IN THE SUPREME COURT OF BELIZE A.D. 2009 CLAIM NO. 1042 …
Transcript of IN THE SUPREME COURT OF BELIZE A.D. 2009 CLAIM NO. 1042 …
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IN THE SUPREME COURT OF BELIZE A.D. 2009
CLAIM NO. 1042 OF 2009
BETWEEN: ATTORNEY GENERAL CLAIMANT
AND
1. JOSE ALPUCHE FIRST DEFENDANT 2. KEITH ARNOLD SECOND DEFENDANT 3. LORD ASHCROFT, KCMG THIRD DEFENDANT 4. DEAN BOYCE FOURTH DEFENDANT 5. ALLAN FORREST FIFTH DEFENDANT 6. PETER GAZE SIXTH DEFENDANT 7. PHILLIP OSBORNE SEVENTH DEFENDANT 8. EDIBERTO TESUCUM EIGHT DEFENDANT 9. PHILIP ZUNIGA NINTH DEFENDANT 10. DUNKELD INTERNATIONAL
INVESTMENT LIMITED TENTH DEFENDANT
Ms. Lois Young, SC, for the respondentclaimant. Mr. Nigel Flemming QC, and Mr. Eamon Courtenay SC, for the applicant
Dunkeld International Company Ltd.
AWICH CJ Ag.
15.2.2011 D E C I S I O N
1. Notes: Civil Practice and Procedure: bias and recusal; whether an application for recusal of a judge should be made to the judge or another judge; actual bias and apparent bias; an application by a party for recusal of a judge on the ground that he had predetermined the final outcome of the case in a decision in an interlocutory application; applicant’s belief that judge showed predisposition against the applicant; the rule for automatic recusal – a party in own cause, and pecuniary and proprietary interest which are not de minimis in the outcome of the case. The rule for
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determining appearance of bias whether the fair minded and informed observer having considered the facts, would conclude that there was a real possibility that the tribunal (judge) was bias. Bias is also a Constitutional question – s: 6 (2) and (7) of the Constitution which guarantees a fair trial by independent and impartial court.
2. This decision is in the application dated 13.12.2010, by Dunkeld
International Ltd., (Dunkeld). The application sought court order that:
“Mr. Justice Sam Lungole Awich be excused from taking part in any
way in the disposal of this case”. The judge referred to is myself.
The ground for the application was, in my summary, that on 5.2.2010,
I handed down a decision in which there were three unqualified
statements which “constituted determinations” of the claim at that
stage against Dunkeld, and I granted an interim injunction order
without evidence, and in wider terms than applied for I, “displayed a
predisposition against Dunkeld”.
3. The decision complained about was a joint decision in two
interlocutory applications heard on 26.1.2010, between the Attorney
General and ten respondents – defendants: Jose Alpuche, Keith
Arnold, Lord Ashcroft, Dean Boyce, Allan Forest, Peter Gaze, Phillip
Osborne, Ediberto Tesucum, Phillip Zuniga and Dunkeld International
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Investment Ltd. Upto the point when the interlocutory decision was
rendered on 5.12.2010, Dunkeld, Allan Forrest and Peter Gaze had not
responded to the substantial claim, or an interim order made on
29.12.2009, on an application without notice to the defendants, or to
the interlocutory application of the Attorney General on notice in
which the order of 5.2.2010 was made.
4. In this application for recusal of myself, Dunkeld is the only
applicant. Learned counsel Mr. Nigel Fleming Q.C., and learned
counsel Mr. Eamon Courtenay S.C., represent Dunkeld. Mr.
Courtenay had represented the other seven defendants (excluding
Dunkeld, Allan Forrest and Peter Gaze) in the proceedings at the early
stage. The claim against the seven has since been discontinued. Both
Counsel have since been instructed to represent Dunkeld.
5. The grounds for this application were stated in the form of a
submission by counsel, I state below only the parts that may be
regarded as grounds; they are:
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1. on 5 February 2010, Mr. Justice Awich handed
down an interlocutory decision in which he made
three determinations concerning the defendants
(including Dunkeld), the determinations were
unqualified and constituted final determinations of
the claim;
2. Mr. Justice Awich has predetermined and
concluded, without the tenth defendant having
appeared before him, and at a preliminary, interim
stage of the proceedings, that the tenth defendant
brought an “unjust” arbitration claim, the
commencement of the arbitration was “oppressive,
and was intended to overburden the Government
financially and perhaps in regard to professional
personnel, and that the tenth defendant was
concerned foremost with not disclosing identity;
3. Mr. Justice Awich granted an ex parte injunction
order and an interim injunction order after an inter
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partes hearing without any evidentiary basis for so
doing, the grant of the inter partes injunction was
aberrant;
4. the interlocutory injunction order granted by Mr.
Justice Awich “is in significantly wider terms than
the terms of the injunction applied for by the
claimant, the changes were unilaterally made by
Justice Awich without any opportunity being
afforded to the parties to oppose the more far
reaching injunction”;
5. the foregoing circumstances “give rise to a
reasonable apprehension or suspicion on the part
of a fairminded and informed observer that there
is a real danger that Mr. Justice Awich lacks
impartiality in the instant Claim”.
6. The application for recusal was supported by an affidavit sworn by
Angela Entwistle, whose address was given as: Carpe Diem, Unit 301,
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Grace Bay Road, Provincales, Turks and Caicos Islands, British West
Indies. Her affidavit stated the following: (1) “Justice Awich granted
an ex parte injunction order in favour of the claimant in the absence of
evidence, “the granting of the injunction order was described by the
Court of Appeal as aberrant, and no reasonable judge ought to have
granted it”; (2) the judge did not attend to the application for the
discharge of the injunction in a timely manner; (3) on 5.2.2010, Mr.
Justice Awich on hearing an application of seven of the defendants on
notice, and an application of the claimant, on notice, granted an
interim injunction order “in the absence of evidence”; (4) without an
application, Mr. Justice Awich granted injunction order “in wider
terms…”, and (5) on 5.2.2010, Mr. Justice Awich rendered a decision
concerning the defendants in which he made” three statements which
constituted final determinations. Ms. Entwistle set out the statements
as follows:
“I would have to stress logical reasoning in order to say
that the claim intended at the UNCITRAL Arbitration is
not a repetition of those three claims in the Supreme
Court of Belize. In my respectful view the intended
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arbitral proceedings are vexatious for repetition of
claim, and unjust.” (Decision, para 51, emphasis added).
“It is my view that Dunkeld has chosen to bring the
Arbitration at this time to overburden the Government
financially and perhaps in regard to professional
personnel. The commencement of the arbitration is, in
my respectful view oppressive for the costs that could
avoided”. (Decision, para 52).
“Further still, the evidence shows that compensation for
the acquisition of the shares is intended by the
Government of Belize, but that Dunkeld has not provided
the particulars of its claim or even made any direct
claim. Further still, the evidence shows that the ten
respondents are first and foremost concerned with not
disclosing identity, other than the question of reasonable
compensation within reasonable time.”
7. Ms. Entwistle then recited her opinions which may be summed up
that, Mr. Justice Awich in his decision on 5.2.2010, in the
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interlocutory applications made final determinations of the issues in
the claim against the defendants, (including Dunkeld), the judge
“displayed a predisposition against Dunkeld”.
8. Background.
The background leading to the application is this. By a fixed date
claim form dated 23.12.2009, the Attorney General brought a claim
against the applicant Dunkeld, and the nine other defendants. He
claimed against the defendants several declarations, the two main ones
were: that the Supreme Court of Belize was the proper forum for
deciding compensation relating to compulsory acquisition of certain
properties and a business known as Belize Telemedia Ltd; and that the
commencement of an international arbitration proceedings in London,
U.K., by Dunkeld in association with the other defendants under an
agreement between the Government of Belize and the Government of
the United Kingdom of Great Britain was oppressive, unconscionable
and an abuse of court process. Attorney General went on to claim a
permanent injunction order restraining all the defendants from,
“taking steps in the continuation or the prosecution” of the
international arbitration.
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9. Based on the above claim, Attorney General applied to court, (myself
sitting), as a matter of urgency without notice to the defendants, and
obtained an interim injunction order on 29.12.2009, returnable on
26.1.2010, when the application would be heard on notice. I also
granted permission to Attorney General to serve the claim, the court
order and affidavit on Dunkeld outside Belize.
10. Seven of the defendants, excluding Dunkeld, Allan Forrest and Peter
Gaze applied for a court order discharging the interim injunction
order. That application and the application of the Attorney General
for an order to continue the interim injunction order were heard
together. I granted the application of the Attorney General, and
refused that of the seven defendants. I made the interim injunction
order of 5.2.2010, restraining the defendants from proceeding with the
international arbitration, until determination of the claim or until
further order of court. My decision was appealed by the seven
defendants who were represented by counsel at the hearing of the two
applications made on notice. Their appeal was allowed and the
interlocutory injunction order made on 5.2.2010, against them was
discharged.
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11. The interim injunction order made on 5.2.2010, applied to Dunkeld,
Allan Forrest and Peter Gaze as well, although they were not present
at the inter partes hearing. On the assumption that they might have
not received actual notice of the hearing of the application of the
Attorney General, I gave permission to the three defendants to apply
to have the interim order discharged to the extent that it applied to
them.
12. Then by Notice of Discontinuance dated 29.9.2010, Attorney General
withdrew the substantive claim against the seven defendants who had
appealed successfully against the order made on 5.2.2010. Dunkeld,
Allan Forrest and Peter Gaze are now the only defendants in the
substantive claim.
13. Dunkeld has since the order made on 5.2.2010, made an application
dated 20.12.2010, for court order setting aside service of the
substantive claim of the Attorney General on itself. It desires that I
recuse myself in the application and the rest of the proceedings.
Pursuant to that desire Dunkeld has made this application for a court
order that: “Mr. Justice Sam Lungole Awich be excused from taking
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part in any way in the disposal of this case”. It is this application that
I have to decide.
14. Determination.
The law.
First, I must acknowledge the courtesy offered to this court by Mr.
Fleming at the commencement of his submission. He stated that,
“there are a few more difficult applications for an advocate to make
than one for recusal”. I assume that Mr. Fleming had fully considered
the instruction of his client to make the application for recusal, and
had come to his own conclusion that there was sufficient basis for
making the application, so that he was professionally obliged to do so.
15. It has been said in many cases that counsel should not make an
application for recusal simply because his client has asked him to do
so. An example is what the Court of Appeal (England) stated in a
joint judgment in the case, Arab Monetary Fund v Hashim and
Others The Times 4 th May 1993. The Court stated:
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“Just as inference of apparent bias is not to be lightly
drawn, so such a charge is not to be lightly made. That
remains true even where, as here, any suggestion of
actual bias is expressly disclaimed. Cases may
unhappily arise in which evidence of bias or apparent
bias is so clear that an application for the discharge or
removal of a judge is satisfied. But such an application
is never justified simply by the instructions of client.
Counsel’s duty to the court and to the wider interest of
justice, in our judgment requires that he should not lend
himself to making such an application unless he is
conscientiously satisfied that there is material upon
which he can properly do so”.
16. Mr. Justice Ira Rowe, President of the Court of Appeal of Belize,
sounded the same warning in Attorney General of Belize and
Another v Belize Food and Transportation Ltd., Civil Appeal No. 9
of 200, in these words:
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“It is my view that a trial judge must resist the temptation
to recuse himself from a case in which he is properly
qualified to try. If he does not take a resolute stand
against all improper attacks on his judicial integrity, the
way may become clear for a litigant or counsel to choose
his forum for trial by the simple strategy of a veiled
unspecified attack on the judge”.
17. Secondly, it was said in submission by counsel that the wording of the
application that: “Mr. Justice Sam Lungole Awich be excused from
taking part in any way in the disposal of this case”, was necessary
because it was intended to make the application before another judge.
A request to that effect had indeed been made to the Registrar who
had sought my advice. I advised that generally an application for
recusal should be made to the judge before whom the case is, and that
this application should not be treated any different. It is my view that
to allow an application for recusal to be made to another judge,
especially in a jurisdiction with few judges, would be to allow an
applicant to choose a judge.
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18. I have since come across a Privy Council judgment in the case of , His
Royal Highness Prince Jefri Bolkhiah v The State Development
Agency, Privy Council appeal No. 69 of 2006. It was a case from the
Malay State of Brunei Darussalam where the King, the brother of the
appellant prince, was the Head of State. The King exercised the
Executive power and Legislative power of State. The Prince was a
cabinet Minister. The claim against him was to enforce a settlement
agreement reached on a claim of misappropriation of funds of the
State Development Agency against him. The sum claimed was
US$14.8 billion. The Prince applied to the court for an order that the
claim be stayed until he was assured that the point of law issues he
raised would be tried by a judge other than any serving on the bench
of the High Court of Brunei Darussalam. His ground was that, “the
Chief Justice and the other judges of the High Court were disqualified
from adjudicating on the application of the State Development
Agency by an appearance of bias, alternatively because there could be
no fair trial”. The learned Chief Justice refused the application of the
Prince; and the Court of Appeal dismissed his appeal.
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19. On final appeal to the Privy Council, their Lordships posed the
question as to who should decide the question of recusal and answered
as follows:
“The common law has recognized that a judge may be
disqualified from adjudicating on a case where
eventhough no actual bias on his part is shown,
circumstances are such as to give rise to an appearance
of bias, that is, to an impression that the judge may be
influenced for or against one party for reason
extraneous to the legal or factual merits of the case. But
who is to judge whether such an appearance exists? The
answer is now clear. The court must judge. It must do so
having ascertained all the circumstances which bear on
the suggestion that the judge was (or would be) subject to
bias”.
The above quotation confirms my advice to the Registrar. The
judgment of Ira Rowe, P. in, A. G. v Belize Food and Transportation
Ltd. is a local authority for that rule.
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20. The applicant alleges actual bias as well as apparent bias against a
judge. Consideration of the question of actual bias in a set of
circumstances usually includes or ends up as consideration of the
question of appearance of bias, because of the difficulty in proving
actual bias. I shall consider actual, as well as appearance of bias in
this application.
21. Bias is a disposition of a judge towards one party to litigation
regardless of evidence, which causes the judge to decide the issue or
case partially in favour of the party. Several judgments do state what
bias is or what an impartial trial is. In Flaherty v National
Greyhound Racing Club Ltd. [2005] EWCA Civ. 117, the Court of
Appeal (England) stated that: “bias means a predisposition or
prejudice against one party’s case or evidence on an issue for reasons
unconnected with the merits of the issue.” In Regina v Gough [1993]
2 W.L.R. 883, Lord Goff stated that, “allegation of bias against a
justice or juryman means he was motivated by a desire unfairly to
favour one side or to disfavour the other”.
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22. Where actual bias has been proved a judge must recuse himself or his
judgment will be vitiated. Similarly where appearance of bias has
been proved, the judge must recuse himself or his judgment will be
vitiated.
23. Traditionally the question of bias on the part of a judge, magistrate or
tribunal has been pleaded and canvassed in court as a matter of the
Common Law; it is my view that it is also a constitutional question in
Belize, provided for in s: 6(2) and (7) of the Constitution, Cap. 4,
Laws of Belize. Subsection (7) States:
“(7) Any court or other authority prescribed by law for
the determination of the existence or extent of any civil
right or obligation shall be established by law and shall
be independent and impartial; and where proceedings for
such a determination are instituted by any person before
such court or other authority, the case shall be given a
fair hearing within a reasonable time”.
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24. The subsection guarantees, “independent and impartial” courts or
authority (tribunals), for the determination of the existence or extent
of any civil right or obligation in, “a fair trial”. The requirement for
an impartial court and a fair trial will not be met if the judge,
magistrate or member of a tribunal is “biased”, or as has been alleged
here, “has displayed a predisposition”, against a party, that is, if a fair
minded and informed observer would conclude that there was a real
possibility that the judge, magistrate or tribunal was bias.
25. The Common Law rule against bias (which includes appearance of
bias) came from the realization that for justice to obtain, there must be
public confidence in the administration of justice whether in a
tribunal, a magistrate’s court or a Superior Court. As early as 1852 in,
Dimes v Properties of Grand Junction Canal (1852) 3 H. L. Cas.
759, at page 793, Lord Campbell in the House of Lords declared that,
“the maxim that no man is to be a judge in his own cause should be
held sacred”. He explained that the maxim was not limited to a cause
in which the judge was a party, it also applied to causes in which he
had interest. The House of Lords proceeded to set aside orders which
had been made by the Lord Chancellor in an appeal case on the
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ground that he had substantial interest in the respondent company. In
the case, the Lord Chancellor had merely upheld the decision of the
ViceChancellor. Their Lordships stressed, however, that the Lord
Chancellor was not in the remotest degree influenced by his interest
when he made the orders on appeal.
26. The maxim, nemo judex in causa sua, that is, no man is to be a judge
in his cause, relied on in the Properties of Grand Junction Canal
case, is the basis of the rule against bias. Together with the maxim,
audi alteram partem, that is, hear the other side, are appropriately
referred to as the rules of natural justice. They provide the minimum
standard of procedural fairness, and are the better known procedural
features that inspire public confidence in courts.
27. Automatic recusal.
At very early stage, it was recognized notably in, the Properties of
Grand Canal Junction in 1852, that it was important to declare
unequivocally that where the judge was a direct party to court
proceedings or had direct pecuniary interest in the outcome of the
proceedings, bias was presumed, he was to recuse himself. Reg v
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Rand (1866) L.R. 1 Q B. 230, followed in 1866, where it was said
that “any direct pecuniary interest, however small, in the subject of
inquiry does disqualify a person from acting as a judge in the
matter”. The rule was referred to as automatic disqualification rule.
Then in, R v Camborne Justices, ex parte Pearce [1955] 1 Q.B. 41,
the rule was extended from pecuniary to other proprietary interests,
however small. By 1994 in, Inner West London Coroner ex parte
Dallagio [1994] 4 All E.R. 139, the rule had developed to exclude
pecuniary or proprietary interest considered too small, the so called de
minimis interest. That was confirmed in Lockerbail (UK) Ltd. v
Bayfield Properties Ltd and Another, and Two Other Cases [2000] 2
W.L.R 870. The rule of automatic recusal based on pecuniary or
proprietary interest other than de minimis interest, was later extended
to include conduct and behavior, and I might add association and
activities. That was the decision in Reg v Bow Street Metropolitan
Stipendiary Magistrates, ex parte Pinochet Ugarte (No. 2) [2000] 1
A.C. 119 HL.
28. In the Pinochet case, one of the law lords, Lord Hoffman, who
presided on the appeal of the Pros3cution against Pinochet the first
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time, in the House of Lords, was at the time, an unpaid director of
Amnesty International Charity Ltd., (A.I.C Ltd), a company
associated with and controlled by Amnesty International (AI), which
had join (or intervene) as a party in the appeal proceedings for the
extradition of Pinochet. The joinder was described as unusual, but
was accepted by the House of Lords. Appeal of the Prosecution was
against the order of the Divisional Court, quashing a warrant of arrest
issued by Bow Street Magistrates in extradition proceedings brought
by the Prosecution Services in the UK, on behalf of the Government
of Spain. International warrants had issued in Spain for the arrest of
Pinochet on charges of crimes against humanity including murder,
torture, kidnapping and hostagetaking, committed with the
knowledge of or on the instruction of Pinochet when he was the Head
of State of Chile, South America.
29. On appeal to the Divisional Court, one of the warrants was quashed
on the ground that the immunity enjoyed by Pinochet when he was
Head of State continued to when he was no longer Head of State, for
crimes committed when he was Head of State. The quashing of the
second warrant was stayed pending the outcome of appeal to the
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House of Lords by the Prosecution. The House of Lords by a majority
of three to two allowed the appeal. Lord Hoffman was part of the
majority; he did not write a judgment, he agreed with the written
judgment of the other two judges in the majority. Pinochet learnt of
the connection of Lord Hoffman to A.I.C Ltd. and Amnesty
International only after the judgment of the House of Lords. He
applied to the House to reopen the appeal case on the ground of
appearance of bias because of the participation of Lord Hoffman.
30. Amnesty International was a human rights organization; it had
campaigned for human rights generally and against the Government
of Pinochet. A.I.C. Ltd. was formed by Amnesty International for tax
advantage, to carry out some of the functions of Amnesty
International. A.I.C. Ltd., Amnesty International and another were
closely knit. The House granted the application to reopen the appeal.
It held that the charitable interest of Lord Hoffman was sufficient to
disqualify him from sitting on the appeal.
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31. Appearance of bias
Apart from circumstances in which a judge was a party to a cause or
had pecuniary or proprietary interest other than de minimis interest in
the cause and automatic recusal was demanded, the law recognized
that there were circumstances in which appearance of bias equally
undermined confidence in the administration if justice. The rule for
recusal based on appearance of bias was developed with that in mind.
The landmark case in the development of the rule about appearance of
bias was, Rex v Sussex Justices, ex parte McCarthy [1924] 1 K.B.
256. In the case, Hewart CJ, made this time tested statement:
“… a long line of cases shows that it is not merely of
some importance but is of fundamental importance that
justice should not only be done, but should manifestly
and undoubted be seen to be done. The question
therefore is not whether the deputy clerk made any
observation or offered any criticism which he might not
properly have made or offered …”
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32. McCarthy’s case was one in which the appellant was convicted by
Sussex magistrates for the offence of dangerous driving. His motor
cycle had collided with another motorcycle. The magistrates sat with
an Acting Clerk (a solicitor) as required by law to advise them. They
retired to consider verdict. The Clerk retired with them. However, he
was not consulted and he offered no advice. He was at the time a
member of a firm of solicitors for the other rider in a civil claim
against the appellant, arising from the collision. The conviction was
quashed on appeal. The case was treated as one in which there was an
appearance of bias other than one in which there was actual bias. The
judgment of Lord Hewartt was regarded as having established the rule
that “apparent bias” demands recusal or the judgment or decision
will be vitiated. Both actual bias and apparent bias require that the
judge recuse himself, or the judgment rendered in the circumstances
will be vitiated.
33. For many years after McCarthy’s case, courts gradually formulated
the rule or test for identifying circumstances of appearance of bias in
which a judge should recuse himself so that justice was done and
manifestly and undoubtedly was seen to be done, and public
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confidence in courts and tribunals was maintained. I think the
formulation and development of the test for the scope of appearance
of bias was gradual because apart from the memorable statement of
Hewart CJ. That, “justice should not only be done but should
manifestly and undoubtedly be seen to be done”, he also stated that,
“nothing is to be done which creates even a suspicion that there has
been an improper interference with the course of justice”.
34. For some time the formulation of the test for appearance of bias
tended to drift towards requiring no more than a suspicion of bias.
Later progress away from mere suspicion became noticeable in cases
such as, R v Liverpool Justices, ex parte topping [1983] 1 All ER
490, Regina v Gough [1993] A.C. 644 and In re Medicaments and
Related Cases of Goods (No. 2) 2001 1 W. L.R. 700, upto the
current test in, Porter v Magill [2002] 2 A.C. 375.
35. The test for apparent bias in Magill’s case, was stated by Lord Hope
of Craighead in these words:
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“the question is whether the fairminded and informed
observer, having considered the facts, would conclude that
there was a real possibility that the tribunal was biased”.
Where appearance of bias is alleged, the test is objectively applied.
The court must first assess all the facts which have a bearing on the
suggestion that the judge is or will be biased, and then ask the
question; whether a fair minded and informed observer, having
considered all those facts, would conclude that there was a real
possibility that the judge was biased.
36. Any bias in these proceedings?
In this application bias has been alleged against me. Before I assess
the evidence which discloses all that have bearing on the allegation
that I was biased or appeared to be biased, I warn myself that, it has
been said many times by courts that, bias is insidious in its effect.
One may honestly believe that one is not biased, yet his actions and
decisions may be affected unconsciously by his experience and other
extraneous facts – see Barnsley Licensing Justices, ex parte Barnsley
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and District Licensed Victuallers’ Association [1960] 2 Q.B. 167,
C.A, and Roylance v General Medical Council No. 2 [2000] 1 A.C.
311.
37. Further, I shall bear in mind the advice of the High Court of Australia
offered in, J.R. L, ex parte C.J.L (1986) 161 CLR 342 that:
“Although it is important that justice must be seen to be
done, it is equally important that judicial officers
discharge their duty to sit and do not, by acceding too
readily to suggestion of appearance of bias, encourage
parties to believe that by seeking the disqualification of a
judge, they will have their case tried by someone thought
to be more likely to decide the case in their favour”.
38. In addition to the above advice, I am obliged to take into
consideration the warning of Ira Rowe P, in, Attorney General of
Belize and Another v Belize Food and Transportation Ltd., that a
judge must resist the temptation to recuse himself from a case which
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he is qualified to try, and must take a resolute stand against improper
attack on his integrity, aimed at enabling a party to choose a judge.
39. Recently there have been several requests at the Supreme Court and
the Court of Appeal for judges to recuse themselves. Many of these
requests have been readily acceded to. Very few had to be decided on
application to court. I hope we have not reached the situation about
which Rowe P. warned. In this application, I could have conveniently
chosen the easy way out of simply recusing myself without giving
reason; after all it would be one case less in the workload. But that
east way out has been disapproved of in many judgments of superior
courts. It is regarded as avoiding duty.
40. Unfortunately, the tendency is creeping in of some judges taking the
easy way out when they realise that they have some acquaintance with
a party even in matters unconnected with the claim, or when an
attorney adopts overbearing attitude. The better course suggested in
many cases is to disclose the situation to the parties who may waive
their right to recusal of the judge. Guidance on this matter has been
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given by the Lord Chancellor of England see – Guidance of October
1998 and of June 2006.
41. Conscious of the above warnings and advices, the insidious nature of
bias, the need for confidence in court, and the duty of a judge to hear
cases, subject to conditions for automatic recusal and proof of actual
or apparent bias, I proceed to assess the evidence to support this
application, and apply the rules about recusal. All the evidence on
which the allegation of bias has been made is in the affidavit of Ms.
Entwistle, the only affidavit filed.
42. The reasons given by Ms. Entwistle for bias were that: I have already
made up my mind about the claim as a whole when I rendered the
interlocutory decision of 5.2.2010, without evidence and without
hearing Dunkeld, and I granted an injunction order in wider terms
than asked for without hearing the defendants (including Dunkeld). If
proved, those allegations approximate to the scope of appearance of
bias given in the test for appearance of bias inMagill’s case. But they
do not, even when proved, approximate to the definition of actual
bias; for example, Flaherty v National Greyhound Racing Club
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Ltd. that “bias means a predisposition or prejudice against one
party’s case or evidence on an issue for reasons unconnected with the
merits of the issue.” The affidavit of Ms. Entwistle does not give one
reason that I included in my decision of 5.2.2010, which reason was
not connected with the application or claim as a whole.
43. The rest if the determination depends on the question: are the
contents of the affidavit of Ms. Entwistle selfproving, or have the
contents been proved? My answers follow below.
44. First it is not true that the terms of the interim injunction order granted
on 5.2.2010 are wider than those applied for. The submission by
counsel did not address this. There were two differences only. The
first was that the defendants were named in the order granted, whereas
in the application they were referred to as: “The 1 st to 9 th as trustees
and the 10 th Dunkeld”. The second difference was that, in the order
granted the period for which the interim injunction was to last was
“until the determination of this claim (NO. 1042 of 2009) or until
further order”; whereas in the application the period was stated as
“until further order”. The period granted gave the alternative of
31
automatic end to the interim injunction order, should the claim be
determined earlier than a court order discharging the interim order.
So the order granted was more favourable to the defendants and
rendered the terms more limited rather than wider.
45. That I delayed to hear the defendant’s application to discharge the
interim injunction order granted on 29.12.2010, on the application
without notice, has not been proved. It is untrue anyway. Moreover,
it is not a complaint that this applicant, Dunkeld, can raise. The
application was made by seven of the defendants, excluding Dunkeld.
46. The facts show that there was no delay in hearing the application of
the seven defendants at all, or that I caused delay. The application
was filed on Friday 8.1.2010. It was brought to me two working days
later on 13.1.2010. I listed it for hearing on 22.1.2010 nine days later,
based on the content of the supporting affidavit and available court
hours. The applicants, in the affidavit sworn on their behalf, denied
any connection with Dunkeld and the trust in question. They sought
discharge of the interim injunction order to the extent it applied to
them on the ground that they were not connected with Dunkeld and
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therefore to the Arbitration commenced by Dunkeld. That meant they
could not breach the injunction order, and so did not face imminent
risk of being cited for contempt. The supporting affidavit did not
disclose any urgent interest of the seven applicants, that would be
injured or needed to be preserved or saved urgently. I listed the
application for hearing on 26.1.2010, nine days from the day I saw it,
on the earliest day I could hear the application.
47. On 22.1.2010, the date assigned, a junior attorney for the claimant,
applied for adjournment on the ground that Ms. Lois Young S.C., in
charge of the case was away attending at the Privy Council in the UK
on an appeal. Mr. E. Courtenay S.C., had earlier been informed by a
letter, of the commitment of Ms. Young at the Privy Council; he
nevertheless opposed the application for adjournment. In the
circumstances I granted adjournment for four days to 26.1.2010, when
the application was heard. It was incidentally the return date of the
order made on 29.12.2009. Ms. Entwistle did not state the particulars
of failure to hear the application for discharge of the earlier order “in a
timely manner”. That allegation has not been proved. Dunkeld was
not a party to the application anyway
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48. The complaint that the interim order of 5.2.2010, was made without
hearing Dunkeld is not a sound one to make. Dunkeld did not attend
the hearing on 26.1.2010, and there was no explanation. Moreover, I
took the precaution of giving Dunkeld permission to apply to have the
order discharged, in case they did not, as a matter of fact, receive
service of the order made on 29.12.2009 which included the return
date. The Court of Appeal approved of that.
49. The complaint that I granted the interim injunction orders of
29.12.2009, and of 5.2.2010, without evidence does not, without
more, prove that I was motivated by bias which may have operated
unconsciously on my mind. I do not think an error by a judge can be
regarded as proof of predisposition against a judge. In Drury v
BBC[2007][ All ER 205, it was said that the mere fact that a judge
had made a finding against a party on a previous occasion, even if he
had been critical, did not found a later objection to the judge sitting in
another matter in which the objector was a party. No hostility or
animosity or any unfairness towards Dunkeld on my part during the
hearing of the application on 26.1.2010, was alleged. It could not be
34
alleged anyway because Dunkeld did not attend and it was not a party
to that application.
50. The applicant relies on the judgment of the Court of Appeal that there
was no evidence to support the grant of the injunction order of
5.2.2010. One of the judges of the court said that the granting of the
injunction on the evidence available fell within the exception in
Hadmor Productions Ltd. v Hamilton [1983] 1 AC 191, it was
“aberrant”, and that, no reasonable judge ought to have granted the
injunction order. The statement of the judge must be interpreted in
context.
51. The Court of Appeal’s decision about evidence was directed to the
evidence concerning the connection of the seven defendants
applicants to Dunkeld and the Hayward Trust that Dunkeld had
interest in. The question of Dunkeld’s identity was not an issue.
Counsel for the seven applicants argued their case on the footing that
Dunkeld had commenced the arbitration complained about by the
Attorney General, and that the seven had no connection with Dunkeld
and the trust, and so were not parties to the arbitration, the subject
35
matter of the application. The judgment for instance, did not commit
to deciding whether there were several cases commenced at the
Supreme Court, which raised the same issues as in the arbitration.
The central point of the judgment was that the affidavit for the seven
defendants, though hearsay was better than the affidavit for the
claimant which was about direct evidence. The Privy Council takes a
more cautious approach to hearsay in affidavit – see Roylance case. I
followed that approached. The Court of Appeal held that I was
wrong. It must be accepted. I doubt that objectively the criticism by
the Court of Appeal can be taken as pointing to bias on my part. The
hearing of the interlocutory application on 26.1.2010 did not take
place in the sort of charged and acrimonious circumstances that
obtained in the English case, Paul Jonathan Howell and Others v
Marcus Lee and Others [2007] EWC A Civ 720. Let me say that in
any case, the judgment of the Court of Appeal allowed the appeal of
the seven defendants who had filed an affidavit; the judgment did not
discharge the injunction order against this applicant.
52. Finally, regarding the three statements said to be final determinations
of the claim. Objectively the decision of 5.2.2010, should be read as a
36
whole, and the effect of the three statements taken in context. In
several paragraphs I warned that the evidence I was considering was
only that available at that stage, and that evidence may change.
Perhaps someone may see it differently. I do not think that person
would be the fair minded observer caricatured inMagill’s case.
53. My findings on the evidence that would established the factual basis
of actual as well as apparent bias is that objectively all items of
evidence have not been proved. Actual bias was not proved therefore.
Applying the fairminded and informed observer test, I do not
consider that he would conclude from my decision of 29.12.2009 and
of 5.2.2010, that there was real possibility that I was bias, or that there
is real possibility that I shall be bias in the rest of the proceedings.
Appearance of bias has not been proved also.
54. The application for recusal dated 20.12.2010 is refused. Direction
hearing is listed for Tuesday 22.2.2011 for the purpose of deciding
when to hear the application dated 20.12.2010 of Dunkeld, and other
procedural matters.