Kirvek Management and Consulting Services Ltd v Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2002] UKPC 43

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 52 of 2001Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
Between
Kirvek Management and Consulting Services LtdAppellantAttorney General of Trinidad and Tobago (Trinidad and Tobago)Respondent
Before
Lord Bingham of CornhillLord SteynLord HoffmannLord Scott of FoscoteLord Rodger of EarlsferryDate 25 July 2002
[1]:- Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Scott of Foscote Lord Rodger of Earlsferry [Delivered by Lord Scott of Foscote ] Payments into court in the course of, or for the purpose of, judicial proceedings may be made for a number of reasons, sometimes voluntarily and sometimes pursuant to an order of the court.[2]In the present case the payment in was made by the plaintiff, Kirvek Management and Consulting Services Ltd (“Kirvek”), pursuant to an order of the High Court (as varied by the Court of Appeal) requiring Kirvek to deposit security for costs in the sum of $250,000. The order was made because Kirvek, a company incorporated in Canada, had commenced a writ action in Trinidad.[3]The payment in of the $250,000 was made by Kirvek on 2 April 1998. The sum was paid to the assistant registrar at the San Fernando Sub-Registry of the High Court. Kirvek accompanied the payment in with a written request that the money be placed in an interest-bearing account.[4]The action, to the credit of which the $250,000 had been paid, was settled in December 1998. One of the terms of the settlement was that Kirvek would be entitled to take out the sum paid into court. The $250,000 was duly paid out to Kirvek but without interest. The assistant registrar’s response to an enquiry by Kirvek in January 1999 about the absence of interest was to say that the sum of $250,000 had not been placed in an interest-bearing account. The reason given was that the order of the court directing the payment in had not directed that the money be placed in an interest-bearing account.[5]In these circumstances Kirvek commenced an action on 19 April 1999 against the Attorney General of Trinidad and Tobago claiming damages for the failure of the assistant registrar to place the $250,000 in an interest-bearing account. The claim, as pleaded, was based alternatively on negligence, breach of statutory duty and breach of trust. The Attorney General was sued as representing the State of Trinidad and Tobago.[6]The Attorney General’s response was to apply on 11 June 1999 for the claim to be struck out on the ground that the writ and statement of claim disclosed no reasonable cause of action against him. He relied on section 4(6) of the State Liability and Proceedings Act (c. 8:02).[7]Section 4 of the Act subjects the state to a general liability in tort but subsection (6) provides that – “No proceedings shall lie against the state by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.”[8]This subsection, it was contended, barred Kirvek’s action against the state.[9]In the High Court Master Doyle dismissed the strike-out application. He held that in dealing with the $250,000 the assistant registrar was not acting in a judicial capacity and that section 4(6) did not provide protection against liability for acts done “ coram non judice ”, as he put it. On appeal, however, the Court of Appeal disagreed. The leading judgment was delivered by de la Bastide CJ. He agreed that the assistant registrar, when dealing with the $250,000, was not a person discharging responsibilities of a judicial nature and concentrated on the question whether the second limb of section 4(6) was applicable. Were the assistant registrar’s responsibilities regarding the $250,000 responsibilities “which [she had] in connection with the execution of judicial process”? Their Lordships agree that this was the critical question. The Chief Justice concluded that “execution” in section 4(6) was used in a wide sense so as to include “any action taken which was in furtherance of some judicial process and an integral part of it” and held that:
“The placing of [the $250,000] by her in a non-interest- bearing account was … a discharge or a purported discharge by her of the responsibility which she had in connection with the execution of judicial process.”
(p 59 of the Record).[10]This conclusion was enough to justify the appeal being allowed and Kirvek’s writ and statement of claim being struck out, but the Chief Justice went on to consider the allegations of breach of a common law duty of care, breach of statutory duty and breach of trust. He held that no common law duty of care was owed by the assistant registrar and that there was no basis for a breach of trust claim. As to breach of statutory duty he concluded that, subject to the section 4(6) point, a breach of statutory duty claim might have been viable.[11]Kirvek has appealed to the Board. It is accepted that the Attorney General is the proper defendant to Kirvek’s action. It is accepted also that in dealing with the $250,000 the assistant registrar was not “discharging or purporting to discharge … responsibilities of a judicial nature.” So the issues for the Board are whether the responsibilities of the assistant registrar in relation to the $250,000 were within the second limb of section 4(6), and, if they were not, in which case the section 4(6) immunity is not available, whether Kirvek has pleaded a viable cause of action for damages against the state. It is convenient to start with the statutory scheme relating to payments into court under which the assistant registrar’s responsibilities arose.[12]The Court Funds Investment Act (c. 7:06), described as “An Act to regulate the investment of High Court Funds” provides, under section 2, that – “Notwithstanding anything to the contrary contained in any Act, all moneys paid into the High Court in any cause or matter, and all moneys under the control of, or subject to the order of, the Court or a Judge of the Court, may be invested as follows, and in no other manner:(a) in the securities that now are, or may from time to time hereafter be, authorised by rule of the High Court of Justice in England, or by any rule from time to time amending the same, or by any United Kingdom Statute for the time being in force in England for the investment of cash under the control of the said Court;(b) in Trinidad Inscribed Stock raised under the provisions of any Inscribed Stock Act, or of any Act by which authority is given to raise any sum of money by way of loan repayable by the Government;(c) by depositing such moneys in the Post Office Savings Bank to the credit of an account in the names of the trustees, or if there are no trustees then in such names or name as a Judge of the High Court shall order, with in every case the addition of the words ‘in trust’ to the title of such account;(d) in the purchase or on the security of freehold land in Trinidad and Tobago.” “Moneys deposited in the Savings Bank under section 2 may be deposited to any amount in any particular case, and shall bear interest, and such interest shall be paid on any such deposits, irrespective of amount, as shall be from time to time paid to depositors in the said bank.”[13]Section 2 prescribes the manner in which money paid into court may be invested but does not in terms require the money to be invested. That requirement is, however, imposed by Order 22, rule 12 of the Rules of the Supreme Court of Trinidad and Tobago. Order 22, rule 12, provides that – “(1) All money paid into court under these Rules and all moneys under the control of or subject to the order of the Court shall be paid into a separate account and may be invested as directed by the Court Funds Investment Ordinance, c. 5, No. 3. (2) Where under paragraph (1) no order or direction has been given for the investment of moneys paid into Court, the Registrar shall as soon as practicable invest the said moneys in the Government Post Office Savings Bank. (3) All moneys standing in Court on the date when these Rules come into operation shall thereupon be subject in all respects to the provisions of this Order.”[14]It was not explained to their Lordships what the relationship was between the Court Funds Investment Ordinance, c. 5, referred to in Order 22, rule 12(1), and the Court Funds Investment Act, c. 7:06. Presumably the Act was the successor to the Ordinance. Be that as it may, it appears to their Lordships to be clear that the combination of sections 2 and 3 of the Act and Order 22 rule 12(2) of the Rules imposed a mandatory duty on the officials at the registry, in a case like the present where no order or direction had been given for the investment of the money paid into court, to invest the money in the Post Office Savings Bank.[15]It is common ground that the $250,000 paid into court by Kirvek on 2 April 1998 was not invested in the Post Office Savings Bank but was simply paid into the Treasury. The explanation, such as it is, for this state of affairs appears from the judgment of de la Bastide CJ at page 62 of the Record – “The practice of the Registry has, in the collective experience both of Court and the counsel who appeared before us, been at variance with what appears to be required by [rule 12(2)] … The moneys paid into court are not and have, not for some time, been deposited in the Post Office Savings Bank. Indeed, in the course of argument before us, no one was certain for some time whether that Bank still existed. Eventually, Dr Ramsahoye [leading counsel for Kirvek] was able to refer us to an Act … in which there are certain amendments made to the statute governing that bank, from which it is obvious that the bank is very much still in existence. The practice followed by the registry in the absence of any specific order by the court, is simply to pay the money into the Treasury. The Treasury, of course, does not pay interest.”[16]The practice of the registry to which the learned Chief Justice referred is, in their Lordships’ view, a practice which is in plain breach of statutory duty. The next question is whether the statutory duty is a duty which is owed to the parties to the action to the credit of which the payment in has been made. In their Lordships’ opinion it is. For whose benefit is the investment to be made? Not for the benefit of the state which, were it not for the statutory investment requirements, would have the free use of the money for as long as it remained in court. It is obvious that the investment obligations were imposed for the benefit of the parties, and, more particularly, the party eventually becoming entitled to payment of the money out of court.[17]In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 Lord Browne-Wilkinson, at page 731, set out the approach to be adopted in answering the question whether a breach of statutory duty gives rise to a private law cause of action. He said:
“However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, 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. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer.”
[18]The statutory provisions which impose the obligation to invest in the Post Office Savings Bank money paid into court provide no remedy for breach of that obligation. It is, therefore, easy to conclude that those for whose benefit the statutory obligation was imposed were intended to have private rights of action in the event of any breach.[19]Accordingly their Lordships hold that Kirvek is, subject to section 4(6) of the State Liability and Proceedings Act, entitled to bring a claim for damages for breach of the Registry’s statutory duty to invest the $250,000 in the Post Office Savings Bank.[20]The Chief Justice expressed the opinion (at page 63 of the Record) that Kirvek’s statement of claim did not adequately plead such a claim. Their Lordships respectfully disagree. Paragraph 8 of the statement of claim pleads that:
“Further and/or in the alternative the Assistant Registrar was in breach of a statutory duty to invest the sum of $250,000 for the benefit of the plaintiff in a manner allowed by order 22 rule 12 of the Rules of the Supreme Court and/or the Court Funds Investment Act c. 7.06 …”
[21]This, in their Lordships’ view, constitutes a clear and adequate pleading of the breach of statutory duty claim.[22]In the circumstances their Lordships do not find it necessary to dwell upon the claim based on common law negligence, save to say that the assistant registrar’s duty was to comply with the statutory investment requirements and that her common law duty of care, if present, would have been co-extensive with her statutory duty.[23]As to breach of trust, their Lordships agree with de la Bastide CJ that the claim is misconceived.[24]That leaves the section 4(6) point. What meaning should be attributed to the words “… in connection with the execution of judicial process”? The same words in the same context are to be found in section 2(5) of the Crown Proceedings Act 1947. In Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692 Tudor Evans J said that section 2(5) was “directed to the immunity of judicial and not of administrative functions” (page 699).[25]In New Zealand section 6(5) of the Crown Proceedings Act 1950 is in the same terms as section 2(5) of the English 1947 Act and section 4(6) of the Trinidad and Tobago Act. In Seatrans (Fiji) Ltd v Attorney-General [1986] 2 NZLR 240 Hillyer J said that – “The act of paying money in the possession of the Registrar into an interest-bearing account … is neither a responsibility of a judicial nature, nor would it be in connection with the execution of judicial process … It seems to me that there is no judicial element involved, nor was the payment into an interest-bearing account an execution. Those terms are appropriate to sitting in judgment, or to such matters as the enforcement against another person of an order made by the court. Here, the only person involved was the Registrar himself, and no element within the meaning of subsection (5) was involved.” (page 244)[26]Mr Dingemans QC, counsel for the Attorney General, submitted that the Seatrans case had been wrongly decided. He submitted that “execution of judicial process” should be read as covering all acts constituting the implementation of any court order. The payment of the $250,000 into court had been made pursuant to a court order. The assistant registrar, in dealing with the money, was implementing the court order and, accordingly, the case was within the second limb of section 4(6).[27]Their Lordships are unable to accept this submission. First, the submission would appear to draw a distinction between a payment into court made pursuant to a court order and a payment into court made by a litigant voluntarily, such as, for example, a payment in by a defendant to a money claim hoping to tempt the claimant into accepting the money and thereby ending the litigation. There cannot, in their Lordships’ view, be any difference in the applicability of section 4(6) to a complaint about failure to invest money paid into court pursuant to a court order and a complaint about failure to invest money paid into court voluntarily.[28]There is, however, a more fundamental objection to Mr Dingemans’ submission. In the case of a payment into court pursuant to a court order that contains no direction at all about the investment of the money, it is, in their Lordships’ view, a misuse of language to describe the omission to invest as the implementation of the court order. If the court order, in breach of the relevant statutory provisions, had directed the money to be deposited with the Treasury it would have been arguable that in paying the money to the Treasury the Registry was implementing, or executing, the order. But in the present case the order was silent as to what the Registry was to do with the money. The decision of the assistant registrar to pay the money to the Treasury was not an implementation of any order of the court but was simply in accordance with what had apparently become the practice in the Registry.[29]In their Lordships’ opinion the word “execution” in section 4(6) contemplates something done for the purpose of carrying out a court[30]So the short answer to the section 4(6) point in the present case is that the assistant registrar in paying the $250,000 to the Treasury was not enforcing or giving effect to any judgment or any order of the court.[31]Accordingly, in respectful disagreement with the Court of Appeal, their Lordships conclude that section 4(6) is no bar to Kirvek’s action against the Attorney General for damages for breach of duty.[32]The conclusion that section 4(6) does not bar Kirvek’s action is not only one that accords with the language of the section, construed as their Lordships think it should be, but it is also one that enables justice to be done in this case. Mr Dingemans commenced his submissions to the Board by telling their Lordships that the Post Office Savings Bank had for a number of years not accepted deposits. That, he said, was why the practice had grown up of payments into court being passed by the Registry to the Treasury.[33]The Post Office Savings Bank is, however, a state owned institution and the proposition that the state could, in the face of statutory provisions requiring payments into court to be deposited with the Savings Bank on interest terms, cause the Savings Bank to cease to accept deposits and thereby bring about a state of affairs in which payments in had to be paid instead to the Treasury on terms that did not involve the payment of any interest is by no means attractive. Nor is the state’s attempt to shelter behind section 4(6) in order to avoid compensating parties for the loss occasioned to them by this unlawful practice.[34]For the reasons given, the appeal will be allowed, the order of the Court of Appeal set aside and the order of Master Doyle restored. It may be that, in the light of this judgment, Kirvek will wish to make some amendments to its statement of claim. If so, that must be attended to in the normal way in the local courts. The Attorney General must pay Kirvek’s costs of the appeal to the Court of Appeal and to the Board.

order

see Simpson v Attorney-General [Baigent's case] [1994] 3 NZLR 667 where Cooke P, referring to a search warrant, said – “… the warrant was judicial process, being issued out of a court and being granted by a person required to consider the application judicially …” (p 674). “Execution means, quite simply, the process of enforcing or giving effect to the judgment of the court …”