Allin Durand v (1) Superintendent of Prisons (2) Attorney General of Anguilla

JurisdictionAnguilla
Judge‘Henry, J.’
Judgment Date01 July 2022
Neutral CitationAI 2022 HC 005
Docket NumberAXAHCV2019/0047
CourtHigh Court (Saint Christopher, Nevis And Anguilla)
In the Matter of the Prison Regulations, RRA. P75-1 (Prison Act, RSA c. P75); Code of Discipline for Prison Officers
In the matter of the Anguilla Constitution Order 1982, sections 1 and 9
BETWEEN
Allin Durand
Claimant
and
(1) Superintendent of Prisons
(2) Attorney General of Anguilla
Defendants

AXAHCV2019/0047

THE EASTERN CARIBBEAN SUPREME COURT ANGUILLA

Appearances:

Ms. Merlanih Lim of counsel for the claimant.

Mr. Dwight Horsford, Honourable Attorney General, with him Mrs. Nakishma Rogers-Hull and Mr. Theon Tross for the defendants.

DECISION ON ASSESSMENT OF DAMAGES
INTRODUCTION
‘Henry, J.’
1

Mr. Allin Durand is employed as a prison officer in the service of the Government of Anguilla. On March 15 th, 2019, he was charged by the Acting Superintendent of Prisons (Acting Superintendent) with the offences of breach of confidence and discreditable conduct contrary to sections 14(1) and 14(2) of the Prison's Code of Discipline. She suspended him from duty on April 8 th, 2019, with full pay and referred the charges to His Excellency the Governor Mr. Tim Foy for determination.

2

Mr. Durand protested his suspension and referral of the charges to the Governor for hearing. He received letters from the Governor informing him that it was his intention to proceed with the hearing. He invited Mr. Durand to indicate whether he admitted or denied the charges and to advise of the names of potential witnesses. Mr. Durand initiated Judicial Review proceedings in the High Court against the Superintendent of Prisons (‘Superintendent’) and the Honourable Attorney General for declarations that the procedure adopted in respect of the proposed disciplinary proceedings were unlawful, procedurally improper and in breach of his right to natural justice; for damages, punitive damages, and costs.

3

His application for leave to seek judicial review 1 was initially dismissed. On appeal, leave was granted for him to seek judicial review 2. At the hearing before another judge, the defendants having conceded that the disciplinary and hearing processes were characterized by procedural errors and breach of law, judgment was entered 3 for Mr. Durand. Declaratory orders were made vindicating his claim that the disciplinary proceedings were procedurally defective, contrary to law and in breach of his constitutional rights to protection of the law and due process. Deadlines were stipulated by which the parties were to file submissions and legal authorities for assessment of damages and costs. The

assessment was originally scheduled to take place on April 15 th, 2021, but was adjourned due to interlocutory proceedings which occasioned an appeal to the Court of Appeal
4

The assessment hearing was conducted on May 6 th, 2022. Mr. Durand's affidavit testimony and that of his witness Mr. Carl Palmer were received. They were not cross-examined. Mr. Durand contended that the actions by the Acting Superintendent and the Governor caused him irreparable loss of reputation, hardship and emotional and physical distress which is ongoing. He seeks general and vindicatory damages in the global sum of USD$300,000.00 and prescribed costs of USD$30,000.00.

5

The Superintendent and the Honourable Attorney General submitted that the defendants did not publicize Mr. Durand's suspension or any reasons for his suspension. They contended that Mr. Durand was suspended on full pay, suffered no pecuniary loss or reputational harm by the actions or inactions of the Superintendent or the Governor and therefore any award in damages should be nominal and costs if any, should be assessed not prescribed.

Issues

6

The issues are: -

  • 1. Whether Mr. Allin Durand is entitled to recover damages and if so, how much; and

  • 2. On what basis should costs be awarded if any, and in what amount.

ANALYSIS
Issue 1 – Should damages be awarded to Mr. Durand?
7

By order of court dated 9 th October 2020 and entered on 11 th November 2020, the learned judge ordered: -

  • ‘1. …

  • 2. Judgment is granted in favour of the Claimant … as follows: -

    • 1) A Declaration is hereby granted that the decision made on 8 th April 2019 by the Acting Superintendent of Prisons Kerrice Saunders Lake-Banks, to refer the disciplinary charges laid against the Claimant pursuant to sections 2(a)(i) and 2(g) of the Code of Discipline for Prison Officers, Prison Regulations, RRA P75-1 (the “Code”) (the “First Decision”, was contrary to the provisions of sections 5 and 7 of the Code and further in breach of the Claimant's rights to protection of the law and to natural justice contrary to sections 1 and 9 of the Anguilla Constitution Order 1982, and therefore unlawful and invalid.

    • 2) A Declaration is hereby granted that the decision made on 8 th April 2019 by the Acting Superintendent of Prisons Kerrice Saunders Lake-Banks, to suspend the Claimant from his duties at Her Majesty's Prison (the “Second Decision”), Anguilla was contrary to the provisions of section 14 of the Code and in breach of the Claimant's rights to protection of the law and to natural justice contrary to sections 1 and 9 of the Anguilla Constitution Order 1982, and therefore unlawful and invalid.

    • 3) A Declaration is hereby granted that the decision made by His Excellency the Governor of Anguilla, Tim Foy, to conduct a hearing with the Claimant in respect of the charges laid by the Superintendent of Prisons against the Claimant pursuant to sections 2(a)(i) and 2(g) of the Code (the “Third Decision”), was contrary to the provisions of sections 5, 7, 9, 10 and 11 of the Code and in breach of the Claimant's rights to protection of the law and to natural justice contrary to sections 1 and 9 of the Anguilla Constitution Order 1982, and therefore unlawful and invalid.

  • 3. Costs and damages to be assessed if not agreed within 21 days of today's date.

  • 4. The Claimant shall file and serve submissions and authorities on or before 6 th November 2020.

  • 5. The Defendants shall file and serve submissions and authorities in reply on or before 13 th November 2020.’

8

It is manifest from the Order that the learned judge had made certain findings as to liability and the reliefs to which he found Mr. Durand to be entitled. As to costs and damages, there is no doubt that he found that damages flow from the declaratory orders. I make the observation that each declaration was made in respect of constitutional breach of sections 1 and 9 of the Anguilla Constitution. They respectively make provision to secure the protection of the law for each person who finds himself in conflict with the law. Among other things, it establishes the right to a fair hearing before an independent and competent tribunal constituted in accordance with applicable law.

9

Mr. Durand's evidence is that he wrote numerous letters to the Governor over a period of 4 months regarding his unjustified and unlawful suspension. He asserted that despite the clear provisions of the Prison Regulations His Excellency in response informed him that the suspension was lawful based on legal advice received. Mr. Durand claimed that he has been made to suffer the consequences of the Governor's repeated directive that he attends before him to answer the charges, failing which they would be heard in his absence. He averred further that the litigation has caused him significant distress and expense which could have been avoided had the defendants accepted from the inception that they had erred.

10

Mr. Durand asserted that irrespective of the fact that he has received his full pay while on suspension, his professional standing and esteem have been negatively impacted by the suspension particularly within the context of life in a small community such as Anguilla where everyone knows everyone else. He stated that one's reputation is paramount and fair value must be placed on his reputational loss as a result of the defendants’ actions. He asserted further that he has been treated by his colleagues and members of the wider public with a great deal of ill-feeling and ill-will. He indicated that he suspects that his prison workmates view him with great disdain and consider him to be disreputable for being out on suspension with full pay while they have to show up to work every day.

11

By way of example, Mr. Durand recounted an incident involving the cook from his place of employment who, in or around September 2019 accosted him in a public place, taunted him in the presence of bystanders and then proceeded to laugh along with the bystanders. According to him the cook told him: -

“Conning Durand! You think you getting away this time! Kerrice and Walker [referring to the Acting Superintendent of Prisons and her Acting Deputy] have you by the balls this time. You playing lawyer trying to outsmart the system and staying home doing nothing with full pay while we have to buss our asses at the same pay as you but that will come to an end. They will finish you off, then deport your ass back to Dominica on the Banana Boat. Think you can just come Anguilla and use Anguillans! This time they have you. No escape this time. Saunders and Walker have you by the balls this time.”

12

Mr. Durand averred further that he was quite embarrassed and left the area to avoid any issues with the cook because he was feeling uncomfortable. Notwithstanding, he stated that the co-worker had some parting words for him and shouted out as he was heading to his vehicle “Best you don't come back to the prison. Nobody up there like you, pardner. Go back to Dominica.” Mr. Durand stated that he has had similar comments directed towards him by fellow prison officers and civilians alike.

13

I make the observation that the statements allegedly made to Mr. Durand appear to concern certain grievances that his colleagues have about him receiving full pay while on suspension for an extended period of time. Mr. Durand makes no direct connection between those statements and the conduct...

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