Belgravia International Bank & Trust Company Ltd and Experta Trust Company (Bahamas) Ltd v CIBC Trust Company Ltd; CIBC Trust Company (Bahamas) Ltd v Belgravia International Bank & Trust Company Ltd and Experta Trust Company (Bahamas) Ltd
| Jurisdiction | Bahamas |
| Judge | Blackman, J.A. |
| Judgment Date | 30 July 2014 |
| Neutral Citation | BS 2014 CA 122 |
| Docket Number | SCCivApp & CAIS No. 189 of 2011; SCCivApp & CAIS No. 155 of 2012; SCCivApp & CAIS No. 227 of 2012 |
| Court | Court of Appeal (Bahamas) |
| Date | 30 July 2014 |
Court of Appeal
Blackman, J.A.; John, J.A.; Conteh, J.A.
SCCivApp & CAIS No. 189 of 2011; SCCivApp & CAIS No. 155 of 2012; SCCivApp & CAIS No. 227 of 2012
Mr. Pushpinder Saini, QC, with Mr. Maurice Glinton counsel for the appellants in 189/2011, 155/2012 and 227/2012.
Mr. Brian Simms, QC, with Ms. Simone Fitzcharles, and Ms. Olivia Moss, counsel for respondents in 189/2011. 155/2012 and 227/2012.
Mr. Brian Simms, QC with Ms. Simone Fitzcharles, and Ms. Olivia Moss, counsel for appellant in 27/2012.
Mr. Pushpinder Saini, QC with Mr. Maurice Glinton, counsel for respondents in 27/2012.
Administrative Law - Appeal — Apparent bias — Duty to disclose — Recusal — Doctrine of necessity — whether the learned justices should have disclosed certain factors which to the appellant may lead to an appearance of bias — Appeal dismissed.
application dismissed, costs to the respondent certified fit for two counsel to be taxed in the absence of agreement, stay granted on July 17th 2014 is discharged
In cases where apparent bias is alleged the Court must first ascertain all of the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased. 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 suggestions of appearance of bias, encourage parties to believe that by seeking the disqualifications of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
While counsel for the respondent has urged that there was a duty of disclosure on behalf of Justices Blackman and John at the outset of the appeal, he has not assisted the Court by stating what defining moment or event occurred that would have prompted the Justices to disclose a likelihood of bias. In the context of the allegations against the Justices it cannot be said that an informed, reasonable and right minded person, viewing the matter realistically and practically and having thought the mater through could conclude that it was more likely than not, that bias or its apprehension was probable.
On July 17th, 2014 the Court heard an application by Belgravia International Bank and Trust Co. and Experta Trust Company (The Trustees) made by Notice of Motion dated 27th May, 2014 that the Court set aside its judgment of 26th February, 2014 because of apparent bias on the part of two members of the Court, namely Justice John and myself. The details upon which reliance is placed as to the alleged apparent bias are provided in the joint affidavits of Frank Forbes and Ivylyn Cassar filed on 5th May, 2014, and 11th July, 2014.
Before considering that issue the Court was obliged to consider whether it had jurisdiction to determine the matter.
Mr. Pushpinder Saini Q.C. counsel for the Trustees submitted that while the Court clearly had jurisdiction, it was his submission that a differently constituted Court of Appeal should be hearing the application, by way of ad hoc judges being appointed Justices of Appeal, to hear the application. Mr. Saini further submitted if that required legislative action, so be as it was in the interest of the administration of justice, that in an ideal world the matter would not be heard by the present panel of judges. Mr. Saini concluded his submission on this point by asserting that if the Court was determined to hear the application, it should be understood that he was not waiving his objection to the constituted panel.
Mr. Brian Simms Q.C. in reply submitted that the Court, out of necessity was required to sit. He submitted that the Common Law doctrine of necessity which allows judges who are subject to disqualification to sit and determine a matter when there is otherwise no quorum of the Court was recognized in the Privy Council case of The Judges v. The Attorney General for the Province of Saskatchewan [1937] 2 D.L.R. 09. In that case the Judges of the Court of Appeal of the Province of Saskatchewan were asked to answer questions referred to the Court by the Lieutenant-Governor in Council whether their salaries were liable to tax. The Judges of the Court of Appeal of the Province of Saskatchewan took the view (rightly so in the opinion of the Privy Council) that they were bound to act ex necessitate.
Mr. Simms further submitted that the arguments advanced for the appointment of judges of the Supreme Court as acting Justices of Appeal ignored the constitutional and statutory limitation on the complement of the Court as the Court has a full complement of judges. The other members of the Court had participated in previous proceedings involving the parties and so were automatically disqualified from hearing the appeal.
The Court is of the view that the reasons advanced by Mr. Simms are apposite to the instant matter, and consequently, of necessity, it is obliged to hear the recusal application. We are also aware that judges who are asked to recuse themselves, normally hear the application. The Canadian case of Makowski) v. John Doe [2007] B.C.S.C. 1231 to which further reference will be made is a case on point. We therefore turn our consideration to the submissions in relation to bias. The allegations are dealt with in the order in which they have been raised.
The allegation of bias in relation to John, J.A. is in relation to his daughter Amanda John's employment with the law firm representing the respondent, CIBC Trust Company (Bahamas) Limited. In that regard, it is essential that the chronology in relation to the hearing of the appeal and the delivery of the judgment is detailed.
The appeals in the above matter were heard over four days, between February 6th, 2013 and May 15th, 2013, a three month period. At the end of the hearings on May 15th, 2013 the panel was unanimous in their conclusion as to the disposition of the appeals. However, out of deference to the several submissions made by counsel for the appellant and the respondent, it was agreed that we would reserve our decision rather than announce the disposition, with reasons to be given later.
As the presiding judge, I invited Conteh, J.A. who had over the course of the hearings, demonstrated a keen interest in the several arcane issues raised, to prepare the judgment on behalf of the Court. I am aware that as late as December 11th, 2013 Justice Conteh was provided with transcripts of the hearings.
In early January 2014, just about the time of Opening of the Legal Year ceremonies, Conteh, J.A. presented his first draft to John, J.A. and me, a document of about 60 pages. Before we had time to review the draft, John, J.A. was obliged to travel to Trinidad and Tobago on January 24th, 2014 to deal with domestic issues, which were adverted to by the learned President of the Court of Appeal in her address to the assembled company, on the occasion of the Court of Appeal's Ceremonial Opening, on the 30th January, 2014.
Mr. Justice John returned to Nassau on 2nd February, 2014 and over the ensuing weekend and into the work week, the draft was agreed, and delivered on 26th February, 2014.
The allegation of bias on my part is that consequent to my being a non-executive Director of CIBC West Indies Holdings Limited, a corporate affiliate of CIBC between 1993/4 and 2001, I should have disclosed at the outset of the appeal, the family relationships that my son and sister have or had with First Caribbean International Bank.
In relation to myself, I can do no better than to start by quoting from paragraph three of the letter dated 8th July, 2014 sent by the Acting Registrar of the Court of Appeal to Mr. Maurice Glinton, counsel for the Trustees in response to his of June 20th, 2014 in which he alleged a connection with CIBC or their related companies, and Cheryl Blackman, an employee of CIBC. That letter read: “With respect to the concerns raised in your letter in relation to CIBC and Cheryl Blackman, I am directed …to inform you that so far as CIBC is concerned, Mr. Justice Blackman served as a Director of CIBC related companies between 1993/4 and 2001. I am further advised that at no time during that period was there any connection between him and CIBC Trust Company (Bahamas) Limited. Additionally, I am directed to advise that on his appointment to the Supreme Court of Belize in April 2001, Mr. Justice Blackman retired from the directorships held, and save being a customer of the Bank both in Barbados and The Bahamas, has no other relationship. As for Cheryl Blackman, I am directed to advise that Miss Blackman is not related to the judge. “
It should be further noted that I received an email enquiry on July 3rd, 2014 from my former law firm in Barbados as to whether any of the work done by me while with the firm involved CIBC Trust Company (Bahamas) Limited. In that email I became aware for the first time, that my son Gregory was also being scrutinized. Further, it was only in the opening remarks by counsel for the Trustees that it was stated that they had become aware the previous evening that I had a sister who worked with CIBC related companies in Barbados, and who retired from the Bank more than three years ago. Consequently, I had no opportunity to address these issues before now.
Mr. Saini in his submission, said that...
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