Guernsey Legal Resources

Ferbrache for the States. I am indebted to both advocates for their clear and very helpful submissions, both written and oral.

be increased by not more than seven years, save that the aggregate of his years of reckonable service shall not exceed the number of years of reckonable service that he would have had had he retired at the age of normal retirement.”

the Board or its successor were to propose any major change in practice and policy under r.23, it would be expected to conduct a similar process of consultation.

scheme under the 1972 Rules, as amended, were transferred to the PSRC. I have been shown the constitution and mandate of the PSRC, which took effect from May 1st, 2004 by a resolution of the States of October 31st, 2003. In my view, nothing turns in this case on the wording of this document. But Mr. Ferbrache emphasized paras. (b) and (e) of the mandate, and I quote para. (e), which reads: “To be accountable to the States for the management and safeguarding of public funds and other resources entrusted to the Committee.”

however, it is plain that the grant of maximum enhancement of reckonable service during the 17 years between 1988 and November 2005 was both a settled practice and a firm policy of the Board and the PSRC.

the costs of Mr. Bichard’s redundancy as being £253,130 for the entitlement, and £134,000 for enhanced service. These costs, he stated, were to be met by the HSSD, who were aware of the figures. He made no reference to any financial difficulties which might ensue for the HSSD or for the States generally if the additional sum of £134,000 had to be met.

approved a transfer of £5m. from the Contingency Reserve Fund to this new fund. Mr. Castle responded that this new fund “was to be used for future financial difficulties, and not for redundancies arising from the 2004 Machinery of Government changes.” In fact, as will appear later in this judgment, in February 2006 it was decided to use the R&R Fund to meet most of the payments in respect of Mr. Bichard.

before the PSRC reached a decision on his case, though the financial effect on the remainder of Mr. Bichard’s life as a result of the decision would be substantial.

2006. It is therefore unnecessary for the court to deal in any detail with the evidence in the further affidavits filed during the hearing.

12th, 2006 when dealing generally with potential redundancies. He is recorded as saying (inter alia) this:

other redundancies in the pipeline, and whatever finally happens in this case is bound to establish a precedent.” It seems to be implicit in this paragraph that the PSRC had to make up its mind whether to follow the previous policy of granting enhancements, or to maintain its new policy of granting no enhancements. Mr. Naftel was excluding the alternative, i.e. that the PSRC might grant an enhancement to Mr. Bichard (who would plainly have anticipated continuance of the previous established policy) while keeping open the position in relation to subsequent redundancies. Presumably, this was because there might be difficulty in departing from the “precedent” set in dealing with Mr. Bichard’s case.

two alternative posts, an allegation made by Deputy Adam, had no basis in fact. Though the chief officer and the senior negotiator had tried to answer this allegation, it might be thought that, in fairness, it should have been put squarely to Mr. Bichard so that he could answer it. Otherwise, it could have continued to play some part in the minds of the PSRC members present, in leading them to reject Mr. Bichard’s request for a decision different from the November decision.

members if made redundant in future. The case is being treated as one brought by Mr. Bichard in the interests of those members of the pension scheme whom the AGCS represents. It equally could affect the position of the other members. The broad question whether the change of long-standing policy was lawfully made is one which has to be decided in the interests of all the members and of the States. Both sides need to know where they stand on this important question, particularly because the evidence shows that the States have further redundancies in mind. The question therefore needs to be decided speedily. I add that Mr. Harris submitted that an equivalent remedy could not be obtained by Mr. Bichard in an ordinary private law civil action. That emphasizes the need for the general question to be decided on judicial review.

hearing proceeds, so that the issues to be considered at the end of hearing are rather different from those in contemplation at the start of the hearing. That is one reason why, as already indicated, I permitted amendment of the cause and filing of further affidavits on both sides, with appropriate adjournments, so as to ensure that the real issues were ready for decision. Accordingly, I now consider in turn the issues raised in the re-amended cause.

Health Auth., ex p. B. (8), and R. v. Chief Const. (Sussex), ex p. Intl. Trader’s Ferry Ltd. (10), and I have taken account of the summaries of, and quotations from, those cases in Wade & Forsyth.

a particular procedural benefit. Both are in issue in the present case. Though it will result in this judgment being a long one, I believe that it will assist in Guernsey if I make a long quotation from Coughlan ([2001] Q.B. at 241, at paras. 56–82):

determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised.

A.C. 610) and enter into formal undertakings. But since it cannot abdicate its general remit, not only must it remain free to change policy; its undertakings are correspondingly open to modification or abandonment. The recurrent question is when and where and how the courts are to intervene to protect the public from unwarranted harm in this process . . .

judge in its own cause, for a decision to prioritise a policy change over legitimate expectations will almost always be rational from where the authority stands, even if objectively it is arbitrary or unfair. It is in response to this dilemma that two distinct but related approaches have developed in the modern cases.

contract or breach of representation. In the present case, however, I consider that the [taxpayer] is entitled to relief by way of judicial review for “unfairness” amounting to abuse of power if the commissioners have been guilty of conduct equivalent to a breach of contract or breach of representations on their part.’

expectation, particularly if he acted on it . . . The doctrine of legitimate expectation is rooted in fairness.’

every choice or permutation of choice would be fully documented or discussed.”

they would be compulsorily retired was stated in a previous circular to be a higher age than 60 years, any reasonable expectations that may have been aroused in them by any previous circular are destroyed and are replaced by such other reasonable expectations as to the earliest date at which they can be compelled to retire if the administrative policy announced in the new circular is applied to them.”

adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view of procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

reasonable: R. v. Secretary of State for Education and Employment, Ex p. Begbie, [2000] 1 W.L.R. 1115, per Peter Gibson, L.J. at p. 1124, and Laws, L.J., at p 1130. The expectation may be substantive or procedural and the categories of legitimate expectation are not closed: Begbie’s case . . . Once the claimant has established the legitimate expectation, he must show that it would be unfair of the public body to resile from giving effect to the legitimate expectation . . . Where the court is satisfied that the public body made the representation by mistake, the court should be slow to fix the public body permanently with the consequences of that mistake: see Begbie’s case, [2000] 1 W.L.R. 1115, per Peter Gibson, L.J., at p. 1127, and Sedley, L.J., at p. 1133. In such a situation the court must be alive to the possibility of such unfairness to the individual as to amount to an abuse of power. The court must also consider whether and how far . . . the wider interests of the public may be affected by giving effect to the expectation, for the wider interests may require that the public body resiles in order properly to protect those wider interests. In such a case the issue of fairness requires the public body to act fairly in accordance with the first of the three categories in Coughlan’s case, [2001] Q.B. 213 balancing in the public interest the irreconcilable interests and conflicting desiderata . . . see Laws, L.J. in R. (Bibi) v. Newham London Borough Council, [2002] 1 W.L.R. 237, 247–248, paras. 34–39 and Henry Boot Homes Ltd. v. Bassetlaw District Council [2000] EWHC (Admin) 546; [2002] EWCA Civ 983; The Times, 16 December 2002. At the end of the day the court must decide whether having regard to all the relevant circumstances including the reliance by the citizen, the impact on the interests of the citizen and the public and considerations of proportionality, for the public body to resile would in all the circumstances and applying the criteria referred to be so unfair as to constitute an abuse of power.

bind the public body to exercise its discretion in accordance with that expectation: see R. v. Inland Revenue Comrs, Ex p. Unilever plc [1996] S.T.C. 681. But under English domestic law there can be no legitimate expectation that a public body will confer a substantive benefit or extinguish an obligation when it has no power to do so. This rule of law has been the subject of sustained academic criticism as conducive to injustice: see e.g. Craig, Administrative Law, 4th ed (1999), p. 642 and Morgan & Hogan, Administrative Law in Ireland, 2nd ed (1991), p. 863. But it remains the law.’

and makes a decision that is inconsistent with the original representation. The present case seems to me to fall into the second of these categories.

lies in the field of pure policy, particularly in relation to issues which the court is ill-equipped to judge, the less likely it is that true abuse of power will be found.

the English Court of Appeal set out three alternative “possible outcomes” in the event of legitimate expectation relating to a public policy. In my judgment, it is clear that the expectation of the members of the pension scheme in general was in the second category of “outcome.” I will deal with the third category when considering the specific circumstances of Mr. Bichard. The general expectation of members must be in the second, and not the first, category. I should, however, observe that, even if it had fallen within the first category, the PSRC failed to comply with what it would then have been required to do. As the court said about the first category in Coughlan: “[T]he court may decide that the public authority is only required to bear in mind its previous policy . . . giving it the weight it thinks right, but no more, before deciding whether to change course.”

entitlements of those likely to be made redundant, and (b) the enhancements of their reckonable service, whether the maximum or some shorter enhancements;

fail to enhance the plaintiff’s reckonable service to the maximum extent permitted would frustrate that expectation and amount to an abuse of power by the defendant.”

by me in para. 84 above (see especially sub-paras. (viii), (x) and (xi)) show that the English courts have moved away from analogies with private law concepts, and rather towards assessment of the unfairness of the departure from settled practice, viewed in the light of the public interests involved.

would have to remit the matter to the PSRC to consider in accordance with the law as expounded by this court. In theory, this would mean that reconsideration of Mr. Bichard’s case would have to await the taking by the PSRC of all the preparatory steps, including analysis of matters such as those set out in para. 94 supra, discussion with the employers of the members of the pension scheme, and consultation in the PCC, a process likely to take a considerable time. But Mr. Bichard became redundant on February 8th, 2006, and that was the time when he was entitled to receive, or to know about, whatever payments were to be made in respect of his redundancy. The real relevance of that date is that Mr. Bichard would be entitled to have his case reconsidered as at February 8th, 2006, and not as at any later date. At that date, as I have held in this judgment, the established practice and policy of the States was that redundant members of the pension scheme were to receive the maximum enhancement. The decisions made in November 2005 and January 2006, having been quashed, would have to be entirely left out of account by the PSRC. It follows, in my judgment, that even if I were to hold that Mr. Bichard’s legitimate expectation was only of a due process leading to consultation, nevertheless, when the PSRC came to re-consider his case some time from today, it would have to apply the policy which I have held was still in force on February 8th, 2006. Accordingly, in my judgment, I would reach the same conclusion, even if I were to hold that Mr. Bichard’s legitimate expectations only fell within the second category.

wishes to consider a change in the long-established policy for the operation of r.23(2) of the pension scheme, it shall act in accordance with the principles laid down in the judgment.