Abstract
The Privy Council judgments in James v Attorney General [2010] UKPC 23 and Graham v Police Service Commission [2011] UKPC 46 have advanced the constitutional damages jurisprudence not only in Trinidad and Tobago but also the Commonwealth since Attorney General v Ramanoop [2005] 2 WLR 1324 (PC). In their recent decision in Seepersad v Attorney General [2012] UKPC 4, their Lordships answered two crucial questions hitherto not contested in South Africa or any other Commonwealth court relating to a right to a constitutional remedy and a constitutional right to damages. They held that constitutional damages were the appropriate relief as against those cases where constitutional relief were sought in non-constitutional circumstances. The Supreme Court of Canada has equally contributed to the subject by holding in Canada (Attorney General) v TeleZone Inc [2010] 3 SCR 585 (SCC) that a claimant for Charter damages does not have to obtain judicial review before seeking such relief. This article argues that, while TeleZone has restored the citizen’s right of access to the courts by removing unnecessary procedural obstacles to Charter damages claim, the Privy Council has, through Seepersad, once more laid down principles which South African and other Commonwealth courts may freely refer to if and when similar issues arise in constitutional damages litigation in their jurisdictions.
Highlights
Since the Privy Council enunciated the principle that constitutional damages were recoverable as a remedy for breach of a constitutionally entrenched right in Maharaj v Attorney General of Trinidad and Tobago (2),[1] litigants in Trinidad and Tobago in particular, and the Commonwealth Caribbean in general, have sought that relief in varied, if bewildering circumstances
Whether a constitutional relief or constitutional damages were appropriate in any case depends on the circumstances
Where no alternative judicial redress exists and the constitutional wrong is in the past, that a constitutional relief would be called for, and constitutional damages may be more fitting than any other judicial remedy
Summary
The Privy Council judgments in James v Attorney General [2010] UKPC 23 and Graham v Police Service Commission [2011] UKPC 46 have advanced the constitutional damages jurisprudence in Trinidad and Tobago and the Commonwealth since Attorney General v Ramanoop [2005] 2 WLR 1324 (PC). In their recent decision in Seepersad v Attorney General [2012] UKPC 4, their Lordships answered two crucial questions hitherto not contested in South Africa or any other Commonwealth court relating to a right to a constitutional remedy and a constitutional right to damages. This article argues that, while TeleZone has restored the citizen’s right of access to the courts by removing unnecessary procedural obstacles to Charter damages claim, the Privy Council has, through Seepersad, once more laid down principles which South African and other Commonwealth courts may freely refer to if and when similar issues arise in constitutional damages litigation in their jurisdictions
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