The Privy Council in Almazeedi v Penner and another (Cayman Islands) [2018] UKPC 3 have stressed the fundamental nature of the right to a fair trial by an independent and impartial tribunal. Almazeedi is a working example of how and when a Judge’s decision may be overturned on appeal due to the appearance of unconscious bias.
Background
This case concerned a distinguished former High Court judge, Mr Justice Cresswell, of the Grand Court of the Cayman Islands. He was also a part-time judge in the Civil and Commercial Court of the Qatar Financial Centre but did not appear to have conducted any work for them nor drawn a salary from this appointment.
The dispute originates from a 10-year long legal battle between various owners of a predominately Qatari owned business (BTU Power Company) in which several influential Qatari individuals were involved.
The Cayman Islands litigation
The Qatari shareholders were seeking to exit from their investments in BTU and the shareholders had brought a winding-up petition in the Cayman Islands’ Grand Court with the purpose of relieving Mr Almazeedi of his role in managing the company.
Mr Almazeedi resisted the liquidation and applied to the Grand Court to validate a planned transaction (an asset swap with a Japanese corporation) as being BTU’s best interests.
The case came before Cresswell J who ordered the company to obtain a report from independent auditors as to whether the swap was favourable. When the report indicated it wasn’t, the Court dismissed Mr Almazeedi’s application and turned to consider the winding-up position.
During the proceedings, the parties traded various accusations of misconduct and Mr Almazeedi specifically alleged that he had been threatened with retaliation by shareholders: “for daring to stand up against the state of Qatar“.
Cresswell J made the winding up order with the consent of all parties because the majority of BTU’s shareholder’s agreed to this measure. He continued to preside over the winding up proceedings and eventually made an indemnity costs order against Mr Almazeedi.
Along the way, one of the owners of the company, Mr Al-Emadi, was appointed as Qatar’s Minister of Finance (with a direct hand in judicial appointments to Qatar’s Commercial Court). Mr Al-Emadi took over the role of Minister of Finance from his father-in-law, Mr Youssef Kamal.
Cresswell J retired from the Grand Court in September 2014.
The appeal to the Court of Appeal of the Caymany Islands
Mr Almazeedi’s appeal was based on the risk that Cresswell J may have been swayed by unconscious bias in favour of Qatari interests.
The Court of Appeal observed that the Judge should have disclosed his appointment in Qatar in order to the parties to consider the matter and avoid a subsequent appeal.
(That accords with views I have expressed here about the need for transparency from both lawyers and judges about their relevant professional business connections).
The Court went on to conclude that from the date that Mr Al-Emadi was appointed to the Qatari government, the Judge should have stepped aside to avoid the perception of apparent bias.
The Privy Council decision
On appeal to the Privy Council, the appellant argued that the Court of Appeal should have found that the Judge was disqualified for apparent bias from the start of the case, while the Respondent argued that the Court of Appeal were wrong to find there was any appearance of bias.
RELATED: How to deal with allegations of bias against judges
The Court set out the framework for its application of the test of bias at § 20, (drawing on the analysis of Lord Hope in Helow v Secretary of State for the Home Department [2008] UKHL 62). The ‘fair minded and informed observer’:
…is a person who reserves judgment until both sides of any argument are apparent, who is not unduly sensitive or suspicious, and who is not to be confused with the person raising the complaint of apparent bias. The last is an important point in a case like the present where the appellant has made some allegations which on any view appear extreme and improbable. She or he is not, on the other hand complacent, knows that justice must not only be, but must be seen to be, unbiased and knows that judges, like anybody else, have their weaknesses – an observation with perhaps particular relevance in relation to unconscious predisposition. She or he “will not shrink from the conclusion, if it can be justified objectively, that things that they have done or said or associations that they have formed may make it difficult for them to judge the case before them impartially”… She or he will also take the trouble to inform themselves on all matters that are relevant, and see it in “its overall social, political and geographical context”…
Bearing in mind the link between Mr Al-Emadi and Mr Kamal, and the fact that the Judge was appointed to Qatar’s Commercial Court at precisely the time he was also assigned to the winding up petition involving significant Qatari interests and personalities, the Privy Council concluded with some reluctance that there was the risk of apparent bias from the point in the proceedings that Mr Almazeedi had disclosed the threats allegedly made to him for opposing the Qatari state.
RELATED: This Judge’s decision was ‘infected’ by the appearance of bias
The Judge should have disclosed his appointment in Qatar or alternatively should have requested that he be replaced by another member of the Grand Court (§ 34).
Lord Sumption’s dissent
In a short dissenting judgment, Lord Sumption concluded that in his view, the robust test for bias was not met.
He noted the high pedigree of the presidents of the Qatar International Court and Dispute Resolution Centre (including Lords Woolf and Phillips). The fair minded and informed observer would consider it highly unlikely that the judges of this international court would act partially in cases concerning Qatari interests, as that would defeat the purpose and reputation of the court.
Lord Sumption concluded that Mr Almazeedi had only raised the notion that the state of Qatar was involved in the litigation once and part way through the case. At its highest, Mr Almazeedi’s argument was that there was an hypothetical possibility that the Judge would be unconsciously influenced by the fact that if he made a decision that was adverse to Qatari interests, he may face repercussions over the renewal of his 5-year tenure or the terms of his service.
Lord Sumption considered this to be a very unlikely hypothesis (both before and after Mr Al-Emadi became Finance Minister).
Conclusion
This case is an important reminder of the fundamental right to a hearing before a decision-maker that is not only impartial and independent, but is seen to be so. It re-enforces the duty on Judges to be transparent about any actual or potential conflicts they may have and to allow parties to consider and respond to such information, in order to avoid these types of challenges surfacing later and to neutralise any concerns. All bias cases are likely to be highly fact-specific (as Lord Sumption’s dissent illustrates) and litigants should seek advice if they have such concerns in this area.
An earlier version of this article appeared in the New Law Journal. A pdf copy from the magazine edition can be downloaded here.
