Sharma v. The Registrar to the Integrity Commission & Anor (Trinidad and Tobago ) [2007] UKPC 42

Judicial Committee of the Privy Council
Case No Privy Council Appeal No 72 of 2006Venue FROM THE COURT OF APPEAL OF TRINIDAD AND TOBAGO - - - - - - - - - - - - - - - - -
Between
SharmaAppellantThe Registrar to the Integrity Commission & Anor (Trinidad and Tobago )Respondent
Before
Lord Bingham of CornhillLord Hope of CraigheadLord Phillips of Worth MatraversLord Rodger of EarlsferryLord CarswellDate 20 June 2007
[1]:- Lord Bingham of Cornhill Lord Hope of Craighead Lord Phillips of Worth Matravers Lord Rodger of Earlsferry Lord Carswell - - - - - - - - - - - - - - - - [Delivered by Lord Hope of Craighead ] This is an appeal against a judgment of the Court of Appeal of Trinidad and Tobago (Warner, John and Mendonca JJA) of 2 February 2006 allowing an appeal against a judgment of Narine J of 20 April 2005 by which he granted various reliefs in judicial proceedings brought by the appellant against the Integrity Commission of Trinidad and Tobago and the Commission's Registrar.[2]Section 138 of the Constitution of Trinidad and Tobago provides that there shall be an Integrity Commission ("the Commission") charged with the duty, among others, of receiving declarations in writing of the assets, liabilities and income of persons in public life and the supervision and monitoring of standards of ethical conduct. Section 139 provides that Parliament may make provision for the procedure in accordance with which the Commission is to perform its functions, for conferring such powers on the Commission and imposing such duties on persons concerned as are necessary to enable it to carry out effectively the purposes of section 138 and for the preparation by it of a Register of Interests for public inspection.[3]In pursuance of the powers vested in Parliament by section 139 of the Constitution a series of statutes was enacted requiring persons in public life to submit information to the Commission about their income, assets and liabilities and certain other interests. The immediate predecessor to the current statute was the Integrity in Public Life Act 1987 ("the 1987 Act). On 6 November 2000 the 1987 Act was repealed and replaced by the Integrity in Public Life Act 2000. The Integrity in Public Life (Amendment) Act 2000, which was brought into operation on the same day, amended the 2000 Act in respects which are not material to these proceedings. The 2000 Act[4]The establishment, powers and functions of the Commission are set out in Part II of the 2000 Act. Among its provisions is section 7, which states that there shall be a Registrar to the Commission. Part III deals with financial disclosure. Part IV sets out a code of conduct. Part V deals with the Commission's powers of investigation. Persons in public life for the purposes of the Act are listed in the Schedule. The provisions which lie at the heart of this appeal are sections 11 and 14 which are to be found in Part III, and section 41 which is in Part V.[5]Section 11, so far as relevant, provides:
"(1) A person shall, within three months of becoming a person in public life, complete and file with the Commission in the prescribed form, a declaration of his income, assets and liabilities in respect of the previous year and, thereafter, on 31 st May in each succeeding year that he is a person in public life, he shall file further declarations of his income, assets and liabilities. (2) Notwithstanding the provisions of sub-section (1), the Commission may, in any particular case, for good cause, extend the time for the furnishing of a declaration for a period not exceeding six months. (3) The declaration shall be in such form as the Commission may from time to time prescribe and may be accompanied, if the declarant so wishes, by a statement relating to his net worth as indicated by details of his income, assets and liabilities. … (6) Where a person who is required to do so fails to file a declaration in accordance with this section or without reasonable cause, … fails to file the statement of registrable interests under section 14, the Commission shall publish such fact in the Gazette and a least one daily newspaper in circulation in Trinidad and Tobago. (7) The Commission may, at any time after the publication referred to in subsection (6), make an ex parte application to the High Court for an order directing such person to comply with the Act and the Court may, in addition to making such an order, impose such conditions as it thinks fit. (8) A person who fails to comply with the directions of the Court commits an offence and is liable on conviction to a fine of one hundred and fifty thousand dollars."
[6]Section 13(1) provides that the Commission shall examine every declaration that is filed and ensure that it complies with the requirements of the Act. Section 13(3) provides that where, upon such examination, the Commission is satisfied that a declaration has been fully made, it shall forward to the person in public life a certificate of compliance.[7]Section 14(1), so far as relevant, provides:
"(1) A person in public life shall file with his declaration under section 11, an additional statement of registrable interests in the prescribed form, which shall contain the information required by subsection (3). (2) The Registrar of the Commission shall compile and cause to be entered in a Register of Interests, all information furnished pursuant to subsection (1) and shall at the request of any member of the public, permit the inspection of such Register. …"
[8]Section 21 provides that a person in public life who fails without reasonable cause to furnish to the Commission a declaration which he is required to furnish in accordance with the provisions of the Act is guilty of an offence.[9]Section 32 provides that a person who wishes to allege or make a complaint that a person in public life or any person exercising a public function is in contravention of the Act, has a conflict of interest in relation to the Register of Interests or is committing or has committed an offence under the Prevention of Corruption Act may do so in writing to the Commission. Section 33 provides that the Commission may on its own initiative, and shall upon the complaint of any member of the public, consider and enquire into any alleged breaches of the Act or any allegations of corrupt or dishonest conduct.[10]Section 41 provides:
"(1) The Commission may make Regulations prescribing – (a) the manner in which enquiries may be carried out and any matters incidental to or consequential upon such enquiries; (b) the standard or criteria for the initiation of such inquiries; (c) the manner in which information received from the public would be assessed and verified; (d) the form of declaration to be submitted and any additional forms which have been prescribed or which may become necessary; (e) the period within which any information or document required by the Commission should be furnished or produced; (f) the fees that are payable by members of the public in respect of a certified copy of a public declaration statement and the manner in which such statements may be made available; (g) any matter or thing in respect of which it may be necessary to make Regulations for carrying this Act into effect. (2) Regulations made under subsection (1) shall be subject to the affirmative resolution of Parliament."
The issues[11]The appellant sought judicial review of, first, a decision of the Commission announced on 12 May 2004 not to require persons in public life to file under sections 11 and 14 of the Act declarations of their income, assets and liabilities and statements of registrable interests in respect of the calendar year 2002; second, the Commission's delay in making regulations under section 41(1)(a) to (c) prescribing the manner and circumstances in which it is to carry out enquiries under the Act; and, third, an alleged failure by the Registrar to compile, and to allow him to inspect, the Register of Interests required to be kept under section 14.[12]The judge held that the exemption of persons in public life from filing the declarations and statements referred to in sections 11 and 14 of the Act for the year 2002 was ultra vires and made a declaration that such persons were required to file these documents for that year. This issue is referred to below as "the filing issue". He also made a declaration that the Commission had delayed unreasonably in making the regulations and ordered it to take the necessary steps within three months. This issue is referred to as "the regulations issue". The appellant withdrew his complaint about the Registrar's failure to compile and allow him access to the Register of Interests. The judge ordered that the Registrar should bear his own costs in regard to that issue. This issue is referred to as "the costs issue". The Court of Appeal reversed the judge's decision on all three issues. The appellant invited the Board to restore the judge's decision on each of them. The facts[13]Upon the coming into force of the 2000 Act the Commission decided to make the regulations which it considered necessary to give effect to the Act and engaged consultants to help in the drafting of them. On 7 August 2001 it forwarded the regulations to the Chief Parliamentary Counsel to be laid before Parliament under the affirmative resolution procedure. The regulations were laid before the House of Representatives on 7 September 2001 and before the Senate on 9 September 2001. But Parliament was dissolved on 13 October 2001 before the affirmative resolution procedure could be completed. A general election was held on 10 December 2001. It yielded an exact equality of seats in the House to the People's National Movement ("the PNM") and the United National Congress ("the UNC"). Each party won eighteen seats, so neither party had a majority in the House. Attempts to elect a Speaker were deadlocked and Parliament failed to function. On 30 August 2002 it was dissolved and on 7 October 2002 a further general election was held. On this occasion the PNM won a clear majority of seats.[14]On 15 November 2002, following this further election, the Chief Parliamentary Counsel asked the Commission to consider and approve the draft regulations. On 24 December 2002 the Commission made revised regulations and forwarded them to the Chief Parliamentary Counsel for transmission to Parliament. On 13 August 2003 a new Commission was appointed and the procedure began again. On 12 September 2003 regulations which the new Commission had approved were forwarded to the Chief Parliamentary Counsel. They were approved by the Senate on 26 November 2003 and by the House of Representatives on 5 December 2003. They were published by Legal Notices Nos 215 and 216 of 2003 on 12 December 2003. The regulations published by Legal Notice No 216 were made under section 41(1)(d). They prescribed the forms that were to be used for the filing of the declaration referred to in section 11(1) and the statement referred to in section 14(1).[15]On 12 March 2004 the Commission published a notice in the daily newspapers for the attention of persons in public life. It drew attention to their obligation to file annually with the Commission declarations of their income, assets and liabilities and statements of registrable interests in the prescribed form as required by sections 11(1) and 14(1) and to the publication of the regulations as Legal Notice No 216 in a Supplement to the Trinidad and Tobago Gazette dated 12 December 2003. It then stated:
"By this press notice, persons in public life are reminded of their obligations under the Act to file declarations and statements of registrable interests with the Integrity Commission. Acting in accordance with section 11(2) of the Act, the Integrity Commission has extended the time for furnishing declarations and statements of registrable interests for the years 2002 & 2003 to 15 August 2004 in both instances."
There followed a table "to assist persons in determining their filing obligations". It identified the due dates for filing for persons in the following categories: (a) Persons holding office at 12 December 2003 and continuing for any period in 2004: for 2002, 15 August 2004; for 2003, 15 August 2004; for 2004, 31 May 2005. (b) Persons becoming persons in public life between 1 January 2004 and the date of the notice: for 2003, 15 August 2004; for 2004, 31 May 2005. (c) Persons becoming persons in public life in 2004 at any time after the date of the notice: for 2003, within three months of becoming a person in public life; for 2004, 31 May 2005.[16]The Registrar sent a letter to each person in public office whose name and address was on record in the Commission's office together with the prescribed forms for completion, informing them that the time for the filing of declarations and statements had been extended.[17]Following publication of this notice the Commission received an objection to it from a person in public life. He maintained that the Commission had no power under section 11(2) to extend the time for filing beyond six months from 31 May of each succeeding year for which a declaration was due. His contention was that a person in public life could not be required to file the documents required by the Act for the year 2002, as the prescribed forms were published more than six months after 31 May 2003. Having taken the advice of Senior Counsel, the Commission was persuaded that there was no answer to this argument. It published a further notice in the daily newspapers on 12 May 2004 which stated:
"The Integrity Commission now wishes to advise that based on advice it has since received, persons in public life are not required to file Declarations and Statements of Registrable Interests for the year 2002. However all other filing requirements remain as published and are restated below."
There then followed a fresh table which was in the same terms as that which was published on 12 March 2004, except for the omission of the requirement that persons holding office at 12 December 2003 and continuing for any period in 2004 were to file declarations and statements for 2002 by 15 August 2004. The Registrar wrote to everyone who had already been asked to complete declarations and statements informing them that they were not required to file these documents for the year 2002.[18]The appellant is a member of the UNC which became the minority party in the House of Representatives following the general election of 7 October 2002. Members of the House of Representatives are among the persons listed as persons in public life for the purposes of the Act in the Schedule. The appellant was one of those persons to whom the Registrar wrote following the publication of the notices in the daily newspapers. He took exception to the Commission's decision not to require the filing of statements and declarations for the year 2002. Meantime the Registrar had begun to receive statements and declarations from persons in public life and to compile a Register of Interests. He made arrangements for the accommodation of members of the public who wished to inspect it. The appellant disputed this. He said that he wrote to the Registrar on 20 May 2004 and again on 16 June 2004 asking for permission to inspect the Register and that he also asked whether any regulations had been made under section 41(1)(a), (b) and (c). He said that he got no reply to these letters. The Registrar said that he did not receive them. On 3 August 2004 the appellant applied for leave to bring these proceedings for judicial review in the public interest. His application was advertised in daily newspapers on 6, 9 and 10 August 2004. He was given leave to apply in the public interest on 1 September 2004. The filing issue[19]Section 11(1) can be divided into two parts. The first part states that a person shall file a declaration of his income, assets and liabilities for the previous year within three months of becoming a person in public life. The second part states that he shall file further declarations on 31 May in each succeeding year that he is a person in public life. Although it does not say so in terms, these further declarations too must be in respect of the person's income, assets and liabilities for the previous calendar year. The contentious part of the notice was addressed to all persons holding office at 12 December 2003 (the date when the regulations containing the prescribed forms were published) and continuing to hold office for any period in 2004. The due date for filing declarations for 2002 in terms of section 11(1) was 31 May 2003. The Commission has power under section 11(2), in any particular case and for good cause, to extend the time for filing for a period not exceeding six months. But that period too had passed for the calendar year 2002. It expired on 30 November 2003.[20]Sir Fenton Ramsahoye SC for the appellant accepted that the time provided for filing a declaration in accordance with section 11(1) had passed for the calendar year 2002 by the time the notice of 12 March 2004 was published. He was, of course, right to do so. Nevertheless, said Sir Fenton, there was still an obligation to file as that was what the statute required, even though it could not be performed until there was a prescribed form for this. So it was capable of being performed as soon as the form was prescribed for it. He accepted however that, in the absence of a prescribed form, a person could not be sanctioned under section 21 for failing to furnish a declaration. Nor, it should be added, could the steps described in section 11(6) and (7) be taken against him. This is because the obligation is to file a declaration in the prescribed form. It was incapable of being performed in the manner which section 11(1) requires until a form was prescribed for it in the manner laid down by the Act. The same points apply with respect to the statement of registrable interests referred to in section 14(1). The argument that there was an obligation to do that which the statute describes but which cannot be enforced in the absence of a prescribed form is unsustainable.[21]The question, in essence, is whether Parliament intended that the person to whom section 11(1) refers was to be obliged to file a declaration in the absence of a prescribed form. The answer to it is to be found in section 11(3), which states that the declaration shall be in such form as the Commission may from time to time prescribe. The system which Parliament has laid down requires the provision of information to the Commission in a form which the Commission itself has decided is appropriate for the purpose it is designed to serve. Section 41(2) requires that regulations prescribing the form of declaration to be submitted to the Commission are to be subject to affirmative resolution by Parliament. This formality too must be completed before there is a prescribed form within the meaning of section 11(1). The whole point of these provisions was to ensure that everyone was, as the saying goes, singing from the same hymn sheet. A high degree of uniformity was needed so that the information that the Commission received could be examined and recorded efficiently. An unregulated system would be a recipe for chaos. The intention of Parliament was plain. It was that until the forms had been prescribed the obligation to file could not come into existence. The use of prescribed forms was essential to the system of financial declaration which it laid down.[22]The timetable which section 11(1) lays down can, of course, be extended under section 11(2). But this power is available only in any particular case, and then only to extend the time for a period not exceeding six months. The Commission's statement in its notice of 12 March 2004 that it was acting in accordance with section 11(2) in extending the time for furnishing declarations and statements for 2002 was misconceived. It had no power to subject persons in public life to obligations to provide information that were not provided for by the statute. The filing of these documents for 2002 was not provided for, as it was impossible to comply with the statutory timetable.[23]The judge held that the form provided for under the 1987 Act could have been used for periods prior to that for which the forms prescribed under section 41(1)(d) were available. The Court of Appeal rejected that argument. Sir Fenton did not renew it before the Board, so it is not necessary to say anything more about it. Their Lordships agree with the Court of Appeal that, in informing persons in public life that they were not required to file a declaration and statement of registrable interests for 2002, the Commission was simply giving effect to the Act, which it was bound to do. The regulations issue[24]Sir Fenton submitted that the purpose for which the Commission was given power to make regulations by section 41(a), (b) and (c) was to let persons in public life and the public in general know how it was proposing to perform its functions, especially in the event that it was required by section 33 upon a complaint by a member of the public to investigate alleged breaches of the Act or allegations of corrupt or dishonest conduct. The absence of regulations as to the manner in which such an enquiry would be carried out, the standards and criteria that would be applied and the manner in which information received from the public would be assessed and verified, deprived the public of knowledge that Parliament intended it should be given when section 41 was enacted. He pointed out that even now, more than seven years after the Act came into force, no such regulations had been made. He said that the Commission was dragging its feet on this matter. Its delay in making regulations prescribing the forms referred to in section 11(1) and section 14(1) illustrated the problems that could arise. The judge had been right to declare that the delay was unreasonable and to order the Commission to take steps to lay regulations under those paragraphs of section 41(1) before Parliament within three months.[25]Section 41(1) is permissive in its terms, not mandatory. It gives power to the Commission to make regulations, leaving the question whether the making of regulations on any of the matters referred to is necessary for the carrying of the Act into effect for the Commission itself to determine. The Court of Appeal, quite rightly, did not say that the Commission's omission to make regulations was immune from judicial review. But it was of the opinion that the absence of regulations on the matters that paragraphs (a), (b) and (c) refer to did not defeat the policy or objects of the Act, and that it had not been shown that they were necessary for the proper functioning of the Commission. Their Lordships agree with the Court of Appeal on both points.[26]This is not to say that the power to make regulations under these provisions can be ignored in circumstances where their publication and approval by Parliament is obviously needed to enable it to perform its functions. It is not difficult to imagine circumstances where the making of such regulations may become necessary to enable enquiries of the kind referred to in the Act to be conducted. In such a case its failure to make regulations could be said to have led to a failure to carry into effect duties that are laid on the Commission by the statute: see section 41(1)(g). But the appellant did not provide the judge with information that would have enabled him to make a finding to that effect. Without such a finding, which he did not make, the judge was not entitled to hold that there had been a delay in the making of the regulations that was unreasonable. The costs issue[27]This is an issue between the appellant and the Registrar. The appellant sought various reliefs against him, including an order directing the Registrar to allow him to inspect the Register of Interests and a declaration that, in the event that no such Register existed, the Registrar's failure to compile it was unlawful. His reason for doing so was that he had not received a response to a letter which he sent to the Registrar dated 20 May 2004 for permission to inspect the Register, despite having sent a reminder to the Registrar dated 16 June 2004. He claimed that he had posted these letters on the date when they were signed. In an affidavit which was filed on 12 October 2004 the Registrar said that there was no record of his office having received them. He also said that he compiled the Register of Interests immediately upon his receipt of the first declaration and statement of registrable interests and that arrangements were put in place for its inspection by members of the public. Following receipt of this affidavit the appellant lodged skeleton submissions in which he acknowledged that, in the light of events that had occurred since filing the proceedings, the reliefs which he claimed against the Registrar were no longer maintainable and indicated that he would not pursue them at the trial.[28]The judge ordered that the Registrar should bear his own costs. Having been asked to do so, he prepared a separate judgment in which he set out his full reasons. He said that, in his view, the appellant had not acted unreasonably in claiming the reliefs which he had sought against the Registrar as he had received no response to his letters and it was in the public interest to ascertain whether the Register had been compiled and was available for inspection. The Registrar could have obviated the need for this issue to be dealt with by indicating to the appellant when notice of his application was advertised that the Register had been complied and was available for inspection. The judge also said that he found it difficult to see how the inclusion of these reliefs had increased the respondent's costs in any significant way.[29]The Court of Appeal disagreed. Delivering the judgment of the Court, Mendonca JA acknowledged that costs were, of course, at the discretion of the judge who made the order and that an appellate court should defer to the exercise of his discretion and not interfere with it merely because it would have exercised the discretion differently. He referred to Lord Diplock's warning in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191, 220, that where the exercise of a discretion is in issue the function of the appellate court is initially one of review only, and to Lord Fraser of Tullybelton's observation in GvG [1985] 1 WLR 647 , 651, that it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appellate body is entitled to interfere. He then noted that the appellant sought and obtained leave to seek relief against the Registrar and that the application was pursued by him up until 15 December 2004 when in the skeleton argument which he filed in accordance with the judge's direction he indicated, for the first time, that he was not pursuing the relief. In his view it was clear that costs would have been incurred up to that point in taking instructions, responding to the appellant's affidavit and addressing the matter in written argument. Having examined the judge's reasons carefully and in detail, he said that his reasons for holding that the Registrar should bear his own costs were not meritorious. The general rule was that where an applicant discontinues his claim the discontinuance should be at his cost. That rule was not immutable. But it should be followed unless there was a sufficient reason to depart from it, and he could see no reason for doing so in this case. The judge's order was set aside and the Registrar was awarded his costs up to 15 December 2004.[30]There is, as has been noted, an unresolved question as to whether the letters which the appellant said he had sent to the Registrar, and of which the Registrar said there was no record of their receipt in his office, were ever sent. But, as Mendonca JA pointed out, the existence of the Register could easily have been verified by simply visiting the Commission's office and asking to inspect the Register. Moreover, although the appellant spoke to the Registrar on several occasions in July 2004 before the commencement of the proceedings, he did not take the opportunity of asking him whether the Register was available for inspection or even of asking whether he had received the letters and, if so, why he had not replied to them. It was submitted for the appellant that he had given sufficient notice that there was to be no trial on this issue and that the Registrar could have ended the matter at once as soon as the notice of the application for judicial review was published. But Mendonca JA said that this was not supported by the evidence as the appellant gave no indication in his affidavit, filed in reply to the Commission's affidavit which stated that the Register had been established, that he was not pursuing his allegation that he had been denied access to the Register.[31]Their Lordships are not persuaded that they should interfere with the decision of the Court of Appeal. It cannot be said that it overlooked the need for an appellate court to defer to the exercise by the judge of his discretion on costs. On the contrary it was careful to remind itself of the limits beyond which it could not properly go before embarking on its examination of the merits on this issue. The cases to which it referred were not dealing with costs. In Hadmor Productions Ltd v Hamilton the question was whether the case was appropriate for an interlocutory injunction. In GvG it was about the judge's exercise of his discretion as to the custody and welfare of children. But the principle that was referred to in those cases is applicable to the exercise of a judge's discretion in regard to costs too. As Bowen LJ said in Young v Thomas [1892] 2 Ch 134 , 137, the Court of Appeal will have regard to the discretion of the judge as to costs, and will not interfere unless there has been a disregard of principle or a misapprehension of facts. The question whether the appellant's letters were ever sent was unresolved, but it recedes into the background in view of the steps which the appellant could easily have taken to establish the facts before proceeding with his application against the Registrar. The judge did not take this crucial point into account, and he was wrong to base his decision, at least in part, on the proposition that it was hard to see how the application against the Registrar had increased the costs. This is a matter to be determined on a taxation, if one is asked for. The Court of Appeal gave sufficient reasons for deciding to interfere with the judge's decision, having regard to the very limited circumstances in which it would be right for it to do so. Their Lordships agree, for the reasons it gave, that it was wrong for the Registrar not to have been found entitled to his costs up to the point when the appellant indicated that he had decided not to pursue his application for relief against him. Conclusion[32]For these reasons the appeal will be dismissed. The appellant must pay the Commission's costs before the Board.