Panton v Minister of Finance
| Jurisdiction | UK Non-devolved |
| Judge | Lord Clyde |
| Judgment Date | 12 July 2001 |
| Neutral Citation | [2001] UKPC 33 |
| Court | Privy Council |
| Docket Number | Appeal No. 20 of 2000 |
| Date | 12 July 2001 |
[2001] UKPC 33
Privy Council
Present at the hearing:-
Lord Slynn of Hadley
Lord Hoffmann
Lord Clyde
Lord Millett
Sir Christopher Slade
[Delivered by Lord Clyde]
The appellants are shareholders in three financial institutions, namely, Blaise Trust Company and Merchant Bank Limited ("the Bank"), Blaise Building Society ("the Building Society") and Consolidated Holdings Limited ("Holdings"). During 1993 and 1994 various investigations were carried out by the regulatory authorities of the Bank's activities. These disclosed various improprieties in the management of the Bank and certain breaches of the Financial Institutions Act 1992. On 18th April 1994 the directors of the Bank, including the two present appellants, granted to the Minister of Finance and Planning a formal undertaking to the effect that they would take a variety of specified steps with a view to remedying the situation. The position however remained unsatisfactory and on 18th December 1994 the Minister of Finance and Planning assumed temporary management of the Bank under section 25 of the Act. It was then found that the affairs of the three institutions were so intermingled that it was impossible to separate them. On April 10th 1995 the Minister assumed temporary management of the Building Society and of Holdings. He subsequently proposed and with the sanction of the court secured Schemes of Arrangement whereby the creditors and depositors of each institution were able to receive 90 cents in the dollar of the sums owing to them and the preferred creditors were paid in full. These arrangements were made possible by the making of enormous loans to the institutions by the Government of Jamaica.
On July 18th 1995, before these arrangements were achieved, the appellants commenced proceedings whereby they sought redress under section 25 of the Constitution of Jamaica. The essence of their challenge was to the effect that the Act of 1992 was unconstitutional because it made no provision for compensating them as shareholders for the actions taken by the Minister. The case came before the Constitutional Court and was dismissed by that Court. The appellants then appealed to the Court of Appeal, presided over by Rattray P, and that court on 26th November 1998 dismissed the appeal. The appellants have now appealed to their Lordships' Board.
The first point taken by the appellants is that as regards the hearing before the Court of Appeal there was a contravention of the Constitution in that they lacked an independent and impartial tribunal. Section 20(2) of the Constitution provides as follows:
"Any court or other authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial …"
The appellants claim that there was a contravention of this provision in that the Court of Appeal was not an independent and impartial tribunal in respect of an apparent bias on the part of the President, Rattray J. The point arises in this way. At the time when the Financial Institutions Act 1992 was passing through Parliament Mr Rattray was a Member of Parliament and held the offices of Minister of Justice and Attorney General. As Attorney General he was, in terms of section 79(1) of the Constitution, the principal legal adviser to the government. He had served as Attorney General when his party was in power between 1976 and 1980, and was again appointed to that office in 1989 when his party regained power after a period in opposition. In December 1992 he signed a pro forma certificate prior to the presentation of the Financial Institutions Act 1992 being presented to the Governor-General for his assent in Her Majesty's name and on Her behalf. The certificate reads:
"I have examined the accompanying Act entitled The Financial Institutions Act 1992 and I am of opinion that the Act is one that is not contrary to the Constitution and that there is no legal objection to the Governor-General assenting thereto."
He signed this certificate in his capacity as Attorney General. The appellants now contend that this certification of the constitutionality of the Act was essentially a certification of the same issue which came before him in the present case and that he was disqualified from hearing the appeal since he could not be regarded as independent or impartial.
It is not suggested that Rattray P. was in fact partial or biased in his dealing with the case. There is not the slightest ground for imagining that there was here any actual bias. Nor was this a case in which there was anything in the way the appeal hearing was conducted or the way in which the president of the court behaved to give any basis for a conclusion that he was anything other than independent and impartial. Nor indeed does it seem to have occurred to anyone concerned in the appeal that there was any possibility of bias. The appellants evidently did not know until after the hearing that he had been Attorney General at the time when the legislation was passed. It is only in retrospect that they have come to submit that he was disqualified from sitting on the appeal.
Counsel for the appellants argued that the present was a case of automatic disqualification. That expression was used by Lord Browne-Wilkinson in R v Bow Street Metropolitan Stipendiary Magistrate Ex p Pinochet Ugarte (No.2) [2000] 1 AC 119 at p. 132, to describe the case where in the literal application of the phrase a man is judge in his own cause: "If a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause". Later he observed at p. 133, that "once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias". The present case is far removed from such a situation. The constitutionality of the legislation can hardly be described as a cause to which the judge was party. The certification falls far short of equating him with the second respondent so as to make him a champion of the constitutionality of the measure. He had no financial or proprietary interest in the outcome.
In many cases the question of bias may arise because of an interest which the judge has at the time when he is hearing the case. There can be an appearance of a conflict of interest which may be sufficient to disqualify him. One special feature of the present case is that the bias is said to arise from a past period. It was suggested that in so far as the second respondent was the holder of the office which at an earlier period had been held by Rattray P he was answering for the certification which had been given in December 1992. Reference was made to section 13(3) of the Crown Proceedings Act which provides that:
"No proceedings instituted in accordance with this Part by or against the Attorney-General shall abate or be affected by any change in the person holding the office of Attorney-General."
The continuity of the office in that regard was put forward to support the contention that Rattray P was acting as judge in his own case. But that is a false analysis. The second respondent is not engaged in order to defend anything that a predecessor in his office has done, but to respond to the particular attack on the constitutionality of the Act which has been put forward by the appellants. There is no ground for suggesting that Rattray P had any bias in favour of the current holder of the office which he had formerly occupied. He had no present interest in the constitutionality of the legislation when he heard the appeal. The appellant sought to found upon the view expressed by Lord Hutton in Pinochet (No.2) (at p. 145) that there could be cases "here the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice" so as to constitute a case of automatic disqualification. But there is nothing to suggest that the present case can succeed even by that test. Their Lordships are not persuaded that this was a case of automatic disqualification. In no proper understanding of the phrase can it be said that Rattray P was judge in his own cause.
The alternative formulation of the appellants' case is that there was an apparent or potential bias, that is to say a possibility of bias, arising on account of Mr Rattray's earlier association with the Act. The test to be applied has been a matter of dispute. As was explained in Roylance v The General Medical Council (No. 2) [2001] 1 AC 311 at p. 319 the formulation preferred in R v Gough [1993] AC 646 of a real danger of bias has been subjected to some criticism. An alternative test is that of a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge would not discharge his task impartially. But as was also noted in Roylance some approximation between the two formulations may be achieved by the placing of a proper emphasis on the reasonableness of the apprehension. It is not necessary for the determination of the present case to discuss in further detail the precise formulation of the test which ought to be adopted.
The essence of the allegation of bias is based upon two factors; one is the granting of the certificate in December 1992 and the other concerns the position held by Mr Rattray during the period of the passage of the legislation. These are matters of past history not of present or...
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