Privy Council
Published July 27, 2007
McLaughlin v Governor of the Cayman Islands
Before Lord Bingham of Cornhill, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell and Lord Neuberger of Abbotsbury
Judgment July 23, 2007

Where a court of competent jurisdiction had held that a decision to dismiss a public office holder was void, the officeholder remained entitled to his full salary and pension rights until such time as his tenure of office was lawfully ended.

The Privy Council so held in allowing an appeal by the plaintiff, Dr Astley McLaughlin, from a decision of the Court of Appeal of the Cayman Islands (President Zacca, Justice of Appeal Taylor and Justice of Appeal Mottley), given on April 27, 2006, allowing an appeal by the defendant, the Governor of the Cayman Islands, from an assessment of damages awarded by Chief Justice Smellie sitting in the Grand Court of The Cayman Islands on September 7, 2005.

Mr Michael Barnes, QC and Mr Paul Simon, of the Cayman Islands Bar, for Dr McLaughlin; Mr Adrian Lynch, QC and Ms Suzanne Bothwell, of the Cayman Islands Bar, for the Governor.

LORD BINGHAM, giving the judgment of the Board, said that the issue concerned the compensation payable to the plaintiff following his dismissal or purported dismissal from the government service of the Cayman Islands on December 31, 1998.

The Court of Appeal had held in the decision under appeal that the dismissal of the plaintiff, although unlawful, was effective in law to determine his engagement, and his only entitlement was to damages.

It was common ground between the parties that the plaintiff had held a public office and that his dismissal, or purported dismissal, was effected in breach of the rules of natural justice and in breach of the relevant public service regulations and was accordingly unlawful.

The Court of Appeal, at an earlier hearing (2002 CILR 576), had declared that “the decision to dismiss him and his dismissal were void”.

It was a settled principle of law that if a public authority purported to dismiss the holder of a public office in excess of its powers, or in breach of natural justice, or unlawfully (categories which overlapped), the dismissal was, as between the public authority and the officeholder, null, void and without legal effect, at any rate once a court of competent jurisdiction had so declared or ordered.

Thus the officeholder remained in office, entitled to the remuneration attaching to such office, so long as he remained ready, willing and able to render the service required of him, until his tenure of office was lawfully brought to an end by resignation or lawful dismissal.

In declaring the decision to dismiss the plaintiff and his dismissal to be void, the Court of Appeal, in its first judgment, had granted the relief which authority required and to which the plaintiff remained entitled.

It was indeed lamentable that so many years had passed since 1998 during which the plaintiff had, in fact, rendered no service to the Government. But the Governor had acted unlawfully in purporting to dismiss him.

The plaintiff had applied for judicial review with reasonable promptitude. He had initially been refused relief, wrongly, and had successfully appealed. Since that decision he had been ready, willing and able to serve the Government if and when permitted to do so.

In its second judgment under appeal, the Court of Appeal had sought to rewrite its first judgment by, in effect, substituting “unlawful” for “void”.

But the expression “void” was apt and in no way doubtful in its meaning, and the change of language did not alter the legal result: whether described as “void” or “unlawful” the decision to dismiss and the dismissal were without legal effect. There was no analogy with wrongful dismissal, where a dismissal might be unlawful but none the less effective.

The plaintiff was entitled to recover arrears of salary and payment of pension contributions until he resigned or his tenure of office lawfully came to an end.

Solicitors: Alan Taylor & Co for C. S. Gill & Co, Grand Cayman: Treasury Solicitor for Government Legal Department, Cayman Islands.

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