R (ex parte Eric John LeVin) v. The Physical Planning Board and The Director of Planning (CL 29 of 2021)  TCASC 17 (27 May 2021);
IN THE SUPREME COURT
TURKS AND CAICOS ISLANDS
ACTION NO.: CL - 29/2021
IN THE MATTER OF AN APPLICATION BY ERIC JOHN LEVIN FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (O.53 r.3)
IN THE MATTER OF AN APPLICATION FOR THE RECUSAL OF MR. JUSTICE CARLOS W. SIMONS, QC.
(1) THE PHYSICAL PLANNING BOARD
(2) THE DIRECTOR OF PLANNING
ERIC JOHN LEVIN
RAMPART PROPERTY HOLDINGS, LTD
DECISION ON RECUSAL
Before: Hon. Mr. Justice Carlos W. Simons QC
Appearances: Mr. Stephen Wilson QC of Graham Thompson, Attorneys instructed on the Recusal Application by Miller Simons O’Sullivan, Attorneys for the Applicant
Mr. Mark Harvey of Miller Simons O’Sullivan, Attorneys for the Applicant on the Application for Leave to Apply for Judicial Review
Mrs. Libby Charlton de Rotte, Senior Crown Counsel, Attorney General’s Chambers, Attorney for the Respondents
Mr. Ariel Misick QC with Ms. Deborah John-Woodruffe of Misick & Stanbrook, Attorneys for the Interested Party
Hearing Date: Wednesday 19 May 2021
Venue: Court No. 5, Graceway Plaza, Providenciales
Application and Background
1. The principal proceedings in this action concern the applicant’s request for leave to apply for judicial review. He complains of decisions made by the respondents regarding development permissions. He also seeks an enlargement of time to apply for the remedy and so his application is made on notice to the respondents and the interested party when it might otherwise have been heard ex parte. Before we get to that however, the applicant asks me, as the hearing judge, to recuse myself. And his attorneys, Miller Simons O’Sullivan have instructed Mr. Stephen Wilson QC to come over and extend the invitation.
2. I acceded to Mr. LeVin’s application from the bench yesterday 25 May, and reserved carriage of the matter only for the purpose of producing this written decision. I had promised it, and I hope it would be at least a reference point in similar situations, and also of assistance to those who consider the making of, and those considering the acceptance of judicial appointments in the jurisdiction.
3. It also appears to me to be right that when the Court invites counsel to prepare, submit and exchange skeleton arguments and case law authorities for the assistance of the Court, and counsel respond in the way that Mr. Wilson QC, Mrs. Charlton de Rotte and Mr. Misick QC have responded, then the Court is obliged to reciprocate with written reasons, however brief given judicial time commitments.
4. The position of each of the respondents, and the interested party to the recusal application brought by Mr. LeVin is neutral. Mrs. Charlton de Rotte says:
“7. Though it is within the jurisdiction of Justice Simons to recuse himself without any recusal application being brought before the Court, the Applicant has formally made that application. The Respondents neither consent nor object. It is a matter for this Court to decide whether or not to recuse himself, but the Respondents offer submissions on the law as they see it, for the convenience and consideration of the Court.”
And Mr. Misick QC puts his client’s position this way:
“2. Rampart does not object to Simons J hearing the application on leave for judicial review or the application for judicial review, if leave is granted because Rampart has no reason to apprehend that Simons J would decide this case, other than on its legal and factual merits.
“3. The following submissions are made to assist Simons J and the court as to whether he should accede to Mr. Levin’s application for recusal.”
5. I shall consider how Mr. Wilson QC puts his client’s application presently, but first the background facts.
6. These are essentially as set out in Mr. LeVin’s second affidavit, sworn on 17 May 2021, and at paragraphs 12 to 14 of Mr. Wilson’s skeleton argument, based on that affidavit. I am and have been the senior partner of the law firm of Miller Simons O’Sullivan, attorneys since January 2000. I cannot say that I know the applicant personally, and my recollection is that I have never personally acted for him over the course of my thirty-seven years of practice – I was admitted as an attorney in January 1984.
7. I was appointed to the office of Judge of the Supreme Court by the Governor, acting in accordance with the advice of the Judicial Service Commission. The appointment took effect as from 1 April 2021 and will terminate on 31 March 2022. Meanwhile I remain a partner of Miller Simons O’Sullivan and will resume my position there once my judicial appointment expires unless other arrangements are made and agreed.
8. My appointment to the judiciary on a temporary basis is not an unusual occurrence in this jurisdiction. I have held previous temporary appointments both at magisterial level and on this bench. Other recent appointments include a member of Mr. Wilson’s firm, and in the more distant past, Mr. Misick’s firm. Such appointments from among senior members of the legal profession are also not uncommon in England and other commonwealth/common law jurisdictions. Indeed, it is from England that most of the temporary solicitor judge/barrister judge case law precedents that I have been referred to arise.
9. In the older common law jurisdictions, I imagine such appointments might serve two main purposes – they relieve case volume pressure on the established judiciary, and they introduce potential new recruits to those on the front lines of delivering judicial services. If that is so, then in the TCI at least one important additional purpose is served – localization or indigenization of the jurisdiction’s judiciary, which has historically been recruited from abroad. This application therefore takes on added significance as it might advance or retard the achievement of that objective.
10. If the latter, then the delivery of judicial services, and by extension, access to justice in the jurisdiction are likely to be restricted, at least temporarily, and in the longer term, deprived of the considerable skills and competencies of counsel of the caliber of Mr. Wilson QC, who leads this application and of Mr. Misick QC…if indeed they could ever be prevailed upon in the first place to join the bench. But the law, as it has been developed over many decades and by which I am either bound, in the case of the Privy Council or highly persuaded, in the case of other high courts of common law, must be applied as I find it.
The Law Against Judicial Bias
11. As I apprehend it both from my own research of the matter, and from the material that has been placed before me, judicial bias might be one or other of two species – actual bias or perceived or apprehended bias. At paragraphs 18 and 19 of his skeleton Mr. Wilson QC also identifies from the cases he cites at footnote 4 a “presumed” bias variant, which he presents somewhat as a sub-species of actual bias, both of which leads to automatic disqualification. Fortunately, I do not consider it necessary for the purposes of this decision to engage in the hair-splitting philosophical debate necessary to resolve the issue of whether there is any real difference between the two.
12, The objection to actual judicial bias is rooted in common sense and is derived from the principle that “no-one is a judge in his own cause”. It is expressed in the Latin maxim “nemo judex in causa sua” or “nemo judex in sua causa”. It is a principle of natural justice that has been a cornerstone of common law jurisprudence since at least the mid-sixteenth century. Its extension to embrace perceived bias may be said to date back to Lord Hewart’s famous condemnation of the conduct of a Justices’ Deputy Clerk in R v. Sussex Justices, ex parte McCarthy  1 KB 256,  All ER Rep. 233. In that case, in a landmark judgment, relying on “a long line of cases” the learned Chief Justice firmly established the principle that “it…is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Actual Bias and Automatic Disqualification
13. In Locabail (UK), Ltd. v. Bayfield Properties, Ltd., and Another and other applications  QB 451 a strong English Court of Appeal comprising Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott VC delivered a joint judgment in which the Court considered the law concerning judicial bias, disqualification, and recusal. At paragraph 2 of the judgment their Lordships had this to say:
“2. In determination of their rights and liabilities…everyone is entitled to a fair hearing by an impartial tribunal…All legal arbiters are bound to apply the law…without fear or favour, affection or ill-will, that is without partiality or prejudice. Justice…shuts her eyes to all considerations extraneous to the particular case.
“3. Any judge…who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlying the administration of justice…The proof of actual bias is very difficult because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.
“4. There is, however, one situation in which, on proof of the requisite facts, the existence of bias is effectively presumed, and in such cases, it gives rise to what is called automatic disqualification. That is where the judge is shown to have an interest in the outcome of the case which he is to decide or has decided.”
I believe this is the reference from which Mr. Wilson QC takes his discussion of “presumed” bias.
14. Counsel for the respondents also drew my attention to the speech of Lord Campbell in Dimes v. Grand Junction Canal (Proprietors of)  III HLC 759 setting aside orders, and decrees made by and on behalf of the Lord Chancellor on the ground that he had had at the relevant times a substantial shareholding in the respondent company:
“…it is of the last importance that the maxim that no man is to be judge in his own cause should be held sacred. And that it is not to be confined to a cause in which he is a party but applies to a cause in which he has an interest.”
Apprehended or Perceived Bias
15. It is the consensus among counsel that the test of apprehended bias is as formulated by Lord Hope in Porter v. Magill (HL (E))  2 AC 357 at p. 494, para. 103, which he put this way:
“The question is 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 test was adopted and applied by Lord Kerr in delivering the judgment of the Privy Council in Belize Bank Limited v. The Attorney General of Belize and others [2011 UKPC] 36, where at paragraph 35 he noted:
“This formulation has been followed by the Judicial Committee of the Privy Council in, for instance, Attorney General of the Cayman Islands v. Tibbets  UKPC 8  3 All ER 95, at para 3 and Prince Jefri and others v. The State of Brunei  UKPC 62 at para 15.”
Over the following paragraphs, 36 to 39, 64 and 97 the learned Judge goes on to apply the test. I remind myself that the Privy Council is a Court of binding authority on this Court.
16. However, the cases show that the fair-minded observer must be differentiated from the litigant himself. Mr. Misick QC pointed me to the very helpful discussion in this regard at paragraphs 55 to 59 of RBTT Trust Ltd v. Flowers  80 WIR 139. That was a case in which the Court of Appeal of Belize had cause to consider apparent bias in the context of the past association of an appellate court judge with companies connected to the appellant. With reference to a number of cases, the Court drew a distinction between the fair-minded observer and the litigant:
“ The fair-minded observer…reserves judgment…until he has seen and fully understands both sides of the argument…His approach must not be confused with that of the person who has brought the complaint. The ‘real possibility test’ ensures that there is this measure of detachment. The assumptions that the complainer makes are not necessarily to be attributed to the observer, unless they can be justified objectively…”
“ The putative fair-minded and informed observer is not unduly sensitive or suspicious…Nevertheless, the observer is not complacent. She knows that fairness requires that a judge must be, and must be seen to be, unbiased…” (but) “She knows that judges, like anybody else, have their weaknesses. Accordingly, she will not shrink from the conclusion that [a judge’s] past association…may have made it difficult for him to judge the case before him impartially, if such a conclusion can be justified objectively.”
“ To the fair-minded and informed observer “the judicial oath is more a symbol than of itself a guarantee of the impartiality that any professional judge is by training and experience expected to practice and display…The proper point of departure, therefore, is the presumption that judicial officers…will be faithful to their oath to discharge their duties with impartiality and in accordance with the constitution. The onus of rebutting that presumption and demonstrating bias lies with the person alleging it. Mere suspicion of bias is not enough; a real possibility must be demonstrated on the evidence…”
The Recusal Application
17. Now to the consideration of Mr. LeVin’s application and Mr Wilson QC’s submissions. I repeat the brief factual background that I have given at paragraphs 5 and 6 above and I confirm the narrative given at paragraphs 12 to 14 of Mr. Wilson’s skeleton argument, based as it is upon Mr. LeVin’s second affidavit filed in support of his recusal application.
18. In this context Mr. Wilson submits at paragraph 15 of his skeleton:
“It is respectfully submitted that there is a clear and obvious conflict between: (a) the interests of Simons J as a current and active partner of MSO; and (b) his duties and responsibilities as a Judge of the Supreme Court. This indubitable conflict gives rise to presumed or apparent bias which is sufficient to disqualify him from hearing any case in which MSO represent a party for so long as he remains a partner of the firm; alternatively, from presiding in this particular matter.”
19. In pressing his client’s case Mr Wilson relies on Article 6 of the TCI Constitution that provides a fundamental right to a fair trial by a court that is independent and impartial, and he relies on the passage quoted from paragraph 2 from the case of Locabail referenced at paragraph 12 above. The connection is this – Article 6 of the TCI constitution re-enacts the “fair hearing by an impartial tribunal” provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms that the court in Locabail was referring to. So, a breach of the rule against judicial bias becomes a denial of a constitutionally guaranteed right, and a repudiation of the judicial oath.
20. Based upon the facts as I have stated them to be, and as averred by Mr. LeVin in his second affidavit and narrated by Mr. Wilson in his skeleton, it seems to me that the reasoning advanced by Mr. Wilson at paragraphs 18 and 19 of his Skeleton is unanswerable, or “irresistible” as described in the case law. Whether the bias alleged here is actual bias or presumed bias and what difference there might be between the two is immaterial and does not need to be resolved as I said earlier.
21. I accept that Mr. LeVin is not alleging actual bias in the sense that the Court would deliberately and consciously decide the litigation one way or the other to ensure the enhancement of the judge’s personal interest. But the connection between the judge and a party to the litigation (Mr. LeVin) and the lawyers representing him (MSO) is clear. Applying the test formulated by Lord Hope in Porter v. Magill referred to earlier of “the fair minded and informed observer”, I have come to the view that such an observer (to use Lord Hope’s words) “having considered the facts would conclude that there was a real possibility that the tribunal was biased.”
22. I must say that I agree with Senior Crown Counsel Mrs. Charlton de Rotte’s comment at paragraph 16 of her skeleton where she says:
“It also warrants some comment that the Respondents and the Interested Party have a more compelling locus to make the application that the Applicant is making but they have both stated in writing that they have no objection to Justice Simons hearing the matter, effectively waiving their right to object.”
On the obverse side of that coin one might think that bias, if there was any might accrue to the benefit of the applicant and not to his detriment. However, as we have seen “the fair-minded and informed observer” test is an objective one and from the discussion in the RBTT Trust v. Mendez case referenced earlier, we learn that the approach of “the fair-minded and informed observer” “must not be confused with that of the person who has brought the complaint.” So, in the end nothing really turns on who brings the complaint. Once the issue of bias is raised the matter is to be viewed and dealt with objectively and not through the lens of the complainant.
23. Having regard to what I say at paragraph 19 above, detailed further analysis of Mr. Wilson’s skeleton becomes academic and unnecessary, his case law references being mostly similar in any event to those of Mrs. Charlton de Rotte and Mr. Misick QC. I take note of his references to and quotations from what he styles “The canons of judicial conduct” beginning at paragraph 25 of his skeleton. Whilst not judicial pronouncements themselves, they mostly restate legal precedent, conventions and legislation and are very helpful guides to how judges should approach the discharge of their duties. For the reason I have mentioned before, the Privy Council Guide to Judicial Conduct is especially relevant of course.
24. I find the reasoning advanced by Mr. Wilson at paragraphs 28 to 36 of his skeleton as compelling (or “irresistible”) as what he says at paragraphs 18 and 19 and on this basis as well, I consider it would not be proper for me to retain conduct of this matter as the hearing judge.
25. So, as I said from the bench it seems clear to me that I should, indeed I must recuse myself. The case law against my continuing is overwhelming, and in most instances the statements in opposition are the ratio decidendi of the cases, rather than the obiter dicta of the hearing judges. Often the decisions that are set aside for bias after complaint is made of newly discovered offending connections, involve solicitor (or barrister) judges in part time appointments, or indeed full-time professional judges, sometimes at the highest appellate court levels and in circumstances on all fours with the case at hand.
26. As I was careful to say from the bench, in taking this decision I say nothing of other cases that might come before me. I am mindful of the quotation from Locabail Mrs. Charlton de Rotte brought to my attention:
“15. Although disqualification under the rule in Dimes and Pinochet (No. 2) is properly described as automatic, a party with an irresistible right to object to a judge hearing or continuing to hear a case, may as in other cases to which I refer below, waive his right to object. It is however clear that any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not.”
The TCI bench is a small one, and litigants may choose to waive an irresistible right to object in favor of avoiding delay, for example. They should not be shut out. Other litigants might raise objections solely for the purpose of achieving delay and frustrating a litigation opponent. In those cases, the objections raised should properly be examined against the objective test standards set by the authorities so that the proper administration of justice is not obstructed, and the sitting judge does not become a tool in achieving that mischievous end.
27. By way of unreported TCI precedent, I may be forgiven for recalling that early in my own career, in the late 1980s, the TCI Court of Appeal (which then sat in Nassau – how long ago that was!) setting aside a decision of the then Chief Justice, Sir Frederick Smith QC. The case arose out of proceedings brought by the late Lloyd Rodney attorney, and a member of this Bar, against Cable and Wireless (West Indies) Limited (CWWL), the then monopoly communications services provider.
28. In the proceedings, Mr. Rodney was complaining of the disconnection of his telephone service for an unpaid debt and the assignment of his (former) number to a time of day and weather recording service. I appeared in the matter for CWWL, and Mr. Rodney was represented by Mr. Courtney Barnett, also of this Bar. After the Chief Justice found in favor of CWWI at first instance, Mr. Rodney discovered from a brochure published by the Barbados subsidiary of CWWI that he (the Chief Justice) was counsel to, and a shareholder of that company. In the Court of Appeal, the application to set aside was uncontested. The case is unreported as I say.
29. Counsel have graciously agreed there should be no order as to costs. I believe that is correct and that is the order I make.
30. I am most grateful to Mrs. Charlton de Rotte and to Mr. Misick QC for their deference, and to Mr. Wilson QC for the firmness that he so respectfully showed in putting forward the applicant’s case for recusal. Given the gravity of the matter, I had considered having the Hon. Attorney General appear amicus curiae, but that idea was complicated by the fact that her Chambers of course represent the respondents. However, I must say that from all three counsel, the Court has had every assistance possible and for that I am very much in counsels’ debt.
27 May 2021
Mr. Justice Carlos W. Simons, QC
Supreme Court Judge