Fire Service Association v Public Service Commission et al
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
In the matter of an application for
Judicial Review under Part 56 of the
Civil Procedure Rules 2000
In the matter of Article 28 of the Code
of Civil Procedure
FIRE SERVICE ASSOCIATION
 PUBLIC SERVICE COMMISSION
 CHIEF FIRE OFFICER
 ATTORNEY GENERAL
The Hon. Mde. Janice M. Pereira Justice of Appeal
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mr. Michael Gordon, QC Justice of Appeal [Ag.]
Ms. Cynthia Hinkson-Ouhla for the Appellant
Ms. Grace Ward-Glasgow for the 1st Respondent
Ms. Brender Portland-Reynolds and Mr. Dwight Lay for the 2nd and 3rd
2010: October 26;
2013: December 16.
Whether article 28 of the Code of Civil Procedure, Cap. 243, applies to judicial review
proceedings – Limitations to protection afforded to public officers by article 28 – Whether
Chief Fire Officer acted ultra vires in making recommendation to Public Service
Commission to fill vacant post in Fire Service – Judicial review proceedings brought
challenging appointment – Failure to give notice of suit as required by article 28
The Public Service Commission filled a vacant post in the Fire Service based on a
recommendation made by the Chief Fire Officer. The Fire Service Association challenged
this appointment by way of judicial review. The learned judge dismissed the appellant’s
claim on the ground that the Chief Fire Officer and Attorney General ought to have been
served with notice of the suit pursuant to article 28 of the Code of Civil Procedure.1
The appellant appealed the learned judge’s decision on the grounds that she erred in law
in failing to appreciate that article 28 is not applicable to judicial review proceedings and
does not provide blanket immunity to public officers. The appellant further contended that
the learned judge misdirected herself in failing to appreciate that the issue of whether the
second respondent had acted ultra vires in making the recommendation had to be
considered before striking the second and third respondents as parties to the suit, since
the protection of article 28 can only be relied on by a public officer acting within the scope
of his or her authority.
Held: allowing the appeal and awarding costs to the appellant which are to be assessed
pursuant to the Court Procedure Rules 2000 and paid by the Attorney General, that:
1. It is only where a public officer acting in the legal exercise of his functions is sued
for damages that he can rely on article 28 for protection. In the present claim,
declaratory relief was sought as well as certiorari, mandamus and prohibition.
Absent a suit for damages, no question of prohibition of rendering judgment unless
notice of such suit is given can arise. The learned judge erred in dismissing the
appellant’s claim for judicial review.
Quorum Island (BVI) Limited et al v Virgin Islands Environmental Council
British Virgin Islands High Court Civil Appeal No. BVIHCVAP2008/004 (delivered
27th October 2008, unreported) distinguished.
2. There is nothing in the context of article 28 to suggest that it applies to judicial
Castillo v Corozal Town Board v Another (1983) 37 WR 86 distinguished.
3. A public officer acting outside of his statutory functions cannot rely on the absence
of notice (which notice article 28 stipulates is a requirement) for protection from an
action brought against him or her.
Roncarelli v Duplessis  SCR 121 (Supreme Court of Canada) applied.
1 Cap. 243, Revised Laws of Saint Lucia 1957.
 BAPTISTE, J.A.: This appeal raises the issues of whether article 28 of the Code
of Civil Procedure2 (“The Code”) applies to judicial review proceedings and
whether there are limitations to the protection afforded to public officers by that
article. These issues find expression consequent upon the decision of a High
Court judge dismissing a claim for judicial review on the ground of failure to give
notice of suit pursuant to article 28 of The Code.
 The background facts are that the Chief Fire Officer recommended to the
Permanent Secretary of the Ministry of the Public Service that Fernando James be
appointed to fill a vacant post in the Fire Service. The Public Service Commission
appointed Mr. James to the post. The Fire Service Association sought and
obtained leave to apply for judicial review to challenge the appointment. At the
first hearing of the claim the learned judge opined that before proceeding further, it
was necessary to dispose of three procedural issues raised in the affidavit of the
Chief Fire Officer. For the purpose of this appeal only one of the issues is of
moment, namely, whether the appellant ought to have served notice of the suit on
the Chief Fire Officer and Attorney General pursuant to article 28 of The Code.
The learned judge invited submissions from counsel on the matter and dismissed
the claim on the ground that there was no service of notice of suit upon the Chief
Fire Officer and Attorney General, pursuant to article 28 of The Code.
 The grounds of appeal advanced were:
(1) the learned trial judge erred in law when she failed to appreciate that
article 28 of the Code of Civil Procedure is not applicable to judicial
(2) the learned judge erred in law when she failed to appreciate that article 28
did not provide blanket immunity to public officers. Article 28 applies
2 Cap 243 of the Revised Laws of Saint Lucia 1957.
when a public officer is sued in private law for acts or omissions creating
liability which may arise whilst the public officer is performing his public
(3) the learned trial judge misdirected herself by failing to appreciate that the
issue of whether the second respondent acted ultra vires had to be
determined before striking the second and third respondents as parties to
the suit since the protection of article 28 can only be relied on by a public
officer acting within the scope of his or her authority.
 The appellant submits that the whole tenor of article 28 indicates that it is not
applicable to public law actions and the word “judgment” appearing in the article
should be interpreted in that context and not as defined in any other statute.
Article 28 presupposes that the intended action will be commenced by writ of
summons and a cause of action exists for which damages are recoverable.
Damages, being a private law remedy, are not normally available in actions for
judicial review. The article 28 notice cannot be fitted within the time frame of the
rules governing judicial review. Contextually, article 28 is not applicable to judicial
review proceedings. Article 28 does not provide blanket immunity to public
officers. The protection does not derive from the status of the public officer. It
attaches if the acts complained of are done in the exercise of statutory power or
authority. A public officer cannot rely on the protection offered by article 28 if the
actions complained of are outside the scope of his authority.
 The respondent submits that the issuance of an article 28 notice is mandatory with
respect to judicial review proceedings. It is a condition precedent to the filing of
proceedings against public officers performing a public function. The words ‘nor
can any judgment be rendered’ imposes a limitation on the discretion of the court
to render judgment against a public officer, or other person fulfilling any public duty
or function in circumstances where article 28 notice is not given. This was
recognised by the court in Castillo v Corozal Town Board and Another.3 Based
3 (1983) 37 WIR 86.
on the definition of an “order” in the Civil Procedure Rules 2000 (“CPR 2000”),
the pronouncement of any decision by the learned judge with respect to any
application for judicial review shall be the issuance of a judgment in the matter.
This would be irrespective of the pronouncement being made at the leave stage or
otherwise. An application for leave for judicial review equates to a
commencement of a proceeding: Quorum Island (BVI) Limited et al v Virgin
Islands Environmental Council.4 In view of Quorum, article 28 operates with
respect to leave applications.
 Quorum was concerned with the question of whether an application for judicial
review was statute barred under the Public Authorities Protection Act,5 the
application for leave to apply for judicial review having been filed on the last day of
the six month period prescribed by the Act for bringing proceedings. The appellant
in Quorum had argued that the judicial review claim was commenced only upon
the filing of the claim and not upon the making of the application for leave, which
was not an “action”, “claim” or “proceeding” within the meaning of the Act. The
court held that an application for leave to apply for judicial review is a proceeding
within the meaning of section 2(a) of the Act. Different considerations to Quorum
apply to the present case. Quorum was not interpreting article 28 or any similar
provision. Section 2 of the Public Authorities Protection Act is of far wider
scope than article 28 of The Code. I do not regard Quorum as authority for the
assertion that article 28 of The Code applies to applications for leave to apply for
judicial review. Rather, Quorum simply decided that the application for leave to
apply for judicial review was a “proceeding” for the purposes of section 2 of the
Public Authorities Protection Act. That does not extend to meaning that all
proceedings are “suits” or “claims” as the word “suit” in article 28 of The Code is
understood. It clearly relates to the institution of a “suit”, “an action” or “a claim”
seeking damages. Whereas an application for judicial review is a proceeding, it
4 British Virgin Islands High Court Civil Appeal No. BVIHCVAP2008/004 (delivered 27th October 2008,
5 Cap. 62 of the Revised Laws of the Virgin Islands 1991.
cannot be disputed that such an application is not the suit or the claim as
contemplated by article 28 of The Code. This case is accordingly distinguishable
 Before considering article 28 of The Code it is instructive to make some pertinent
observations in relation to judicial review. Judicial review proceedings are
proceedings in public law essentially to ensure that a public body complies with
the law. Judicial review provides the means whereby judicial control of
administrative actions is exercised. Judicial review is regulated by CPR 2000 and
operates in two stages. Unlike the case of an ordinary action, the court’s prior
permission is required to proceed with a judicial review claim. A person wishing to
make a claim for judicial review must first obtain leave. The ordinary rule now is
that the court will refuse leave to claim judicial review unless satisfied that there is
an arguable ground for judicial review having a realistic prospect of success and
not subject to a discretionary bar such as delay or an alternative remedy.6 The
primary purpose of the leave stage is to provide a judicial filter to weed out
unmeritorious claims. Leave is conditional on the applicant making a claim for
judicial review within 14 days of receipt of the order granting leave.
 The forms of relief invariably claimed in judicial review proceedings are certiorari,
mandamus or prohibition. The court has a discretion to award damages, however
the rather stringent requirements of rule 56.8(2)(a)(i), (ii) and (iii) of CPR 2000
must be satisfied. The court may award damages if: (i) the claimant has included
in the claim form a claim for damages arising out of any matter to which the claim
for judicial review relates; (ii) the facts set out in the claimant’s affidavit or
statement of case justify the granting of such remedy or relief; and (iii) the court is
satisfied that at the time when the application was made the claimant could have
issued a claim for damages.
 Article 28 of The Code states that:
6 See The Honourable Satnarine Sharma v Carla Brown-Antoine & Ors  UKPC 57, para. 14.
“No public officer, or other person fulfilling any public duty or function, can
be sued for damages by reason of any act done by him in the exercise of
his functions, nor can any judgment be rendered against him, unless
notice of such suit has been given him at least one month before the
issuing of the writ of summons.
“Such notice must be in writing, it must specify the grounds of the action,
must be served upon him personally or at his domicile, and must state the
name and residence of the plaintiff.”
Article 28 is fairly limited in scope. It simply seeks to protect persons falling within
its purview from being sued for damages by reason of any act done by them in the
exercise of their functions and prohibits the rendering of judgment against them
unless written notice of the suit for damages is served upon them in the time
prescribed and in the terms stipulated. In the present case a judicial review claim
was brought in which declaratory relief was sought as well as certiorari,
mandamus and prohibition. No claim for damages was made.. Absent a claim for
damages, no question of prohibition of rendering judgment unless notice of such
suit is given arises. Consequently article 28 of The Code could not have been
engaged. That to my mind is sufficient to dispose of the appeal. The learned
judge clearly erred in law in dismissing the claim for judicial review. The very
nature of the claim brought precluded the invocation of article 28 of The Code.
 Quite apart from the fact that there was no claim for damages there is nothing in
the context of article 28 of The Code to suggest that it applies to judicial review
proceedings. Absent such a contextual indicator, one would be hard pressed to
conclude that it applies to judicial review proceedings. The notice requirement of
article 28 supports the conclusion that contextually the article does not apply to
judicial review proceedings which, as previously indicated, operate in two stages.
Indeed no notice of an application for leave may be given7. Furthermore, leave
may be granted or refused. If leave is refused then there is no question of bringing
a claim, be it one seeking damages or otherwise, and therefore no claim to be
contemplated for which an article 28 notice ought to be given. It further begs the
7 See CPR 56.3(2).
question of the relevance of an article 28 notice at the leave stage when what is
essentially sought at the leave stage is in reality permission to bring a claim. If
permission is refused, the matter ends there, unless the refusal is overturned. In
that context it cannot be said that a claim has been made. Quite apart from that,
article 28 provides for at least one month written notice of suit to be given before
issuance of the writ [claim] whereas CPR 56.4(11) provides that where leave is
granted the claim must be issued within fourteen (14) days. This would then be
inconsistent with the 30 day period prescribed by article 28. The application for
leave to apply for judicial review was filed on 3rd September 2009 and the order
granting leave was made on 21st December 2009. Within 14 days of receipt of the
order granting leave, an applicant is obliged to make his claim for judicial review.
On 6th January 2010 the fixed date claim form was filed seeking judicial review. In
terms of article 28 of The Code at least one month before 6th January 2010, notice
of the suit would have to be given. The order granting leave having been made on
21st December 2009, no notice of suit could have been given before that time.
The fixed date claim form seeking judicial review having been filed on 6th January
2010, there was no way that the “at least one month” notice requirement before
suit could ever be met. The appellant’s counsel correctly adverted to the inability
of fitting the service of the article 28 notice within the time frame of the rules
governing judicial review. This inability to fit the minimum 30 day service period of
the notice under article 28 of The Code into the 14 day period for making a judicial
review claim supports the view that article 28 is inapplicable to judicial review
 In this case, the judgment of the trial judge was informed by two first instance
judgments from Saint Lucia: B-Line Car Rentals v Comptroller of Customs et
al8 and Peter Clarke v The Attorney General et al.9 B-Line concerned an
application by petition for an injunction. The court referred to article 28 of The
Code as well as the definition of “order” in CPR 2.4 and stated that for the
8 Saint Lucia High Court Civil Claim No. SLUHCV2006/0725 (delivered 18th September 2006, unreported).
9 Saint Lucia High Court Civil Claim No. SLUHCV1999/0475 (delivered 19th April 2004, unreported).
purposes of the application for the injunction, an order included a judgment. The
learned judge concluded that given the decision of the court in B-Line on the
interpretation and application of article 28 in light of the definition of “order” in CPR
2000, it is clear that article 28 applied to the defendants in the present case. I
note however that B-Line did not concern a suit for damages. The issue there
was the application by petition for an injunction.
 It is necessary to consider the relationship between CPR 2.4 and article 28 of The
Code in light of the argument advanced by Mrs. Portland-Reynolds that “order”
includes “judgment”. CPR 2.4 provides that: ‘In these rules, unless otherwise
provided for or the context otherwise requires – … “order” includes an award,
declaration, decree, direction or judgement’. Where article 28 of The Code states
‘nor can any judgment be rendered against him’ the word judgment does not exist
in a vacuum, but is related to the suit for damages referred to earlier in the article.
In the absence of a suit for damages it would not be proper to have recourse to the
definition of “order” in CPR 2000 to include judgment. The context does not
provide for such an inclusion. In any event if one were to accept the argument that
“order” includes “judgment” it would mean that an order granting leave to apply for
judicial review would be a judgment falling within the prohibition of article 28
unless written notice of suit was given in the time prescribed and containing the
stipulated particulars. The fallacy here is that there is no requirement to serve an
article 28 notice on an application for leave to apply for judicial review. Further,
were the application for leave to fail, it cannot be truly said that a claim or suit has
been brought for which an article 28 notice was required.
 In Peter Clarke, Mr. Clarke claimed damages for false and wrongful imprisonment
and assault. The defendants included three police officers. The notice of intention
to institute legal proceedings was defective in that it was not personally served on
the police officers or left at their domicile. The court held that the consequence of
giving a defective notice or no notice was fatal to Mr. Clarke’s action against the
defendants. Unlike the present case, Peter Clarke involved a claim for damages
and importantly, was a private law proceeding in tort.
 In Peter Clarke the court relied on the cases of Castillo v Corozal Town Board
and Another10 and Cumberbatch v Weber.11 In Castillo the appellant brought
an action in negligence claiming damages against the respondent public authority
to which the provisions of the Public Authorities Protection Ordinance applied.
Section 3(1) stated:
“No writ shall be sued out against, nor a copy of any process be served
upon any public authority for anything done in the exercise of his office,
until one month after notice in writing has been delivered to him, or left at
his usual place of abode … .”
No notice was given by the appellant to the first respondent pursuant to section
3(1) of the Act. It was held that section 3(1) made provision for a mandatory
condition precedent to the institution of suit against a public authority namely the
delivery of the notice in writing in the terms stipulated. In my judgment, Castillo,
involving as it does, private law proceedings in tort, does not provide authority for
the proposition that under article 28 a failure to serve a notice is an absolute bar to
an action, neither is it authority for the proposition that article 28 applies to judicial
 The issue of whether a public officer or person fulfilling a public duty or function
was acting in the exercise of his functions has to be considered if he seeks to avail
himself of the protection offered by article 28 of The Code. The matter was
brought into focus in Roncarelli v Duplessis.12 Mr. Duplessis was the Premier
and Attorney General of Quebec. He was found liable in damages for directing the
manager of the Quebec Liquor Commission to revoke the plaintiff’s liquor licence.
On the issue as to whether that was done by him in the exercise of his public
functions, Martland J said:
“… I do not think that it was a function of either the Prime Minister or the
Attorney-General to interfere with the administration of the Commission by
causing the cancellation of a liquor permit. That was something entirely
10 (1983) 37 WIR 86.
11 (1965) 9 WIR 143.
12  SCR 121 (Supreme Court of Canada).
outside his legal functions. It involved the exercise of powers which, in
law, he did not possess at all.”13
Abbott J observed that the respondent was given no statutory power to interfere in
the administration or direction of the Quebec Liquor Commission. It followed
therefore that ‘in purporting to authorize and instruct the manager of the …
Commission to cancel appellant’s licence, the respondent was acting without any
legal authority whatsoever.’14
 In Roncarelli the respondent had also contended that the appellant’s action must
fail because no notice of such action was given under article 88 of the Code of
Civil Procedure of Quebec (article 88 is identical to article 28 of Saint Lucia).
Abbott J agreed with the learned trial judge that the respondent was not entitled to
avail himself of ‘this exceptional provision since the act complained of was not
“done by him in the exercise of his functions” but was an act done by him when he
had gone outside his functions to perform it.’15
 A public officer or person fulfilling a public duty or function who is sued for
damages would not be entitled to an article 28 notice if he was not in the legal
exercise of his functions at the time of committing the act complained of. Thus in
Lachance v Casault (mentioned in Roncarelli v Duplessis at page 186) a bailiff
attempted to take possession of books and papers in the hands of a judicial
guardian without preparing a procès-verbal of the seized articles, as required by
the order of the court requiring the guardian to give up possession to the seizing
creditor. The guardian resisted the bailiff’s action as being unauthorised. The
bailiff caused the guardian to be arrested. The charge having been subsequently
dismissed, the bailiff was sued in damages for false arrest and malicious
prosecution. It was held that, even assuming such bailiff was a public officer
within the meaning of article 88 he was not entitled to notice under article 88 since
13 At p. 158.
14 p. 123.
15 p. 186.
at the time the act complained of was committed, he was not ‘in the legal exercise
of his functions’.
 Roncarelli makes it clear that a public officer acting outside of his statutory
functions cannot rely on the absence of notice. When dealing with article 28 of
The Code it is necessary to establish whether the act was done by the officer in
the legal exercise of his functions. It may be that on the statement of case there is
no dispute that he so acted. It is only where a public officer acting in the legal
exercise of his functions is sued for damages that he can be protected by article
28, keeping in mind that article 28 does not apply to judicial review proceedings.
 The appeal is allowed with costs to the appellant and the decision of the learned
trial judge is set aside. Costs are to be assessed pursuant to CPR 2000 and are
to be paid by the Attorney General.
Davidson Kelvin Baptiste
Justice of Appeal
Dame Janice M. Pereira, DBE
Michael Gordon, QC
Justice of Appeal [Ag.]