Court of Appeal dismisses defence chief’s bid to block judicial review

THE Court of Appeal has dismissed an appeal by the Chief of Defence Staff challenging a High Court decision that allowed a former soldier to pursue judicial review over the military’s refusal to roster him for duty after his discharge was ruled unlawful.

In a unanimous decision delivered by Justice of Appeal Nolan Bereaux, with Chief Justice Ronnie Boodoosingh, the court held that the High Court judge was not “plainly wrong” to grant permission for judicial review, clearing the way for Devon Edwards’ claim to proceed.

The appellant, the Chief of Defence Staff, sought to overturn an order made by Justice Joan Charles on June 24, 2024, which refused to set aside leave granted to Edwards to challenge the defence force’s decision not to re-engage and roster him following a prior court ruling that declared his discharge illegal.

Edwards, a soldier in the defence force, was discharged in May 2014 under a “zero tolerance” policy after he was charged with criminal offences. In a separate constitutional action decided in June 2020, then-Justice James Aboud ruled that the policy, as applied to Edwards, was unlawful, ultra vires the Defence Force Act and in breach of several of his constitutional rights. Aboud awarded Edwards $15,000 in damages but made no order for reinstatement.

After the Chief of Defence Staff declined, by letter dated September 22, 2020, to roster Edwards for duty, Edwards sought judicial review to challenge that refusal. The defence chief argued that Edwards had failed to disclose material facts, had abused the court process and was barred because reinstatement had been considered and rejected in the earlier case.

In dismissing the appeal, Bereaux said the threshold for granting leave for judicial review is low and that such decisions should be overturned only sparingly. He found that Justice Charles was entitled to conclude that Edwards had an arguable case and had not breached his duty of candour.

“The issue of reinstatement was not sought as a substantive remedy nor finally determined” in the earlier constitutional proceedings, Bereaux said, adding that the discussion of reinstatement before Aboud arose only in the context of assessing damages.

The court also rejected claims of delay, noting that Edwards’ cause of action arose only after the defence chief formally refused to roster him following the 2020 ruling.

As a result, the appeal was dismissed, and the Chief of Defence Staff was ordered to pay Edwards’ costs, to be assessed by the registrar if not agreed.