Niles v Judicial and Legal Service Commission: Privy Council rules disciplinary scheme offers no effective remedy for public law challenges

The Judicial Committee of the Privy Council has dismissed an appeal by the Judicial and Legal Service Commission of Trinidad and Tobago, affirming that a State Solicitor facing disciplinary charges was entitled to seek judicial review of the proceedings against her, and that the statutory disciplinary scheme did not provide her with an effective alternative remedy.

The judgement, delivered on 16 April 2026 by Sir Adrian Colton on behalf of the Board, arose from two charges of misconduct preferred against Avaria Niles following her failure to attend a High Court hearing on 3 March 2021, despite being directed to do so by her supervisor. The charges had been laid on the basis of a report by an investigating officer whose appointment the Commission later accepted had not complied with the applicable regulations.

The procedural irregularities

The charges were laid pursuant to a report by a second investigating officer appointed under regulation 87 of the Public Service Commission Regulations — a provision the Board found had plainly been applied incorrectly. The applicable provision, regulation 90, required that the investigating officer be drawn either from the Public Service Investigations Unit or appointed by the Permanent Secretary or Head of Department of the relevant ministry. Neither condition was met.

The Commission conceded the non-compliance but argued it was immaterial: the investigator held a senior rank, had produced a thorough factual report and the respondent had suffered no prejudice. It further submitted that the respondent could raise any objections within the disciplinary proceedings themselves, or through a subsequent appeal to the Public Service Appeal Board.

No effective alternative remedy

The Board rejected both arguments. Whilst the disciplinary tribunal is empowered to consider factual disputes and whether the evidence supports a charge, its jurisdiction is purely statutory. Challenges grounded in public law — illegality and vires — fall outside its remit entirely. The tribunal simply has no power to determine them.

The suggestion that the respondent might first complain to the Commission about the charges it had itself decided to lay was dismissed as manifestly incompatible with the rule against bias: nemo iudex in causa sua. Requiring her to pursue an appeal to the Public Service Appeal Board only after completing the full disciplinary process would also not constitute an effective remedy. The Board was equally clear that whether an effective alternative remedy exists is a matter of judicial evaluation, not judicial discretion — a distinction it considered the Court of Appeal had conflated.

The arguability threshold

On arguability, the Board applied the framework established in R v Soneji [2005] and affirmed in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024], which requires a court to examine the purpose of the relevant statutory requirement and the specific prejudice, if any, caused by its breach. The Board declined to resolve the question at the leave stage, noting that nothing was known about the policy rationale for the Public Service Investigations Unit or the significance Parliament attached to its involvement in disciplinary investigations. Those questions could only be properly addressed with full argument and appropriate evidence.

The Board also noted, without apparent approval, the extensive delays throughout the process — from the near six-month gap between receiving the misconduct report and appointing the first investigating officer, to the Commission's failure to respond to the pre-action protocol letter. The offence alleged occurred in March 2021; the case has still not been heard on its merits.

Outcome

The appeal was dismissed. The constitutional claim — alleging breach of the respondent's rights to equality before the law and to a fair hearing under sections 4(b) and 5(2)(e) and (h) of the Constitution — was also permitted to proceed, the Board finding its connection to the judicial review grounds sufficiently close to resist a strike-out application.

The case will return to the domestic courts for a substantive hearing.