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Privy Council dismisses Antigua and Barbuda

Wednesday, May 16, 2018

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LONDON, United Kingdom (CMC) — The London-based Privy Council has dismissed an appeal by the Antigua and Barbuda Government that sought to prevent the former executive secretary of the Board of Education, Gisele Isaac, from taking legal action against the minister of education and the Cabinet.

In a ruling, the Privy Council, the island's highest court, noted that “the declarations that Ms Isaac seeks relate to the legalities of past actions.

“By the time she issued her fixed date claim, on 11 September 2014, she had taken the view that her employment was over and was proceeding on the basis that she had been constructively dismissed,” the law lords ruled.

In 2000, Isaac was appointed to be the executive secretary of the board of education, which is a statutory body established by the Board of Education Act 1994. Her appointment was by Cabinet and took effect from 1 February 2001.

But by letter dated July, 18 2014 from the secretary of Cabinet, she was informed that she was suspended from her position for 28 days. Isaac returned to her office on August 18, 2014 and found the locks changed and that she was denied entry, apparently on the basis that the suspension was not yet at an end because it was to last for 28 working days.

The Board of Education issued a press notice that day about the suspension. Isaac considered herself to have been constructively dismissed and had her lawyers write to the chairperson of the board of education to say so.

She declined to meet with Cabinet to discuss the matter and on September 11, 2014 she filed a fixed date claim form and supporting affidavit, the respondents to the claim being the attorney general —as the nominal representative of Cabinet, and the minister of education, whose portfolio includes the board of education.

Through her claim, Isaac sought various declarations, plus damages for diminution of reputation, and also, against the minister, aggravated or exemplary damages.

The Privy Council noted that the broad nature of the case upon which Isaac based her claim can be gathered from her supporting affidavit, both in its original form and as amended.

It said she asserts that the reason for her suspension related to her having declined to follow a directive and a request from the minister whereas, she says, the Act does not provide for the minister to exercise any authority over her. In addition, she complains about the way in which aspects of her suspension were made the subject of a press release, rather than being communicated in writing directly to her.

She also criticises the investigation carried out by the minister into her conduct as executive secretary. She says that in the absence of a report from the board of education, the minister could not institute the investigation that he did, and she complains that she was not given any opportunity to respond to matters contained in the investigatory report, which was made public on the radio.

In April 2015 and March 2016 respectively, the High Court in Antigua and Barbuda and the Eastern Caribbean Supreme Court struck down the applications by the Government, which stated that Isaac had taken the incorrect approach when she filed her claim.

The Government also claimed that the position before the Privy Council is that Cabinet was Isaac's employer and that the attorney general is ready to be named as the employer in proceedings in the Industrial Court.

But the Privy Council noted “that is not, however, Ms Isaac's case.

“In the absence of the awaited ruling from the Industrial Court on the point, it seems to the board that the present appeal must proceed upon the basis of the contention of Ms Isaac — as the claimant in an application for an administrative order, that the board of education is her employer.

“Assuming that to be the case, her fixed date claim in the High Court is not against her employer, but against other public bodies — namely the attorney general as representative of Cabinet and the minister of education. As things stand, therefore, her claim has the appearance of a public law claim, rather than a purely private law claim.”

In its ruling, the Privy Council noted that Isaac does not seek any form of mandatory order —f or example, an order for her reinstatement in her former post, nor does she seek to have any continuing or threatened unlawful act prohibited, or any act such as her suspension quashed.

“Her claim against the respondents is for declarations that at the material time, now in the past, they acted inappropriately in the various ways specified in her claim form, together with damages to compensate her for the loss arising from that inappropriate conduct.”

The Privy Council noted that as to the appellants' argument that, whatever Isaac claims, or more particularly does not claim, the court would be obliged, by section 20 of the Eastern Caribbean Supreme Court Act, to grant further relief which would take the case into the territory of judicial review in any event that does not advance their position on the facts of this appeal.

The Privy Council said “true it is that, as the appellants point out, her claim is concerned with the legality of events and the procedure by which decisions were reached in the public law sphere, but, given the structure of CPR 56, (dealing in delay in making an application) allowing as it does for the making of public law applications in four different ways — including merely by seeking declarations rather than judicial review — that is not sufficient to channel the application into CPR 56.1(1)(c)…..

“In short, therefore, the board shares the view of the courts below that Ms Isaac's fixed date claim was, in reality as in form, merely for declarations and damages, and was not an application for judicial review for which leave was required. It would therefore dismiss the appeal.

“Subject to any written submissions received within 14 days of the delivery of the board's judgement, the appellant should pay the respondent's costs of the appeal to the board,” the Privy Council ruled.

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