IN THE HIGH COURT OF JUSTICE BETWEEN AND

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO. CV BETWEEN GISELLE SAMAROO Claimant AND BRIAN DEBIDEEN Defendant Before the Honourable Mr Justice Frank Seepersad Appearances 1. Mr Charriandy and Mr Waldropt for the Claimant. 2. Mrs Peake S.C., Ms. Katwaroo/Ms Niles and Ms. Jackman Lumy for the Defendant. Date of Delivery: 24 th April, Page 1 of 12

2 DECISION 1. Before the Court for its determination is the Defendant s Notice of Application filed 8 th January 2018 whereby the Defendant sought inter alia to have the order issued by this Court dated 7 th November, 2017 (the Court s order) set aside. By the said order, the Court granted leave for the Claimant to apply for judicial review and to pursue the following reliefs: a. An order of certiorari to remove into this Honourable Court and quash the decision of the Proposed Respondent/Defendant to continue hearing of criminal complaints numbers 7721/14 and 7722/14 between WPC Esdelle and the Applicant/Claimant. b. A declaration that the decision of the Proposed Respondent/Defendant to continue hearing of criminal complaints numbers 7721/14 and 7722/14 between WPC Esdelle and the Applicant/Claimant as, illegal, null and void, and ultra vires; c. A declaration that the decision of the Respondent/Defendant to continue hearing of criminal complaints numbers 7721/14 and 7722/14 between WPC Esdelle and the Applicant/Claimant is ultra vires, illegal, null and void and of no legal effect. d. An order of mandamus to compel the Proposed Respondent/Defendant to recuse himself from hearing the matter of criminal complaint numbers 7721/14 and 7722/14 between WPC Esdelle and the Applicant/Claimant and/or to abort the said matters and to transfer them to another Court to be heard; e. A declaration that the decision of the Proposed Respondent/Defendant on the 6 th October 2017 to continue hearing of criminal complaint numbers 7721/14 and 7722/14 between WPC Esdelle and the Applicant/Claimant is illegal, null and void, and ultra vires; f. Costs; g. Such further other orders, directions or writs as the Court considers just and as the circumstances of this case warrant pursuant to Section 8 (1) (d) of the Judicial Review Act, Chap. 7:08; 2. After the Court s order, the Claimant filed a fixed date claim form and by Notice of Application dated 8 th January, 2018 the Defendant prayed for the following reliefs: a. An Order pursuant to Part 56.12(1) and/or Part 26.1(k), (w) and/or Part 26.2(1)(b) and (c) of the CPR and/or the inherent jurisdiction of the Court that the Fixed Date Claim Form filed on 21 November 2017 be dismissed and/or struck out on the grounds that it is an abuse of process and/or discloses no cause or action and/or no Page 2 of 12

3 grounds for bringing a claim against the Defendant; b. An Order pursuant to Part 56.12(1) and/or Part 26.1(1)(f) of the CPR and/or the inherent jurisdiction of the Court that these proceedings be stayed pending the hearing and determination of this application; c. An Order that the Claimant do pay to the Defendant the costs of this application and of the action to date to be assessed in default of agreement. 3. In support of the Notice of Application the Defendant filed, inter alia, an affidavit by Dianne Katwaroo which annexed a transcript of the proceedings before the Defendant on the 6 th October The genesis of the Claimant s claim stems from her assertion that on the 6 th October, 2017 the Defendant by the words he uttered, demonstrated bias against her and/or her legal representative. 5. At the time the Court s order was issued, the Court did not have the benefit of reading the transcript of the events which unfolded in the Defendant s Court room on the 6 th October, The transcript revealed that the Defendant uttered statements in the course of a conversation which was initiated by an attorney at law who was wholly unconnected with the Claimant or her proceedings. There was no reference made either to the Claimant or to her lawyer and the Defendant specifically stated that he was not referring to any particular attorney. 7. In her affidavit dated 3 rd November, 2017 which the Claimant filed in support of her application for leave, she indicated that she was in Court and made a record of the words uttered by the Magistrate, that she requested a transcript of the proceedings but that same was not provided at the time of filing. The Claimant stated that the Defendant made the following statements: Once I realize that an Attorney tries to mislead this Court on more than one occasion, that Attorney will have a difficult time before me. All his clients will go Page 3 of 12

4 to jail, he will lose all his matters and very soon no one will go to them cause the word is going to spread. 8. The transcript annexed to the Katwaroo affidavit revealed that Mr Jacob, an attorney at law, had a conversation with the Defendant which was as follows: Now Your Worship, apart from the (indiscernible). As the most senior member of the bar, I must comment on the things that transpired (Indiscernible). You see, Your Worship, I tried to intervene in order to prevent certain things 9. Following the said statement, the transcript further revealed that the Defendant said as follows: Yes, and certain persons should know better. You understand? Trying to mislead the Court with all sorts of frivolous applications that doesn t exist, you know? And that is the thing, Mr Jacob; I treat you, for example, in a particular way, right? If I --- I give you the benefit of the doubt. If you say to me that your client has no previous convictions, I take you at your word, because you have a particular duty. If, however, after one occasion or two you could make a mistake, but if I find that you are deliberately lying to me, having known better Well, then, you are going to have a very warm time with me. You understand? You are not going to win any cases; your client all going to go to jail; you are not going to get any bail; I am going to keep you waiting in Court whole day, you understand? All sorts of things I could employ. You understand? And after a while, that attorney or those attorneys will not be able to do a case before me. You understand? The word will get around; nobody is going to come to them. I am just passing through, but No, no. And this is not with respect to any particular Attorney or Attorneys That is the way I operate. I give everybody the benefit of the doubt. You Understand? But some people find it harder to understand, so we have to really make an extra effort to let them know where they are and what time it is. Page 4 of 12

5 10. The Claimant was charged for malicious damage and assault by beating. At around 10:03 a.m. on the 6 th October, 2017 her lawyer Mr Waldropt made a request for disclosure. The prosecution indicated that there were no further documents to disclose, both sides eventually indicated that they were ready to proceed and the matter was stood down. The transcript reveals that Mr Waldropt strongly pursued the issue of disclosure and used language that was not measured and at times expressed some level of frustration with the Court. The Defendant however used moderate and measured language. After the matter was stood down, Mr Waldropt left the Court, another matter was dealt with and then the conversation with Mr Jacob took place. The Defendant completed his list and around 11:40 a.m., the Claimant s matter was then recalled but there was no appearance either of the Claimant or her lawyer and the matter was further stood down. 11. At approximately 12:20 p.m. the matter was again recalled, Mr Waldropt indicated to the Court that his client expressed concerns about statements made by the Court and the Defendant was asked to recuse himself. 12. The Defendant refused the application on the ground that there was no evidence that he had suggested that Mr Waldropt attempted to mislead the Court and stated that there was therefore no real or perceived risk of any adverse consequences attaching to him or his client. 13. Mr Waldropt then made a further application for the matter not to proceed and he argued that Summary Courts could not sit between 12 noon and 1 p.m. The Defendant again refused the application, and stated that the matter was going to proceed. Mr Waldropt proceeded to leave the Court and urged the Claimant to accompany him but she did not. The Defendant then commenced the Claimant s trial and subsequently adjourned the matter to the 3 rd November Page 5 of 12

6 14. By a pre-action protocol letter dated the 28 th October, 2017 the Defendant was asked to reconsider his decision to proceed with the hearing of the Claimant s matter and he was asked to recuse himself. 15. On the 3 rd November 2017 the application for leave to apply for judicial review was filed and was listed for hearing on the 7 th November, The hearing was an opposed exparte hearing. Mr Byam appeared for the Defendant and indicated that he had no instructions from him. 16. At the said hearing and by virtue of the evidence adduced in support of her claim, the Claimant had a duty of candour and was obliged to present her case honestly and accurately as the Court was called to rely solely upon the veracity of her representations given that it did not have the benefit of evidence from the other side. 17. In the case of Star Telecommunications Company Limited v Ragbir and another HCA No of 1999 reference was made to the case of Brink s Mat. Ltd (1988) WLR 1350 at 1356F to 1357F wherein Ralf-Gibson LJ outlined the principles applicable to judicial review in relation to the issue of non-disclosure. The said principles are as follows: i. The duty of the applicant is to make a full and fair disclosure of all material facts; ii. The material facts are those, which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the Court and not by the assessment of the applicant or his legal advisers; iii. The applicant must make proper inquiries before making the application. The duty of disclosure therefore applies not only to the material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries; Page 6 of 12

7 iv. The extent of the enquiries which will be held to be proper, and therefore necessary must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which the application is made and the probable effect of the order on the Defendant; and (c) the degree of legitimate urgency and the time available for the making of inquires; v. If material non-disclosure is established the Court will be astute to ensure that a plaintiff who obtains an order without full disclosure is deprived of any advantage he may have derived by that breach of duty; vi. vii. Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues, which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the application to make all proper inquiries and to give careful consideration to the case being presented; Finally, it is not for every omission that the injunction will be automatically discharged. A locus penitential, may sometimes be afforded: The Court has a discretion, notwithstanding to continue the order, or to make a new order on terms. 18. On the factual matrix before this Court, it cannot be said that the Claimant s application lacked legitimate urgency, as her assertion was in relation to alleged bias by the Magistrate who was proceeding to hear the criminal charges preferred against her. The Claimant also had no control over the generation of the transcript, but she had an obligation to properly and accurately outline the statements made by the Defendant and the context in which the statements were made. Page 7 of 12

8 19. In R v Bromsgrove District Court, ex p Kennedy CO/1301/90, 1992 WL 89434, in determining an application to set aside leave to apply for judicial review, the learned Judge stated at page 11 as follows: In my judgment the matter has to be looked at both as to whether there has been material non-disclosure and then also to look at what the prospects of success are in any event. That matter has been set out in a number of decisions. If the Court takes the view that at the end of the day the substantive application must fail it should say so. At page 8, Popplewell J stated as follows: It is therefore abundantly clear, both from general common sense and from previous decisions that the material put before the judge on an ex parte application should not be such as in any way to mislead, either deliberately or innocently. The full details must be put before the judge and all matters which it is necessary for him to consider must be there. Omission is as bad as something that turns out to be untrue and the judges wholly depend on the accuracy both of the affidavits and upon the grounds in deciding whether or not to grant leave. 20. The Claimant did not reveal that the Defendant specifically said that he was not referring to any particular attorney and she also failed to indicate to the Court that the statements were made after another matter had been called, subsequent to Mr Waldropt s exit and in the course of a conversation with Mr Jacob. The Claimant failed to place before the Court the full details of the conversation whether in terms of the actual words used or the context in which they were uttered and this amounted to a significant omission of material information. 21. In her affidavit the Claimant also dealt with the events that surrounded the application for recusal and she complained that the Defendant without taking time to consider the submission made by my Attorney [for recusal] overruled Mr Waldropt in an abrasive tone. This statement conveyed the impression that no reasons were provided for the decision to refuse the application for recusal. A perusal of the transcript however revealed Page 8 of 12

9 that the Defendant clearly indicated his reasons for refusing Mr Waldropt s application for recusal. 22. There are two (2) further instances, on the Claimant s evidence, which demonstrate a breach of her duty of candour to the Court and these are as follows: a. In the pre-action protocol correspondence of 28 th October 2017, it was stated that the statement was made in open Court in the presence of several attorneys and members of the public and One lawyer who was present, had the presence of mind, to make a contemporaneous record. b. Absolutely no mention was made of the Claimant being present in Court at the material time or that she made a contemporaneous record. However, in the affidavit filed in support of the leave application, the Claimant deposed that she made a note after informing Mr Waldropt of the statement and the alleged note was exhibited to affidavit as G.S. 3. c. Mr Lytton Alfred filed an affidavit on 21 st November 2017 in support of the Fixed Date Claim Form and he was identified as the attorney who heard the Defendant s utterances on 6 th October In describing the chronology of events, he stated that before the statement was made in open Court, Mr Waldropt and the Claimant got up to leave the Court and I remained seated at the Bar table. The Test for Bias 23. The grounds for apprehending bias must be substantial and the factual matrix should indicate that there exists a presumption or real possibility that the judicial officer would not discharge his/her obligation impartially. 24. In Panday v. Virgil Mag. Appeal 75 of 2006 it was outlined that the test to be considered is whether a fair minded and informed observer would conclude that there exists a strong possibility that the tribunal is biased. The test as to who is a fair minded observer is an objective one which requires a requisite measure of detachment in assessing the real possibility of bias. As stated in Johnson v. Johnson ALJR 1380, the observer is neither complacent nor is he unduly sensitive or suspicious when he examines the facts. He is Page 9 of 12

10 also neither uninformed nor uninstructed about the law in general or the issue to be decided and all the relevant circumstances must considered. Ultimately, the task should be approached with caution and with due regard to the import of the oath of judicial office. 25. Having read the transcript, this Court is resolute in its view that the Claimant did not accurately represent the events which unfolded on the 6 th October, 2017 and on the totality of the evidence now before the Court, the argument as to bias is not arguable and has no realistic prospect of success. When a fair minded and informed observer considers the conversation as outlined in the transcript, such an observer would not be able to conclude that there was a real possibility that the tribunal was biased against the Claimant or her attorney at law as there exists no nexus between the Defendant s statements and the Claimant or her lawyer. The transcript annexed to the Katwaroo affidavit as DK1, established that the position advanced by the Claimant was not an accurate summary of what actually transpired and there was material non-disclosure by the Claimant. The Claimant cannot be viewed as a fair minded observer and her expressed sentiments are far from dispassionate and lack the required objectivity that is required so as to establish apparent bias. 26. When litigants approach the Court on ex parte applications for leave for Judicial Review or where injunctive relief is sought, the requirement for veracity and accuracy is paramount and the need for due diligence is mandatory. Material facts cannot be withheld and the failure to conform to these rigorous and demanding standards would be visited by the imposition of stringent sanctions. 27. Part 26 of the Civil Proceedings Rules 1998 (as amended) empowers the Court with the jurisdiction to strike out a claim, under certain circumstances which include a situation where the action amounts to an abuse of the Court s process or where there exists no valid ground for bringing this claim. This Court is of the view that the dual limb approach, as outlined in Exp Kennedy (supra) should be followed. The materiality of the Claimant s nondisclosure is significant and the grounds advanced by the Claimant in the fixed date claim form are not arguable and do not have a realistic prospect of success. Accordingly, Page 10 of 12

11 the Court is of the view that the Claimant s claim should be struck out as it would not be a proportionate utilisation of the Court s resources to engage a trial, in circumstances where there exists no realistic prospect of success. 28. It is not in disputed that on the 6 th October, 2017 the Defendant uttered the following words: Well, then, you are going to have a very warm time with me. You understand? You are not going to win any cases; your client all going to go to jail; you are not going to get any bail; I am going to keep you waiting in Court whole day, you understand? All sorts of things I could employ. You understand? And after a while, that attorney or those attorneys will not be able to do a case before me. You understand? The word will get around; nobody is going to come to them. 29. The words which were uttered by the Defendant in open court have caused a significant degree of disquiet and alarm in this Court s mind. This Court is concerned that it may be possible that the said words can be interpreted in such a way so as to suggest, inter alia, that the Defendant will consider depriving a litigant of bail or would impose a custodial sentence, if he is of the view that the individual s lawyer deliberately lies to the Court. Such an interpretation will have the effect of eviscerating the presumption of innocence and would violate the apodictic reality that cases can only be determined on the basis of the evidence adduced. It is unfathomable that any judicial officer may feel that he/she can arbitrarily jeopardise the rights of citizens, in an attempt to deal with lawyers or put them in their place. 30. As judicial officers, we must ensure that our conduct both in and out of court engenders in the public a sense of respect and confidence in our ability to adjudicate matters in a manner that is consistent with our oath of office and we must rigidly conform to the standards of conduct and ethics as articulated in the Statement of Principles and Guidelines for Judicial Conduct published by the Judiciary of the Republic of Trinidad and Tobago in The requirements of integrity, fairness and impartiality in the determination of matters before the Court cannot be compromised. Page 11 of 12

12 31. The public s regard for the rule of law is contingent upon their ability to respect the legitimacy of the judicial officer s discharge of his/ her obligations. Judging is not a science, but a discipline and the effective discharge of judicial obligations requires adherence to the established modes and methods of logical and unbiased reasoning aided by the use of precedent and guided by a commitment to ensuring equitable adjudication. 32. The tremendous responsibility and privilege to serve that characterises judicial office must carry with it a recognition of accountability and where judicial officers err or conduct themselves in a manner which taints their judicial office, they must expect to be disciplined. 33. In the circumstances this Court hereby issues the following orders: a. The Court s order dated the 7 th November, 2017 is hereby set aside. b. The fixed date claim form filed pursuant to the order dated 7 th November, 2017 is hereby struck out. c. The Claimant shall pay to the Defendant the cost associated with the claim filed herein together with the cost associated with the Defendant s notice of application to be assesses in default of agreement. 34. The parties are hereby directed to file submissions on or before the 22 nd May, 2018 in relation to the issue as to what if any further order(s), other than those outlined at paragraph 33 a-c above, should be issued. FRANK SEEPERSAD JUDGE Page 12 of 12