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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

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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

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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

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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

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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.

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52 Delivered this Tuesday the 15 th day of February 2011

At the Supreme Court

Belize City

Sam Lungole Awich

Chief Justice (Ag.)

Supreme Court