Paponette
Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32
Parties and outcome
- Claimant
- Francis Paponette and three other maxi-taxi owners and operators (appellants)
- Defendant
- Attorney General of Trinidad and Tobago
- Outcome
- The appellants won by a majority: their appeal was allowed and the trial judge’s order granting relief was restored.
Citations in this work
Begbie
28. In a case where the legitimate expect ation is based on a promise or representation, a useful summary of the relevant principles was given by Lord Hoffmann in R (Bancoult) v Secretary of Stat e for Foreign an d Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453, at para 60: “It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is ‘clear, unambiguous and devoid of relevant qualification’: see Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detrim ent, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abus e of power and such a change of policy may be justified in the public in terest, particularly in the area of what Laws LJ called ‘the macro-political field’: see R v Secretary of State for Education and Em ployment, Ex p Begbie [2000] 1 WLR 1115, 1131.”
Bancoult (No 2)
28. In a case where the legitimate expect ation is based on a promise or representation, a useful summary of the relevant principles was given by Lord Hoffmann in R (Bancoult) v Secretary of Stat e for Foreign an d Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453, at para 60: “It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is ‘clear, unambiguous and devoid of relevant qualification’: see Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detrim ent, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abus e of power and such a change of policy may be justified in the public in terest, particularly in the area of what Laws LJ called ‘the macro-political field’: see R v Secretary of State for Education and Em ployment, Ex p Begbie [2000] 1 WLR 1115, 1131.”
Coughlan
34. The more difficult question is whether th e government was entitled to frustrate the legitimate expectation that had been cr eated by its representations. In recent years, there has been consid erable case law in England a nd Wales in relation to the circumstances in which a public authorit y is entitled to frustrate a substantive legitimate expectation. Some of it was re ferred to by Warner JA in her judgment. The leading case is R v North and East Devon Hea lth Authority, Ex p Coughlan [2001] QB 213. Lord Woolf MR , giving the judgment of the Court of Appeal said, at para 57: “Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrat e the expectation is so unfair that to take a new and differe nt course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the re quirements of fairness against any overriding interest relied upon for the change of policy. ”
Nadarajah
38. If the authority does not place material before the court to justify its frustration of the expectation, it runs the risk that the court will conclude that there is no sufficient public interest and that in consequence its conduct is so unfair as to amount to an abuse of power. The Board agrees with the observation of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at para 68: “The principle that good administration requir es public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.” It is for the authority to prove that its failure or refusal to honour its promises was justified in the public interest. There is no burden on the applicant to prove th at the failure or refusal was not justified.
Bibi
42. It follows that, unless an authority pr ovides evidence to explain why it has acted in breach of a representation or promise made to an applicant, it is unlikely to be able to establish any overridi ng public interest to defe at the applicant’s legitimate expectation. Without evidence, the court is unlikely to be willing to draw an inference in favour of the authority. This is no mere technical point. The breach of a representation or promise on which an a pplicant has relied often, though not necessarily, to his detriment is a serious matter. Fairness, as well as the principle of good administration, demands that it needs to be justified. Often, it is only the authority that knows why it has gone back on its promise. At the very least, the authority will always be better placed than the applicant to give the reasons for its change of position. If it wishes to justify its act by reference to some overriding public interest, it must provide the ma terial on which it relies. In particular, it must give details of the public interest so that the co urt can decide how to strike the balance of fairness between the interest of the applican t and the overriding interest relied on by the authority. As Schiemann LJ put it in R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237, at para 59, where an authority decides not to give effect to a legitimate expectation, it must “articulate its reasons so that their propriety may be tested by the court”.
Coughlan
45. There is a further point. In Bibi, Schiemann LJ said that an authority is under a duty to consider a legitimate expectation in its decision making process. He said: “49. Whereas in R v North and East Devon Health Authority , Ex p Coughlan [2001] QB 213 it was common ground that the authority had given consideration to the promises it had made, in the present cases, that is not so. The authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be do ne to assuage the disappointed expectations. . . .
Coughlan
61. A dissenting opinion in the Judicial Committee is no occasion for a detailed re- examination of the law of legitimate exp ectation – though I cannot but note Jack Watson’s illuminating article in the Decembe r 2010 SLS Legal Studies, “Clarity and ambiguity: a new approach to the test of legitimacy in the law of legitimate expectations”, vol 30 No 4, p 633 inviting (p 651) the Supreme Court to revisit the issue and suggesting that me antime it is “a patchwork of possible elements to consider” rather than an organised system of rules, and “little more than a mechanism to dispense palm-tree justice”. For presen t purposes I am content simply to take the law as stated in the brief extracts from the judgments in R (Bancoult) v Secretary of State for Foreign and Comm onwealth Affairs (No 2) [2009] AC 453 and R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 (see paras 28 and 34 of the Board’s judgment), to look at this case in the round and to address the composite question: was the imposition of reasonable charge s here so unfair as to amount to an abuse of power? (It seems to me unhelpful, certainly in the particular circumstances of this case, to divide this critical question into various sub-questions and allocate to these different burdens of proof.)
Cited by
- Morris (2019)
40. In Paponette & Ors v Attorney General of Trinidad and Tobago [2010] UKPC 32, Lord Dyson summarised the principles to be applied when considering the circumstances in which a public body may be entitled to frustrate a substantive legitimate expectation. “34. The more difficult question is whether the government was entitled to frustrate the legitimate expectation that had been created by its representations. In recent years, there has been considerable case law in England and Wales in relation to the circumstances in which a public authority is entitled to frustrate a substantive legitimate expectation. Some of it was referred to by Warner JA in her judgment. The leading case is R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 . Lord Woolf MR, giving the judgm ent of the Court of Appeal said, at para 57: “Where the court considers that a lawful promise or practice has induced a legi timate expectation of a benefit which is substantiv e, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.” …