Duncanson & Co (Beryn Duncanson DBA ) -v- East Wind Development Company Ltd and ors (2) Beryn Duncanson ( Duncanson & Co DBA)-v- The Registrar of Lands and ors. (CL-AP 8/23; CL-AP 13/23) [2023] TCACA 13 (27 October 2023)

Appeal - Recusal – Bias - Leave to Appeal –Refusal of Stay –Abuse of process- Indemnity Costs

This appeal is a part of a series of  five (5) interlocutory appeals pending by the  appellant namely, CL AP No 8 of 2023 which relates to the refusal of a stay by Gruchot J. after dismissing an application for his recusal, CL AP No 11 of 2023 whereby Selochan J. refused an application to adjourn sine die CL AP 12 of 2023 whereby Selochan J. refused an application to stay proceedings pending an application for judicial review into the validity of the judge’s appointment, CL AP No 13 of 2023 whereby Selochan J. dismissed an application for a stay pending the appeal against his decision not to recuse himself, and CL AP 14 of 2023 an appeal against Selochan J.’s decision that the Registrar of Lands under the Registered Land Ordinance exercised his discretion wrongly when he removed  restrictions placed on  registered land 40311/31 &32, East, Middle Caicos.

Gruchot J. was about to hear the Main Action when the appellants made an application that he recuse himself from that action and generally from any other matters concerning the appellant. Gruchot J. in a comprehensive judgment dismissed the application and refused the stay.

The appellant had made an urgent application to the whole Court for a stay of Gruchot J.’s judgment pending the hearing of the appeal from his refusal to recuse.  The application came on for hearing by Zoom on 6 June, 2023.  After hearing both sides on the appellant’s application for a stay pending the hearing of the appeal the court as an interim measure ruled that the matter was manifestly capable of being heard by any other judge and so ordered that the matter be stayed until its decision on the stay application or until the appeal could be transferred to another judge whichever came first.

The Appellant assured the court that any other judge would be acceptable.  The court informed him that another judge had recently been appointed and had been designated by the Hon. Chief Justice as a general-jurisdiction judge. Selochan J. was assigned the matter in short order. At the first hearing the appellant made an application for an adjournment sine die and also made an application for the Selochan J. to recuse himself.  In a carefully worded judgment, the learned judge dismissed the application for the adjournment and also dismissed the recusal application as an abuse of the process of the court and ordered indemnity costs.

The appellant through appeals 8 and 13 of 2023 appealed against the decisions of Gruchot J. and Selochan J. respectively on their refusal to recuse. The court is now being asked to decide on the reasonableness of their respective refusal to recuse.

Held:

1. The appeal against that part of the judgment relating to abuse of process is allowed, and the consequential the indemnity costs award is set aside.
2. The appeals against each of the Judges to recuse is dismissed.  No case has been advanced to support the grant of a general recusal and that application is dismissed.  Costs to the respondents to be taxed if not agreed.