Grant v. The Teacher's Appeals Tribunal & Anor (Jamaica) [2006] UKPC 59

Judicial Committee of the Privy Council
Case No Privy Council Appeal No 45 of 2005Venue FROM THE COURT OF APPEAL OF JAMAICA - - - - - - - - - - - - - - - - -
Between
GrantAppellantThe Teacher's Appeals Tribunal & Anor (Jamaica)Respondent
Before
Lord Bingham of CornhillLord Rodger of Earlsferry Baroness Hale of RichmondLord CarswellLord ManceDate 7 December 2006
[1]:- Lord Bingham of Cornhill Lord Rodger of Earlsferry Baroness Hale of Richmond Lord Carswell Lord Mance - - - - - - - - - - - - - - - - [Delivered by Lord Carswell ] The appellant Easton Wilberforce Grant was a teacher in Montego Bay Community College ("the College"), where he had taught economics, mathematics and statistics to A-level students since 1992. He found himself at odds with the then Principal, Dr Lorna Nembhard, over the administration of the College. Following a series of acrimonious interruptions and exchanges at a staff meeting in September 1998 and in correspondence, and his subsequent refusal to attend meetings with the Principal to discuss the academic performance of his students, the Principal made a complaint to the Board of Management. The ensuing disciplinary proceedings resulted eventually in the termination of his employment. He brought an application for judicial review of the decision to dismiss him, on a number of grounds which will be discussed in this judgment, but this was dismissed. The Court of Appeal of Jamaica dismissed his appeal against the decision of the Supreme Court and the appellant appealed to the Privy Council with the leave of the Court of Appeal.[2]The College was at all material times administered by a Board of Management ("the Board") constituted as provided for by Regulation 41 of the Education Regulations 1980 ("the Regulations"), with a chairman appointed by the Minister of Education, Youth and Culture from among the six members nominated by the National Council on Education. The members of the Board included the Principal of the College and representatives of different types of staff, amongst whom was a member elected by the academic staff. The term of office of the members of the Board was a maximum of three years, but by September 1998 the term of office of the then members had expired. It is part of the respondents' case that this fact was not appreciated by the members of the Board until some time after 7 October 1998. A claim was made at one stage by the appellant that it was known earlier to the Chairman and the Principal, but there is no evidence to support that suggestion.[3]The tensions between the appellant and the Principal erupted into open warfare in the summer of 1998. The Principal sent him a memorandum dated 10 June 1998, in which she complained that he had failed to attend a staff meeting called for that morning and when later asked to account for his absence had stated that he had been watching a World Cup football match. In the memorandum the Principal reminded him of his professional obligation to attend staff meetings and stated that she did not intend to tolerate his "casual approach" to the matter. The appellant replied by a letter of 4 September 1998 couched in what one can only describe as abusive terms. He accused the Principal of indiscretion, unprofessional behaviour, despotic behaviour, coercion and intimidation. He claimed that staff meetings were meaningless, boring talk shops, where people were not free to speak their minds, partly because of the Principal's attitude to ideas which did not support her own, and refused to guarantee that he would attend any more. This letter was clear evidence of insubordination and extreme rudeness on the appellant's part, but his opinions were so far expressed in private correspondence. This changed, however, at the staff meeting held on 7 September 1998.[4]This meeting was convened at the beginning of the academic year and was attended by some 41 people, including the Principal and Vice-Principal. Among them were a number of newly joined members of staff. Several items on the agenda were dealt with in an uneventful fashion, then at item 4, relating to the College Calendar, the appellant stated that he was tired of having to go through the same items on the agenda every year. He wanted the function of the Board to be discussed and maintained with some persistence that he wanted it dealt with then, rather than leaving it to Any Other Business, where it could be discussed though not figuring in the circulated agenda. He kept insisting on this course, and the Principal asked the members present if they wished to suspend standing orders to permit it, but there was no response. The appellant then told the Principal that the Board was a "paper Board" and that all decisions regarding the policies of the College were taken by her.[5]The Principal resumed conducting the meeting in accordance with the agenda and a little time later came to the topic of examination results. It was reported that the pass rate for the appellant's subjects was low, but the Head of the Department pointed out that the appellant had been on leave for one term and another person was employed to teach the subjects in his absence. The Principal commented positively on encouraging examination results, but indicated that where pass results were low she would like to meet Heads of Departments and lecturers for those subjects, in order to discuss the possible problems with a view to taking corrective action. The appellant then stated that he had no intention of attending a meeting with anyone.[6]The meeting continued in normal fashion for a further period, but then the appellant made an accusation that the Principal had collected the funds generated by the evening school and determined the way in which they were expended. The Principal took exception to this, describing it as an accusation of financial impropriety and irregularity. The appellant did not attempt to disclaim any intention to make such an aspersion and went on to say that he would not stop until he had a say in the administration of the finance of the College. The Principal thereupon commented on his "unprofessional and inappropriate behaviour" and demanded that he respect the office of Principal.[7]The meeting continued until the item of Any Other Business was reached. Under this head the appellant raised the question of housing for members of staff. When the Principal responded he repeated his comment that the Board was only a "paper Board". He said that what was needed was an "august" Board, by which he meant one with vision, and accused the Board of being neither vibrant nor effective.[8]On the following day, 8 September 1998, the Principal wrote to the appellant, expressing her grave concern at what she described as "the aggressive, abusive and unprofessional manner" in which he had conducted himself at the staff meeting the previous day. She rehearsed in some detail in the letter her complaints about the way in which the appellant had behaved at the meeting, which she said was deliberately insubordinate and undermined the Principal's authority in the presence of the full complement of staff, including the new members. She concluded by setting out a series of conclusions:
"I wish to also use this medium to advise you of the following 1. The behaviour which you displayed was aggressive, verbally humiliating and abusive. I am therefore reporting you to the board for unprofessional conduct. 2. You deliberately and publicly defied the Principal's authority not only by refusing to follow the agenda of the staff meeting and by ignoring her appeals to you to conduct yourself with dignity and decorum, but also by publicly refusing to meet with her to discuss the examination results of your students. I am therefore reporting you for deliberate and repeated insubordination. 3. You made public allegations which have serious implications of financial impropriety and irregularities. You have also alleged that the Principal has usurped the functions of the Board. I am requesting you to tell the Board, by specific examples, the ways in which "the principal is the Board". 4. You have publicly abused and accused the Board of Management of being a "paper board" and lacking in vision. Please provide them with further information to substantiate your claim. 5. You have implied a threat to the administration of the college. Please clarify this to the Board. By copy of this letter, the Board is being informed of the situation and requested to meet at the earliest time possible to investigate these matters and to take appropriate action. I also wish to remind you of the general remarks which I made in the staff meeting about professional conduct and the need for a consultative/collaborative rather than a confrontational approach to problems which may be identified from time to time."
[9]The Principal then wrote a letter dated 10 September 1998 in response to the appellant's letter of 4 September, rejecting his claim that the staff meeting held on 10 June had been rescheduled for the time at which a World Cup match was on, for the convenience of the Principal and without regard to the wishes of the staff. In the course of the letter she stated:
"Your statement that you cannot guarantee that you will attend any more staff meetings, can only be interpreted as insubordination and indiscipline as well as a direct threat to staff discipline. I am therefore reporting you to the board on a charge of insubordination. I am using this medium to advise you that you are required to attend staff meetings and any other meetings called by the principal or any other person authorised to act on behalf of the principal. Your failure to do so unless on the odd occasion when there are extenuating circumstances as explained by an apology for absence tendered in a professionally acceptable manner, will be interpreted as deliberate insubordination."
[10]The Principal subsequently asked the appellant to attend a meeting to evaluate the Mathematics and Statistics results of his students and to plan strategies for corrective action. The appellant failed to attend the meeting and the Principal sent him a further letter dated 16 September 1998, in which she stated that she could only interpret his action as "further evidence of indiscipline and unprofessional conduct as well as neglect of your duty", and informed him that the matter was being referred to the Board. The Principal sent copies of all three letters to the Chairman of the Board.[11]The Chairman of the Board wrote to the appellant on 17 September 1998, inviting him to attend a meeting of the Personnel Committee of the Board on 7 October, when the Committee proposed to conduct an inquiry into the matters complained of by the Principal in the letters copies of which she had sent to the Chairman. Copies of the relevant Regulations dealing with the procedure, possible penalties and the appellant's right to representation were enclosed with the letter. The composition of the Personnel Committee was prescribed by Regulation 85, which provides that such a committee should be set up to facilitate inquiries into allegations of breaches of discipline. It is to consist of the Chairman of the Board, one nominee of the National Council (the Deputy Chairman Mrs Barbara Nelson was the nominee who sat on the Committee) and "the representative on the Board of the category of accused personnel" (Mr Michael Ellis the academic staff representative).[12]The procedure to be followed by the Committee and subsequently by the Board is prescribed by Regulation 57, which provides:
"57.-(1) The personnel committee shall consider the complaint referred to it under regulation 56 and – (a) if it finds that the complaint is trivial and that a hearing is unnecessary, report such finding to the Board forthwith; or (b) if it finds that a hearing should be held, notify the complainant in writing of the date, time and place of the hearing and give written notice within a period of not less than fourteen days before such date to the person complained against of – (i) the charge or charges in respect of which the hearing is proposed to be held; (ii) the date, time and place of the hearing; (iii) the penalties that may be imposed under the Regulations if the charges are proven against such person; and (iv) the right of the person complained against and a friend or his attorney to appear and make representations to the committee at the hearing. (2) A person complained against who intends to be represented at the hearing by an attorney-at-law, shall give written notice of such intention to the chairman or secretary of the Board, not less than seven days before the date of the hearing, and the Board shall inform the complainant. (3) If a person complained against fails to appear at the hearing and the committee is satisfied that notice of the hearing was given to that person in accordance with paragraph (1)(b), the Committee may, if it sees fit, conduct the hearing in the absence of that person. (4) At the hearing – (a) both parties shall be heard and be given opportunity to make representations; (b) any party may call witnesses and produce documents in support of his case; (c) the committee may, at the instance of any party or, if it sees fit, order that any documents in the possession of the other party be produced for the information of the committee; (d) notes shall be taken of such representations as may be made or such evidence as may be given. (5) The personnel committee shall report in writing to the Board not later than fourteen days after the date of the enquiry – (a) that the allegations against the teacher have not been proved; or (b) that the charges against the teacher have been proved and may recommend – (i) that he be admonished or censured; or (ii) in the case of charges relating to a second or subsequent breach of discipline, that, subject to the approval of the Minister, a sum not exceeding fifty dollars be deducted from his salary; or (iii) that he be demoted if he holds a post of special responsibility; or (iv) that his appointment as a teacher with that public educational institution be terminated, and the Board shall act on the recommendation as received from the personnel committee, or as varied and agreed at the discretion of the Board. (6) The Board shall, within fourteen days after it has received the report of the personnel committee, give written notice containing details of its decision to the Minister and the teacher."
[13]At the hearing on 7 October the Principal stated that she was charging the appellant with indiscipline, unprofessional conduct and neglect of duty. She described in detail the events at the staff meeting held on 7 September 1998, in which her evidence was corroborated by that of Mr Lynwall Clarke the Vice Principal. The appellant made a detailed statement in his defence, dealing specifically with a couple of issues on which he felt dissatisfied, and the Principal responded in relation to those issues and the appellant's allegation of financial irregularity (which he attempted largely to disclaim). In response to direct questioning from the Chairman, the appellant accepted that he had questioned the effectiveness of the Board and said it was a paper board and that it was ineffective and that the Board and the Ministry were weak bodies. He agreed that he had stated that he had no intention of attending meetings called by the Principal and that he could not guarantee that he would attend any other staff meeting. He also accepted that he had said that he would not stop until he had a say in the College's finances. The appellant has claimed that at the conclusion of the hearing one of the members of the Personnel Committee, who presumably was Mrs Nelson, stated that she regarded it as a case for the "ultimate penalty". He submits that this indicates pre-judgment of the issue on her part, unfitting her to sit on the hearing in May 1999, a submission which their Lordships will consider later in this judgment.[14]Before the Personnel Committee could report to the Board, as required by Regulation 85, it was appreciated that the term of appointment of the Board members had expired and accordingly neither the Board nor the Personnel Committee had authority to act. A new Board was appointed by the National Council, the appointment to be effective for three years from 1 December 1998. The Chairman, Deputy Chairman and academic staff representative were all re-appointed.[15]The new Board met on 8 March 1999 and dealt with a number of items of business. The Chairman indicated that the Board would reinitiate the investigation of the charge brought by the Principal against the appellant and that the matter would be dealt with by the Personnel Committee. On 17 March 1999 the Chairman wrote to the appellant, informing him that the inquiry would have to be reinitiated, owing to the fact that in October 1998, contrary to the knowledge of the Board, the National Council had not completed the requirement in respect of the Board's tenure, with the consequence that the inquiry had to be suspended pending the appointment of the new Board. He followed this up by a letter of 12 April 1999, in which he stated that the Board was in receipt of correspondence from the Principal dated 8, 10 and 16 September 1998, charging him with lack of discipline, unprofessional conduct and neglect of his duty. The Personnel Committee had found it necessary to conduct an inquiry and the appellant was asked to attend a meeting on 30 April 1999. The letter set out the possible penalties which might be imposed, informed the appellant of his right to representation and referred to the statutory requirement that the Board was to act on the recommendation from the Personnel Committee, but could vary it at its discretion.[16]The date was changed subsequently to 20 May 1999, on which date the Personnel Committee, composed of the same persons as those who had sat on 7 October 1998, held the inquiry. The Principal set out the case against the appellant in very much the same terms as at the October inquiry. The Chairman called upon the appellant to respond to the charges, but he stated that he had already done so at the meeting held on 7 October 1998. He said that the Board was biased and incompetent and accused the Chairman and Deputy Chairman of being incompetent. He refused to respond to the charges, as in his mind justice would not be possible in such an atmosphere. The Chairman endeavoured to get the appellant to respond to the charges, but without success. The minutes of the meeting then record:
"Mr Grant again repeated his intention that he wanted to ensure that the committee was following procedures. He said that he felt harassed as he was never abusive to anyone and that he did not tell any lies on [ sic ] anyone to be placed through this ordeal. He said he would not get a fair trial before this committee so he was prepared in the aftermath to take the matter to court. Dr Clarke asked if anyone else wished to comment on the happening of the September 7 meeting and invited Mr Clarke to respond. At this point Mr Grant interrupted both parties by saying that since his request was not granted, he was leaving. Dr Clarke indicated to Mr Grant that the meeting would continue. Mr Grant walked out of the meeting at this point."
After the appellant's departure the Vice Principal gave corroborative evidence and the academic staff representative Mr Ellis confirmed the correctness of the account contained in the minutes of the staff meeting held on 7 September 1998.[17]The Personnel Committee submitted a six-page report on its inquiry to the Board, which considered it at a meeting held on 28 May 1999. The report contained a fairly comprehensive summary of the evidence given by the Principal. It then continued:
"At this point the Chairman invited Mr Easton Grant to respond to the charges and to present his side of the case. Mr Grant openly refused to respond to the allegations and the charges laid against him. He went on to verbally accuse the Chairman and Vice Chairman of being incompetent to carry out the procedures of the meeting. He further accused them of being biased and lacking in integrity. He then stormed out of the meeting, in spite of the Chairman's repeated statements to him that he had the right to use the opportunity of the Personnel Committee Hearing to defend himself."
The appellant maintained in his submissions to the Board that he had not "stormed out" of the meeting, but had left quietly, and their Lordships are willing to assume in his favour that the version contained in the minutes of the Personnel Committee sufficiently expresses the flavour of the episode.[18]The report went on to express the findings of the Committee and its recommendation as to penalty in the following terms:
"The findings of the Committee are as follows: Unprofessional Conduct – Proved This action was displayed by Mr Grant's by his abusive and aggressive behaviour towards the principal in the General Staff meeting of 7 September 1998, when he made numerous and persistent outbursts in the meeting despite efforts made by the principal for him to desist. This action undermined the authority of the Principal (See JTA Code of Ethics Principle 2i, iv, v and vi and Principle 5cii) in the presence of some 39 members of staff, including new members of staff. His open defiance of the authority of the principal and his persistent insubordination and humiliation of the principal, continued to be displayed when he openly declared, in the staff meeting, that he had no intention to meet with the principal to discuss the poor examination performance of the students he was responsible for. Neglect of Duty – Proved This was displayed by Mr Grant, when he refused to meet with the principal and his head of department (as required by the Board and in compliance with the Ministry of Education Circular) to discuss possible measures for the improvement of examination results in those subjects that fell below the fifty per cent (50%) level. Insubordination – Proved This was displayed by Mr Grant when he refused to attend meetings, called by the principal. Proof of this is outlined in his letter to the principal dated 4 September 1998. Despite two memos written to him by the principal requesting him to meet with herself and the Head of Department, he made it clearly known in the presence of others that he had no intention to meet with anyone. And in fact has not attended any such meeting to this day. It is to be pointed out that although requested to do so in writing, Mr Grant has not provided to the Board proof of his allegations that the principal had collected money and had made unilateral decisions about expenditure. PENALTY The Personnel Committee is recommending to the Board of Management that based on the findings and having examined the approved minutes of the Staff Meeting of 7 September 1998, and based on the conduct of Mr Grant at the Hearing held on 20 May 1999, when he openly attacked the integrity and competency of the Board in general and of the Chairman and Vice Chairman, in particular, that his services as a lecturer of the Montego Bay Community College be terminated in the best interest of the institution."
[19]At its meeting on 28 May 1999 the Board considered the report of the Personnel Committee, which had been circulated in advance to the members. At the outset of its consideration the Principal withdrew from the meeting. The members of the Board were invited to give their views, and the minutes record those expressed by several of them. When he came to take a vote, the Chairman indicated that he had had a discussion with one member Mr Maffessanti, who was unable to attend the meeting but had given him a letter, which was read to the meeting, stating that he would vote for the appellant's dismissal. The Ministry's representative advised the Board that Mr Maffessanti's vote should be included in the count and his letter attached as proof. The Senior Education Officer expressed the view that the Board did not have any options other than the course recommended. When a vote was taken, six votes, including Mr Maffessanti's, were recorded in favour of the termination of the appellant's services as recommended by the Personnel Committee. One member abstained from voting, but indicated that it would be uncomfortable for the Principal to operate with the appellant, based on his behaviour.[20]The appellant exercised his right to appeal against the Board's decision to the Teachers' Appeals Tribunal, pursuant to the provisions of Regulation 61. The grounds of appeal were set out in a letter date 30 June 1999 from the attorneys then acting for him, as follows:
"1. That an Enquiry was conducted on October 7, 1998 and May 20th, 1999. The Enquiry of October 7, 1998 was not concluded on the basis that the Board was not properly constituted. That on May 20th, 1999 the Enquiry was constituted by the same persons, there was no indication that the panel was properly constituted, there was no disclosure on the part of the Board of Enquiry. 2. That a fair and impartial hearing was not conducted. And the Board acted arbitrarily. 3. That the decision reached was not based on the merits of the case, as Mr Easton Grant was prevented from defending himself due to the absence of prove of a properly constituted Board of Enquiry. 4. Board of Enquiry breached the principles of Natural Justice. 5. The Appellant reserves the right to submit further Grounds of Appeal."
[21]The Tribunal sat to hear the appeal on 30 June 2000, when the appellant was represented by an attorney. Counsel for the Board identified in the course of her submissions six particular points of complaint (set out in pages 68-70 of the Record). Of these the one to which most attention and argument were directed was the validity of the proceedings of the Personnel Committee on 20 May 1999, in light of the fact that it was constituted by the same three members who had sat on 7 October 1998. This last point and that relating to Mrs Nelson's remark were the only ones of the six points argued which formed the subject of submissions before the Privy Council and the validity of the proceedings was the only one dealt with in the reasons given by the Tribunal for its decision. The Tribunal dismissed the appeal and gave the following reasons:
"Consideration was given to the point taken by Miss Brown that the membership of the Personnel Committee, which heard charges for a second time against Mr Grant, should have been different. However, the point was rejected for the following reasons: 1. When the Personnel Committee met on October 7, 1998, there was no Board, the life of the Board having expired on November 29, 1997. Since there was no Board, the Personnel Committee would also have been without the legal capacity to hear the charges against Mr Grant. Hence the purported hearing on October 7, 1998 was a nullity. 2. The Personnel Committee proceedings on May 28, 1999 were fresh proceedings instituted after a new Board was appointed with effect from December 1, 1998, and were the only legitimate hearing of the charges against Mr Grant. 3. The new Board had complied fully with Education Regulation 85 in appointing the Personnel Committee which heard the charges against Mr Grant on May 28, 1999. The sentence of termination of Mr Grant's service as a lecturer at Montego Bay Community College therefore stands."
The Chairman of the Board wrote to the appellant on 7 June 1999, informing him that the Board had found proved all aspects of the charges brought, unprofessional conduct, insubordination and neglect of duty. He stated that the Board had no alternative but to terminate his services as of 30 June 1999 and enclosed a cheque for three months' salary in lieu of notice.[22]The appellant brought an application for judicial review, seeking an order of certiorari to quash the decision of the Teachers' Appeal Tribunal. The application, which was prepared and presented by the appellant in person, was based on a number of grounds, which were considered by the judge who heard the case. Some of the grounds did not relate to errors of law which could found judicial review, but the major issues were the validity of the actions of the Personnel Committee and the Board in receiving the Principal's complaint and acting upon the evidence about the proceedings at the staff meeting on 7 September 1998 and a claim that there had been a breach of natural justice when the reconstituted Personnel Committee was composed of the same members as those who had sat in October 1998, the more so as one at least had already reached a conclusion adverse to the appellant. He also claimed that the Personnel Committee had failed to give preliminary consideration to the Principal's complaint, as required by Regulation 57(1).[23]The application came before Cooke J in the Supreme Court on 17 and 18 September 2001 and he gave a written judgment on 29 October 2001 dismissing it. He rejected the claim that there was insufficient evidence to support the Tribunal's ruling and focused on the two major issues set out above. He held that the staff meeting was properly held even though the term of appointment of the Board members had come to an end. He held that the procedure adopted of reconstituting the Personnel Committee and recommencing the disciplinary inquiry before it was valid. Nor did the fact that the same members sat as in October 1998 make the procedure unfair, as the members could reconsider the case afresh, affording the appellant a proper opportunity to present his case. The judge dismissed the suggestion that there had been a breach of Regulation 57(1), which requires preliminary consideration of the complaint, stating that a formal record of such consideration was not required and that the summoning of the appellant to the meeting of the Personnel Committee indicated that there had been a "preliminary consideration". At the conclusion of his judgment the judge observed that the remedy of certiorari is discretionary and stated:
"In this matter the behaviour of the applicant was so unmeritorious, that even if there had been a failing in any aspect of the proceedings I doubt that I would grant the relief sought."
[24]The appellant appealed to the Court of Appeal on a number of grounds, including the same two major issues, but with the addition of a claim that the judge was biased. The appellant again represented himself in a hearing which extended over three days. The Court of Appeal (Bingham, Smith and K Harrison JJA) in a written judgment dated 1 February 2005 dismissed the appeal. In respect of the complaint of bias the appellant relied upon the fact that, as he deposed in an affidavit sworn on 27 March 2003, "the Board Chairman is a long time friend and acquaintance of the Judge's family", which he claimed could give rise to a perception of bias. The Court of Appeal asked the judge for his comments on this and other allegations made by the appellant, to which he replied on 23 July 2003. In respect of his acquaintanceship with the Chairman of the Board the judge stated:
"It is true that the chairman has been known to my family for some forty years. The description of a 'long time friend and acquaintance' is not a meaningful one. There is no special relationship between the chairman and my family. I myself may have encountered him no more than ten times over the last twenty years."
[25]The Court of Appeal agreed with the judge's conclusion concerning the validity of the proceedings before the Personnel Committee, holding that it had embarked on an entirely new hearing when its jurisdiction to act had been established and that there was no breach of natural justice when the Committee was composed of the same members as in October 1998. Likewise it upheld the judge's finding on Regulation 57(1). On the claim of bias against the judge the court held that "there was in effect no real likelihood or possibility of bias to have affected in any manner the decision arrived at by the learned judge."[26]The appellant appealed as of right to the Privy Council, which heard the appeal on 30 and 31 October 2006. He represented himself at the hearing, but through his written submissions and oral argument all the material points which required to be taken in support of his case were placed before the Board. His arguments can be encapsulated in the following propositions:(a) The Principal's complaint was not validly made, since it was originally made to a Board which was no longer in existence.(b) The Personnel Committee did not give preliminary consideration to the complaint, as required by Regulation 57(1).(c) It was a breach of natural justice that the same members sat on the Personnel Committee at the hearing on 20 May 1999, as had sat on 7 October 1998, the more so when one of them had previously expressed a conclusion adverse to the appellant.(d) It was wrong to receive and count Mr Maffessanti's vote at the Board meeting on 28 May 1999, when he was not present in person at the meeting.(e) The Senior Education Officer should not have been permitted to express the view which she gave at the Board meeting on 28 May 1999.(f) The reasons given by the Teachers' Appeal Tribunal for its decision were inadequate.(g) There was a breach of natural justice in the judicial review proceedings arising out of the judge's bias. Their Lordships will consider these issues in turn.[27]The first two arguments can be dealt with in short order. The Board did not have proper existence at the time when the original complaints were made in September 1998, and any decisions which it purported to take at that meeting would have been a nullity. But it does not follow that the complaints themselves had no substance because of that fact. They had their own independent existence and were capable of being considered when in due course the Board was properly reconstituted. At the first meeting of the new Board on 8 March 1999 the Chairman stated that the Board would reinitiate the investigation of the charge brought against the appellant. He then notified the appellant by his letter of 17 March 1999 of this decision and specified the charges in his letter of 12 April 1999, by reference to the three letters from the Principal dated respectively 8, 10 and 16 September 1998. In their Lordships' opinion it was quite correct to take this course. It was not of any consequence that the letters were ineffective to bring complaints before the Board in September 1998, since the Board had no lawful existence, for they could quite properly be used in April 1999 as documents specifying the matters the substance of the complaints made by the Principal and which the new Board proposed to consider.[28]There is no more substance in the argument concerning the requirement in Regulation 57(1), that the Personnel Committee is to consider whether the complaint is trivial and that a hearing is unnecessary. This is a provision designed as a filter mechanism, not uncommonly found in disciplinary codes, which obviates the need for the committee to spend time giving extended consideration to unfounded complaints. The fact that the Personnel Committee had in October 1998 given a full hearing to the complaints and the appellant's defence to them, and proceeded to repeat this procedure in May 1999, is an unequivocal indication that it did not regard them as trivial or unfounded and that it did not consider that Regulation 57(1)(a) applied to them. Their Lordships do not consider that the committee was required in these circumstances to hold a special hearing to see whether Regulation 57(1)(a) should be applied. They also reject the appellant's complaint that the Principal's letters did not constitute sufficient information about the charges being brought.[29]The appellant's main contention about the validity of the hearing before the Personnel Committee on 20 May 1999 was that it was composed of the same persons who had taken part in the ineffective hearing on 7 October 1998. He submitted in his skeleton argument and developed the submission in his oral argument that this deprived him of a fair hearing, the more so as one member had, as he claimed, expressed at the earlier hearing a conclusion strongly adverse to him. It may be observed that the composition of the Personnel Committee is prescribed by Regulation 85. It is to consist of the Chairman of the Board, one nominee of the National Council and "the representative on the Board of the category of accused personnel". Another Council nominee could possibly have replaced Mrs Nelson, but there does not appear to have been any readily available procedure whereby the Chairman or the representative of the academic staff could be replaced (in any event the appellant would no doubt have wished that the latter should continue to take part in the committee's proceedings).[30]Much may depend on the facts of individual cases, but their Lordships do not consider that a hearing will necessarily be unfair if a committee or other body has heard a complaint before and proceeds to rehear it before reaching a final decision. The rehearing may still be fair and valid even if the committee has earlier reached a conclusion on the subject matter, provided it gives genuine and fair consideration to the case and any further facts or arguments put before it on the second occasion. In this respect their Lordships are of the view that, notwithstanding the difference in context and relevance of the statement, the opinion expressed by Lord Reid in Ridge v Baldwin [1964] AC 40 at 79 is apposite and applicable to the present case:
"I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid."
It is plain from the minutes of the meeting of the Personnel Committee held on 20 May 1999 and the terms of its report to the Board that the committee gave meticulous consideration to the complaint ab initio. The Chairman invited the appellant to respond and repeated the invitation after the appellant refused to do so, stating that it was important that the new properly constituted Personnel Committee should hear the appellant's response. Their Lordships are left in no doubt that the committee did consider the matter afresh in proper fashion and that no unfairness was caused to the appellant by reason of the fact that the same persons made up the committee at the second hearing.[31]This gives context to the remark attributed by the appellant to Mrs Nelson, the making of which has not been controverted in the evidence filed. The appellant stated in the course of argument that it was made at the conclusion of the first hearing. At that stage all the evidence and arguments had been heard and the members of the committee were in a position to reach their individual conclusions about the case. Those conclusions may have been subject to amendment as the result of discussion between the members before they decided on their report to the Board, but it was not improper for Mrs Nelson to have reached at least a provisional conclusion at that stage. The important thing was that she and the other members of the committee should be prepared to give proper consideration at the rehearing to the possibility of reaching a different conclusion after hearing the evidence and any further material or arguments put before them. There is no indication in the evidence that they failed to do so and the whole tenor of the minutes of the meeting of 20 May 1999 is one of fair and open-minded reconsideration of the case.[32]The minutes of the meeting of the Board on 28 May 1999 record the following in relation to Mr Maffessanti's opinion:
"The Chairman indicated that he had had a discussion with the Chairman of the Building Committee, Mr Giuseppe Maffessanti, since Mr Maffessanti had to be off the island and therefore could not attend the Board meeting. Prior to his departure, Mr Maffessanti tendered a letter stating that he could not see how Mr Grant could continue as a member of staff at this college and that he therefore would vote for his dismissal."
The Board was wrongly advised that Mr Maffessanti's opinion could be counted as a vote in determining the action to be taken in respect of the appellant. It is quite clear from Regulation 88(10) that the decisions of a board of management must be by a majority of votes of members "present and voting", and Mr Maffessanti's vote could not be counted in his absence. It is equally clear, however, that his vote did not affect the result, which even without it was five votes to none in favour of termination of the appellant's contract, with one abstention. The admission of one invalid vote accordingly did not invalidate the Board's decision. The appellant contended in the alternative, however, that the reception of the opinion expressed by Mr Maffessanti, who was an influential voice in the Board's affairs, would have had a significant effect on the other members in reaching their conclusions and vitiated the decision on that ground. Their Lordships cannot accept that this has been established. In the first place, there is no evidence to prove that any member was unduly swayed by Mr Maffessanti's expression of opinion. Secondly, it was not improper for members who had read the papers but would not be able to be present at the meeting to give their views to others, who were still free to give them such weight as they thought fit before reaching their own conclusions.[33]The minutes of the Board meeting of 28 May 1999 also record the following:
"The Senior Education Officer said that based on the options, in terms of Mr Grant retaining his job, there was no sense of remorse and he did not give himself the opportunity, but he walked out saying that he was willing to take the matter to court. She said that she would not know if the board had any options other than what it was doing."
The SEO was representing the Minister at the meeting under the provisions of Regulation 88(7), and was entitled to take part in the proceedings but not to vote. The Board could properly receive advice from such a person, with her experience of educational matters, again giving it such weight as the members saw fit. The appellant appeared to argue before the Privy Council that she was advising the Board that they were only entitled to take one course of action, that of termination of the appellant's contract. The minute would not bear such an interpretation. It is apparent that the SEO appreciated that there were several options, but that on the facts the only one which the Board could sensibly adopt was that of termination.[34]The reasons given by the Teachers' Appeal Tribunal for dismissing the appellant's appeal were brief and directed only to the challenge to the validity of the decision of the Personnel Committee, based on the fact that it was composed of the same members who had sat on 8 October 1998. It appears from the transcript of the proceedings that this was not the only issue argued by the attorney who represented the appellant at the hearing. In the appellant's notice of appeal to the Tribunal and in his statement grounding his application for judicial review he claimed that the Tribunal was in error in a number of respects other than that relating to the composition of the Personnel Committee, some of which have figured, along with other complaints, in the case made by him before the Privy Council. It may be observed, however, that only one of these points was the subject of argument before the Tribunal. It may be said with some justification that it was incumbent on the Tribunal to set out its reasons in more detail, covering all the issues argued, so that the appellant might appreciate the grounds on which it based its decision and be in a position to mount a challenge to it if so advised. The appellant touched on this before the Privy Council, but did not deal with it in his printed case or elaborate on it in oral argument. Their Lordships will nevertheless consider it shortly.[35]The purpose of requiring reasons to be given by such tribunals is to enable parties to ascertain with sufficient clarity to allow the appellant to appreciate the grounds for their decision and bring his application for judicial review. The reasons given by the Teachers' Appeal Tribunal were succinct to the point of being skeletal and it is questionable whether they satisfied that criterion of sufficient reasons. In the present case, however, it seems to their Lordships that no prejudice was caused to the appellant by any deficiency in the Tribunal's reasons. The Supreme Court had material from which all the material issues could be examined, and the judge looked at and gave a decision on all of the grounds of relief sought, which incorporated the grounds of appeal contained in the appellant's notice of appeal to the Tribunal and added several others. In these circumstances the quality of the reasons given by the Tribunal is less material than it might otherwise be, since the judge was enabled to investigate all of the matters in issue.[36]The final issue is that of the allegation of bias on the part of Cooke J in the Supreme Court. It may be said at once that no question has been raised of actual bias or of any pecuniary or proprietary interest on the part of the judge. The complaint was rather of what one might term apparent or perceived bias. This was based upon the proposition that because of his friendship with the family of the Chairman of the Board there was a real possibility that the fair-minded and informed observer would conclude that the judge was biased: see the discussion by Lord Hope of Craighead of the applicable principles in Porter v Magill [2001] UKHL 67 , [2002] 2 AC 357 , paras 99-103.[37]The Court of Appeal in the earlier case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 gave consideration to the circumstances in which a judge should recuse himself on the ground that bias of this type might be thought by the fair-minded and informed observer to exist. In paragraph 25 of his judgment Lord Bingham of Cornhill CJ pointed out that it would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias, as everything will depend on the facts, which will include the nature of the issue to be decided. He did, however, go on to point to some factors which were unlikely and others which were likely to give rise to a soundly based objection. Among the latter he enumerated personal friendship between the judge and any member of the public involved in the case, or if the judge were closely acquainted with any member of the public involved in the case.[38]It is necessary to bear in mind that these remarks of Lord Bingham were intended as guidelines for judges in other cases and not as a comprehensive definition of the circumstances in which bias might properly be thought to exist. The facts of each case are of prime importance, as he pointed out. Their Lordships are mindful of the problems which may face judges in a community of the size and type of Jamaica and other comparable common law jurisdictions. In such communities it is commonly found that many of the parties and witnesses who are concerned in cases in the courts are known, and not infrequently well known, to the judge assigned to sit. It is incumbent on the judge to apply a careful and sensitive judgment to the question whether he is a close enough friend of the person concerned to make it undesirable for him to sit on the case. If he errs on the side of caution by too much, he may make it impracticable for him to carry out his judicial duties as effectively as he should. If, on the other hand, he is not ready enough to recuse himself, however unbiased and impartial his approach may in fact be, he will leave himself open to the suggestion of bias and damage the reputation of the judiciary for independence and impartiality. In this connection it is relevant to take into account the issues in the proceedings. As Lord Bingham pointed out in the Locabail case, if the credibility of the judge's friend or acquaintance is an issue to be decided by him, he should be readier to recuse himself.[39]If the judge and the Chairman of the Board had been close family friends who saw each other frequently, or if they had been regular golfing partners, it would no doubt be much more likely that the real possibility of bias could be thought to exist. As it is, the judge has stated to the Court of Appeal that there was no special relationship between the Chairman and his family and that he "may have encountered him no more than ten times over the last twenty years". The issues in the appeal did not involve any assessment of the veracity or credibility of the Chairman's evidence and the issues to be decided did not affect his personal position as distinct from that of the Board which he chaired. Their Lordships do not consider that such a degree of acquaintance in these circumstances would have caused the fair-minded and informed observer in Jamaica to conclude that there was a real possibility or danger of bias.[40]Their Lordships are accordingly of opinion that the appellant has not made out any of the grounds of appeal upon which he relies and they will humbly advise Her Majesty that the appeal should be dismissed. The Board must order the appellant to pay the costs, but refers to the indication by the Assistant Attorney-General that the order is unlikely to be enforced.