West Indian Reports/Volume 66 /Attorney-General v Siewchand Ramanoop - (2005) 66 WIR 334

(2005) 66 WIR 334

Attorney-General v Siewchand Ramanoop

[2005] UKPC 15

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

LORD NICHOLLS OF BIRKENHEAD, LORD HOFFMANN, LORD SCOTT OF FOSCOTE, BARONESSHALE OF RICHMOND AND LORD BROWN OF EATON-UNDER-HEYWOOD

13 JANUARY,

Damages - Breach of constitutional rights - Assessment of award - Quantum - Guidance from awards atcommon law

Damages - Breach of constitutional rights - Additional award - Circumstances entitling applicant to additionalaward of damages - Additional award falling within term 'redress' in Republican Constitution of Trinidad andTobago, s 14(1)

Damages - Breach of constitutional rights - Exemplary damages - Term inappropriate for award made underRepublican Constitution of Trinidad and Tobago, s 14

Fundamental rights and freedoms - Redress - Availability of alternative adequate means of redress -Alternative means of redress not precluding constitutional motion - Discretion of court to refuse constitutionalrelief where parallel remedy available - Cheaper and quicker procedure no ground for seeking constitutionalrelief - Need for applicant to be in position to decide appropriate form of proceedings before proceedingsinstituted - Paths open to applicant if position changes after constitutional proceedings launched -Republican Constitution of Trinidad and Tobago, s 14(2)

Following appalling behaviour by a police officer towards him the appellant instituted constitutionalproceedings seeking declarations and damages, including exemplary damages. Bereaux J madedeclarations (with the consent of the Attorney-General) to the effect that the appellant's arrest andimprisonment (and assault by the police during his

(2005) 66 WIR 334 at 335

arrest and period of imprisonment) had been unconstitutional and in breach of s 4(a) of the Constitution ofTrinidad and Tobago (right to liberty and security of the person). Bereaux J awarded damages to theappellant for deprivation of his liberty and for the assaults, but ruled that he had no jurisdiction to awardexemplary damages. On appeal against the refusal of exemplary damages, the Court of Appeal (by amajority) allowed the appeal and held that s 14 of the Constitution contained no limit on the forms of redressavailable on a constitutional motion; it remitted the case to a judge of the High Court for the assessment ofexemplary/vindicatory damages. The Attorney-General appealed against that order to the Privy Council.

Held, advising that the appeal be dismissed, that awards of damages at common law were often a usefulguide (but no more than a guide) to assessing compensation to be awarded under s 14 of the Constitution;the fact that the right infringed was a constitutional right added an extra dimension to the wrong and anadditional award (not necessarily of substantial size) might be needed to reflect the sense of public outrage,to emphasise the importance of the constitutional right and the gravity of the breach, and to deter future

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breaches; the term 'redress' used in s 14 encompassed such an award in an appropriate case; however,punishment in the strict sense of retribution was not the object of an award under s 14 and terms such as'punitive damages' and 'exemplary damages' should not be used to describe any additional award madeunder s 14.

Siewchand Ramanoop v Attorney-General (2003) 65 WIR 313 affirmed.

Dictum of Cooke P in Simpson v Attorney-General (Baigent's case) [1994] 3 NZLR 667 at p 678, and dictumof Thomas J in Dunlea v Attorney-General [2000] 3 NZLR 136 at p 152 considered.

Attorney-General of St Christopher, Nevis and Anguilla v Reynolds (1979) 43 WIR 108 explained.

Per curiam. Unlike the Constitutions of some other Caribbean countries, the Constitution of Trinidad andTobago contains no provision precluding the exercise by the court of its power to grant constitutional redressif satisfied that adequate means of legal redress are otherwise available (nor does it include expressprovision empowering the court to grant constitutional relief if so satisfied). Despite this, a discretion todecline to grant constitutional relief is built into the Constitution (in s 14(2)). Accordingly, where there is aparallel remedy, constitutional relief should not be sought unless the circumstances of which complaint ismade include some feature which makes it appropriate to take that course; and to seek constitutional relief inthe absence of such a feature would be a misuse, or abuse, of the court's process. The fact that proceedingsfor

(2005) 66 WIR 334 at 336

constitutional relief are less costly and lead to a speedier hearing than proceedings brought by writ is notitself sufficient ground for invoking the constitutional jurisdiction. The applicant should be in a position beforeproceedings are instituted to decide whether proceedings by way of constitutional motion or proceedingsbegun by writ would be appropriate (and the view of the State on the matter should be made known at anearly stage). Where a constitutional motion is properly launched but it later becomes apparent either (1) thatthere is a substantial dispute of fact, or (2) that a claim for constitutional relief is no longer appropriate, theapplicant should (in case (1)) apply for the proceedings to continue as if begun by writ and for appropriateancillary directions, or (in case (2)) either abandon the motion or seek to continue the proceedings as thoughbegun by writ.

Kemrajh Harrikissoon v Attorney-General (1979) 31 WIR 348 applied.

Dictum of Hamel-Smith JA in George v Attorney-General (2003) (unreported), Trinidad and Tobago civilappeal, para [19], approved.

Thakur Persad Jaroo v Attorney-General (2002) 59 WIR 519 explained.

Cases referred to in the advice of the Board

Abraham v Attorney-General (1999) (unreported) 26 February, action 801 of 1997, Gregory Smith J.

Ahnee v Director of Public Prosecutions [1999] 2 AC 294, [1999] 2 WLR 1309, PC.

Attorney-General v McLeod (1984) 32 WIR 450, [1984] 1 All ER 694, [1984] 1 WLR 522, [1985] LRC(Const) 81, PC.

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Attorney-General of St Christopher, Nevis and Anguilla v Reynolds (1979) 43 WIR 108, [1980] AC 637,[1979] 3 All ER 129, [1980] 2 WLR 171, PC.

Baigent's case; see Simpson v Attorney-General, below.

Dunlea v Attorney-General [2000] 3 NZLR 136.

George v Attorney-General (2003) (unreported) 8 April, Trinidad and Tobago CA.

Hinds v Attorney-General (No 2) [2001] UKPC 56, 59 WIR 75, [2002] 1 AC 584, [2002] 2 WLR 470, PC.

Jaroo's case; see Thakur Persad Jaroo v Attorney-General, below.

Jones v Attorney-General (unreported) action 19 of 1998, Bereaux J.

Kemrajh Harrikissoon v Attorney-General (1979) 31 WIR 348, [1980] AC 265, [1979] 3 WLR 62, PC.

Observer Publications v Matthew [2001] UKPC 11, 58 WIR 188, PC.

Ramesar v Attorney-General (1999) (unreported) 20 January, action S-895 of 1992, Kangaloo J.(2005) 66 WIR 334 at 337

Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago (No 2) (1978) 30 WIR 310,[1979] AC 385, [1978] 2 All ER 670, [1978] 2 WLR 902, PC.

Ramnarine Jorsingh v Attorney-General (1997) 52 WIR 501, Trinidad and Tobago CA.

Siewchand Ramanoop v Attorney-General (2003) 65 WIR 313, Trinidad and Tobago CA.

Simpson v Attorney-General (Baigent's case) [1994] 3 NZLR 667.

Thakur Persad Jaroo v Attorney-General [2002] UKPC 5, 59 WIR 519, [2002] 1 AC 871, [2002] 2 WLR705, PC.

Thornhill v Attorney-General (1979) 31 WIR 498, [1981] AC 61, [1980] 2 WLR 510, PC.

Appeal

The Attorney-General of Trinidad and Tobago appealed to the Judicial Committee of the PrivyCouncil (appeal 13 of 2004) against an order of the Court of Appeal (Sharma CJ and Kangaloo JA;Warner JA dissenting) on 21 March 2003 (Siewchand Ramanoop v Attorney-General (2003) 65WIR 313) for the assessment of exemplary/vindicatory damages on allowing an appeal bySiewchand Ramanoop, the respondent to the appeal to the Board, against the refusal of Bereaux Jin the High Court on 2 May 2001 to award him under s 14 of the Constitution exemplary damages

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for a breach of his constitutional rights under s 4(a). Before the Board, the Attorney-General arguedthat a monetary award under s 14 of the Constitution was restricted to an award of compensatorydamages in the traditional sense. The facts are set out in the advice of the Board delivered by LordNicholls of Birkenhead.

James Dingemans QC, Thomas Roe and Josephine Baptiste (instructed by Charles Russell) for theAttorney-General.

Fenton Ramsahoye SC, Anand Ramlogan and Anand Beharrylal (instructed by Saunders & Co) for therespondent, Siewchand Ramanoop.

The Board took time for consideration.

Lord Nicholls of Birkenhead delivered the advice of the Board.

[1] This appeal raises the question whether exemplary damages may be awarded by way of redress forcontravention of the human rights provisions enshrined in the Constitution of Trinidad and Tobago. Thejudge, Bereaux J, held they could not. The Court of Appeal by a majority reversed that decision; SiewchandRamanoop v Attorney-General (2003) 65 WIR 313 (Sharma CJ and Kangaloo JA, Warner JA dissenting).

(2005) 66 WIR 334 at 338

[2] The proceedings relate to some quite appalling misbehaviour by a police officer. On the evening of 10November 2000 Siewchand Ramanoop, a man aged thirty-five, was in his local bar. As he was about toleave he had an altercation with a 'thin, tall, dark man of East Indian descent'. He left and went home. Lateron the same evening when he was at home, at about 10.45 pm, he heard a car and someone calling hisname. He opened the door and was confronted by two men, one a uniformed policeman and the other the'Indian man'. Before he could say anything the policeman, Police Cons Rahim, slapped him across the faceand neck, turned him around, handcuffed him, and started beating him. Cons Rahim cuffed and slapped MrRamanoop for between 5 and 10 minutes. While doing so Cons Rahim kept shouting 'Yuh want tuh fuckinginterfere with police? Take dat. I will manners yuh. Doh ever interfere with police'. Mr Ramanoop washelpless because he was handcuffed.

[3] At this time Mr Ramanoop was clothed only in his underwear. He was pushed back into his house whereCons Rahim continued to beat him for a further 2 or 3 minutes. Cons Rahim told him to take a shirt and pantsbecause 'he was going to lock me up'. Cons Rahim refused to let Mr Ramanoop get dressed properly. Hetook Mr Ramanoop outside and shoved him into the back seat of a car and sat beside him. The car wasdriven by the 'Indian man'. While Mr Ramanoop was being driven to Gasparillo police station Cons Rahimconstantly cuffed and slapped him. He asked PC Rahim which police he had interfered with, but Cons Rahimkept saying he would teach him a 'lesson for interfering with police'.

[4] At the police station Cons Rahim rammed Mr Ramanoop's head against the wall, causing a wound fromwhich blood gushed at once. Mr Ramanoop was then handcuffed to an iron bar. Cons Rahim taunted him('Who buss your head?'), and poured rum over his head, causing the wound to burn and blood and rum torun into his eyes. He was taken to a bathroom and soaked in the shower while Cons Rahim spun him aroundby the shoulders until he was dizzy.

[5] Later Mr Ramanoop was allowed to get dressed. He was interviewed by Cons Rahim who asked him toinitial a written document. He refused. Cons Rahim started slapping his head, and told him 'If you doh signdis yuh cyah fucking leave dis station her tonite'. Mr Ramanoop was losing blood and feeling weak and dizzy.He signed the document as instructed because he was frightened at what Cons Rahim might do to him if hedid not. Cons Rahim then apologised for 'bussing' Mr Ramanoop's head but his wife was pregnant and hewas 'under some pressure'. Mr Ramanoop was then taken home by the 'Indian man'. He arrived home at

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about 2.00 am.

[6] Mr Ramanoop instituted these proceedings against the Attorney-General by way of originating motion on15 January 2001. He claimed declarations and damages, including exemplary damages. The motion wassupported by an affidavit made by Mr Ramanoop setting out the facts summarised above.

(2005) 66 WIR 334 at 339

[7] The proceedings came before the court on 26 March 2001. The Attorney-General did not dispute any ofthe facts. Bereaux J, with the consent of the Attorney-General, made a number of declarations. The principaldeclarations were to the effect that Mr Ramanoop's arrest and imprisonment were unconstitutional and inbreach of his rights under s 4(a) of the Constitution. So also was Cons Rahim's assault upon Mr Ramanoopduring this arrest and period of imprisonment. Section 4(a) recognises and declares the fundamental humanright of an individual to liberty and security of the person.

[8] On 2 May 2001, Bereaux J delivered a reserved judgment on the amount of damages payable. Heawarded Mr Ramanoop $18,000 for the deprivation of his liberty for two hours and $35,000 for the assaults.He held he had no jurisdiction to award exemplary damages. Cons Rahim's conduct was outrageous and inan ordinary action would attract an award of exemplary damages. But he was bound by observations madeby Lord Salmon in Attorney-General of St Christopher, Nevis and Anguilla v Reynolds (1979) 43 WIR 108.Even if not bound, he considered exemplary damages were inappropriate and superfluous in proceedingsbrought under s 14 of the Constitution.

[9] In the Court of Appeal (65 WIR 313) the leading judgment was given by Sharma CJ. He said that s 14 ofthe Constitution contains no limit on the forms of redress the court may direct. In order to vindicateconstitutional rights there is a need for a remedy additional to declarations and compensatory damages. Inher dissenting judgment Warner JA noted that payment of compensation is a form of redress under s 14(1).But an award of exemplary damages cannot be ancillary to redress, because 'nothing in s 14 speaks topunishment'; 65 WIR at p 335, para [18]. She distinguished from exemplary damages, of which a punitiveelement is an essential characteristic, an award of an amount which would discourage future breaches of thesame kind. The court can make an award of the latter character; at p 331, para [2]. The Court of Appealallowed Mr Ramanoop's appeal and remitted the matter to a judge for the assessment of'exemplary/vindicatory' damages.

[10] Chapter 1 of the Constitution makes provision for the recognition and protection of fundamental humanrights and freedoms. Section 14 is directed at the enforcement of these entrenched rights and freedoms:

'(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this chapterhas been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action withrespect to the same matter which is lawfully available, that person may apply to the High Court for redress by way oforiginating motion.

'(2) The High Court shall have original jurisdiction -

(a) to hear and determine any application made by any person in pursuance of subsection (1), and

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(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4),

and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may considerappropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this chapter to the

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protection of which the person concerned is entitled.'

[11] Turning to the authorities, their lordships mention first, in order to put on one side, two decisions of thePrivy Council. Neither affords any real assistance on the present issue. In Ramesh Lawrence Maharaj vAttorney-General of Trinidad and Tobago (No 2) (1978) 30 WIR 310 the predecessor Constitution of Trinidadand Tobago was under consideration, but for present purposes the relevant provisions were the same. LordDiplock (at p 322) left open the question whether monetary compensation by way of redress can ever includean award of what in a case of tort would be called exemplary or punitive damages. In Attorney-General of StChristopher, Nevis and Anguilla v Reynolds (1979) 43 WIR 108 the Board considered one aspect of theprovision in the then Constitution of St Christopher, Nevis and Anguilla which corresponded to s 14 of thepresent Constitution of Trinidad and Tobago. The scope of the expression 'redress' was not the subject ofdecision or express observation.

[12] This calls for a little elaboration. In that case Reynolds had been wrongfully imprisoned. He broughtproceedings claiming (1) damages for false imprisonment, and (2) compensation pursuant to s 3(6) of theConstitution; see 43 WIR 108 at 125. Section 3(6) provided that anyone unlawfully arrested or detained wasentitled to 'compensation'. The Court of Appeal's award of damages included a small sum as exemplarydamages. The Board accepted (also at p 125) that exemplary damages do not fall within the ambit of'compensation'. But s 16 of the Constitution of St Christopher, Nevis and Anguilla, corresponding to s 14 ofthe Constitution of Trinidad and Tobago, expressly provided that redress might be sought under theConstitution without prejudice to any other available remedy. Thus the court had jurisdiction to awardexemplary damages at common law. On that basis, it seems, the Board upheld the award of exemplarydamages. Lord Salmon did not in terms express a view on the scope of the expression 'redress'. But theirlordships can readily understand how it has come about that this decision of the Board has been taken to beindicative of a restrictive interpretation of the court's ability to award damages under s 14.

[13] In Trinidad and Tobago the Court of Appeal made observations on this issue in Ramnarine Jorsingh vAttorney-General (1997) 52 WIR 501. The extent of the court's jurisdiction did not arise for decision. But de laBastide CJ and Sharma JA both correctly prophesied that this issue would come before the Privy Councilagain. They expressed the hope their lordships' Board would then re-examine this issue and the 'tentativelyaustere' approach to damages adumbrated by Lord Diplock.

(2005) 66 WIR 334 at 341

[14] Encouraged by these observations courts in Trinidad and Tobago have subsequently awardedexemplary damages on claims for constitutional relief; for instance, Kangaloo J in Ramesar vAttorney-General (1999) (unreported), and Gregory Smith J in Abraham v Attorney-General (1999)(unreported). Conversely, in Jones v Attorney-General (unreported) Bereaux J took the same view on thisissue as he did in the present case.

[15] In the present case, Mr Dingemans QC on behalf of the Attorney-General submitted that 'redress' in s 14permits the court to make awards of damages, but only by way of compensation. Damages for breach of aconstitutional right should vindicate that right and are a matter for the court's discretion. But it is notappropriate to punish the state or an individual by way of constitutional relief and the court has no jurisdictionto do so.

[16] Their lordships were helpfully referred to a number of authorities where courts in other countries haveconsidered the scope of the remedies a court may order in respect of constitutional infringements. Ofparticular assistance is the New Zealand jurisprudence, notably observations of Cooke P in Simpson vAttorney-General (Baigent's case) [1994] 3 NZLR 667 at 678, and the judgment of Thomas J in Dunlea vAttorney-General [2000] 3 NZLR 136 at 152.

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[17] Their lordships view the matter as follows. Section 14 recognises and affirms the court's power to awardremedies for contravention of Chapter 1 rights and freedoms. This jurisdiction is an integral part of theprotection which Chapter 1 of the Constitution confers on the citizens of Trinidad and Tobago. It is anessential element in the protection intended to be afforded by the Constitution against misuse of Statepower. Section 14 presupposes that, by exercise of this jurisdiction, the court will be able to afford thewronged citizen effective relief in respect of the State's violation of a constitutional right. This jurisdiction isseparate from and additional to ('without prejudice to') all other remedial jurisdiction of the court.

[18] When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, theconstitutional right which has been contravened. A declaration by the court will articulate the fact of theviolation, but in most cases more will be required than words. If the person wronged has suffered damage,the court may award him compensation. The comparable common-law measure of damages will often be auseful guide in assessing the amount of this compensation. But this measure is no more than a guide,because the award of compensation under s 14 is discretionary and, moreover, the violation of theconstitutional right will not always be co-terminous with the cause of action at law.

[19] An award of compensation will go some distance towards vindicating the infringed constitutional right.How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that theright violated was a constitutional right adds an extra dimension to the

(2005) 66 WIR 334 at 342

wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of publicoutrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter furtherbreaches. All these elements have a place in this additional award. 'Redress' in s 14 is apt to encompasssuch an award if the court considers it is required having regard to all the circumstances. Although such anaward, where called for, is likely in most cases to cover much the same ground in financial terms as would anaward by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object.Accordingly, the expressions 'punitive damages' or 'exemplary damages' are better avoided as descriptionsof this type of additional award.

[20] For these reasons their lordships are unable to accept the Attorney-General's basic submission that amonetary award under s 14 is confined to an award of compensatory damages in the traditional sense.Bereaux J stated his jurisdiction too narrowly. The matter should be remitted to him, or another judge, toconsider whether an additional award of damages of the character described above is appropriate in thiscase. Their lordships dismiss this appeal with costs.

Misuse of the court's process

[21] The Attorney-General raised no objection to these proceedings taking the form of an originating motionseeking constitutional relief rather than a common-law action for damages in respect of Mr Ramanoop'sunlawful detention and the assaults made upon him by Cons Rahim. The Attorney-General was right not todo so. Police officers are endowed by the State with coercive powers. This case involves a shameful misuseof this coercive power; compare the approach adopted by the Board in Thornhill v Attorney-General (1979)31 WIR 498, [1981] AC 61 at 74.

[22] Had the facts set out by Mr Ramanoop in his affidavit been disputed it might well have been appropriatefor the court to direct that the proceedings should continue as though they had been by way of writ. Anoriginating motion is a summary procedure. Save in the simplest of cases, it is ill-suited to decide substantialfactual disputes. Satisfactory resolution of such disputes usually requires pleadings, discovery and oralevidence. That situation did not arise in this case. But Mr Ramlogan invited the Board to dispel theuncertainty which he said has arisen since the decision of the Board in Thakur Persad Jaroo vAttorney-General [2002] UKPC 5, 59 WIR 519 and the subsequent decision of the Court of Appeal in George

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v Attorney-General (2003) (unreported).

[23] The starting point is the established principle adumbrated in Kemrajh Harrikissoon v Attorney-General(1979) 31 WIR 348. Unlike the Constitutions of some other Caribbean countries, the Constitution of Trinidadand Tobago contains no provision precluding the exercise by the court of its power to grant constitutionalredress if satisfied that adequate means of legal redress are otherwise available. The Constitution of theBahamas is an example of this. Nor does the Constitution of Trinidad and

(2005) 66 WIR 334 at 343

Tobago include an express provision empowering the court to decline to grant constitutional relief if sosatisfied. The Constitution of Grenada is an instance of this. Despite this, a discretion to decline to grantconstitutional relief is built into the Constitution of Trinidad and Tobago. Section 14(2) provides that the court'may' make such orders, etc, as it may consider appropriate for the purpose of enforcing a constitutionalright.

[24] In Harrikissoon the Board gave guidance on how this discretion should be exercised where a parallelremedy at common law or under statute is available to an applicant. Speaking in the context of judicial reviewas a parallel remedy, Lord Diplock warned against applications for constitutional relief being used as ageneral substitute for the normal procedures for invoking judicial control of administrative action. Permittingsuch use of applications for constitutional redress would diminish the value of the safeguard suchapplications are intended to have. Lord Diplock observed that an allegation of contravention of a human rightor fundamental freedom does not of itself entitle an applicant to invoke the s 14 procedure if it is apparentthat this allegation is an abuse of process because it is made (31 WIR at 349) -

'solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy forunlawful administrative action which involves no contravention of any human right'. [emphasis supplied]

[25] In other words, where there is a parallel remedy constitutional relief should not be sought unless thecircumstances of which complaint is made include some feature which makes it appropriate to take thatcourse. As a general rule there must be some feature which, at least arguably, indicates that the means oflegal redress otherwise available would not be adequate. To seek constitutional relief in the absence of sucha feature would be a misuse, or abuse, of the court's process. A typical, but by no means exclusive, exampleof a special feature would be a case where there has been an arbitrary use of State power.

[26] That said, their lordships hasten to add that the need for the courts to be vigilant in preventing abuse ofconstitutional proceedings is not intended to deter citizens from seeking constitutional redress where, actingin good faith, they believe the circumstances of their case contain a feature which renders it appropriate forthem to seek such redress rather than rely simply on alternative remedies available to them. Frivolous,vexatious or contrived invocations of the facility of constitutional redress are to be repelled. But 'bona fideresort to rights under the Constitution ought not to be discouraged'; Lord Steyn in Ahnee v Director of PublicProsecutions [1999] 2 AC 294 at 307, and see Lord Cooke of Thorndon in Observer Publications Ltd vMatthew [2001] UKPC 11, 58 WIR 188 at 206.

[27] Over the years admonitions against the misuse of constitutional proceedings have been repeated:Chokolingo v Attorney-General (1980) 32 WIR 354 at 359, and Attorney-General v McLeod (1984) 32 WIR450 at

(2005) 66 WIR 334 at 344

458. These warnings were reiterated more recently by Lord Bingham of Cornhill in Hinds v Attorney-General(No 2) [2001] UKPC 56, 59 WIR 75 at p 114, para [24].

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[28] Despite these warnings, abuse of the court's jurisdiction to grant constitutional relief has been'unrelenting' until brought to a 'sudden and welcome halt' by the decision of the Board in Thakur PersadJaroo v Attorney-General (2002) 59 WIR 519; see Hamel-Smith JA in George v Attorney-General (2003)(unreported). The explanation for the continuing misuse of this jurisdiction seems to be that proceedingsbrought by way of originating motion for constitutional relief are less costly and lead to a speedier hearingthan proceedings brought by way of writ.

[29] From an applicant's point of view this reason for seeking constitutional relief is eminentlyunderstandable. But this reason does not in itself furnish a sufficient ground for invoking the constitutionaljurisdiction. In the ordinary course it does not constitute a reason why the parallel remedy at law is to beregarded as inadequate. Proceedings brought by way of constitutional motion solely for this reason are amisuse of the s 14 jurisdiction.

[30] What, then, of the case where on the information available to an applicant a constitutional motion isproperly launched but it later becomes apparent (1) that there is a substantial dispute of fact, or (2) that aclaim for constitutional relief is no longer appropriate? As to the first of these two events, the emergence of afactual dispute does not render the proceedings an abuse where the alleged facts, if proved, would call forconstitutional relief. Where this is so, the appropriate course will normally be for the applicant to applypromptly for an order that the constitutional proceedings continue as though begun by writ and for anyappropriate ancillary directions for pleadings, discovery and the like. Where appropriate, directions shouldalso be given for expedition and a time table set for the further steps in the proceedings. If the second ofthese two events happens, and constitutional relief is no longer appropriate, it would be an abuse of processfor the applicant to continue to seek constitutional relief at all. In such a case the applicant should eitherabandon his motion entirely or, here again, seek a direction that the proceedings continue as though begunby writ. In this case, however, unlike the first case, the applicant will also need to amend the relief he seeksso as to abandon his claim to constitutional relief and instead seek to pursue his parallel remedy. Needlessto say, on all such applications the court will exercise its discretion as it sees fit in all the circumstances.Moreover, the court may of its own motion give any of these directions.

[31] The observations in Thakur Persad Jaroo v Attorney-General are not to be taken as differing from whatis set out above. In Jaroo, Lord Hope of Craighead said (59 WIR 519 at p 535 para [39]):

'If, as in this case, it becomes clear after the motion has been filed that the use of the [originating motion] procedure isno longer appropriate,

(2005) 66 WIR 334 at 345

steps should be taken without delay to withdraw the motion from the High Court as its continued use in suchcircumstances will also be an abuse.'

[32] Lord Hope's observation was directed at a case where proceedings seeking constitutional relief areproperly started by way of originating motion and it later becomes apparent that a parallel remedy ('someother procedure either under the common law or pursuant to statute') is the appropriate remedy for theapplicant. In Jaroo, where this situation arose, the applicant did not seek any direction of the charactermentioned above. Instead, he chose to adhere to what had become an unsuitable and inappropriateprocedure; 59 WIR at p 534, para [36]. It was in this circumstance that the Board agreed with the Court ofAppeal that for the applicant to proceed as he did was an abuse of process; at p 535, para [40].

[33] Their lordships add that it is in everyone's interest that an applicant should be in a position to decidewhich procedure is appropriate, preferably before he starts his proceedings or, failing that, at the earliestopportunity thereafter. To this end observations made by Hamel-Smith JA in George v Attorney-General(2003) (unreported), para [19], are pertinent:

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'The decision [in Jaroo] also serves to emphasise, in my view, that the State must at an early stage, ideally in responseto any letter before action, make it known whether it will be challenging the allegations or not and on what basis. In thatway, the aggrieved party would be in a position to make an informed choice of procedure. Failure to respond may leadto the State being condemned in costs, in the event that the party proceeds under s 14 of the Constitution only later tofind that the facts were in issue and no constitutional principle of general significance to citizens is involved.'

Advice that appeal be dismissed with costs.

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