Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MITCHELL VS Respondent: GEORGES
Court Name: The Privy Council of England Judge(s): Lady Hale, Lord Wilson, Lord Hughes, Lord Clarke, Lord Sumption Title: MITCHELL vs GEORGES Case No.: Appeal No, 0067 of 2013 Date of Judgment:2014-12-18 Reported As: 2015 SCMR 1020 Result: Appeal allowed
JUDGMENT
JUDGMENT ' LORD CLARKE: ' Introduction 1. 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. 2. 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. 3. 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$50 m. 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
---
## Page 2
responsibility of the government led by the appellant became a major issue between the political parties. 4. The issues in this appeal involve a detailed consideration of the way the respondent conducted the Commission. ' The Commission and its terms of reference 5. 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. 6. 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." 7. 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
---
## Page 3
8. 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. 9. 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." 10. 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 U 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." 11. 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. The Inquiry 12. 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 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. 13. 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 iii 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. 14. 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 cooperation of those concerned would be required. 15. 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 playing field and that this was the kind of inquiry he intended to conduct. His opening included the following:
---
## Page 4
"As Commissioner the Act empowers me to summon witnesses and to call for the production of books, plans or documents. Persons summoned are bound to obey. Any person who is in any way implicated in allegations before the Commission is entitled to be represented by counsel at the inquiry. A statement given by a person who appears as a witness in answer to any question before the Commission may not be used in any civil or criminal proceedings. The answers given before the Commission are privileged. There is an exception and that is perjury, the object is to arrive faithfully at the truth or otherwise of the allegations. The inquiry is public and we invite persons to come and render any assistance possible. If in the course of the inquiry it appears that a person's conduct is the subject of inquiry, and is liable to be criticized, a notice (known as a Salmon letter) will be sent to that person outlining the potential criticism. Such a person is entitled to be represented by counsel and to enlist the assistance of the Commission in securing the attendance of witnesses. Further, if on review of the evidence produced before the Commission it appears that an adverse finding may be made against a person, he will be notified of the preliminary finding and invited to submit in writing any additional evidence he/she may wish. ' In a nutshell the purpose of this inquiry is to inquire into the reason or reasons for the failure of the project and the person or persons responsible and/or the degree of responsibility if any for that failure. The Commission is charged to make diligent inquiry into and to report upon all facts and factors relating thereto. The Commission is required to report and make recommendations finally and comprehensively on this matter. I now turn to counsel for the Commission who will outline to you the crux of this inquiry." 16. The Board detects no unfairness in anything said by the respondent in opening the Inquiry. Mr Astaphan SC then opened the facts of the Inquiry in greater detail. In the course of doing so he observed that, so far as the Project was concerned, the key players were Dr Rolla and the appellant. He also gave particulars of the aspects of the appellant's conduct which merited investigation. 17. Between November 2003 and May 2004 the Commission heard evidence from a number of witnesses in the absence of the appellant. The hearings of the Commission were however suspended on 18 May 2004 when Mr Richard Joachim made a legal challenge to the appointment of the respondent as Commissioner which was finally determined by the Privy Council in a judgment delivered on 24 January 2007 in Richard Joachim v Attorney General PC Appeal No 38 of 2005. The challenge, which is not relevant to the issues now before the Board, failed. 18. During the period of suspension of the Commission, the respondent produced the Interim Report dated 18 November 2005 to which the Board will return in some detail below. It was sent to the Governor General and Director of Public Prosecutions purportedly pursuant to clause 13 of the terms of reference. The Interim Report was not sent to the appellant nor were the details of its contents made public. ' However, he was aware of its existence at or shortly after the time of its publication owing to references made to it in public statements and newspaper articles. He subsequently obtained a copy of the Interim Report which he was able to produce in these proceedings. 19. At a general election on 7 December 2005 the incumbent government of Prime Minister Dr Ralph Gonsalves retained power. The Commission resumed work after the Privy Council's judgment in Mr Joachim's appeal. On 21 March 2007 the Commission wrote to the appellant to say that public hearings would resume on 2 May 2007. It informed him that he would be required to testify on a mutually convenient date, but not at the upcoming hearing in May. Thereafter the appellant and his attorneys corresponded with the Commission concerning the date of his testimony. The appellant informed the Commission by letter dated 24 April 2007 that he and his counsel would not be available until after 15 August 2007. By letter dated 30 April 2007, the Commission requested the appellant to provide a written statement on or before 31 May 2007. On 4 May 2007 the Commission
---
## Page 5
wrote to the appellant's attorney saying that its sitting had been adjourned to as soon as possible after 15 August 2007 and asked him to say what date he and the appellant would be available to attend. 20. On 8 June 2007, in what appears to the Board to be a somewhat remarkable turn of events, the Parliament of Saint Vincent and the Grenadines passed a Bill amending the Commission of Inquiry Act by repealing section 18(1)(b), which gave a person in the position of the appellant the right to payment of his reasonable costs. The only members of Parliament present were government ministers or members of the governing party and the Bill was taken through all its stages in one day's sitting and enacted as Act No 17 of 2007. 21. On 25 July 2007 the Commission wrote to the appellant's attorney to inform him that the inquiry would resume on 10 September 2007. On 31 July 2007 the attorneys for the appellant wrote to the Commission to ask it to commit in writing, by 20 August 2007, to paying the costs of the appellant's legal representation, on the ground that he had a vested right to the same before the repeal of section 18(1)(b) of the Commission of Inquiry Act. The Commission replied on 20 August 2007 refusing to make any such commitment, saying that it was guided by Parliament's decision in Act No 17 of 2007 and that "Parliament's position on the issue is explicit". 22. On the same date the Commission sent a Salmon letter to the appellant accompanied by a witness summons requiring him to attend to testify on 10 September 2007. It contained a number of allegations against the appellant. It identified a list of aspects of the Project in which it suggested he was aware or was involved. It also included a number of serious allegations as follows: "(10) The lack of transparency and the shroud of secrecy which generally characterized the Ottley Hall Development Project especially in its early stages and the absence of involvement of Cabinet generally and key professional civil servants in particular in the planning and financing stages. (11)The absence of due diligence and good governance on the part of the main persons involved in the preparatory stages of both Projects including yourself. (12)The palpable absence of proper checks and balances to protect the interests of the Government and people of St Vincent and the Grenadines in the Ottley Hall Development Project thus placing the Government in financial jeopardy and the NCB facing grave financial loss. (13)The naked deceit displayed by yourself and others via the media when the people of St Vincent and the Grenadines were led to believe that SACE and not the Government of St Vincent and the Grenadines was the primary obligor for the loan of US$50m from West LB to CCYY for which a Sovereign Guarantee had C been given by you as a prerequisite for the said loan. ' Witness statements as well as both oral and documentary evidence before the Commission show/suggest that you used/misused your office as Minister of Finance and as such ex officio the majority shareholder of NCB by conspiring with Dr Rolla and another or others to obtain unsecured loans of considerable magnitude as start-up capital for the Union Island Project as well as working capital for and completion of the Ottley Hall Project when West LB ceased lending to Rolla/Valdettaro and other local banks in particular Nova Scotia showed no interest in the Union Island Project. By then Valdettaro was teetering on the verge of bankruptcy. ' It is clear from the foregoing that the compelling inference to be drawn is that as Prime Minister and Minister of Finance you misused your office and were in breach of your fiduciary duty to protect the interest of the Government and people of Saint Vincent and tne Grenadines and in so doing the evidence strongly suggests that you undoubtedly were an integral part of Dr Rolla's complicity and duplicity in at least some of his dealings. ' The evidence available to the Commission is replete with instances of a singular lack of good governance, due diligence, proper judgment as well as accountability on your part. There is also deceit and evidence of conspiracy with Dr Rolla and others to deceive and/or defraud.
---
## Page 6
' The Commission considers that because of your key position as Prime Minister and Minister of Finance and crucial role as a director of Frigate Island Investment Limited and Union Island Resorts Limited you are well suited to testify on Monday 10 September 2007 and a formal Witness Summons is attached. ' You are specifically requested to note that you should come prepared in the course of your testimony to show cause why the Commission ought not to report adversely upon you for the reasons set out herein." 23. On 3 September 2007 the attorneys for the appellant wrote to the Commission to complain that the Salmon letter contained such adverse findings against the appellant that it gave rise to an appearance of bias on the part of the respondent, and that the respondent appeared to have made findings in breach of the rules of natural justice. They informed the respondent that if the Inquiry continued they would issue proceedings in the High Court. They did not refer to the Interim Report. On the same day the Commission replied to say that it would proceed with the Inquiry. The proceedings 2007 to date 24. On 6 September 2007, the appellant filed an application for leave to apply for judicial review of: the respondent's decision to deny the appellant his costs of legal representation at the Inquiry; the decisions and findings contained in the Salmon letter; and the respondent's decision to continue with the Inquiry notwithstanding the appellant's request, on the grounds of apparent bias, procedural unfairness and breach of natural justice, that it not proceed any further. In relation to apparent bias the appellant relied upon the. Salmon letter and the Interim Report. 25. The appellant sought relief that included: a declaration that the respondent had displayed apparent bias and was disqualified from conducting the Inquiry; orders of certiorari to quash the findings made against him; and a declaration that he was entitled to the payment of the reasonable costs of his representation before the Inquiry. In the same proceedings the appellant sought a declaration that Act No,17 of 2007 was unconstitutional and invalid in that it was a disproportionate interference with his rights and amounted to ad hominem legislation. 26. In a judgment delivered on 14 September 2007 Bruce-Lyle J refused leave to apply for judicial review and lifted the stay on the Inquiry (which he had granted a few days earlier), making no order as to costs. In respect of bias and procedural unfairness, he held that the Salmon letter conformed to the correct principles and contained only provisional criticisms. He further held that the same reasoning applied to the Interim Report. As to what was described as the appellant's constitutional claim, he held that Act No 17 of 2007 did not have retrospective effect and that the appellant's entitlement to costs was governed by the scheme in place before the amendment by the Act. He held, however, that the appellant's request for costs from the Commission was premature. 27. The appellant appealed. His appeal' was heard by the Court of Appeal (Alleyne CJ (Ag), Rawlins JA and Edwards JA (Ag)) on 29 November 2007. In a judgment delivered on 7 April 2008, the Court of the appeal in part and granted the appellant leave to apply for judicial review in relation to the statements made in the Interim Report. The Court ordered that a stay of the Inquiry be maintained until determination of the application or further order and ordered the respondent to pay half the appellant's costs. 28. The Court of Appeal held that the Interim Report had been issued in different circumstances from the Salmon letter and that it called for different considerations. Unlike the Salmon letter, it had not been issued to tne appellant and it could be argued that the findings in the Interim Report were not preliminary in nature and included apparent direct indictments of the appellant. It held that the test to be applied in relation to bias was whether, given the special nature of the functions of the Commission, the impugned statements evinced a real danger of bias. The appellant was accordingly granted leave to apply for judicial review in relation to the statements contained in the
---
## Page 7
Report on the grounds of ,apparent bias or procedural unfairness: see Mitchell v Georges (2008) 72 WIR 161. 29. The appellant applied for judicial review and, by an amended claim form, alleged that the findings in the Interim Report were made as a result of a lack of procedural fairness and were vitiated by apparent bias. He sought relief disqualifying the respondent and preventing him from proceeding further with the inquiry. The respondent swore an affidavit in reply on 29 September 2008. 30. The application was heard by Thom J on 1 and 2 December 2010. In a judgment delivered on 23 June 2011 she dismissed the appellant's application. She correctly held that the test for apparent bias was whether the fair-minded and informed observer, having regard to the relevant circumstances, would conclude that there was a real possibility that the respondent was biased. However, she held on the facts that the fair-minded observer would not so conclude from the contents of the Interim Report. She further held that the proximity of the Interim Report to the date of the general election would not arouse the suspicion of the fair-minded observer and that the failure of the respondent to disclose the Interim Report to the appellant would not give rise to an apprehension of bias. Finally, she held that the Interim Report was produced under clause 13 of the terms of reference, and there was no procedural unfairness in the contents of the Report or the failure to give the appellant a hearing before production of the Interim Report because it did not contain concluded findings. Accordingly, Thom J dismissed the appellant's. Application for judicial review and lifted the stay on the Inquiry, while making no order as to costs. 31. By a notice of appeal dated 29 July 2011 the appellant appealed against those decisions. He challenged Thom J's findings as to apparent bias and procedural unfairness. He did so on the basis that the Interim Report contained findings and expressed opinions outside the remit of the respondent's terms of reference, that it displayed apparent bias against the appellant and that the respondent ought to have informed the appellant of the allegations being made against him and to have disclosed the Interim Report to him. 32. The appellant's appeal was heard…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.