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Attorney General of Trinidad and Tobago v Sobers (Trinidad and Tobago)
Factual and Procedural Background
On 11 November 2006 a disturbance occurred in the remand section of The Prison. A joint operation by officers drawn from The Prison Service, The Police Service and The Defence Force used force to quell the disorder, and a number of inmates were injured. One inmate (“Appellant 1”) issued assault and battery proceedings on 11 October 2010; a further 53 prisoners, including a second inmate (“Appellant 2”) and another claimant (“Other Claimant”), later filed parallel claims.
On 25 July 2011 the parties and Judge Jones entered a consent order (“the test-case agreement”) providing that: (i) all 54 claims would be tried together for liability; (ii) three representative claimants would stand as test cases—Appellant 1 (hospital treatment), Appellant 2 (prison-infirmary treatment) and Other Claimant (no medical record); (iii) liability findings in each test case would bind the remaining claimants in the same category.
A liability trial took place on 22–23 November 2011. The claimants called the three test-case inmates; the respondent (“The Attorney General”) called three senior officers. By judgment of 9 July 2012, Judge Jones held that unreasonable force had been used on Appellant 1 and Appellant 2 but dismissed Other Claimant’s case for lack of proof of injury.
The respondent appealed on factual grounds; Other Claimant cross-appealed. No party challenged the consent order. On 22 October 2021 The Court of Appeal (Judges Bereaux, Rajkumar and Kokaram) dismissed the appeals but, of its own motion, queried the rationale for applying the test-case agreement to the two successful appellants. After further submissions, a majority (Judges Rajkumar and Bereaux) set aside the consent order in relation to Appellant 1 and Appellant 2, ordering individual trials for the 18 claims linked to them. Judge Kokaram dissented. With leave, the appellants appealed to The Board.
Legal Issues Presented
- Whether The Court of Appeal possessed jurisdiction to set aside part of the test-case agreement.
- Whether it had jurisdiction to set aside the consent order embodying that agreement without any application or leave to appeal against the order itself.
- If jurisdiction existed, whether it was exercised properly in the circumstances.
Arguments of the Parties
Appellants’ Arguments
- The Court of Appeal lacked jurisdiction under section 39 of the Supreme Court of Judicature Act (“the Act”) to disturb a consent order that had not been appealed.
- Even if jurisdiction existed, the discretion should not be exercised because the parties had relied on the order for over a decade, and reopening liability would prejudice fair trial prospects and undermine finality.
Respondent’s Arguments
- Section 39 of the Act empowered the appellate court to ensure liability was fairly determined; the test-case procedure for Appellant 1 and Appellant 2 was irrational because their circumstances were fact-specific.
- Justice required intervention to prevent the State from being bound by findings based on “arbitrary, illogical and irrelevant considerations.”
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hannays v Baldeosingh [1992] 1 WLR 395 | Limits on appellate power under section 39 of the Act; orders must relate to matters the lower court could have decided. | Applied as the primary authority showing that the appellate court could not make orders beyond the scope of the first-instance application. |
| Caribbean Welding Supplies Ltd v Attorney General [2024] UKPC 7 | Re-affirmation of Hannays on section 39 jurisdiction. | Cited to confirm the contemporary consistency of the jurisdictional limits. |
| Sugden v Lord St Leonards (1876) 1 PD 154 | Historical explanation of rule equivalent to section 39(3): avoiding prejudice from un-appealed interlocutory orders. | Used to interpret section 39(3) narrowly. |
| Pannone LLP v Aardvark Digital Ltd [2011] EWCA Civ 803 | Weight the court should give to agreements embodied in consent orders. | Supported the view that courts should be slow to disturb procedural agreements. |
| Ropac Ltd v Inntrepreneur Pub Co (CPC) Ltd [2001] L & TR 93 | Extension-of-time applications and respect for party agreements. | Cited to emphasise that overriding party autonomy requires unusual circumstances. |
| Baker v The Queen [1975] AC 774 | Practice against raising new points of law for the first time on final appeal. | Invoked to refuse a late argument that the agreement was not contractual. |
| AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 | Fundamental importance of finality after trial. | Used to underscore why reopening the consent order was contrary to the public interest. |
| FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 | “The trial is the first and last night of the show” – finality principle. | Quoted within discussion of finality. |
| Soogrim v Singh (High Court, 2017) | Local authority on weight to be given to parties’ agreements. | Referred to when discussing proportionality and economy in litigation. |
Court's Reasoning and Analysis
Step 1 – Statutory jurisdiction: Applying Hannays v Baldeosingh, the Board held that section 39(1) permits the appellate court to make only such orders as the trial court could have made on the application before it. At the conclusion of the liability trial the trial judge could not have set aside the prior consent order because neither party had applied to do so and no grounds (mistake, change of circumstances) were alleged. Therefore, The Court of Appeal lacked jurisdiction to do so.
Step 2 – Section 39(2) and (3): Those subsections do not expand jurisdiction beyond the subject-matter of the appeal. The real controversy on appeal concerned factual liability determinations, not the validity of the consent order. Accordingly, section 39(2) was inapplicable, and the interlocutory nature of the consent order meant section 39(3) did not assist.
Step 3 – Discretionary factors: Even assuming jurisdiction, the Board ruled that disturbing the consent order contravened principles of party autonomy, proportionality and finality. Drawing on Pannone and Ropac, the Board emphasised that courts should be “slow to depart” from agreements that structure litigation. The majority in The Court of Appeal failed to weigh these factors or consider the practical impossibility of re-trying events 16 years old.
Step 4 – Public-interest considerations: Citing AIC v FAAN and FAGE v Chobani, the Board stressed that reopening concluded issues undermines the efficient administration of justice and risks unfairness.
Step 5 – Conclusion: The appellate majority had no jurisdiction under the Act to set aside the consent order; alternatively, its exercise of discretion was legally and factually flawed. Judge Kokaram’s dissent, which respected the agreement and warned against “re-investigating the wisdom” of settled procedural choices, was endorsed.
Holding and Implications
HOLDING: The Board ALLOWED the appeal, reinstating the consent order and test-case agreement for Appellant 1 and Appellant 2.
Implications: The decision re-asserts strict limits on an appellate court’s power to disturb consent orders absent a direct challenge and clarifies that section 39 of the Act cannot be used to rewrite party-driven case-management arrangements. It underscores the public interest in finality, proportionality and respect for negotiated litigation frameworks; no new legal doctrine was created, but existing principles were firmly reaffirmed.
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