EASTERN CARIBBEAN SUPREME COURT
SAINT CHRISTOPHER AND NEVIS
IN THE HIGH COURT OF JUSTICE
CLAIM NO: SKBHCV2015/0189
THE PUBLIC SERVICE COMMISSION OF ST. KITTS AND NEVIS
Mr. Perry Joseph for the Claimant
Mrs. Simone Bullen Thompson, Solicitor General, for the Defendant
2020: June 17
 GILL, M: On November 23, 2017, on a claim for judicial
review, Carter J. handed down judgment in favour of the claimant Dr. Dail
Crawford against the defendant, the Public Service Commission of St. Kitts
and Nevis (“the PSC”). By a fixed date claim, Dr. Crawford challenged the
decision of the PSC to suspend him indefinitely from his post as a
consultant gynaecologist/obstetrician (OB/GYN) at the Joseph N. France
 He sought and obtained, inter alia, a declaration that he was
denied his right to natural justice and, in particular, his right to
procedural fairness in contravention of the provisions of Section 32(2) of
the Public Service Act, a declaration that the recommendation of the PSC to
the Governor General was in contravention of Section 32(2) of the Public
Service Act and unlawful, and an order of certiorari to quash the decision
of the Governor General, acting on the recommendation of the PSC to suspend
him with half pay. Her Ladyship ruled that Dr. Crawford is entitled to
damages to be assessed and costs to be assessed pursuant to CPR 65.12 if
not agreed. In his application for assessment of damages, Dr. Crawford
claims general damages, exemplary damages and vindicatory damages.
 Dr. Crawford is a medical doctor specialising in Gynecology and
Obstetrics. As a registered consultant OB/GYN practitioner, he has a
licence to conduct a private medical practice in St. Kitts and Nevis. In
March 2012, he was appointed as an OB/GYN practitioner at the
Institution-Based Health Management Services and at the Ministry of Health.
Both appointments had retroactive effect from December 13, 2011.
 Dr. Crawford was granted privileges to use the Joseph N. France General
Hospital (hereinafter “the hospital’) for his private patients’ care. His
hospital privileges meant that as a private practitioner, he was allowed
access to, and use of, the hospital’s resources and amenities to care for
his private patients. He avers that between 2012 and 2014, his private
practice grew and became very lucrative. Up to the time of his application
for assessment of damages, he was the only Kittitian born OB/GYN practicing
in the Federation.
 It appears that as a result of several complaints raised in relation to
Dr. Crawford’s performance as an OB/GYN, on September 12, 2014 he attended
a meeting at the hospital’s conference room at the invitation of the
Medical Chief of Staff (“the MCS”) of the hospital. At that meeting which
was also attended by other medical personnel, the MCS, who is a member of
the Medical Board of the hospital, raised several cases of alleged
mismanagement on the part of Dr. Crawford. Save for one case under his
care, Dr. Crawford was unaware that the matters raised were the subject of
formal complaints. At the end of that meeting, the MCS told him that his
hospital privileges were all suspended.
 Thereafter, the Medical Board upheld the suspension of Dr. Crawford’s
privileges. The Medical Board invited him to a meeting to discuss the cases
of alleged mismanagement and professional misconduct. At that meeting on
November 28, 2014, Dr. Crawford read a prepared statement under protest,
raising the issue that he was not afforded an opportunity to respond to the
allegations, and he left the meeting.
 By letter dated February 25, 2015, the PSC informed Dr. Crawford that
the Governor General had approved the recommendation of the PSC that he be
suspended pending an investigation by the Medical Board.
 Dr. Crawford’s attorneys wrote to the chairman of the PSC pointing out
the breach of the rules of natural justice and demanded Dr. Crawford’s
reinstatement. When the matter of his reinstatement was not addressed, Dr.
Crawford sought redress in the court by way of an application for judicial
 Carter J. ruled that the PSC breached section 32(2) of the Public
Service Act by suspending Dr. Crawford without allowing him to make
representations in his defence and that the recommendation to the Governor
General to suspend him was unlawful.
Application for damages
 In assessing damages, Dr. Crawford is asking the court to take into
consideration the issues raised in his affidavit in support of his
application. He swore that the PSC’s actions caused a disruption in his
career and the suspension has crippled his practice in that his reputation
has been damaged irreparably.
 Dr. Crawford remained under suspension from the civil service up to
the date of this application. He considers this a clear and unambiguous
flout of the court’s jurisdiction. He insists that the fact that the PSC
has not tabled his reinstatement or, at least, met to discuss the issue
(that is, up to the time of making this application), reveals a nefarious
intent to their actions. In refusing to right its wrong, he opines that the
PSC is signaling that it intends to thumb its nose at the jurisdiction of
the court, and to do so indefinitely. In this regard, he asserts that the
conduct of the PSC has been oppressive.
 By letter dated February 2, 2018, Dr. Crawford wrote to the chairman
of the PSC requesting that his case be revisited having regard to the
decision of Carter J., indicating that the ruling cleared the way for his
reinstatement to the hospital. The PSC responded by letter dated February
7, 2018 stating that it would meet later in the month to discuss his case
and that further communication would follow “in the near future”. To the
contrary, he states that to date the PSC has refused to engage him further
on his case and, therefore, he deduces that his suspension has been
 Dr. Crawford contends that the PSC acted outside the scope of its
authority when it purported to suspend him without conducting its own
inquiry and/or investigation. Further, the failure of the PSC to hold any
disciplinary hearing in relation to him was an abdication of its
constitutional duties and statutory duties to the Medical Board.
 He considers the most serious harm as that inflicted on his
professional reputation. He claims that his patients were forced to see
other doctors against their wishes. Further, rumours surfaced about
disparaging and untrue stories of him committing various acts of
professional negligence. These rumours, he contends, were spread by
hospital employees to the public and, specifically, his patients who were
pressured to find another OB/GYN because of his suspension for
incompetence. In support of these contentions, he submits the affidavit
evidence of Valencia Cannonier, a longstanding patient of his, who deposed
that in 2017 when she experienced certain medical issues, Dr. Crawford
referred her to another doctor because he could not use the hospital’s
facilities to perform a procedure she required. She reported that each time
she attended the hospital, the nurses approached her and made comments such
as, “Don’t go to Crawford” and “Crawford is not a good doctor”.
 Dr. Crawford informs that surgeries and deliveries, his main sources
of income in private practice yielded high income but because of his
suspension, he has not been able to perform any deliveries or surgeries.
This loss of income has put financial strain on his family. The increased
financial constraints caused by his suspension have caused him serious and
emotional distress, having to start and build a successful practice to
ensure economic comfort for his family.
 Further, Dr. Crawford laments that the period of suspension has denied
him the right to practise fully as an OB/GYN, leading to a depreciation of
his skills. He explains that in order for him to stay sharp and perform at
the highest level, he must be able to perform surgeries and deliveries on a
 Based on the foregoing, Dr. Crawford claims general damages in the sum
of $100,000.00, exemplary damages in the sum of $30,000.00 and vindicatory
damages in the sum of $50,000.00.
 The main thrust of the PSC’s response in opposition to Dr. Crawford’s
application is set out in the affidavit of its chairman, Dr. Patrick
Welcome. Dr. Welcome admits that the PSC never held a hearing in relation
to Dr. Crawford’s matter. He avers that Dr. Crawford was suspended by the
PSC only from his post in the government service but that his privileges to
conduct his private practice were suspended by the administration of the
hospital and the Ministry of Health. He states that the PSC’s decision only
prevented Dr. Crawford from practising in the government service, and
therefore it is not accepted that the PSC’s decision denied him of his
right to practise or his patients’ rights to access a doctor of their
 Dr. Welcome asserts that statements allegedly made by employees of the
government cannot be attributed to the PSC or the decision of the PSC that
gave rise to his suspension, and that Dr. Crawford is entitled to bring a
claim in the High Court in relation to any defamatory statements made about
him. In addition, he contends that the decision of the PSC cannot be the
sole or main reason why persons question Dr. Crawford’s professional
integrity and ability to practise because he has another case before the
Court in relation to the suspension of his privileges and has matters
pending before the Medical Board.
 His affidavit evidence further reveals that after the judgment of
Carter J., Dr. Crawford wrote to the PSC asking that his matter be
revisited and in March 2020, his attorneys wrote to the PSC in relation to
his reinstatement. Dr. Welcome exhibits the minutes of PSC meetings
highlighting the PCS’s need for further information from the Ministry of
Health to guide the PSC in its deliberations. Following another letter
dated August 12, 2019 from Dr. Crawford’s attorneys, at its meeting held on
August 29, 2019, the PSC took the decision to reinstate Dr. Crawford.
However, he depones, following this decision; the Ministry of Health wrote
asking that the PSC reconsider its decision.
 In answer to Dr. Crawford’s assertion that the public nature of the
actions of the PSC caused him distress, Dr. Welcome points out that the PSC
does not release information in relation to its proceedings and its
decisions to the public, including the media. The secretary of the PSC
normally communicates its decision to the Chief Personnel Officer who then
forwards the decision to the relevant Ministry or Department and the
 Dr. Welcome concludes his affidavit with Counsel’s advice that Dr.
Crawford is not entitled to damages as the actions of the PSC did not cause
him to suffer the damage alleged and he has not by his claim or this
application established his entitlement to the damages he seeks.
 As this application in is judicial review proceedings, the court must
determine whether Dr. Crawford is entitled to damages and if so, the
quantum of damages to be awarded to him.
 Rule 56.8 of the Civil Procedure Rules 2000 governs the granting of an
award of damages in a claim for judicial review. Sub-rules (1) and (2) read
“56.8 (1) The general rule is that, where permitted by the substantive law,
an applicant may include in an application for an administrative order a
claim for any other relief or remedy that –
(a) arises out of; or
(b) is related or connected to;
the subject matter of an application for an administrative order.
(2) In particular the court may, on a claim for judicial review or for
relief under the Constitution award –
(b) restitution; or
(c) an order for return of property to the claimant;
if the –
(i) claimant has included in the claim form a claim for any such remedy
arising out of any matter to which the claim for an administrative order
(ii) facts set out in the claimant’s affidavit or statement of case justify
granting of such remedy or relief; and
(iii) court is satisfied that, at the time when the application was made
claimant could have issued a claim for such remedy.”
 In the case of Wesk Limited v St. Christopher Air and Sea Ports Authority
, the scope of this rule was discussed and the court concluded as follows:
“The effect of all this is that damages can only be awarded in judicial
review proceedings if the claimant bases his or her claim on a recognized
cause of action at common law. In other words, CPR 56.8(2) is, first,
ensuring that claimants do not believe that the remedies are available at
large and second, merely reflecting the common law position that
there is no right to claim damages for losses caused by unlawful
 On the authority of Wesk, the PSC submitted that in
judicial review proceedings, damages are not as of right and Dr. Crawford
must establish that his claim is based on some recognized cause of action
at common law. In this regard, the PSC argued that Dr. Crawford did not put
forward any such claim and has no recognized common law claim against the
PSC on which to ground his claim for damages. The learned
Solicitor General explained that the PSC is an independent body established
by the Constitution of St. Kitts and Nevis tasked with making
recommendations to the Governor General pertaining to the appointment,
removal and discipline of public officers (section 78 of the Constitution).
Dr. Crawford does not have a contract with the PSC. The PSC is not a body
with a juridical personality that permits it to be sued in civil
proceedings. The claim that Dr. Crawford is entitled to bring against the
PSC is a public law claim for judicial review. This is the type of claim he
 Dr. Crawford contends that the claim establishes the tort of breach of
Breach of statutory duty
 Learned counsel for Dr. Crawford, Mr. Joseph, relied on the case of Samanthia Charms Joseph v Digicel (St. Lucia) Ltd. in
which the court stated that breach of statutory duty is seen as a tort that
is equivalent to the common law of negligence but it is a distinct cause of
action at common law.
Does this cause of action exist in the present matter?
 Dr. Crawford alleges breach of section 32(2) of the Public Service
Act. The nature of the breach under that provision is that the public
officer is not afforded due process by the decision maker to provide an
opportunity to make representations.
 In X (Minors) v Bedfordshire County Council,
Lord Browne-Wilkinson explained that whether breach of statutory duty gives
rise to a private law action depends on the legislative intention. His
“The basic proposition is that in the ordinary case a breach of statutory
duty does not, by itself, give rise to any private law cause of action.
However, a private law cause of action will arise if it can be shown, as a
matter of construction of the statue, that the statutory duty was imposed
for the protection of a limited class of the public and that Parliament
intended to confer on members of that class a private right of action for
breach of the duty. … If the statute provides no other remedy for its
breach and the Parliamentary intention to protect a limited class is shown,
that indicates that there may be a private right of action since otherwise
there is no method of securing the protection the statute was intended to
confer. If the statute does provide some other means of enforcing the duty
that will normally indicate that the statutory right was intended to be
enforceable by those means and not by private right of action….
However, the mere existence of some other statutory remedy is not
necessarily decisive. It is still possible to show that on the construction
of the statute the protected class was intended by Parliament to have a
 Mr. Joseph’s argument is that by virtue of section 2 of the Public
Service Act, Dr. Crawford falls within a specific class of persons, being
public officers as defined under the Constitution of St. Kitts and Nevis.
All relevant provisions of the Act refer to this specific class of persons.
Mr. Joseph was of the view that there is no specific remedy available under
the Act for a breach of section 32(2). However, he asserted that it is
clear that the intention of parliament is that there is protection afforded
to this specific class of persons.
 Mr. Joseph impressed upon the court that both the amended fixed date
claim and the affidavit in support set out the parameters of the tort of
breach of statutory duty, although not specifically pleaded. He cited the
Maria Caines v The Labour Commissioner and the Attorney General of St.
Christopher and Nevis
in which it was submitted that the claimant had a recognized cause of
action for breach of statutory duty and/or misfeasance in public office by
the first defendant. The torts were not specifically pleaded but the court
found that a case of misfeasance had been made out and this was a proper
case for the consideration of damages, including exemplary damages, having
regard to Rule 56.8(2) of CPR 2000. In an assessment of damages after a
successful application for judicial review in Otto Sam v Tyrone Burke, Chief Personnel Officer,
the defendant argued, in effect, as the court summarised, that there was no
pleading in respect of a claim for a private law action, and that there was
no basis for an award of damages. Glasgow M., as he then was, ruled that
this position was incorrect as it was specifically pleaded in the statement
of claim that the claimant’s transfer was in contravention or breach of his
letter of appointment, the relevant collective agreement and the civil
service order. Among other remedies sought in his prayer for relief was an
order for an award of arrears of damages. The court reasoned that the
request for damages was “in the nature of a prayer for the return of the
emoluments lost by reason of his illegal transfer and so he is entitled to
 By virtue of section 32(2) of the Public Service Act, the PSC, in
making a recommendation to the Governor General to suspend a public
officer, must have regard to any representations made by the officer in his
or her defence. Mr. Joseph advanced that a reading of the pleadings reveals
that the PSC failed and/or refused to provide Dr. Crawford with an
opportunity to make representations against several allegations. Moreover,
Counsel urged, Dr. Crawford avers that context of the breach is relevant;
not only did the PSC fail to act under section 32, it did so by abdicating
its remit to the Medical Board in circumstances where it was clear and
unequivocal that such an act constituted a breach of the provision.
 Before answering the substantive question whether Dr. Crawford has
established a claim for breach of statutory duty as he contends, the
learned Solicitor General made pronouncements akin to in limine
 First, Mrs. Bullen Thompson maintained that the nature of the
underlying claim, if it exists, being that of a tort claim, is not a claim
that can be brought against the PSC. Counsel drew the court’s attention to
the fact that in the cases of Maria Caines and Otto Sam, the underlying claims were brought against the
Attorney General, the Labour Commissioner and the Chief Personnel Officer
respectively. These are officers of the Crown who can be sued in tort. By
contrast, the PSC is an independent constitutional commission and does not
enjoy similar status to the Crown.
 Secondly, Mrs. Bullen Thompson insisted that the claims for damages
are based on allegations against other individuals and not the PSC and
should be brought against those individuals and not the PSC. An example of
this is the alleged conduct of the staff at the hospital. Counsel contended
that any damage to Dr. Crawford’s practice, his ability to earn his income
or other like damage, arises not as a result of the actions of the PSC, but
from the suspension of his privileges by the administration of the
hospital. This suspension meant that he could no longer attend to his
private clients at the hospital. Counsel pointed out that the suspension
was upheld by the court in
Dail Crawford v Medical Board of Saint Christopher and Nevis et al.
 In relation to the alleged existence of an underlying claim, Mrs.
Bullen Thompson submitted that Dr. Crawford has not shown that a breach of
section 32(2) of the Public Service Act as alleged amounts to the tort of
breach of statutory duty. Carter J. made no such finding. Counsel argued
that the Public Service Act does not confer a private law cause of action
for breach of statutory duty. There is no intention expressed in the Act to
confer a private law cause of action on Dr. Crawford or any other employee
of the government falling within the ambit of the Act.
 Mrs. Bullen Thompson advanced that the legislation clearly outlines
how breaches of the Act are to be dealt with. Section 52 of the Act sets
out a right of appeal as follows:
“A public officer in respect of whom a decision is made by the
Governor-General in accordance with the provisions of this Act may, if
the officer is aggrieved by the decision, appeal against the decision
of the Governor-General, and the appeal shall lie to the Public Service
Appeals Board in accordance with section 87 of the Constitution.”
 Section 87(1)(a) of the Constitution provides for appeal to the Public
Service Board of Appeal from
“…any decision of the Governor-General, acting in accordance with
the recommendation of the Public Service Commission or the Police
Service Commission, to remove a public officer from office or to
exercise disciplinary control over a public officer…”
 Therefore, Mrs. Bullen Thompson summed up, the Constitution and the
legislation clearly outline the way in which matters of government
employees vis-à-vis the PSC should be addressed. This provides an
accessible and effective remedy and in the absence of express language in
the legislation conferring a private law right, the learned Solicitor
General respectfully submitted that none exists.
Discussion and analysis
 Dr. Crawford sought and obtained a declaration that the action of the
PSC in its recommendation to the Governor General was in contravention of
section 32(2) of the Public Service Act and unlawful. The amended fixed
date claim and affidavit in support set out that he was suspended from his
office without being given the opportunity to make representations as
required by section 32(2). Clearly, this amounts to a breach of the duty
imposed by the statute on the PSC to afford Dr. Crawford an opportunity to
be heard before recommending his suspension to the Governor General.
 The question is whether a cause of action exists for breach of section
32(2). Public officers are the protected class of persons under the
legislation. As submitted by the PSC, the Public Service Act makes
provision in section 52 for a right of appeal to the Public Service Appeals
Board for public officers aggrieved by decisions of the Governor-General.
Considering the prospect of an officer appealing as aforesaid, and assuming
the officer is successful in his appeal before the Board, what is the
result of that process? In the case of an unlawful suspension on half pay,
the officer may be reinstated and be paid all emoluments owing to him or
her for the period of his or her unlawful suspension. However, the Board
would not have jurisdiction to make any award for damages the officer may
have suffered as a result of the breach. This must mean that the officer
has the right to bring a private law action for breach of statutory duty
for a contravention of section 32(2) of the Public Service Act. Therefore,
my ruling is that a private law claim for breach of statutory duty is set
out in Dr. Crawford’s pleadings for which a right of action exists in
 I now turn my attention to the issue of whether the underlying claim
for breach of statutory duty can be brought against the PSC. The learned
Solicitor did not provide the court with any authority for the contention
that the PSC cannot sue or be sued in private law. Counsel gave the example
that Dr. Crawford could not sue the PSC if he did not receive his salary
for the period of his suspension.
 This point was dealt with in
Newlin Dyer v Public Service Commission and Director General Finance
. In that case, a customs guard, by a statement of claim endorsed on a writ
of summons, claimed that the second defendant wrongfully terminated his
employment by deeming him to have abandoned his employment, and refused to
permit him to resume his employment. He alleged that the first defendant,
the PSC, refused to employ him any longer. He sued for 33 months loss of
salary and a declaration that he was entitled to resume his employment.
Mitchell J. ruled as follows:
“The Public Service Commission is a creature of the Constitution placed
there to supervise the relations between the Crown and its employees, the
public servants of St. Vincent and the Grenadines. If the fathers of the
nation, in framing the Constitution, had intended to constrain the right of
a public officer to question the performance by the PSC of its
constitutional function by the Courts, then they would have done so by
express words in any of the Constitution, the Crown Proceedings Act or the
Public Officers’ Protection Act. They did not do so. I, therefore, hold
that the action can proceed against the 1st Defendant.”
The learned judge further ruled that the second defendant, a public
officer, enjoyed the protection of the two Acts in question, was improperly
joined as a party and ordered his name to be struck from the action as a
 As pointed out by Mrs. Bullen-Thompson, the Chief Personnel Officer,
and not the PSC, was the defendant in the Otto Sam case.
From my reading of the case and the appeal that followed, the reason for
that is evident. Mr. Tyrone Burke, the Chief Personnel Officer, signed the
letter purporting to assign Mr. Sam. In that letter, no mention was made of
the PSC or any other authority so that one could ascertain under whose
instructions he was acting. In fact, Baptiste JA., in the appeal judgment,
pointed out that the appellant was not a member of the PSC, nor was he the
secretary to the PSC and in fact, being a serving public officer, was
precluded by the Constitution of St Vincent and the Grenadines from being a
member of the PSC.
 Notwithstanding the pronouncements of Mitchell J. in Newlin Dyer, one is hard pressed to find a case where the
PSC is sued specifically in a private law action. However, the
distinguishing point in this case is the order of the learned judge that
Dr. Crawford is entitled to damages to be assessed. This is a separate and
distinct order from Her Ladyship’s order that Dr. Crawford was to receive
the portion of his salary that was deducted during his interdiction. It
should be noted that this part of the suspension letter was not implemented
but had it been, there would be no need to carry out an assessment of
damages as the lost income would be easily calculable. Clearly, Carter J.
intended for damages to be assessed for injury or loss suffered by Dr.
Crawford as a result of the breach in procedure in suspending him. As
discussed later at paragraphs 59 to 62 herein, by the judge’s decision, the
nature of the proceedings changed to a private law action. That being so,
in my view, Dr. Crawford is not required to intitule the matter
differently. The proceedings continue against the PSC.
 The purpose of damages is to put the claimant insofar as practicable
in the financial position he would have been but for the impugned act. Dr.
Crawford is entitled to damages for the breach of the PSC’s duty under
section 32(2) of the Public Service Act. I accept that the suspension
itself would have caused him some distress and that his reputation would
have suffered to some degree. The fact that the first Kittitian born OB/GYN
was suspended from the Federation’s main hospital certainly would have an
unfavourable impact on his reputation, practice and career.
 However, there is merit in the PSC’s argument that some of the
allegations detailed in Dr. Crawford’ affidavit in support of this
application are not attributable to the PSC. The allegations that medical
personnel spread rumours that Dr. Crawford was an incompetent doctor,
nurses pressured his patients to find another OB/GYN, adverse and
defamatory statements were published on Facebook by private citizens and a
former government minister cannot be said to be the actions of the PSC. I
agree with the PSC’s submissions that Dr. Crawford is entitled to take
action against the individuals he alleges acted in such a manner as to
disparage his character and negatively impact his practice.
 During oral submissions, the court sought clarification from counsel
on the issue of the suspension of Dr. Crawford’s hospital privileges. Both
counsel were on the same page in informing that Dr. Crawford’s suspension
from the government service by itself did not suspend his hospital
privileges to attend to his private patients at the hospital and to use the
hospital facilities for surgeries and deliveries with respect to his
private patients. The suspension of Dr. Crawford’s hospital privileges was
an act of the Medical Board. That being the case, I fail to see how damages
flowing from the suspension of his hospital privileges can be the
responsibility of the PSC. Dr. Crawford’s private patients were free to
solicit his services and he could attend to them at his private facilities
or other facilities not under government control. Unfortunately, it appears
that Dr. Crawford depended solely on government facilities to conduct his
entire practice. With the suspension from government service, Valencia
Cannonier and other loyal patients of Dr. Crawford were at liberty to
access his services outside of the government’s facilities. As was done,
any action for the suspension of his hospital privileges should be taken
against the Medical Board.
 Based on the impact the unlawful suspension itself would have had on
Dr. Crawford, I am of the view that an appropriate award for general
damages in this matter is $50,000.00.
 On the application for assessment of damages, Dr. Crawford claims an
award of $30,000.00 under this head. Exemplary damages “may be granted in
order to punish the wrongdoer, both for the oppressive arbitrary nature of
the wrongdoing and its calamitous impact upon the victim”.
Dr. Crawford averred that the failure of the PSC to adhere to the duty to
provide him with an opportunity to be heard was high handed and he
emphasised the impact this conduct has had on him. He was removed from the
hospital, which created an environment at the institution for his name to
be unfairly smeared. Dr. Crawford rationalised that regardless of the
allegations of misconduct lodged against him prior to his suspension, his
unlawful removal would have given oxygen to the allegations that the PSC
itself failed to investigate.
 In Maria Caines, the court accepted the submissions
of the claimant that the Labour Commissioner’s conduct was so egregious as
to justify an award of exemplary damages. In that case, the claimant
submitted a claim to the Labour Commissioner for severance pay. A period of
14 months elapsed without a response. The claimant then applied for an
order of mandamus to compel the Labour Commissioner to make a decision on
the claim. On the day before the claimant’s application for mandamus was to
be heard, the Labour Commissioner made the decision that the claimant was
not eligible for severance pay. No reasons were given for the decision.
Through a solicitor’s letter, the claimant asked the Labour Commissioner to
reconsider his position. He never responded to the letter. After being
granted leave, the claimant made an application for judicial review. No
defence to the judicial review claim was filed. When the matter came on for
first hearing, the Labour Commissioner was absent without excuse. The court
granted the claimant’s application and quashed the Labour Commissioner’s
decision. The matter was remitted to him for his reconsideration. Thomas J.
(Ag.) ruled that the Labour Commissioner’s action, of lack thereof fell to
be categorised as high handed and, accordingly, awarded the claimant
exemplary damages in the sum of $20,000.00.
 Dr. Crawford is of the view that the facts in this case demand a
higher award than that in Maria Caines given the important
nature of the work he undertook at the hospital.
 From two standpoints, the PSC insisted that no award of exemplary
damages should be made in this matter. First, Dr. Crawford, in his claim,
did not seek exemplary damages. Further, the facts of the case do not give
rise to such an award.
 The PSC’s stance on the first aspect is grounded in CPR 8.6(3), which
“A claimant who seeks aggravated damages and/or exemplary damages must
say so in the claim form.”
Dr. Crawford did not specify in his claim form that he seeks exemplary
damages. On this point, Mrs. Bullen-Thompson cited the case of
Royal George v The Attorney General of the Commonwealth of Dominica.
Actie M., as she then was, in assessing damages for wrongful arrest, false
imprisonment and assault and battery, declined to make an award for
exemplary damages as the claimant had failed to plead and particularise
exemplary damages in his claim form as required by CPR 8.6(3). The
claimant’s argument that the court had an inherent jurisdiction to award
exemplary damages did not find favour with the court. At paragraph 15 of
the judgment, the learned master stated:
“A party should not exploit the inherent jurisdiction of the court in an
effort to circumvent a rule or statutory provision that may impose or
proscribe procedures in relation to pleadings or procedures.”
 The PSC also relied on
Rambally Blocks Limited v The Comptroller of Customs and Excise.
This was a claim for judicial review where the claimant sought to amend its
claim by adding, inter alia, a claim for exemplary damages. The
amendments were struck out on the basis that the additional relief in the
further amended fixed date claim form sought to expand the claim for
judicial review for which leave had been granted and required further leave
of the court, which had not been granted.
 In summary, on this aspect of the argument, the PSC respectfully
contended that since there is no claim for exemplary damages before the
court, the court should decline an award under this head.
 Further, Mrs. Bullen Thompson posited that the PSC did not act
highhandedly or in bad faith with the intention of casing any injury but
sought to act in the public interest in light of the serious allegations of
misconduct on the part of Dr. Crawford.
 Mr. Joseph’s response to this submission is that the court may grant
an award for exemplary and vindicatory damages on an application for
assessment of damages, which application was made by Dr. Crawford. Counsel
urged the court to apply the reasoning in the Otto Sam
case where the claimant applied for special damages such as annual duty
allowance, and also claimed vindicatory damages on assessment subsequent to
pleadings. Special damages must be specifically pleaded and proved. The
Chief Personnel Officer argued that special damages for the sums claimed
were not pleaded and/or proved. The claim was one in public law to set
aside an order to remove the claimant from office and transfer him to
another post. No issue of wrongful dismissal arose. The trial judge ruled
that the order was illegal with the natural consequence that the claimant
remained in his previous post of head teacher. The learned master, on
assessment, found that another natural implication of the judge’s ruling
was that the claimant was entitled to receive arrears of salary and other
benefits owed to him for the period of the illegal transfer. The master
noted that “…this is a feature of cases of this nature that do not
easily sit with the ordinary rules of pleadings in a private claim”. The
court considered the unique dimensions of the application for assessment
and was satisfied that the claimant in his application for assessment of
damages properly raised the claim for lost benefits.
 In Otto Sam, the court applied the reasoning of the
court of appeal inMcIntyre Paul v the Commissioner of Police et al.
In similar circumstances, Barrow JA provided invaluable insight into the
issue. As did the learned master in Otto Sam, I quote
extensively from paragraph 47 and the entire paragraph 48 of the judgment
“ The point the learned Solicitor General wished to argue was that the
appellant made no claim for wrongful dismissal and, thus, no claim for
special damages. A claim for special damages must be specifically pleaded,
the Solicitor General argued, and if not pleaded the amount that should
have been pleaded may not be awarded.
 Accepting the proposition to be as stated, which we do purely for the
purpose of argument, the peculiar history of this claim, which started off
solely as a claim in public law, makes it impossible to apply that rule. It
is not the case that the appellant failed to plead special damage when he
should have done so; he could not have done so because he never made a
claim that could have included an award of special damages. Actually, we
remain at a loss as to the basis on which the appellant claimed the general
damages that he did. The rule that a claimant must plead special damage
applies to private law claims and, until the judge altered the nature of
the claim, the appellant claimed only in public law. When the appellant
filed his affidavit of damage he gave detailed particulars of the special
as well as the general damages he sought and, therefore, we regard the
appellant as being compliant with the rule at the time he was required to
 In the instant case, Mr. Joseph put forward that CPR 8.6 is a feature
of a private law claim and the intention is that it governs damages in
private law matters. When the court voided the order for suspension, the
nature of the claim was altered as the order meant that Dr. Crawford was
never suspended and he can apply for damages for the injury he suffered as
a result of the illegal act. The court now has jurisdiction to award
damages under the heads now claimed. Counsel submitted that the same
principle that allows a claim for special damages on assessment applies for
exemplary and vindicatory damages.
Discussion and analysis
 For the purposes of this case, this court adopts the approach outlined
by Barrow JA. in the McIntyre Paul case. Dr. Crawford’s
claim started out as a public law claim. Carter J. altered the nature of
the claim when Her Ladyship quashed the decision to suspend him and ordered
that he was entitled to damages to be assessed. On the public law claim, he
would not be entitled to damages for unlawful administrative action. In his
application for assessment of damages, the opportunity afforded by the
learned judge, Dr. Crawford gave details of the conduct of the PSC on which
he relies to make a case for the award of exemplary damages. I am
satisfied, therefore, that the claim for exemplary damages is properly made
in the application for assessment of damages.
 On the argument that the PSC did not act highhandedly but acted in the
public interest by recommending Dr. Crawford’s suspension, I refer to and
adopt the assertion of Carter J. at paragraph 26 of the judgment when Her
“There is no discretion in the PSC to make a recommendation without having
regard to a public officer’s representations.”
 The PSC failed to carry out its own investigation or inquiry, giving
Dr. Crawford an opportunity to be heard. It cannot use the public interest
factor to demonstrate the absence of highhandedness.
 After Dr. Crawford was unlawfully suspended, in a letter copied to the
PSC, the unlawful nature of the suspension was highlighted. However, the
PSC did nothing to address the breach, forcing Dr. Crawford to seek redress
in the court.
 In my view ,this conduct of the PSC in depriving Dr. Crawford in
making representations on the basis of a discretion it had no authority to
exercise, coupled with the refusal to put matters right, can certainly be
characterised as highhanded. Therefore, on this limb of the argument, I
find that this is a fit and proper case for the award of exemplary damages.
In all the circumstances of this case, an appropriate amount to award under
this head is $20,000.00.
 Under this head, Dr. Crawford seeks $50,000.00 as was awarded by the
Privy Council in
Inniss v The Attorney General of Saint Christopher and Nevis
As stated by Lord Hope at paragraph 27 of the judgment:
“The purpose of the award, whether it is made to redress the contravention
or as relief, is to vindicate the right. It is not to punish the Executive.
But vindication involves an assertion that the right is a valuable one, as
to whose enforcement the complainant herself has an interest. Any award of
damages for its contravention is bound, to some extent at least, to act as
a deterrent against other breaches. The fact that it may be expected to do
so is something to which it is proper to have regard.”
 Mr. Joseph spelled out that Dr. Crawford held an important post in the
civil service, one of the appointed OB/GYNs at the hospital. He was
suspended unlawfully by the PSC and in breach of its statutory remit
failing to give him an opportunity to be heard while abdicating its duty to
the Medical Board. He pointed out that even after judgment vindicating Dr.
Crawford’s right to natural justice, the PSC, as at the date of this
application and these proceedings, has failed and/or refused to reinstate
him, again appearing to be guided by the Medical Board.
 Vindicatory damages are usually awarded in constitutional claims.
Nevertheless, Mr. Joseph directed the court’s attention to cases which do
not involve actual constitutional issues or breaches of constitutional
rights, but have a “constitutional element”. In The Prime Minister and Samuel v Sir Gerald Watt,
which dealt with an application for judicial review, and where there was no
allegation of a breach of any constitutional right, the Court of Appeal
held the right violated was in the nature of a constitutional right,
although it was not entrenched in the constitution. Sir Gerald had been
summarily dismissed from a statutorily entrenched position as the Prime
Minister had lost confidence in his performance. Mitchell JA. (Ag.) was of
the view that the principles established in Inniss were
equally applicable in a public law case of that kind, and left the
assessment of vindicatory damages to the court below. A similar approach
was taken by the court in the Otto Sam case. The relationship between Mr. Sam and the government was
said to be “managed” by the Public Service Commission, a constitutional
entity under the Constitution of St. Vincent and the Grenadines. The court
found that notwithstanding that the claim was for judicial review, elements
of breaches of a constitutional right featured prominently. Mr. Sam could
only be removed from office in the manner prescribed by the constitution.
He was removed by an authority other than the commission which was a patent
violation of the constitution. Mr. Sam was awarded $30,000.00 in
vindicatory damages “to vindicate the obvious breach of the constitutional
rights afforded to him”.
 Mr. Joseph’s submission is that there is a constitutional element in
this case as the High Court’s description, in Inniss, of a
wanton disregard for the rules governing the disciplinary process of public
officers applies here. The learned judge found that the breach involved “a
deliberate act in violation of the Constitution to achieve what the time
consuming procedures of the Commission could not achieve”.
Counsel proffered that the same principles apply in this case. Not only did
the PSC breach its statutory remit, the breach was clothed in the erroneous
assumption that the Medical Board had undertaken disciplinary proceedings
against Dr. Crawford.
 The submission of the PSC on this issue is that the learned judge in
this case made no finding in relation to the breach of any constitutional
provisions. The question before the judge was whether there had been a
breach of section 32(2) of the Public Service Act. The learned Solicitor
General insisted that Dr. Crawford in this application for assessment of
damages is attempting to litigate new issues such as the PSC’s abdication
of its remit to the Medical Board and its failure to hold a hearing. She
pointed out that the learned judge made no such findings in relation to
those matters. Therefore, the contention of the PSC is that no award of
vindicatory damages should be made in this case.
 Notwithstanding this stance, in oral submissions, Mrs. Bullen Thompson
indicated that in judicial review proceedings, it could still be in the
discretion of the court to award vindicatory damages, in light of the
section breached. Counsel advanced that a claimant may be awarded
vindicatory damages without proof of an underlying cause of action.
 A qualified OB/GYN, the first son of the soil to claim that
distinction, was unlawfully suspended from his government posting. The
court having declared the illegality of the suspension under the Public
Service Act, in November 2017, Dr. Crawford remained under suspension up to
the time of the application for assessment in August 2019. Up to that time,
no competent authority had made any finding in relation to purported
allegations made against him.
 The PSC is a body set up under the constitution of St. Kitts and Nevis
and is seized with the authority to appoint, dismiss, transfer and suspend
public officers, among other powers. In this sense, the case takes on a
“constitutional element”. Thus, Dr. Crawford is entitled to an award under
this head to vindicate his rights in relation to the breach of the law by
the PSC in suspending him without affording him the opportunity to make
representations. I consider the sum of $30,000.00 to be a fair award under
 Based on the foregoing, Dr. Crawford is awarded damages as follows:
(1) General damages in the sum of $50, 000.00.
(2) Exemplary damages in the sum of $20,000.00
(3) Vindicatory damages in the sum of $30,000.00
The total award is $100,000.00.
 The parties have already settled on the issue of costs.
 Finally, I express my gratitude to both counsel for their tremendous
assistance in this matter.
By the Court
SKBHCV2017/0241, per Ventose J. at paragraph 29 of the judgment
SLUHCV2015/0637, per Cenac-Phulgence J. at paragraph 18 of the
 AC 155, at page 168
Suit No. 311/92, at page 4 of the judgment (delivered May 13, 1997)
See Marin and another v Attorney General of Belize  CCJ 9
(AJ), at paragraph 12, quoted in Maria Caines supra at note 3, at
paragraph 16 of the judgment
 UKPC 42
Supra at note 5, at paragraph 28 of the judgment
Supra at note 12, at paragraph 21 of the judgment