IN THE COURT OF APPEAL OF THE TURKS AND CAICOS ISLANDS APPEAL NO: CL 17/14
BETWEEN
RBC ROYAL BANK (BAHAMAS) LTD. PLAINTIFF
and
MR. BERYN DUNCANSON DEFENDANT
(By original claim)
MR. BERYN DUNCANSON PLAINTIFF
and
RBC ROYAL BANK (BAHAMAS) LTD. 1st DEFENDANT
and
ROYAL BANK OF CANADA 2nd DEFENDANT
(By Counterclaim)
Before
The Right Honorable Mr. Justice Edward Zacca. President
The Honorable Mr. Justice Elliot Mottley. Justice of Appeal
The Honorable Mr. Justice lan X. Forte. Justice of Appeal
Mr. Elliott Lockhart, Q.C., with the Appellant in person. for the Appellant
Mr. Neale Coleman for the Respondent
Heard: January 26 & 27 and June 2 2015
FORTE. JA:-
1. This appeal is against the Order of Ramsay-Hale J. (as she then was), where she refused an application to recuse herself from presiding over the Case Management and trial of the subject case listed before her. The case concerned a claim issued against the Appellant on 21st September, 2012, on a personal guarantee dial he is said to have given in respect of a loan made by Royal Bank of Canada (RBC) to Flamingo Crossing Ltd., a development company for which the Appellant is the principal. The Company is in receivership and was so at the time of these proceedings.
Orders Appealed Against
2. The Orders, insofar as relevant to these proceedings, read as follows:
"Upon hearing the Defendant of the original claim and Plaintiff in the counterclaim (the Defendant) Amended Summons dated 27th January. 2014 for the recusal of Her Ladyship the Honourable Justice Ramsay- Hale.
"And upon hearing the Defendant’s Amended Summons for Direction dated 21st January, 2014 ...
"And upon hearing Mr. Coleman for the Plaintiff and Mr. Beryn Duncanson for the Defendant of the original claim (and Plaintiff on the Counterclaim) IT IS ORDERED AND DIRECTED THAT:
1. The Defendant's Amended Summons for the recusal of Her Ladyship the Hon. Justice Ramsay-Hale dated 27th January 2014 be dismissed.
2. The Defendant to pay the Plaintiff costs of the Defendant's summons for the recusal of Her Ladyship The Honourable Justice Ramsay-Hale to be taxed if not agreed on a standard basis.
3 ………..''
Grounds of the Application to Recuse
3. In his Amended Motion for Recusal the appellant advanced several grounds why the court should find that there was a real possibility of bias if the learned judge continued to preside over the case. These grounds are summarized as follows:
i. Comments attributed to the learned judge amounted to evidence of “adverse emotions (which] have been fostered by (the Court]... against the Applicant” as a result of the Applicant’s attempt to have his Application for Leave To Appeal heard before another Judge.
ii. The learned judge instructed the Senior Deputy Registrar to request the presence of opposing Counsel at the hearing of an ex parte application (for leave to appeal), thereby converting it into an inter partes hearing without giving him prior notice;
iii. The learned judge previously unreasonably refused his application for adjournment to facilitate the attendance of Senior Counsel whom he had retained to appear for him;
iv. That the learned judge ’ignored' the Applicant’s ‘draft order’ of her ex tempore ruling pronounced in open court on 25th November. 2013; and then perfected an Order at a much later date, signed 12th December, 2013, which was materially at considerable odds with his prepared draft of the ex tempore ruling;
v. That the learned judge previously decided crucial matters and facts relating to the case during prior judicial sittings and made exceptional prejudicial orders against him, including an order striking out a writ of action that he had commenced.
vi. That as a matter of public policy and for the maintenance of local judicial integrity, the case should be heard by a judge other than Her Ladyship before whom he regularly appears as counsel.
vii. That her Ladyship has serious conflicts in these matters because of her close personal friendships with persons who have direct vested and pecuniary interest in the outcome of the case;
viii. The appellant is personally and professionally connected to the principal newspaper. Turks and Caicos Weekly News, which published articles critical of Her Ladyship, as set out in the appellant's affidavit.
4. In his affidavit dated 27th January 2014, the appellant expands on the ground set out at vii above. To put his application for recusal in fuller context excerpts from this affidavit are set out below:
These paragraphs fall under the heading "JUDGE'S CONFLICT FRIENDSHIPS”
A. JAHMAL MISSICK
"11. I am recently learning that on numerous occasions this past year the Judge has accompanied young Mr. Jahmal Missick with other friends on outings especially on a weekend at the Bugaloo Restaurant and Beach Bar on Five Cays. I know this because I have seen them together on one such occasion, but more than that, I now know from the Management and staff there that they have been there numerous times. On virtually all occasions Mr. Missick alone has picked up the tab for such outings. On no occasion has Mr. Missick's wife ever attended such an outing ...”
“12. The apprehension of bias from that connection arises as follows. Jahmal Missick is a member of the Missick and Stanbrook Law firm and the ‘heir apparent' of that Law firm, senior partner Mr. Ariel Missick who is his father. His immediate and future pecuniary interests in that Law firm arc clear. There is little love lost between myself and Mr. Missick's Law firm. I am largely blamed (or credited, depending on one's perspective) at the local Bar for the eventual arrest and criminal charge of Mr. Gordon Kerr, a principal partner at the Missick and Stanbrook Law firm (charged with cheating the Public Revenue). That case centres around the Emerald Cay Estate matter that has been before the Court of Appeal and as high as the Privy Council. My family owned newspaper. Turks and Caicos Weekly News, maintained pressure on former Attorney General and the current DPP for their inexplicable failure to press charges in an unrelenting campaign of articles for over 2 years before eventual charges by the S.I.P.T. team last year August 2013 (whereas all else in the media stayed silent).
"I personally have an interest in the publishing company Turks and Caicos News Co. Ltd. and I am legal counsel to it as I have been for years ....
"I myself finally wrote a strong letter to the wider Bar Association that touched upon the glaring injustice in inequal (sic) treatment meted out by the British authorities in dispensing justice in the islands, and that those cases were amongst the most glaring. That letter was leaked online and apparently can still be found online ...".
"13. Some 4 weeks after my letter to the Bar Association was leaked online, the two subject lawyers of the Emerald Cay scandal were arrested and charged by SIPT (including Missick and Stanbrook senior partner. Mr. Gordon Kerr). As a direct result of that arrest, the Royal Bank of Canada account went out the door from Missick and Stanbrook, as was inevitable. A large multinational company, especially one that is a bank, can ill-afford so much as association with a law firm, whose senior partner is arrested and charged, especially for an offence alleging dishonesty (as in this case ‘cheating the public revenue').
"The Plaintiff in the instant case. RBC represent a very considerable institutional client to any of the law firms on island, annual legal fees locally from one account alone, I understand arc typically over a million dollars a year. The arrest of Mr. Kerr and the loss of the RBC account clearly present the real possibility of venom from the Missick and Stanbrook law firm. But there is an ongoing pecuniary interest.
"14. Notwithstanding any animosity or malice that members of the Missick and Stanbrook law firm, such as Jahmal Missick, may continue to bear for me as a result of the above, there is a more direct way in which they have a direct interest in the outcome of my case with RBC. Though RBC is no longer their client, nay especially so. if I should prevail in my counterclaim against the Bank for either one of the several causes of action pleaded including the claimed ’illegality' of the Bank’s position at the time with the various Bank documents at the time prepared by Missick and Stanbrook law firm, but especially say the counterclaim for ’tortuous influence' or ’defamation’ or ’breach of contract’ - it is very likely, and to be expected, that the bank will present a claim in professional negligence against the law firm. It would be a multi-million dollar claim. So here the Judge has a friend, an apparently close friend, who has a clearly vested and very substantial pecuniary interest in the outcome of my instant case.”
B. TONY GRUCHOT
"15. The Judge has a close friendship with attorney. Mr. Tony Gruchot, of the local Graham Thompson law firm. They have attended various social functions and events on apparent dates in the past year, well late into the night. I have personally witnessed them out together late night on at least two occasions."
“16. The weekend of Saturday. 13th July. 2013 I remember it well because my nephew, Brandon, had just come back victorious from the Trinidad ‘Under 19’ Rugby Tournament which his TCI team had won in commanding fashion. The team’s chief sponsor. Meridian Trust, had put on a big celebration event for the team at the building across from what is today called the ‘Blue Haven' development in Leeward ...
"Judge Hale also attended the Rugby event that night. I observed that her male escort was attorney. Mr. Tony Gruchot and the body language in physical space between the two that night gave a definite memorable impression. I did not enter the premises at Sall Club [Blue Haven] but myself went onward somewhere else for dinner. Much later that night, well near or past midnight I saw Judge Ramsay- Hale still with Mr. Gruchot at the Sandbar Night Club and Bar in Grace Bay. They arrived together and later in the night left together. My observation of the body language and mannerisms of Mr. Gruchot with the Judge was quite memorable. Amongst the close sharing of personal space. Mr. Gruchot had his hands frequently on the Judge’s waist. That night was one of two times I personally had seen the Judge and Mr. Gruchot out together late night at the Sandbar where they arrived together and left together. The second time was either a week or two before or after that particular night which exact date I cannot remember.”
“17. Mr. Gruchot will be familiar to the Court of Appeal as having appeared there as attorney to the Receiver in cases related to this Action where I last year sought stays pending appeal. Whilst he himself never appeared before Her Ladyship on the prior cases related to this action (both now on appeal) it is clear that he has a substantial pecuniary interest in the outcome of the instant case. If I were to prevail in this Action, the receivership would immediately end and Mr. Gruchot would have no more legal fees funded by RBC, the Plaintiff in the instant case”.
Events leading to Motion for Recusal
5. The complaint set out in the grounds above harkens back to a series of events, which are succinctly set out in the learned judge’s judgment, of which no objection has been made to its accuracy.
6. These events commenced when then counsel for the plaintiff in the Action (Missick and Stanbrook) issued a summons to strike out an Amended Defence and Counterclaim filed by the appellant on the 21st May 2013; on ground that he had added a party to the proceedings and new causes of action alleging fraud, breach of fiduciary duty and breach of contract, without the leave of the court. Thereafter, on the 5th June 2013, the Plaintiff issued a Summons seeking leave to amend its pleadings, having failed to secure the defendant's (appellant’s) consent to the proposed amendment.
7. Both summonses were fixed for hearing in June 2013; but were adjourned, as Senior Counsel instructed by the appellant was not available. In November 2013 Karam and Missick having filed a Notice of Change of Attorney, the summonses were re-listed for hearing on the 25th November. 2013. On that date, the appellant applied for an adjournment to facilitate the attendance of Senior Counsel. That application was refused by the learned judge, based on: (i) the fact that a year had passed since the suit was filed, (ii) an adjournment had already been granted for the same reason and (iii) the appellant was an attorney who was capable of making the application which was before the court.
8. The court orally granted the plaintiffs application to amend on the basis of submissions made by counsel: but struck out the appellant’s added causes of action and the addition of another party to the action, as they were done without leave of the court.
9. Subsequent to these oral orders being made in court. Mr Coleman. Attorney for the plaintiff, sent some draft orders to the learned judge for her approval. The appellant was not satisfied with Mr Coleman’s draft: so he sent his own draft, purporting to be consistent with the judge’s orders. However, by the time the appellant sent his draft the learned judge had already approved and signed Mr Coleman's draft, thereby perfecting them. The appellant thereafter filed an application for leave to appeal the orders, and by written request, asked the Registrar to list his application before another judge “for obvious reasons”.
10. Contrary to the request, the Senior Deputy Registrar listed the application before Ramsay-Hale, J for hearing on the 9th January 2014. The appellant was not pleased. He demanded that the application be set down before another judge and allegedly told the Registrar that a recusal application would put him in a different mode and he did not want to go there.
11. As a result of this controversy, the learned judge instructed the Senior Deputy Registrar to advise Mr Coleman to attend at the application for leave, which had been fixed as an ex parte hearing. Another reason for requesting Mr Coleman's presence was because of the appellant's allegation that the perfected orders did not reflect the orders made by the judge in court.
12. On the date of the hearing, the appellant applied for the application to be adjourned, because he had intended to make an ex parte application but said he had been 'hijacked', as Mr Coleman was present, having been summoned by the judge, without giving him (the appellant) notice. In the end, the hearing was adjourned to the 28th January 2014 to give the appellant time to consider an authority cited by Mr Coleman. However before its resumption, the Motion for Recusal (as amended) was filed.
13. Against that factual background, I now turn to the law.
The Law
14. The law, as to the proper test to be applied in determining whether a Judge should recuse him/herself from presiding over a case, has been developed over several years and was settled by the House of Lord in the decided case of Porter v Magill (2001) UK HL 357. (2002) AC 357. There, Lord Hope in his judgment, confirmed that the test for apparent bias is whether the fair minded and informed observer, having considered the facts, would conclude that there is a real possibility that the Tribunal was biased [or will be biased].
15. Later, the English Court of Appeal, having found no difference between the common law lest of bias and the requirements of the European Convention of Human Rights, made the following statement, with which we agree, in Resolution Chemicals 250 v H. Lundbech A/S (2013) EWCA CIV 1515; (2013) WL 6148159 delivered on 25th November, 2013:
"... the fair minded and informed observer is not unduly sensitive or suspicious, but neither is he or she complacent (approving dicta in Helow v Secretary of State for the Home Department (2008) UK HL 62 (2008) IWLR 2416. Later, the Court stated that it is important to distinguish between a pragmatic precautionary approach and the application of the test itself. If a fair-minded and informed observer having considered the facts, would not conclude that there is a real possibility that the tribunal will be biased, then the objection to the Judge must fail even if that leaves the applicant dissatisfied and bearing a sense that justice will not or may not be done.'
16. The Court of Appeal also noted that 'the pressure on limited judicial resources, aptly reflected in the present case’ [as it is in the subject appeal] in the shortage of Judges suited to fry this complex patent action, may mean that the easy option of voluntary recusal, irrespective of the strict application of the legal test may from time to time have limited scope."
Review of Judge’s Approach to the Motion
17. Against this background I return to the learned judge's decision to review how she responded to the allegations made in the Motion. In so doing I recognize that any judge who is asked to recuse him or herself is a judge in his or her cause in that respect and the explanation given by such judge may, in an appropriate case, be knowledge that could be attributed to the fair-minded and informed observer.
18. The learned judge in the present case gave adequate reasons for not acceding to the grounds advanced by the Appellant on which she was being asked to recuse herself. In so doing she demonstrated an awareness of the following dicta at paragraph 42 in the Resolution Chemicals case (supra):
"As the Judge noted. Patten L.J. said in Re L-B (Children) at (22) that a Judge faced with a recusal application on the ground of apparent bias should "explain in sufficient detail the scale and content of the professional and other relationships which is challenged on the application"
19. In applying the test the learned judge relied on the dicta in the decided case of Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337, where she cited, with agreement, a passage at paragraph 53:
“Such a person [the fair-minded and informed observer) is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the Law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know common place things, such as the fact that adjudicators sometimes say, or do things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have at least in a very general way some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted.
The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold tradition of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious''.
20. The learned judge concluded that in essence there were eight grounds advanced by the appellant, which we have set out above at paragraph 3. And she dealt with each ground separately.
21. Firstly, she directed her analysis to the hearing of the application for leave to appeal, and the remarks made in. and concerning that hearing. She opined that the 'observer’ earlier defined would know the context in which the 'impugned’ remarks were made, and that they were "confined to the issue of the proper procedure for seeking leave to appeal and for making an application to the Court for recusal"
22. The manner in which this was dealt with was unfortunate, but seems to have been caused by the appellant who allegedly spoke words, which were unjustified. In any event, we agree with the learned judge who in her decision found that there was nothing said or done in that particular hearing which would satisfy the test of "real possibility of bias’’.
23. Secondly, in relation to the "ex parte hearing" for leave to appeal, a Judge who has the responsibility of deciding whether leave should be granted is entitled to have the opposing Counsel summoned to respond to the application. We must say, however, that in those circumstances, the Learned Judge, should make the decision to give the other side a chance to be heard, when the ex parte application comes on for hearing, by ordering then that the other side be summoned. It appears to us, however, that the Learned Judge was acting in the interest of time in instructing the Senior Deputy Registrar to summon the other side to the hearing set down as "ex parte”. In any event, the Appellant, if he were prejudiced by the act of the Learned Judge, could have asked for an adjournment of that hearing, to instruct himself. I conclude that there was nothing disclosed in the evidence, which could satisfy the test for the recusal of the Learned Judge on that alone.
24. Thirdly, on the question of the refusal of an adjournment. I agree with the Learned Judge that the mere refusal of an application for an adjournment cannot give rise to the appearance of bias in the Judge.
25. In respect of Ground 4, I need only repeat the learned Judge's reasoning, with which we agree, as to why this could not avail the Appellant. She stated:
"The evidence in support of Ground 4 is that on 23 November. 2013 I said I was striking out the Amended Defence and Counterclaim and his [the Appellant’s] pupil records me as saying on 9 January that I didn't strike out the Defence, only the Counterclaim. In that event, it would appear that I spoke with a regrettable lack of clarity for not stating that I was striking out the matter complained of in the Amended Defence and Counterclaim.
That said, the only application in front of me was to strike out the three new causes of action and the new party added without leave. The submissions were restricted to those matters. It was the only application that I decided and the only decision I made was that Mr. Duncanson needed leave to add a new party and new causes of action.
It was the only issue between the parties. The Plaintiff wished to amend its claim and the proposed amendments by both parties were thoroughly canvassed in the correspondence between Mr. Heylin and himself and agreed, save that Mr. Heylin objected to Mr. Duncanson adding a new party and three new causes of action without leave.
If there was any confusion because I spoke in such broad terms as alleged, the Order made it clear that only the addition of the new party and the new causes of action were struck out as having been made without leave.”
26. This ground refers to the wording of an Order which is the prerogative of the Learned Judge who made the Order, and consequently the best person to determine which order she made and to what conclusion she had come. Given the Learned Judge’s description of the application that was before her, it is obvious that the Order was in keeping with her decision. I see nothing in this allegation, which could lead to a conclusion that there was a real possibility of bias, in terms of the test to be applied.
27. Fifthly, in respect of previously made orders, while the learned judge agreed that she had made two prior interlocutory orders unfavourable to the appellant, she found that that was not a ground for recusal. I agree. She went on to explain that the orders made by her were unexceptional and determined solely on issues of law. She denied the allegations that she had prejudiced her mind on questions of identical issues.
28. Mere refusal of interlocutory applications during the normal course of judicial hearings could never give rise to a finding of a ‘real possibility of bias ’. If that were so, especially in a small community like Providenciales, with only two Judges, it would be difficult to conduct the regular and normal business of the Courts. In coming to her conclusion on this point, the Learned Judge relied on the dicta of Mason. J. with which I agree, from the case of Re JR 1: Ex parte CJL 919860 161 CLR 342, at 352:
“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations on which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean cither that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.”
29. Sixthly, the appellant’s contention that the learned judge should recuse herself on the basis that he appeared before her often was rightly dismissed by the learned judge as having no merit.
30. Seventhly, I now turn to the ground, which alleges conflicted friendships between the learned judge and certain attorneys. In determining the merit of this ground, I are cognizant of the following dicta, with which I agree, in the case of Ebner (supra):
''It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party's lawyer, or a witness, or some other person concerned with the case In each case however, the question must be how it is said that the existence of the 'association' or interest might he thought (by (he reasonable observer) possibly to divert the judge from deciding the case on its merits... unless that connection is articulated, it cannot be seen whether the apprehension of biased principle applies."
31. In response to the allegation in the affidavit of the Appellant, the learned judge denies the insinuations and innuendoes given to her conduct by him.
32. As noted heretofore, the Appellant in his affidavit, which consists of mostly inadmissible hearsay in this regard, spoke of frequent visits the Learned Judge made to Bugaloo Restaurant and Beach bar in the company of Mr. Jahmal Missick and others. The Appellant had seen her once, but relied on information received from the managers in respect of the other occasions. It’s the Appellant's case that Mr. Missick is a member of the Law firm of Missick and Stanbrook, and is the son of the senior partner in that firm.
33. The Appellant maintains that he was responsible by his persistent pressure on the authorities, through his family newspaper “The Turks and Caicos Weekly News”, for the arrest of a principal partner in that firm - a Mr. Gordon Kerr, charged with “cheating the public revenue”. Sustained pressure was made on the Attorney General to take action against Mr. Kerr. As a result, he says, there is "no love lost" between that firm and himself. In addition, he alleges, the arrest of Mr. Kerr resulted in a withdrawal of the retainer by the Royal Bank of Canada from Missick and Stanbrook resulting, in his opinion, in a pecuniary loss in the region of a million dollars per year to the Law firm.
34. Acknowledging that the Bank is no longer the client of Missick and Stanbrook, the Appellant tries to make the connection by averring the following in his affidavit, which is repeated here for convenience:
“para 14. Though RBC is no longer their client, nay especially so, if I should prevail in my counterclaim against the Bank for either one of the several causes of action pleaded - including the claimed illegality of the Bank’s position at the time with the various Bank documents at the time prepared by the Misick and Stanbrook law firm, but especially so the counterclaim for 'tortuous interference' or 'defamation' or breach of contract, it is very likely, and to be expected, that the Bank will present a claim in professional negligence against the law firm. It would be a multi-million dollar claim. So here the Judge has a friend, an apparently close friend, who has a clearly vested and very substantial pecuniary' interest in the outcome of my instant case”.
35. In respect of the other Attorney, Mr. Gruchot, the Appellant alleges in his affidavit, that Mr. Gruchot is a close friend of the learned judge: “They have attended various social functions and went on apparent dates in the past year, well late into the night". He has personally witnessed them out together late night on at least two occasions. In an effort to emphasise the closeness of the friendship, as he perceived it, the Appellant averred that he saw them at 'Blue Haven Development in Leeward’. He states, “I observed that her male escort was Attorney. Mr. Tony Gruchot, and the body language and physical space between the two that night gave a definite memorable impression. Later that night, he again saw the Learned Judge still in the company of Mr. Gruchot, near midnight at the Sandbar Night Club and Bar in Grace Bay. They arrived together and left together. While there. Mr. Gruchot had his hands frequently on the Judge's waist.
36. The appellant then asserts:
"Mr. Gruchot is the Attorney of the Receiver in cases related to this action where I last year sought stays pending appeal... Whilst he himself never appeared before Her Ladyship in the prior cases related to this action (both now on appeal) it is clear that he has a substantial pecuniary interest in the outcome of the instant case. If I were to prevail in the Action the receivership would immediately end and Mr. Gruchot would have no more legal fees funded by RBC, the Plaintiff in the instant case."
37. In answer to the allegations in Mr Duncanson's affidavit, the learned judge, in her written decision states (para 66):
"Ground 7 asserts that I have an association with two attorneys which might cause the fair minded and informed observer to have apprehension of bias. With respect to the supporting evidence in Mr. Duncanson’s affidavit. I reject the assertions that ‘I accompanied’ any attorney anywhere or went ‘on dates' with another as he suggests. I have had drinks with the attorneys named on divers occasion and since the question is one of appearance then insofar as it would appear or is asserted that we are friends, I will accept that for the purpose of determining whether a fair minded or informed observer would perceive our association as creating apparent bias. So far as Mr. Duncanson tries by insinuation and innuendo to paint a picture of something more than that. I take exception."
38. In her decision the Learned Judge dismissed the appellant's contention that her friendship with the two attorneys would result in a fair-minded and informed observer concluding that there is ‘a real possibility of bias’.
39. Her Ladyship concluded:
“70. With respect to the attorney at Missick and Stanbrook, the former attorneys for RBC, Mr. Duncanson asserts that the firm has suffered loss of revenue as a result of RBC ceasing to instruct them. He suggests in his affidavit that it was his activism that was, in the whole or in part, responsible for that development and that members of the firm may bear him ill will as a result. There is not a shred of evidence to support either the assertion that he played a role in the events that led to RBC’s ceasing to instruct Missick and Stanbrook or that members of that firm bear him malice. Nothing capable of grounding this application for my recusal.
“71. Mr. Duncanson also asserts that if he prevails in these proceedings, it is very likely and to be expected that the Bank will present a claim of professional negligence against that ... firm which will, he contends, affect the attorney’s pecuniary interests. This is highly speculative and cannot ground the application."
We agree with the Learned Judge. The Appellant's attempt to show pecuniary interest on the part of the two attorneys in the result of this action is speculative and stretches the circumstances, in order to come to the conclusion he desired. In the event, we conclude that this ground on which the application for recusal rests, must, like the others, fail.
40. Finally, in dealing with the eighth ground, the learned judge disclosed that Mr Duncanson exhibited a clipping from the Weekly News, reporting on a case recently decided by her and a statement of the learned acting Attorney General, that she was “troubled’ by certain findings of the learned judge. We agree with her finding that a fair-mined and informed observer would “consider it the duty of a newspaper to report on matters which were in the public interest and that duty would extend to publishing any statement to the press, made by the acting Attorney General, in a matter which had engaged the court for some years. It would be unduly sensitive for the observer to apprehend bias on such reporting.’ Consequently I hold that this ground is also without merit.
Conclusion
41. We note that during these proceedings, the Learned Judge declared that she would continue to preside over the Case Management proceedings, but would not be presiding over the trial. If that is her desire, then she may at that stage, voluntarily recuse herself and in her present capacity as Chief Justice, appoint another Judge to preside over the trial.
42. However, we conclude that the evidence advanced on which she was asked to recuse herself falls short of the test required in the cited cases.
43. As ordered on 26 January, 2015, after hearing submissions, the appeal is dismissed with costs to the Respondent to be taxed if not agreed
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Forte. J A
I concur
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Zacca, P
I concur
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Mottley, JA
