Prime Minister Perry Christie.
By RASHAD ROLLE
Tribune Staff Reporter
PRIME Minister Perry Christie suffered another legal defeat yesterday in his case against Supreme Court Justice Rhonda Bain when the Court of Appeal unanimously rejected his application for leave to begin appellate proceedings into the judge’s decision not to recuse herself from judicial review cases involving construction works at Nygard Cay.
As Minister for Crown Lands, Mr Christie is one of the respondents in the cases.
His attorneys argue that Justice Bain should have recused herself because she has an application before him in which she seeks to extend her tenure as a Supreme Court judge. She cannot be perceived as impartial because of this, the attorneys say.
Mr Christie has not indicated whether he intends to grant or deny Justice Bain’s application for extension. Judges routinely make such requests when they approach retirement age and they are usually granted as a matter of formality.
Wayne Munroe, the Prime Minister’s attorney in the case, said yesterday that he will seek instructions about whether to continue the appeal process.
Last night, Fred Smith QC, lead counsel for the Coalition to Save Clifton Bay in three of the judicial reviews, described the latest ruling against the Prime Minister as akin to “almost three strikes and you’re out”.
Attorneys for the Prime Minister had filed a motion in the Supreme Court on January 26 asking that Justice 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.
On February 6, Justice Bain ruled there was “no merit” in the application to recuse her.
Among the relevant judicial review cases over which Justice Bain will preside is one launched by 103 of Peter Nygard’s Lyford Cay neighbours.
Robert Adams, a partner at Graham Thompson, represented that group yesterday. In advancing his argument, he relied in part on rulings from a case in Brunei that went before the Privy Council.
In that case, the Prince of Brunei wanted the High Court’s Chief Justice to recuse himself from the relevant proceeding on the ground of “apparent bias”, which is the idea that “circumstances gave rise to the impression that (he) may be influenced for or against a party for reasons that go beyond the legal or factual merits of a case”.
The Prince’s argument was that because the person with whom he had the legal dispute - the Sultan - had the power to grant the Chief Justice a two-year extension (within five months) and could also cause for his salary to be reduced, the Chief Justice should have recused himself.
In its response, the Privy Council said: “The Board has no hesitation in dismissing this submission. The fair-minded and informed observer must be taken to understand that the Chief Justice was a judge of unblemished reputation, nearing the end of a long and distinguished career in more than one jurisdiction, sworn to do right to all manner of people without fear or favour, affection or ill-will … Such an observer would dismiss as fanciful the notion that such a judge would break his judicial oath and jeopardise his reputation in order to curry favour with the Sultan and secure a relatively brief extension of his contract, or to avoid a reduction of his salary.”
Mr Adams argued yesterday that while the ruling in the Brunei case was not binding, it meant that the argument advanced in that case could no longer be seen as novel and therefore requiring further consideration at the appellate level.
In fact, he said the respondents’ case in the Justice Bain matter is stronger than the case for the respondents in the Brunei matter.
Unlike the Sultan, Mr Christie’s credibility is not directly an issue in Mr Nygard’s judicial review cases, and nor is there any potential liability for the Prime Minister as a result of the judicial review.
Mr Munroe countered yesterday that the Brunei case had “startling differences” to the one before the court and therefore should not be used as a basis to dismiss the Prime Minister’s application for leave.
Among other things, he pointed out, the appellant in the Brunei case not only wanted the Chief Justice to recuse himself from the matter, but for all other High Court judges to not hear the case as well.
Mr Smith said “we are very pleased that the trials are going to get back on track” as a result of yesterday’s ruling. He said Justice Bain had directed all parties to return on Monday morning and that the coalition was “anxious” to conclude the judicial reviews - four to be heard consecutively including that of the 103 neighbours - given Justice Bain’s “institutional knowledge of the cases over a number of years”.