Delta Properties Ltd v Min. of Housing and National Insurance et Al
| Jurisdiction | Bahamas |
| Judge | Sawyer, J. |
| Judgment Date | 29 April 1994 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Equity Side No. 54 of 1990 |
| Date | 29 April 1994 |
Supreme Court
Sawyer, J.
Equity Side No. 54 of 1990
Mr. Dennis Gomez for the plaintiff
Mr. M. Hamilton for the first & second defendants
Mr. C.S.S. Fountain for the fifth defendant
Natural Justice - Bias — Judge related to civil service head of main defendant — No man should be a judge in his own cause — Whether matter should begin afresh.
On 5th January, 1993 I recluse myself from further hearing this case after learning that one of my sisters was about to be appointed acting Permanent Secretary in the Ministry of Housing, the second defendant in this action. That Ministry is the effectual main defendant as all of the arrangements, which gave, rise to the plaintiff's application was with that Ministry. It seemed to me that as a result of that appointment there may be grounds for allegations of bias to be made by reason of the kinship of the judge and the civil service head of the main defendant, especially if any question of credibility were to arise. The reclusation was done in the absence of counsel for the defendants.
When the matter was scheduled to begin de novo before another judge, I was invited to see counsel for all the remaining parties with a view to reconsidering my decision to remove/recluse myself. This I did and was invited by Mr. Hamilton to rescind that decision.
Mr. Hamilton informed me that he had examined the pleadings and had spoken to his principal witness and that as he was then “presently advised” he would not be seeking to lead evidence by the present permanent secretary to the second defendant and that, if necessary, he would call the previous holder of that post to testify.
Mr. Hamilton indicated that he had had no contact with the present permanent secretary and that he did not anticipate any issue of credibility arising if the case is continued before me.
Mr. Fountain then indicated that Mr. Hamilton had discussed the matter with him and that he was supporting the invitation.
Mr. Gomez, on the other hand, while stating that neither the integrity of the Court nor of the officials in the second defendant was being questioned, submitted that actual bias is not the only relevant consideration as the appearance of bias is equally relevant. In this case he said it was the appearance of this bias which was relevant and he referred to the case of Regina v. Liverpool City Justices ex parte Topping [1983] 1 All E.R. 490. I shall refer to the cases in a short while.
In reply to Mr. Gomez's submission, Mr. Hamilton indicated that while the present permanent secretary had been with the second defendant for the past 6 years and may have been informed of the subject-matter of this action in the usual way -e.g., at departmental meetings-he would still argue that there is nothing which ought to lead a reasonable person to come to the conclusion that there was any bias in connection with this matter.
While I accept without reservation all that Mr. Hamilton has said about his not calling the present permanent secretary as a witness and the unlikeliness of any issue of credibility arising, unfortunately neither Mr. Hamilton nor the Court can predict with complete accuracy what course the matter will take if the hearing is resumed before me. If, as quite often happens, the unanticipated happens, then even more time will be lost if the matter then has to begin afresh before a different judge.
Further, even accepting what Mr. Hamilton has said about the position of the present permanent secretary will not change the fact that that officer now has the main responsibility for giving effect to the policies of that Ministry and on general principles, could not now be said to be unaware of this action.
It is against that factual background that I have to re-consider whether I should recluse myself from further hearing of this case.
The rule of natural justice to which Mr. Gomez by implication referred is that no man should be a judge in his own cause.
While most of the decisions I have seen concerned lay magistrates and licensing justices who had no formal legal training the 19th century case of Dimes v. Grand Junction Canal (Proprietors of) (1852) 3 H.L.C., Vol. 10 E.R. 758 concerned a decision of the then Lord Chancellor Cottenham.
In that case the Lord Chancellor who was a shareholder to the extent of several thousand pounds in a canal company, affirmed a number of decrees, which had been made by the vice chancellor in favour of that company which had been a party to litigation before him. His decrees were set aside by the House of Lords on account of his pecuniary interest although it was not shown that his decision was in any way affected by his shares, in fact, it was clearly not affected at all for Lord Campbell at p. 793 said:–
“No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern'; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such influence.”(Emphasis added)
From that decision it is clear that one of the main ingredients in a fair judicial decision is that it should be made by an impartial judge and another that not only should the judge be impartial but should be seen to be impartial.
In Regina v. Rand (1866) L.R. 1 Q.B. 230, Blackburn, J., in giving the judgment of Court (comprised of Cockburn C.J.. Blackburn and Shee, JJ.) at p. 232 – 233 said this:–
“The question which we have to determine, was whether this disqualifies the justices from acting in what was certainly a judicial inquiry: and we think it does not. There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter; and if by any possibility these gentlemen, though mere trustees, could have been liable to costs, or to other pecuniary loss or gainer in consequence of their being so, we should think the question different from what it is: for that might be held an interest. But the only way in which the facts could affect their impartiality, would be that they might have a tendency to favour those for whom they were trustee; and that is an objection not in the nature of interest, but of a challenge to the favour. Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act; and we are not to be understood to say, that where there is a real bias of this sort this Court would not interfere; but in the present case there is no ground for doubting that the justices acted perfectly bona fide; and the only question is whether in strict law, under such circumstances, the certificate of such justices is void, as it would be if they had a pecuniary interest; and we think that Reg. v. Dean of Rochester (1) is an authority, that circumstances, from which a suspicion of favour may arise, do not produce the same effect as a pecuniary interest. And as the decision in that case was on demurrer to a plea, and might have been taken into error, the authority is one on which we ought to act.”
On the other hand, in the case of Eckersley and Others v. The Mersey Docks and Harbour Board [1894] 2 Q.B. 667, it was held that the rules (of natural justice which I mentioned above) which apply to a judge or other person holding judicial office that he ought not to hear cases in which he might be suspected of a bias in favour of one of the parties, does not apply to an arbitrator, to whom both parties have agreed to refer disputes which may arise between them under it. In that case, Lord Esher, M.R. seemed to take the principle of the appearance of bias to its zenith for at p. 670 – 671 he said:–
“When the proposition sought to be established on behalf of the plaintiffs is examined, it comes to this, that the disputes ought not to be referred to the engineer because he might be suspected of being biased, although in truth he would not be biased. It is an attempt to apply the doctrine which is applied to judges, not merely of the Superior Courts, but to all judges that, not only must they be not biased, but that, even though it be demonstrated that they would not be biased, they ought not to act as judges in a matter where the circumstances are such that people-not necessarily reasonable people, but many people-would suspect them of being biased.” (Emphasis added)
Those words of Lord Esher were criticised by Lord O'Brien, C.J. in the Irish case of Rex v. Justices of County Cork [1910] 2 I.R. 271 in his judgment at p. 275:–
“‘That, in my opinion, goes too far. ‘It makes the mere suspicions of unreasonable ‘persons a test of bias. I think that the ‘judgment was not a considered one, and that ‘Lord Esher made use of some loose expressions. ‘We decline, on a consideration of the cases, ‘to go so far as that very eminent judge. ‘There must, in the words of Blackburn...
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