J.

1280 of 2012; 1281 of 2012; 1316 of 2012

Boyce et al

and

Commissioner of Police et al

Robinson

and

Commissioner of Police et al

Ellis

and

Commissioner of Police et al

Appearances:

Mr. Ralph Thorne QC attorney-at-law for the claimants (1280 and 1281/2012)

Mr. Alair Shepherd QC in association with Ms Jennivieve Maynard attorneys-at-law for the claimant Errol Ellis (#1316/2012)

Mr. Tariq Khan, attorney-at-law, for the Police Service Commission

Ms. Donna Brathwaite QC, Mr. Jared Richards and Ms. Joanne Murphy attorneys-at-law for the Commissioner of Police, first respondent and the Attorney General, third respondent

Civil practice and procedure - Whether the failure to comply with General Orders which was a breach of the Public Service Act was a condition precedent to the Court's jurisdiction in hearing the matter filed by the claimants — Whether the Constitutional and Statutory Ouster Provisions prohibited the court from inquiring into the matter.

Judicial Review - Application for judicial review of the decision of the second respondent in failing to promote the applicants — Whether the procedure adopted by the PSC contravened the Police Promotions Regulations and the practice relating to the promotion of Inspectors and Gazetted Officers — Whether there was a procedure and/or established practice as pleaded — Whether that practice was breached — Whether the claimants were entitled to claim a Legitimate Expectation of promotion once they fell within the zone of selection or were recommended by the Promotions Advisory Board and Commissioner Of Police for promotion to the Police Service Commission — Whether the Police Service Commission acted unreasonably, irregularly, arbitrarily or improperly to the extent necessary to warrant an intervention by the Court.

1 This is the fourth decision delivered by this judge in this consolidated action.

2 The first decision was delivered in March 2014 and involved the hearing of a constitutional issue raised by the claimant in suit #1316/2012. In that interlocutory application, the constitutionality of sections 9 and 10 of the Service Commissions Act Cap. 34 was questioned. This Court upheld the constitutionality of these sections.

3 The second decision was delivered in October 2014 and concerned the determination of an application by one of the respondents; the Police ice Commission (hereinafter referred to as the PSC), filed May 30th2014 and heard September/October 2014, to strike out this action.

4 The third decision was delivered September 28th, 2015 and was pursuant to an application made by counsel for the claimant in suit #1316/2012, and was an application for discovery of documents.

5 This fourth and final decision deals with the substantive claim to be found in these consolidated actions.

THE BACKGROUND

6 It serves as a refreshing of the background of this matter, to set out ‘in extenso’ the following paragraphs of the decision of March 2014:

• “[8] At this stage, it is relevant to briefly outline the nature of the substantive application which is generally (but not entirely) the same in 41 three actions. They have been precipitated by the same event and for reasons which will become evident have been titled locally as “the Police Promotions Case(s).

• [9] It was a matter of public knowledge within the Royal Barbados Police Force in or around 2012, that there were a number of senior positions currently or, soon to be, vacant as a result of senior officers retiring or nearing retirement. In fact, it is deposed by several of the claimants that in May 2012 the first respondent (Commissioner of Police) actually met with a general assembly of police officers to inform them of the existence of a high number of vacancies among the higher ranks of the Royal Barbados Police Force.

• [10] The listed claimants were generally aware that they had been recommended for promotion and/or fell within the ‘zone of promotion” pursuant to the rules governing promotion within the Royal Barbados Police Force (presumably by the Promotions Advisory Board and/or the Commissioner of Police.)

• [11] Sometime in mid-July 2012 (immediately prior to the commencement of these legal proceedings) it was made known (as deposed by the claimants) that police officers who had not been recommended by the Promotions Advisory Board and by the Commissioner's Office were to be promoted to the vacant senior positions with effect from 1st August, 2012 (some in fact purported to take effect from 15th July, 2012) and these said police officers were purportedly about to be handed their instrument of promotion instead of the claimants.

• [12] This fact was allegedly made known by the delivery to the Firs respondent/ Commissioner of Police by the second respondent/Police Service Commission of letters of appointment.

• [13] Generally, all claimants (being those officers who had been informed of their recommendation for promotion and not included in the list of persons to receive instruments of promotion) are aggrieved that their respective expectation of promotion within the ranks of the Force has been defeated by certain unlawful acts (in breach of the Administrative Justice; Act, Cap.109 B and the Rules relating to promotions) deemed by them to be unreasonable, irregular, arbitrary, improper, an abuse of power and in bad faith.”

7 On the 13th August 2012 Kentish J. granted the claimants an Interim injunction restraining the respondents their servants and/or agents from confirming, making effective or appointing persons other than the claimants to certain ranks in the Royal Barbados Police Force until the hearing and determination of the substantive matter.

8 The Police Service Commission appealed the granting of this interim injunction, but the appeal was dismissed in October 2012.

9 The parties as outlined in the decision of March 2014 remain largely the same with two exceptions: by Notice of Discontinuance dated August 5th 2012 police officer Wayne Archer withdrew from this action; and by Consent Order of July 17th 2014 between counsel for the fourth defendant and counsel for suit #1316/2012, the Fourth respondent to suit #1316/2012, the Governor General, was struck out from the proceedings.

10 All other parties remain the same, namely the first respondent being the Commissioner of Police; the second respondent being the Police Service Commission and the Third respondent being the Attorney General. It is noted however that the substantive holder of the office of Commissioner of Police was sent on ‘administrative leave’ on June 17th 2013 (there is now an acting Commissioner of Police); and that there has been a change in the composition of the membership of the Police Service Commission, which is headed by a ‘new’ Chairman.

THE SUBSTANTIVE CLAIMS

11 There are two major claims (albeit three actions) precipitated by the same event. However, while the actions have been consolidated and there are issues common to both actions, the nature of the claims and the nature of the relief sought have precipitated a divergence/bifurcation of the issues which must be explored separately. This is best revealed by setting out the full text of the claims.

12 The claimants in suit #1280/2012 and #1281/2012 are represented by the same counsel and their claims (substantively) a carbon copy of each other are as follows (set out below is the Claim of Jedder Ferneaux Robinson now retired from the Royal Barbados Police Force and the joint claim of the 14 officers):

“The applicant/claimant makes an Application for Judicial review of the decision of the second respondent/Defendant in failing to promote the applicant/claimant to the rank of Senior Superintendent in the Royal Barbados Police Force.

AND the applicant/claimant applies to the Court for the following orders:

• a) A declaration that the applicant/claimant is qualified and so entitled to be promoted to the rank of Senior Superintendent in the Royal Barbados Force.

• b) A declaration that the applicant/claimant is qualified and so entitled to be promoted to the rank of Senior Superintendent in the Royal Barbados Police Force with effect from the 15th day of July, 2012.

• c) A Declaration that the applicant/claimant has a legitimate expectation that he would be promoted to the rank of Senior Superintendent in the Royal Barbados Police Force with effect from the 15th day of July, 2012.

• d) A Declaration that the first and second respondents/Defendants have by their conduct led the applicant/claimant to function in the belief and expectation that the said promotion to the rank of Senior Superintendent in the Royal Barbados Police Force would be made effective from the 15th day of July, 2012.

• e) A Declaration that the applicant/claimant is the holder of the rank of Senior Superintendent in the Royal Barbados Police Force with effect from the 15th day of July, 2012.

• f) An order of Certiorari in quashing the decision of the second respondent/defendant in confirming such person or persons other than the applicant/claimant into the rank of Senior Superintendent in the Royal Barbados Police Force with effect from the 15th day of July, 2012.

• g) An order of Mandamus requiring the first and second respondents/Defendants and any or all of them to confirm and to make effective the promotion of the applicant/claimant to the rank of Senior Superintendent in the Royal Barbados Police Force with effect from the 15th day of July, 2012.

• h) An order of Prohibition prohibiting the first and second respondents/Defendants and any or all of them from confirming and making effective the promotion of such person or persons other than the applicant/claimant into the rank of Senior Superintendant in the Royal Barbados Police Force with effect from the 15th day of July, 2012.

• i) An injunction compelling the second respondent/Defendant to immediately confirm and make effective the promotion...