IN RESPONSE to a question posed by a reader of this column, a few weeks ago I promised to discuss the concept of legitimate expectation which is a doctrine developed by the courts and forms part of administrative law, a branch of public law.
Today I begin this task.When I studied administrative law in 1980-1981 as part of the LLB programme at the Cave Hill Campus of the University of the West Indies, the doctrine of legitimate expectation was very much in its infancy, so much so, that it did not appear in the index to the 4th Edition of H.W.R. Wade Administrative Law, (1977) which was the set text for the programme at the time.Some 30 years later not only has the doctrine been significantly developed and applied by the English Courts (sometimes with variations) but by the courts of other common law jurisdictions, including ours. Perhaps the most significant application of the doctrine in our context has been the decision of the Caribbean Court of Justice in Attorney-General of Barbados et al v Joseph & Boyce [2006] (which will be discussed in another article).The development of the law in this area highlights two significant things. First, that lawyers and others involved in the study, teaching and application of the law must constantly be prepared to keep abreast of developments in the law. Secondly, it is a good example of the flexibility of the common law and its capacity for growth.But what is the doctrine of legitimate expectation?The exact parameters of legitimate expectation are still being developed. However, there are generally accepted characteristics of legitimate expectation. It applies where a public body by its conduct (via, statements, promises or practices) represents that it will act in a particular manner such that individuals to whom the representations are made, may have a legitimate expectation that the public body will act in the particular manner thus requiring the public body to give effect to that expectation.It has recently become customary to divide such expectations into two categories: procedural legitimate expectations and substantive legitimate expectations. Procedural expectations relate to the requirement that the public body will consult or give notice or give a hearing to a person before a change of policy. Substantive expectations effectively mean that as a matter of substance the authority will act in accordance with its representation.An example of the latter occurred in the Barbadian High Court decision of Chief Justice Sir David Simmons in PEARSON LEACOCK v the Attorney-General (High Court of Barbados No: 1712 of 2005). In that case Mr Leacock made an application for judicial review under the Administrative Justice Act Cap. 109B of a decision made by the Commissioner of Police to deny him study leave for the period of 2005 to 2007 to pursue the course of study leading to the Legal Education Certificate (LEC) at the Hugh Wooding Law School on the footing that the refusal was an “unreasonable, irregular, or an improper exercise of discretion”.Mr Leacock’s application was successful. The learned Chief Justice based his decision on the fact that there was a well established practice of allowing such officers in Mr Leacock’s position to pursue the LEC. Referring to the application, Sir David said:“He had no legally enforceable right to study leave but, by virtue of the practice, he had a reasonable expectation that he would have been granted leave. In other words, the practice induced a legitimate expectation of a substantive benefit which was disappointed by the commissioner’s adverse recommendation. “The expectation derived from a representation implied from the regular and established practice based upon the past actions of the office of the commissioner in not objecting to the grant of study leave to police officers pursuing the LEC. I can find no overriding consideration on the evidence to justify a departure from what had been the previous practice. To resile from that practice now is a breach of Mr Leacock’s legitimate expectation.”In this case Sir David traced the origins of the doctrine thus: 31. “Lord Denning, in one of his creative moments as Master of the Rolls, first coined the expression “legitimate expectation” in Schmidt v. Secretary of State for Home Affairs [1969]. The Master of the Rolls was referring to an individual’s right to be heard before a decision is made by a public official which could adversely affect the individual’s liberty or property.
At p.908 His Lordship said: “I quite agree, of course that where a public officer has power to deprive a person of his liberty or his property, the general principal is that it is not to be done without his being given an opportunity of being heard and making representations on his own behalf.”32. Later, at p.909, he introduced the doctrine in the vocabulary of the common law in this passage:“The speeches in Ridge v Baldwin [1963] 2 All ER 66 show that the administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or I would add some legitimate expectation of which it would not be fair to deprive him without hearing what he has to say.” . . . .33. At its birth the scope of the doctrine was limited to providing a public law remedy for procedural unfairness and emphasised the duty on public officials to act fairly in the exercise of their duties. Since 1979 the doctrine has taken firm roots in public law through a succession of cases all over the Commonwealth and its boundaries have been explained and expanded. It is, however, a doctrine still very much in a state of evolution. In future articles I will focus in more detail on the requirements of the doctrine and will refer to some actual cases, including the Pearson Leacock case and others decided in our jurisdiction.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, The Nation, Fontabelle, St Michael. Send your email to [email protected]
