The Prime Minister et Al v The Queen et Al
| Jurisdiction | Bahamas |
| Judge | Jon Isaacs, JA,The Honourable Mr. Justice Isaacs, JA,The Honourable Ms. Justice Crane-Scott, JA,The Honourable Mr. Justice Jones, JA |
| Judgment Date | 20 July 2017 |
| Neutral Citation | BS 2017 CA 71 |
| Docket Number | SCCiv App No. 63 of 2017 |
| Court | Court of Appeal (Bahamas) |
| Date | 20 July 2017 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Ms. Justice Crane-Scott, JA.
The Honourable Mr. Justice Jones, JA
SCCiv App No. 63 of 2017
In the Matter of an Application for Judicial Review by the Coalition to Protect Clifton Bay and Point House Corporation et al in PUB/JRV/12 of 2013, PUB/JRV/15 of 2014, PUB/JRV/16 of 2014, PUB/JRV/19 of 2014
and
In the Matter of an Application for the Recusal of the Honourable Madam Justice Rhonda P. Bain in the Above Judicial Review Actions by the Intended Appellant
(in his capacity as the Minister Responsible for Crown Lands)
(in his capacity as the Minister of Works and Urban Development and the Minister Responsible for Building Regulation)
(in her capacity as the Minister Responsible for Ports and Harbour)
Mr. Wayne Munroe, QC withMr. David HigginsAsst Director of Legal Affairs andMr. Clinton ClarkeCounsel for the Intended Appellant
Mr. Frederick Smith, QC, withMr. Romauld Ferreira, Ms. Pearline Ingraham, Mr. Dawson MaloneandMr. Crispin HallCounsel for the first named Interested Party
Mr. Robert Adams with Mr. Leif Farquharson and Mr. John Minns Counsel for the second-named Interested Party
Mr. Damien Gomez, QC withMs. Gia Moxey, Counsel for the third named Interested Party
Baker v Quantum Clothing Group & Ors [2009] EWCA Civ 566 mentioned
Bolkiah v State of Brunei [2008] 2 LRC 196 (PC) applied
Locabail (LJ) Ltd v Bayfield Properties Ltd [2000] QB 451 mentioned
Misick and others v The Queen [2015] UKPC 31 mentioned
Porter v Magill [ 2001 UKHL 67] applied
Smith v. Cosworth Casting Processes Ltd. [1997] 4 All ER 840 mentioned
Rules of the Supreme Court O. 27
Court of Appeal Act, s.11
Civil Appeal - Leave to Appeal — Judicial Review — Recusal — Tenure of Judge — Apparent Bias-Stay — Order 27 — Rules of the Supreme Court
Civil Practice and Procedure - Leave to appeal — Recusal — Tenure of judge — Judicial review — Apparent bias — Stay — Whether fair minded and informed observer would conclude real possibility tribunal was biased — Whether learned judge was correct in refusing the intended appellant leave to appeal
During the course of Judicial Review Proceedings the Intended Appellant filed a Notice of Motion seeking the learned judge's recusal. The judge refused the application. The Intended Appellant sought leave to appeal the refusal.
Held:—leave to appeal refused, costs to the intended respondent fit for two counsel to be taxed, if not agreed. Additionally, inasmuch as the Hon. Philip Davis, and the Hon. Glenys Hanna-Martin, were improperly joined in this action; the intended respondent is granted their costs, fit for two counsel, against those parties up to, March 2017, costs are to be taxed, if not agreed.
Per Isaacs, JA:-
The legal test for recusal is well known and not in dispute. The question is whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased. On the issues of prospect of success and point of law of general public importance, we have considered the case of Bolkiah v State of Brunei [2008] 2 LRC 196 (PC), and see no difference in the allegation of apparent bias made in Bolkiah and the present case. As such, we can see no reason why we should depart from the decision of the Privy Council expressed at paragraph 21. We are similarly unpersuaded that the intended appellant has any prospect of succeeding on the basis of the submission argued before the Judge, to wit, apparent bias. This is sufficient, in our view, to show that grounds 1, 2 and 4 have little prospect of success.
There has been nothing shown in this case that suggests there is some novel point of law to be argued or some principle of law to be clarified by the Court for the future guidance of courts below or lawyers. Further, there are no “questions of great public interest or questions of general policy, or where authority binding on the Court of Appeal may call for reconsideration.
Complaint was made by the intended appellant that Bain, J found he had been guilty of delay in making his application in circumstances where it is unknown if or when her application for an extension came to his attention. It is well established law that a bias challenge must be made sooner rather than later. Notwithstanding the lack of information as to when the application came to the attention of the intended appellant, we are prepared to conclude the issue of delay on the averment of Mr. Humes and to treat as a neutral factor the effluxion of time. Thus, we make no finding on the issue of delay adverse to the intended appellant; nor do we treat with it as a matter of concern on this application.
Reasons delivered by The Honourable Mr. Justice Jon Isaacs, JA
On March 2017 we heard Counsel in this matter and denied the application. We promised to put our reasons in writing; and we do so now.
The Intended Appellant's application was instituted under Rule 27(1) and (5) of The Court of Appeal Rules 2005. It is for an Order granting leave to appeal against the ruling of Madam Justice Rhonda Bain dated 6 February 2017, wherein she refused to recuse herself in the judicial review actions cited herein; and if leave to appeal is granted, for a stay of the following four Judicial Review proceedings (PUB/JRV/12 of 2013), (PUB/JRV/15 of 2014), (PUB/JRV/16 of 2014), (PUB/JRV/19 of 2014) (the JR cases) pending the hearing and final determination of the substantive appeal.
The JR cases have been in train for many months; and over that period there have been a number of applications made which have had to be addressed by the Judge. However, it appears that on or about 6 June 2016 the Judge applied to have her tenure extended because she was nearing the constitutional age of retirement; and without such an extension she would be required to demit office upon attaining the age of sixty-five.
In a letter dated 16 January 2017 addressed to Mrs. Donna Newton, Registrar of the Supreme Court (as she then was) Mr. Munroe, Q.C. wrote on behalf of the intended appellant querying whether the Judge would consider recusing herself from the JR cases. The letter reads:
“Attention: Ms. Janet Smith
Clerk to the Honourable Ms. Justice Rhonda Bain
Dear Ms. Smith;
Re: R v Rt. Hon. Perry G. Christie, et al, Ex Parte Coalition to Protect Clifton Bay 2014/PUB/jrv/00015-JR
We refer to the above captioned action which is set for hearing from the 23 rd January, 2017. We would ask that you bring this correspondence to the attention of Her Ladyship on an urgent basis.
We have had occasion to recently take instructions from our client the Right Honourable Perry G. Christie with regard the captioned actions as well as the other actions referred to as JRI, JR3, JR4 and the Neighbour's action. We were instructed by the Honourable Prime Minister that Her Ladyship has applied for an extension of her tenure in office pursuant to the proviso to Article 96 (1) of the Constitution. This fact was confirmed by the Honourable Chief Justice Sir Hartman Longley in his address at the Opening of the Legal Year on the 11th January, 2017.
As would be clear from the title of the captioned action the Right Honourable Prime Minister is a party to the proceedings in question. Further you may recall that the fact that this matter may impact the Honourable Prime Minister personally is evidenced by the indication at the hearing of this matter in December, 2016 by Elliott B. Lockhart, Q.C. that he might wish to
cross examine the Honourable Prime Minister.
We are instructed to request that Her Ladyship consider recusing herself from the further adjudication in these actions involving my client the Honourable Prime Minister in the circumstances. We would invite an indication from Her Ladyship as to how she would wish to proceed with regard our request. We have copied Counsel for the other Parties on this letter.
We await your advices.
Yours truly,
MUNROE & ASSOCIATES”
There does not appear to have been a response to this letter or to the request made therein. Thus, a Notice of Motion was filed on 26 January 2017 in each of the JR cases seeking the Judge's recusal from the JR cases. We should note here that the procedure of writing a letter to the judge whose recusal is sought is proper and a salutary practice as observed by Lyons, J in Neymour v The Attorney General [2006] 3 BHS J. No. 268 at paragraph 3.
Mr. Ryszard Humes, a member of the law firm of Munroe & Associates, Attorneys for the intended appellant swore to an affidavit filed in the Supreme Court on 26 January 2017 in support of the application made by the intended appellant for the Judge to recuse herself from the JR cases presently being heard by her and which involved the intended appellant as a respondent (the Humes affidavit). Mr. Humes averred, inter alia:
“3. That I swear this Affidavit in support of the First Respondent's application by way of Notice of Motion filed herein on even date, which seeks the recusal of Madam Justice Rhonda P. Bain from further hearing and or adjudicating this or any other related proceedings to which the First Respondent is a party to the action; namely “JR1”-2013/PUB/jrv/00012, “JR2”-2014/PUB/jrv/000l 5, “JR3”-2014/PUB/jrv/00019”, and the Neighbor's Actions-201 4/PUB/jrv/00016.
4. That Madam Justice...
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