Law Lords dismiss appeal …”MAHA SABHA LOSES IN PRIVY COUNCIL”

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The Judicial Committee of the Privy Council has dismissed an appeal brought by the Central Broadcasting Services Limited and the Sanatan Dharma Maha Sabha against the Attorney General for additional damages over the refusal of the Government to grant a radio licence.

In a seven-page judgment delivered on Thursday, the Law Lords ordered the appellants to pay costs to the Attorney General.

The Board comprised Lords Kerr, Sumption, Carnwath, Hodge and Lady Black.

THE CASE

This appeal concerned the assessment of compensatory damages arising out of a constitutional case brought by Central Broadcasting Services Ltd (CBSL) and the Sanatan Dharma Maha Sabha Incorporated (SDMS) against the Attorney General of Trinidad and Tobago.

The SDMS is a religious and cultural organisation which, among other things, runs schools focusing on the large Hindu population in Trinidad and Tobago. In December 1999, the SDMS applied for a radio broadcasting licence to establish a Hindu radio station.

In August 2000, the SDMS incorporated CBSL, which in September 2000 also applied for a radio broadcasting licence for that purpose. The Government failed to issue a licence to CBSL, notwithstanding a positive recommendation from the Director of the Telecommunications Division of the relevant ministry in October 2000, and granted a licence to another applicant which had first applied at later date.

In August 2002 CBSL and the SDMS raised a constitutional challenge against the Attorney General, who was the appropriate representative of the State for that purpose under section 76(2) of the Constitution of the Republic of Trinidad and Tobago 1976 (“the Constitution”).

The courts in Trinidad and Tobago held that the Government had breached the appellants’ fundamental right to equality of treatment under section 4(d) of the Constitution but were not prepared to order the Government to grant a licence.

The Court of Appeal in its judgment of 27 January 2005 ordered that the application be placed before the Cabinet within 28 days and that there be an assessment of damages. The Government failed to inform either CBSL or the Court of Appeal that the Cabinet had in fact refused CBSL’s application on 24 June 2004 on insubstantial grounds which Justice Carlton Best and the Court of Appeal had refused to allow the Attorney General to advance in their respective hearings.

The Cabinet’s decision was not disclosed until after the Court of Appeal had given the appellants full leave to appeal to the Board on 12 May 2005. The Board in its judgment of 4 July 2006 [2006] UKPC 35; [2006] 1 WLR 2891 held that the Government had breached the appellants’ fundamental rights to equality of treatment and to freedom of expression under section 4(d) and (i) of the Constitution; it described the Government’s behaviour as arbitrary and capricious.

The Board ordered the Attorney General to do all that was necessary to procure and ensure the issue forthwith of a licence to CBSL. Although the Attorney General responded very promptly and properly to the Board’s order, there were further delays and the Government did not grant CBSL a licence until 22 September 2006.

The appellants then sought an assessment of damages, claiming both compensatory damages for the delay in the grant of the licence and also vindicatory damages which are available to emphasize the importance of the constitutional rights and the gravity of their breach: Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15; [2006] 1 AC 328, paras 18 and 19.

In his judgment dated 22 September 2009, Justice Ronnie Boodoosingh, awarding damages under section 14(2) of the Constitution, ordered the Government to pay (i) compensatory damages of $952,890, comprising $892,890 for loss of profits for the period from August 2002, when CBSL might otherwise have commenced broadcasting, until September 2006 when the Government finally granted the broadcasting licence, and $60,000 for the unjustified delay in the grant of the licence following the promulgation of the Board’s judgment, and (ii) vindicatory damages of $500,000 to reflect the Government’s persistence in unequal treatment.

He ordered the Government to pay the appellants’ costs certified for one advocate attorney and one instructing attorney. The appellants appealed against the level of the award of compensatory damages and the judge’s decision to refuse the appellants’ request for certification of the costs of two counsel.

The Government cross-appealed against both awards of damages. The Court of Appeal in a judgment dated 29 July 2013, dismissed both the appeal and the cross-appeal. On 10 February 2014, the Court of Appeal granted both the appellants and the Government final leave to appeal to the Board; but the Government no longer challenged the award of vindicatory damages or sought to reduce the award of compensatory damages.

The Board was therefore concerned only with the appellants’ challenge to the award of compensatory damages and the costs order. After a hearing lasting 43 minutes, the Board reserved judgment.

On Thursday, the Board dismissed the appeal. The appellants are entitled to their costs in relation to the Government’s application for permission to appeal against the awards of damages. Otherwise, the Attorney General  is entitled to his costs in connection with the appeal to the Board.
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JUSTICE RONNIE BOODOOSINGH 

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