The Judicial Committee of the Privy Council (the Committee) recently provided a welcome clarification in relation to the independence of judges.
The decision came in an appeal in the matter of Almazeedi v Penner & Another – a long-running dispute between the Cayman-registered BTU Power Company (BTU) and its predominantly Qatari shareholders where BTU had been wound up by an order made by Justice Cresswell.
In a 4-1 ruling the Committee held “with some reluctance” that Justice Cresswell would have been regarded by a fair-minded observer as “unsuitable to hear proceedings” in a case in the Financial Services Division (FSD) of the Grand Court of the Cayman Islands. It was absolutely clear that there was no suggestion of actual bias on the part of Justice Cresswell and the Committee viewed the case as an unusual one.
Lord Sumption, dissenting, noted that the Judge “is not alleged to have done anything which could raise doubts about his independence”. He also highlighted the current reality of a retired commonwealth judge sitting on an occasional basis in other commonwealth jurisdictions and tribunals of international civil jurisdictions.
The Committee upheld a challenge made solely on the ground of an alleged lack of independence due to “apparent bias”, i.e. that a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
The decision of the Committee reinforces some key principles in relation to the independence of judges. It is clear that the Committee were heavily guided by the constitutional right of a litigant to an independent and impartial tribunal. The ongoing policing and protection of that right is to be welcomed.