By LAMECH JOHNSON
Tribune Staff Reporter
LEGAL parties in an ongoing judicial review into allegations that Lyford Cay resident Peter Nygard illegally increased the size of his property were at odds over whether the presiding judge can be perceived to be impartial in hearing the matter during her application to extend her tenure as a Supreme Court judge.
Attorneys for Prime Minister Perry Christie filed a motion in the Supreme Court last week asking that Justice Rhonda Bain recuse herself from the judicial review - or any other cases in which he is a party - on the basis that she is set to attain the legal age for retirement in April.
She has an application for extension that would have to be authorised by the Governor General on the advice of the Prime Minister in consultation with the leader of the Official Opposition.
The motion was filed by Mr Christie in his capacity as minister responsible for Crown land. Wayne Munroe, QC, who argued the motion on Mr Christie’s behalf yesterday, said there is “no substantial dispute of the facts”.
“Your ladyship was appointed on August 14, 2009, and is due to reach first retirement age sometime in April 2017,” Mr Munroe said. “Your ladyship has sought an extension of your tenure and the mechanism for that is through the Governor General, acting on the advice of the Prime Minister after consulting the leader of the Opposition.”
Mr Munroe said there was a “difference in pay and benefits between sitting Supreme Court judges and retired Supreme Court judges”. “As to the law, it is not an application based on actual bias but of potentially perceived bias,” the lawyer clarified.
The attorney said that the case of Locabail (UK) Ltd Regina v Bayfield established the test for how judges are to deal with such issues.
“In effect, the proposition in law is whether a reasonable bystander can be reasonably informed that there is a real possibility of bias in the tribunal,” he argued, adding that the Locabail test “must be applied to all the circumstances of the case”.
“Unfortunately, because of our constitutional construct, your ladyship enjoys tenure up to an age. However, the extension is given by the Governor General on the advice of the Prime Minister, moving from the approval/advice of the Judicial Legal Commission to the Governor General/Prime Minister.
“It is also a fact that remuneration differs between a serving Supreme Court judge and a retired judge. Personally (speaking) that is unsatisfactory but that is our present constitutional state.”
Mr Munroe said that the court’s extension application to the Prime Minister “creates a great awkwardness”, regardless of whether the court ruled against or/in favour of the respondent. However, he stressed that the motion “is not because of anything the judge has done but because of the constitutional construct”.
Fred Smith, QC, lead counsel for Save The Bays, responded that the judge has been “actively managing, for years, a plethora of applications that have devoured a huge amount of judicial time”. Mr Smith said that despite the assurance that the Prime Minister was not seeking automatic recusal in the matter, the case being relied on calls for it.
“The entire basis of the Prime Minister’s application is that there is an appearance of bias. The basis is that there is a remuneration the court stands to gain or lose and the only basis upon which the court can be asked to recuse itself is on apparent bias. We submit that the Prime Minister is asking the court to automatically recuse itself based on the appearance of bias,” Mr Smith said.
The STB counsel stressed that the case of Porter v Magill has dealt with this issue as well as that of Dimes v Proprietors of Grand Junction Canal, where in the latter instance, the Lord Chancellor had forgotten that he had had shares in the company that was a part of the litigation.
“Our position is that your ladyship has no pecuniary interests in this and should continue hearing the matter. The fact that you’ve applied for an extension pursuant to Article 91(1) is not relevant. There must be a direct interest in the outcome of the proceedings,” Mr Smith said.
“The facts in this case do not give rise to bias. The executive’s involvement in the extension of a judge’s tenure does not necessarily affect a judge’s independence or impartiality. If there is any potential bias, it would be in the favour of the respondent (Prime Minister) which is why Save The Bays has waived its right to challenge any perception of the same.”
Mr Smith said based on the argument made on behalf of the motion, “the Prime Minister does not make the claim that this court has a direct pecuniary interest, he’s inviting the court to broaden that test”.
Mr Smith stressed that the current action is not a claim against the Prime Minister personally but as the holder of the office, “the office is the subject of the proceedings”.
The Coalition to Protect Clifton Bay, now called Save the Bays, has waged a long running court battle with Mr Nygard over the construction/development activities at his Lyford Cay home, which stem from allegations that the activities have led to substantial growth of the property.
The group claims that the Lyford Cay resident has almost doubled the size of his property, from 3.25 acres to 6.1 acres, since he acquired it in 1984, by allegedly reclaiming Crown land from the sea. The advocacy group has alleged that Mr Nygard achieved this without the necessary permits and approvals, claims that have been denied by the fashion designer.
In 2015, Justice Bain was asked to recuse herself from committal proceedings involving Mr Nygard through a notice of motion filed in the Supreme Court by his former lawyer, Keod Smith, on the grounds of bias. However Justice Bain later ruled that Mr Nygard had not proved there was evidence of bias or apparent bias towards him and found the accusations to be “scandalous”.
The Court of Appeal has affirmed Justice Bain’s rejection of the application in an appeal of the decision by the Lyford Cay resident.