Mitchell v Georges
| Jurisdiction | UK Non-devolved |
| Judge | Lord Clarke |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] UKPC 43 |
| Date | 18 December 2014 |
| Docket Number | Appeal No 0067 of 2013 |
| Court | Privy Council |
[2014] UKPC 43
Privy Council
From the Eastern Caribbean Court of Appeal (Saint Vincent and the Grenadines)
Lady Hale
Lord Clarke
Lord Wilson
Lord Sumption
Lord Hughes
Appeal No 0067 of 2013
Appellant
James Guthrie QC Ramesh Lawrence Maharaj SC Robert Strang
(Instructed by Bircham Dyson Bell LLP)
Respondent
Thomas Roe QC Hafsah Masood
(Instructed by Charles Russell Speechlys LLP)
Heard on 17 November 2014
The issues in this appeal centre upon whether the respondent showed apparent bias in his conduct of a Commission of Inquiry into what was known as the Ottley Hall Development or the Ottley Hall Project ("the Project"). The courts below held that he did not. The appellant challenges those decisions in this appeal and seeks an order that the respondent play no further part in the Commission.
The appellant was Prime Minister and Minister of Finance of Saint Vincent and the Grenadines for a long period, being elected for four successive terms between 1984 and 2000. After he stepped down, there was a change in government as a result of a general election held in April 2001 and the party which had been in opposition since 1984 came to power.
By a Commission dated 28 April 2003, the Governor General, acting on the advice of the Cabinet, commissioned the respondent, a retired High Court judge, to inquire into the failure of the Project. In the 1990s the government lost large sums of public money in what was said to be a fraudulent Project, which developed from a proposal put to the government by Dr Aldino Rolla, an Italian engineer and shipyard owner, for the construction of a marina and shipyard at Ottley Hall. The funding of the Project came from a consortium of banks, secured by, among other things, a sovereign guarantee from the government amounting to over US$50m. It is agreed between the parties that the loan finance was under the control of Dr Rolla and that he diverted large sums for his own purposes. The Project was a disaster and funds ran out with the development unfinished. The banks sued the government and obtained judgment on its guarantee. The extent of the responsibility of the government led by the appellant became a major issue between the political parties.
The issues in this appeal involve a detailed consideration of the way the respondent conducted the Commission.
The Commission was set up under section 2 of the Commission of Inquiry Act, Chapter 14 of the Revised Laws of Saint Vincent and the Grenadines 1990, as amended by the Commissions of Inquiry (Amendment) Act No 14 of 2002.
The Commission's terms of reference included the following:
"6. To inquire into all of the facts and circumstances of and relating to the Ottley Hall Project and the role played by persons and corporate entities involved therein to establish whether or not any criminal act or offence was or may have been committed in Saint Vincent and the Grenadines.
7. To inquire into and establish the facts and circumstances in relation to the role or roles played by any Minister of Government, civil servant, and the directors and/or officers of the corporate entities and/or their agents who were involved in or concerned with the Project and in particular to inquire into and establish:
i. Whether or not there was any dereliction of duty, violation of any law of Saint Vincent and the Grenadines, conflict of interest and/or breach of trust on the part of any Minister of Government or civil servant.
….
13. To report immediately in writing to His Excellency the Governor General and the Director of Public Prosecutions any facts, circumstances or evidence which in the opinion of the Commission may give rise to, show or establish that:
i. A criminal act, including any conspiracy to commit a criminal act or acts has been or may have been committed by any persons including any Minister of Government or public servant or corporate entity.
ii. Any person obtained a personal and unlawful benefit by way of any large, unusual or noncommercial payments, transactions, transfers or receipts or money; or other benefits were made to any persons or corporate entity, whether related to the Project or not.
iii. Any improper, corrupt or fraudulent relationship between Dr Rolla and/or any of the corporate entities owned or controlled by him or his nominees and/or any Minister of Government or public servant or any other person.
14. To issue an interim report to His Excellency the Governor General within six months of the date of the establishment of the Commission and a final report within twelve months.
15. To make such other and incidental inquires which concern and relate to the subject matters of inquiry hereinbefore recited as the Commission may deem necessary to give effect to any findings made by the Commission and/or remedy or prevent any act or conduct as may be found by the Commission, and on the need, if any, for the enactment, amendment or repeal of any law of Saint Vincent and the Grenadines."
The terms of reference also included the following:
"AND I FURTHER DIRECT that you, the Commissioner shall make such report and recommendations in the premises as may to you seem fit, with all convenient dispatch, with leave and power in your absolute discretion to make such report and recommendations in whole or in part ad interim on any aspect or any topic of the matters as aforesaid before you[r] report and make recommendations finally and comprehensively."
The terms of reference thus provided for three types of report: first, an immediate report under para 13; second, an interim report within six months under para 14; and third, a final report or reports under the last paragraph quoted above.
The relevant principles
The appellant's complaint is based on the contents of an Interim Report issued by the respondent, which was dated 18 November 2005. He says that the contents of that report evidence apparent bias on the part of the respondent. Whether that is so or not depends upon the application of the relevant legal principles to the contents of the report considered in its context.
The now classic formulation of the test to be applied is that stated by Lord Hope in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at para 103, namely:
"whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
The Board accepts the submission made on behalf of the respondent that in applying that test, the court must have regard to the context. As Rix LJ explained in R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, [2009] 1 WLR 83 at para 93, the test falls to be:
"applied to the whole spectrum of decision-making, as long as it is borne fully in mind that such a test has to be applied in very different circumstances and that those circumstances must have an important and possibly decisive bearing on the outcome."
Thus, as ever, all depends upon the context. As the Board sees it, the question here is whether, having considered the facts, the fair minded and informed observer would conclude that there is a real possibility that, in the light of the contents of the Interim Report, the respondent would not approach the remainder of the inquiry with an open mind or, put another way, that he would not conduct an impartial inquiry, at any rate so far as the conduct of the appellant is concerned.
There was some correspondence between the appellant and the Secretary to the Commission before oral proceedings began on 14 November 2003. By a letter dated 14 August 2003 the Secretary asked the appellant to provide, within seven days, a written statement of his involvement in and/or knowledge of the preparation, planning, execution and subsequent failure of the Project, including any discussions and communications he had had with Dr Rolla. The appellant replied on 14 October 2003, acknowledging receipt of the letter and simply saying that he did not have any documents in his possession and that all the documents were in the Prime Minister's office. It might be thought that that response was less than co-operative.
On 13 November 2003 the Commission wrote to the appellant inviting him to attend for an interview conducted by an investigator on 19 November 2003. On 17 November 2003 Mr Maharaj SC, the appellant's attorney, replied saying that he was ready to assist the inquiry but needed to know on what matters it was proposed to interview him, to have sufficient time to consider and prepare and to have counsel present with him. Mr Maharaj SC asked for those details to be provided within 21 days and indicated that in the circumstances no useful purpose would be served by the appellant's attendance for interview on 19 November. So far as the Board is aware, there was no reply to that letter.
The Inquiry was opened in public by the respondent on 14 November. He was assisted by two counsel to the Commission, namely Mr Anthony Astaphan SC and Mr Joseph Delves. In opening the Inquiry he stressed the task of the Inquiry. In particular, he noted that it would cover about 12 years and embrace many activities of government and not only the discipline of law but also accountancy and financial administration. He added that it would touch on the diligence or otherwise of ministers, public officials and others and that the co-operation of those concerned would be required.
He noted that the Commission was not a court of law, that it was not engaged in an adversarial process or a prosecution and that it was not a political witch-hunt. He stressed the words of the oath he had taken, namely to conduct a "full, faithful and impartial inquiry", adding in particular that there must be a level...
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