The London-based Privy Council has ruled in favour of former Prime Minister Sir James Mitchell in the case in which he claimed bias on the part of Commissioner of the Ottley Hall Commission of Inquiry, retired high court judge Ephraim Georges.
The case was heard in London on Nov. 17, and, in a 19-page judgement handed down on Thursday, the Privy Council said that Georges’ Interim Report on the Ottley Hall Marina Project “contains far too many firm statements of the misbehaviour of the appellant”.
The Privy Council, which is the final court of appeal in the case, has ordered that Georges take no further part in the inquiry, an effort of the Ralph Gonsalves government to find out if there were any wrongdoing at the project, which was constructed when Sir James was Prime Minister.
“The extracts from the Interim Report set out above strongly support the conclusion that, having regard to the context and all the surrounding circumstances, the fair-minded observer would conclude that there is a real possibility that the respondent had made up his mind by the date of the Interim Report that the appellant was at the heart of the wrongdoing which led to the Project and its collapse and would not be willing to change his mind, so that his final report would not be impartial,” the Privy Council ruled.
“In these circumstances the Board will humbly advise Her Majesty that the appeal should be allowed. The parties should make written submissions on the appropriate form of order and on costs within 21 days of this judgment being handed down,” the judgement said.
The Privy Council said the provisional view of the Board is that, in addition to an order that the appeal be allowed, the only other order which it would be appropriate to make (apart from costs) is a direction that the respondent should take no further part in the Commission.
“As to costs, it is the provisional view of the Board that the respondent should pay the appellant’s costs before the Board and in the courts below,” the Privy Council said in the judgement.
The Ottley Hall development project began in the 1990s when Sir James was prime minister and minister of finance under the New Democratic Party administration.
The project was a disaster and funds ran out with the development unfinished. It was later determined that the value of the work was lower than the amount of money that the government said it had spent on the project.
The Gonsalves Unity Labour Party government, which came to office on March 28, 2001, set up a commission of inquiry in April 2003, and Governor-General Sir Frederick Ballantyne appointed Georges to lead an inquiry into the failure of the project.
Clause 13 of the terms of reference required Georges to immediately report anything that may show a criminal act, a bribe or fraudulent behaviour.
Georges produced an interim report pursuant to clause 13. The report included a number of adverse findings about Sir James.
Sir James was granted leave for judicial review in relation to the statements made in the report.
The judge held that a fair-minded observer would not conclude from the contents of the report that there was a real possibility of bias and the application was dismissed.
The Court of Appeal dismissed Sir James’ appeal and held that the test was whether Georges had closed his mind and demonstrated irreversible prejudgment and prejudice.
Sir James then appealed to the Privy Council.
Ahead of the hearing on Nov. 17, Sir James outlined his legal argument, saying, “My case before the Privy Council is this. … the Ottley Hall Commissioner, Mr George’s wrote a report, sent it to the Director of Public Prosecutions and the governor general and some of the media without ever seeing me or interviewing me.”
Sir James said that when the Inquiry started, the Commission wrote to him, asking whether he would share with the inquiry any information he had.
He said he responded, saying that he was willing to cooperate with the commission of inquiry, that all the documentation was at the Prime Minister’s Office, and if the commission wanted any information from him, to tell him what it wants and he would reply within two weeks.
He claimed “apparent bias, which would appear to the ordinary citizen if you pass judgement on that person without hearing them, without seeing them; bias in terms of the language in the report — you can’t just excuse yourself and say this is the comment of somebody else. The moment you put it in writing, it is your submission; and then improperly judicial proceedings”.