Pan Trinbago Inc. v The National Carnival Commission of Trinidad and Tobago

JurisdictionTrinidad & Tobago
CourtHigh Court
JudgeKokaram, J.
Judgment Date14 December 2017
Neutral CitationTT 2017 HC 327
Date14 December 2017
Docket NumberCV2017-00468

High Court

Kokaram, J.

CV2017-00468

Pan Trinbago Inc.
and
The National Carnival Commission of Trinidad and Tobago
Appearances:

Mr. Ramesh Lawrence Maharaj SC leads Mr. Ronnie Bissessar instructed by Ms. Saskia Sarnial for the Claimant.

Mr. Douglas Mendes SC leads Mr. Rishi P.A. Dass instructed by Mr. Dharmendra Punwasee for the Defendant.

Cases referred:

Haynes Plumbing 1990 Ltd. v. The Water and Sewerage Authority of Trinidad and Tobago CV 2011-03419

R (Nadarajah) v. Secretary of State for the Home Department [2005] E.W.C.A. Civ. 1363

Paponette v. The Attorney General of Trinidad and Tobago [2010] U.K.P.C. 32

United Policy Holders Group and others v. Attorney General of Trinidad and Tobago [2016] U.K.P.C. 17

Aucklnd Harbour Board v. R [1924] A.C. 318

Stretch v. United Kingdom [2003] 38 E.H.R.R. 196

R v. North East Devon Health Authority ex p. Coughlan [2001] Q.B. 213 .

Legislation:

Section 5(3) of the Judicial Review Act

Administrative law - Judicial review — Legitimate expectation — Whether the claimant had a legitimate expectation to retain the responsibility for ticket sales at Panorama — Whether the defendant's interference with the claimant's legitimate expectation was proportionate and fair in the circumstance — Whether defendant's decision was ultra vires, illegal, improper and unreasonable — Whether the defendant had the authority to change the Cabinet Policy of 1997 — Whether the defendant is entitled to act contrary to the legitimate expectation — Whether the expectation was illegitimate — Whether overriding public interest factors — Whether the consultation engaged by the parties was adequate — Macro-economic and macro-political issues.

INTRODUCTION-OPENING CUE
Kokaram, J.
1

This claim for judicial review concerns the relationship between Pan Trinbago Incorporation (Pan Trinbago) and National Carnival Commission of Trinidad and Tobago (NCC) in the management of Panorama and the legitimate expectations of Pan Trinbago to certain rights or benefits that may have arisen and which impact their dealings with one another.

2

Pan Trinbago contends that it has a legitimate expectation to retain the responsibility for ticket sales at Panorama. The legitimate expectation is alleged to have arisen from a Cabinet Policy established in 1997 and a settled practice with the NCC as the overall manager of Carnival. The claim calls into question whether NCC's interference with such an expectation, at the 2017 edition of Panorama, was proportionate and fair in all the circumstances.

3

Panorama is a premiere Carnival event and the culmination of weeks of work to deliver a cultural product on a national stage instilling great pride and reverence of this indigenous art form.

“Now the steelband tent will become a cathedral and these young men priests. They will draw from back pockets those rubber-tipped sticks which they had carried around all year, as the one link to the music that is their life, their soul, and touch them to the cracked faces of the drums.”

–Earl Lovelace “The Dragon Can't Dance”

4

The iconic steelpan is more than a national musical instrument. Referred to colloquially as “pan”, it is a symbol of equality, creativity and ingenuity. The notes on the pan are so varied it can play any genre of music from classical music to contemporary soca. A pan yard has become its own community and Panorama the ultimate showcase of talent, joy and freedom. The pan is revered and immortalised by artists, writers, poets, historians and social scientists.

5

Hand in hand with pan's future is our Carnival- a delightfully confused mixture of generational wisdom and expression of self and identity. These values, the intangible and immeasurable joy from these festivals for most or many in this jurisdiction transcends economics, are deeply societal and as Lovelace points out, spiritual.

6

The pan movement emerged from a deep history of empowerment. Social rebellion inherent in this movement also brought with it a sense of pride of owning its future and creating a sense of space and belonging in a migrant land. From a socio-historical perspective any negative interaction with the State resonates with a past history of subjugation by colonials over the governed and erupts into a fear that the struggle for freedom is under threat.

7

The sweetest melody may float from the pan. Its future should be secured for generations to come. But the controversies surrounding it evident in this litigation by no means pays homage to its rich legacy. From the evidence in this case it seems that as a financial product, pan is in in need of financial care. This is a matter of policy for policy makers but usefully sets the backdrop to a controversy over money in the development of pan's future, its role in Carnival and national development. But disputes such as these only highlight unnecessary controversies for pan and Carnival's future.

8

Should the control of the sale of tickets and collection of revenue from selling tickets for Panorama (or pan events) be vested in the NCC, the body in charge of the regulation of Carnival or vested in Pan Trinbago, the body responsible for pan? There is an obvious overlap in the functions and responsibilities of these two bodies that makes co-operation between them vital to secure pan's future. These questions may fall into a blind spot of macro-political or macro-economic policy issues which usually fall outside the Court's scrutiny. That is, however, not to say that the Court will permit administrative fairness to be jettisoned in the pursuit of such policies.

9

But this dispute should never have reached this stage.

10

The parties promised this Court an early resolution of this claim. A trial date first in July 2017 then in October 2017 was rescheduled on the representation by both parties that a settlement was imminent. Ironically, in a case about legitimate expectations, both parties disappointed this Court's expectation that a consent order would have been presented to it in November 2017. This has left us scrambling at the last moment to have a judicial determination of this matter on this Court's insistence on the heels of Carnival shy of two months away. Perhaps this is endemic of our Carnival culture, but these parties need to get serious about the use of their funds rather than resort to expensive litigation without proper negotiations and discussions. This by no means is an admonishment of the commendable legal representation obtained by both parties in this matter. But this would not be the only source of conflict between two bodies whose objects clearly overlap and until they establish their own internal mechanisms to resolve these conflicts they will continue to waste their stakeholders' resources in unnecessary litigation.

11

Policies and practices set by administrators not unusually will change to meet new demands. The only requirement of the law as developed under the principle of legitimate expectation is that promises made to groups and settled practices they enjoy should not be frustrated unless there is an overriding public interest. The touchstone for a reversal of policy is fairness, not that the policy could never be altered.

12

In this claim for judicial review, Pan Trinbago, complains about the decision of NCC made by letters of 24th and 25th January 2017 to collect and retain the proceeds of sales of tickets for the National Panorama Semi-Finals (small, medium and large bands) on Sunday 12th February. 2017 and the National Panorama Finals (medium and large bands) on Saturday 25th February, 2017. This event has passed but conceivably the controversy may raise its head in Panorama 2018. If indeed there is no intention to perpetuate that decision then really this fight is over money that has already been paid over to NCC.

13

By its first letter NCC indicated to Pan Trinbago that it will manage the ticket sales and all related activities with respect to Panorama 2017 and Pan Trinbago was directed to “cease and desist from representing to the public any jurisdiction over these matters”. By its second letter NCC indicated that “it will be responsible for the printing, marketing, advertising, distribution and collection of revenue” for the semi-finals and finals of Panorama 2017.

14

This was the first time Pan Trinbago allegedly heard of this and they complain that such a decision not only changes a policy and established practice but unfairly alters it without any consultation with them.

15

Since 1998, it was an established practice that Pan Trinbago was responsible for all ticketing and was entitled to retain the proceeds of all ticket sales from Panorama events. This was as a result of Cabinet Minute No. 2007–8/7/97 dated 14th August 1997 and this practice continued without demur until NCC's letter of 24th January 2017.

16

The narrow issues to be decided in these judicial review proceedings are:

  • a) whether this expectation (whether to a procedural or substantive benefit) is legitimate having regard to the lawful purposes to which NCC's funds are appropriated;

  • b) whether there is a sufficient overriding interest to justify a departure from the settled practice; and

  • c) If so, whether there was adequate consultation with Pan Trinbago to effect this change.

17

To resolve these issues involves analysis of the roles the parties play in the management of Carnival in particular, Panorama; the true intent and effect of the Cabinet decision of 1997; the conduct of the parties in relation to the conduct of Panorama for the last twenty (20) years and more importantly, the legitimacy of the claims for either body to assume such control over these proceeds of Panorama. Ultimately, the claim calls for a balancing of the competing values of preserving the freedom of decision makers on the one hand and ensuring fairness to the holders of legitimate...

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