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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> McLaughlin v. Cayman Islands (Cayman Islands) [2007] UKPC 50 (23 July 2007) URL: https://www.bailii.org/uk/cases/UKPC/2007/50.html Cite as: [2007] 1 WLR 2839, [2007] WLR 2839, [2007] UKPC 50 |
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McLaughlin v.Cayman Islands
(
Cayman Islands)
[2007] UKPC 50 (23 July 2007)
Privy Council Appeal No 83 of 2006
Dr Astley McLaughlin Appellant
v.
His Excellency the Governor
of theCayman Islands
Respondent
FROM
THE COURT OF APPEAL OF
THECAYMAN ISLANDS
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 23rd July 2007
- - - - - - - - - - - - - - - - -
Present at the hearing:-
Lord Bingham of Cornhill
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Carswell
Lord Neuberger of Abbotsbury
- - - - - - - - - - - - - - - -
[Delivered by Lord Bingham of Cornhill]
"38. The appellant has sought relief that he be reinstated in the office which he held at the time of his retirement. Mr Hall-Jones submitted that courts in judicial review proceedings are loath to order the reinstatement of employees, as such an order borders on the usurpation of the powers of the decision maker, and because of the practical problems which such an order would present. For this proposition he relied on Lewis, Judicial Remedies in Public Law, 2nd ed., para 11-021, (2000). The appellant has not been in the public service for approximately four years. We have no knowledge of the state of the requirements of the public service for personnel and in what capacities, and, for no other reason, we do not consider reinstatement as an appropriate remedy."
The Court held that Dr McLaughlin's remedy lay in damages, and it therefore remitted the case to the Grand Court for the damages to be assessed. The Court of Appeal's order was that the appeal be allowed and the judgment below set aside, that there be a declaration that the decision to dismiss Dr McLaughlin and his dismissal were void and that the case be remitted to the Grand Court for assessment of damages.
"56. By virtue of the foregoing analysis, I conclude as follows as to the effect of the Court of Appeal's decision in this case:
(i) the decision to dismiss [Dr McLaughlin] and his dismissal were null and void and of no effect;
(ii) accordingly, while he was not to be ordered to be reinstated to his former particular post, he remained a public and pensionable officer subject in all respects to the statutory regulatory scheme governing his employment;
(iii) this meant that he continued to be entitled to salary so long as he continued to be available for service and for so long as no other steps were taken to determine his service;
(iv) the extraordinary and perhaps censurable result, is that this state of affairs has been allowed to persist for nearly seven years now and nearly three years after the Court of Appeal's decision. That state of affairs, however, is nothing to detract from the principle and, subject to further findings below to be expressed in relation to the question of repudiation and acceptance of repudiation since the date of the Court of Appeal's decision, will form the basis for the assessment of damages here;
(v) As to the measure of damages, I do not accept that the Court of Appeal had in mind any basis apart from salary and such pensionable entitlements as would arise in the event there was not to be reinstatement, and as would be commensurate with [Dr McLaughlin's] position."
The distinction between damages for wrongful dismissal in breach of contract and an award of salary in cases such as this were not, the Chief Justice held (para 57), elided by holding that damages were to be awarded and assessed simply by reference to salary and pension lost. But although (para 58) Dr McLaughlin's engagement was governed by the statutory regime, the Chief Justice did not think it realistic or right to regard the relationship as one entirely untrammelled by common law principles relating to contracts of employment. Otherwise (para 59) a public officer in the position of Dr McLaughlin could indefinitely sit idly back, rendering no services to the public but drawing his salary. That was an extraordinary proposition (para 60) leading to a result the Court of Appeal could not have intended. The Chief Justice expressed his conclusions in paras 61-64 of his judgment:
"61. After the passage of that reasonable time, which in this case I would regard, for reasons below, as at greatest, a year, a reasonable plaintiff not having had any indication of any intention to reinstate him and having taken no steps to invoke the machinery of reinstatement, must be regarded as having perceived yet a further repudiation of his contract of employment and as having accepted that repudiation.
62 This view of [Dr McLaughlin's] position is not to be confused with a finding of a duty in him to mitigate his losses as would have arisen had this been an employer/employee contractual relationship. While his status as a public officer subsisted, he would have been under no such duty and he would have been under no obligation to seek or accept other employment. Rather, the view I take is that the further repudiation of his engagement and his acceptance by his conduct are to be regarded as having brought that status to an end in all the circumstances of the case.
63. For the first six months after the Court of Appeal's decision, I think [Dr McLaughlin] is entitled to be regarded as having been naturally reticent to invoke the machinery of reinstatement for fear of being dismissed on some other basis. He is thus to be afforded that locus poenitentiae at which the law allows a party who perceives himself to be in the weaker position 'to let sleeping dogs lie'. The second period of six months must notionally however, be regarded as all the time necessary for the resolution of his position, he then being no longer entitled as a matter of fairness, simply to do nothing.
64. Accordingly, I regard [Dr McLaughlin's] entitlement to damages by way of salary as having come to an end one year after the Court of Appeal's decision. His entitlement to pension must also be assessed on the basis that salary would have stopped at that time."
In his ruling on quantum the Chief Justice awarded Dr McLaughlin CI $409,624.31 and ordered the Governor to pay pension contributions amounting to CI $37,197. The Governor appealed, complaining of the Chief Justice's interpretation of the Court of Appeal decision as meaning that Dr McLaughlin had continued to be a public officer until 30 November 2003. Dr McLaughlin cross-appealed, complaining of the Chief Justice's decision that he had ceased to be a public officer on 30 November 2003 or any later date.
The argument
Conclusions