Magloire v Judicial and Legal Services Commission and Attorney General

• Jurisdiction: St Lucia
• Judge: Edwards, J.
• Judgment Date: 25 January 2007
• Neutral Citation: LC 2007 HC 1
• Docket Number: SLUHCV 0372 of 2005
• Court: High Court (Saint Lucia)
• Date: 25 January 2007

High Court

Edwards, J.

SLUHCV 0372 of 2005

Magloire

and

Judicial and Legal Services Commission and Attorney General

Appearances:

Mr. H. Fraser for claimant.

Mr. S. Bennett Q.C. along with Ms. P. Augustin for defendant.

Judicial review - Decision not to renew magistrate's contract of employment — No legitimate expectation arose with respect to the defendants as it was the Government who determined whether or not to renew the contract — No breach of Constitution as the claimant' employment was not constitutionally protected — Claim dismissed.

Edwards, J.

1 The claimant Mr. Michel Magloire is an Attorney-at-Law. From the 4th January 2000 to May 2004, he was employed by the Government of St. Lucia as a Magistrate.

2 The 1st defendant The Judicial and Legal Services Commission (J.L.S.C.), is the autonomous body charged with the Constitutional duty, to appoint/confirm appointment of Magistrates to office, and remove them therefrom.

3 The Attorney General is the legal representative of the Crown pursuant to sections 4 and 13(2) of The Crown Proceedings Ordinance Chapter 13 of the Revised Laws of St. Lucia 1957.

4 By an Amended Fixed Date Claim Form filed on the 12th October 2005, Mr. Magloire's Originating Motion has sought the following relief:

1

A Declaration that the directive of J.L.S.C. to Attorney General contained in a letter addressed to the Senior Magistrate and communicated to the claimant dated 7th May 2004, wherein he was duly informed that his contract will not be renewed, was a capricious, arbitrary and oppressive removal of the claimant from office. 2. A Declaration that the claimant's removal from office as Magistrate by the J.L.S.C. was done in breach of the rules of natural justice and without just cause. 3. A Declaration that J.L.S.C.'s removal of the claimant from office was contrary to law and was done at its pleasure or whim and fancy. 4. A Declaration that the claimant has a legitimate expectation that J.S.L.C. would have recommended to the Attorney General that his contract should be renewed, on the same terms he previously enjoyed, and that the Attorney General would have accordingly acted on the said recommendation. 5. A Declaration that the Attorney General's letter dated 7th January 2004, addressed to the Secretary of the J.L.S.C., recommending that the claimant be re-appointed as Magistrate II on a month-to-month basis for a period of 3 months on the ground of ill health, was an inducement by the Attorney General to the J.L.S.C., to exercise its constitutional mandate in a manner to cause the claimant's removal from office. 6. A Declaration that the action of the Attorney General in accepting, adopting and implementing the recommendation it induced the J.L.S.C. to make and therein contained in the letter dated 6th May 2004, is contrary to law, and caused the Attorney General to breach his contract with the claimant. 7. A Declaration that the J.S.L.C. had a duty at law to state the reason(s) for its removal of the claimant from office, or alternatively altering the existing contract between the claimant and the Attorney General, or for re-appointing the claimant to the office of Magistrate on a limited basis. 8. A Declaration that the actions of the J.L.S.C. in the re-appointment of the claimant and altering his contract with the Attorney General were an abuse of power. 9. A Declaration that by virtue of section 91(3) of the St. Lucia Constitution Order 1978 indiscipline and incapacity are the only grounds on which the J.L.S.C. could remove the claimant from Office. 10. An Order that the defendants do pay compensation/damages to the claimant for loss of earnings and for the inconvenience and distress suffered. 11. An Order that the J.L.S.C. do pay exemplary damages to the claimant for its oppressive and arbitrary action. 12. Further and other Relief. 13. Costs.

BACKGROUND FACTS

5 Magistrates in St. Lucia are fixed term contract officers. Their continued employment as Magistrates depends on the renewal of their contracts by the Government at the expiration of each contractual period in a particular set of circumstances.

6 The Government's existing practice, usually permits the preparation and execution of a Magistrate's current contract, to take place, during that current contractual period.

7 The Magistrate usually remains in office and continues to perform his/her Magisterial duties after the expiration of a contractual period, until re-appointment and the renewal of the contract.

8 Where there is no renewal of the contract the Magistrate quits office or his/her services are terminated at the end of the contractual period or thereafter.

9 Mr. Magloire was employed as a Magistrate for 4 successive contractual periods of 1 year from the 4 ^th January 2000 to 3rd January 2004. On the expiration of his contractual period from the 4th January 2003 to the 3 ^rd January 2004, he remained in office.

10 He continued to function as a Magistrate with the expectation that his contract would be renewed for another year, because on the 18th July 2003, he had given written notice to the Government that he wished to remain in its employment.

11 His fourth contract, like the other previous contracts, contained a provision Clause 11 which provided as follows:–

“Six months prior to completion of a tour of employment service, the person engaged shall give notice in writing to the Government whether he desires to remain in its employment, and the Government shall thereupon decide whether it will offer him further employment. If the Government offers him further employment the re-engagement will be on such terms and such period as may be mutually agreed.”

12 The facts that gave rise to this Originating Motion, are contained in Mr. Magloire's Supporting Affidavit with documentary exhibits, filed on the 20th May 2005.

13 By letter dated 7th January 2004 the Permanent Secretary in the Ministry of Justice wrote the following letter to the Secretary of the J.L.S.C, concerning Mr. Magloire's re-appointment, on the expiration of his 1 year contract on the 3rd January 2004:–

“Dear Madam

The Ministry of Justice recommends the re-appointment of Mr. Michael Magloire to the post of Magistrate II with effect from January 04, 2004 on a month-to-month basis for a period of three [3] months. Mr. Magloire's one-year contract ended on January 03, 2004.

As far as the performance of his duties is concerned, Mr. Magloire, unfortunately suffers from a medical condition which causes him to be away from office quite often. This does not augur well for the jurisdiction where he serves. Mr. Magloire had previously undergone surgery and the Ministry is aware that he is required to undergo eye surgery overseas in March 2004. This month-to-month appointment will facilitate him until this time.

Relevant documents are attached for the Commission's perusal.

I should be grateful for the Commission's consideration and approval of this recommendation.

Yours sincerely,

[Sgd.] M. Louis

Permanent Secretary”

14 By letter dated the 6th April 2004, the Secretary of the J.L.S.C. Ms. Angus Smith, wrote to the Permanent Secretary Ms. Marie-Ange Louis at the Ministry of Justice. This letter stated:–

“Dear Madam

I have been directed by the Chairman, Judicial and Legal Services Commission to inform you that the Judicial and Legal Services Commission has approved of the appointment of Mr. Michael Magloire to the post of Magistrate II on a month-to-month basis for a period of four [4] months with effect from 4th January, 2004.

The Commission would be grateful if you could kindly forward medical documentation to support the request for month-to-month employment.

With thanks

Yours faithfully

[Sgd.] Angus Smith

Secretary”

15 On the 7th May 2004 Mr. Magloire received the following letter from the Permanent Secretary:

“May 6, 2004

Floreta Nicholas

Senior Magistrate

First & Second District Court

Peynier Street

Castries

Dear Ms. Nicholas,

Re: Magistrate Michael Magloire

By letter dated April 8, 2004 you were informed of the decision of the Judicial and Legal, Services Commission (JLSC) approving the appointment of Magistrate Magloire to the post of Magistrate II on a month-to-month basis for a period of four months with effect from January 4, 2004.

The effect of this is that Mr. Magloire's final working day as Magistrate was Friday April 30, 2004.

The Ministry of Justice has been advised that Mr. Magloire is continuing to work past the termination date under the month-to-month arrangement. If this is so, be advised as follows:

• 1. No one, save the Judicial & Legal Services Commission, has authority to further extend Mr. Magloire's working arrangement;

• 2. Any purported extension of this arrangement by a body other than the Judicial and Legal Services Commission (JLSC) is void and of no effect;

• 3. In the circumstances Government of St. Lucia will accept no responsibility for paying any monies to Mr. Magloire for any unauthorised period during which he worked.

• 4. By copy of this letter we are informing the Chairman of the Judicial and Legal Services Commission, the Accountant General and Mr. Magloire.

Yours sincerely

Permanent Secretary cc: Hon. Petrus Compton

Minister of Justice

Chairman, Judicial & Legal Services Commission

Accountant General

Mr. Michael Magloire.”

16 Concerning this letter, Mr. Magloire deposed that he was taken by surprise, since he did not receive the letter bearing date 8th April 2004, informing him that he was re-appointed as Magistrate on a four month contract.

17 Mr. Magloire retained the services of Solicitors who on the 21st May 2004, wrote the following letter to the Permanent Secretary of the Ministry of Justice–

“We have advised our client, amongst other things that the letter of May 6, 2004 to the Senior Magistrate of which a copy was sent to him constitutes a breach of his contractual rights and we ask that you...