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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2017-00316

BETWEEN

TRINIDAD CEMENT LIMITED

Claimant

AND

DR. ROLLIN CLIFTON BERTRAND

Defendant

Claim No. CV2017-01902

BETWEEN

DR. ROLLIN CLIFTON BERTRAND

Claimant

AND

TRINIDAD CEMENT LIMITED

WILFRED ESPINET

ALISON LEWIS

NIGEL EDWARDS

FRANCISCO AGUILERA MENDOZA

ALEJANDRO ALBERTO RAMIREZ CANTU

JEAN MICHEL ALLARD

WAYNE YIP CHOY

CHRISTOPHER DEHRING

MICHAEL GLEN HAMEL SMITH

CARLOS ALBERTO PALERO CASTRO

Defendants

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Before the Honourable Mr. Justice Robin N. Mohammed

Date of Delivery: Wednesday 20 May 2020

Appearances:

Mr. B. ST. Michael Hylton Q.C. leading Mr. Ravi Heffes-Doon instructed by Ms. Alana

Bissessar for Trinidad Cement Limited

Mr. Elton Prescott S.C. leading Mr. Frederick Gilkes instructed by Mr. Yuri Saunders for Dr.

Rollin Clifton Bertrand

DECISION ON DR. BERTRAND’S NOTICE OF APPLICATION FOR RECUSAL

I. Introduction

[1] By Notice of Application filed on 25 October 2018, Dr. Bertrand sought an order that this

Court be recused from any further hearing of the consolidated Claims and that same be

referred to the Registrar for reassignment.

[2] The setting for this application for my recusal is as follows. Dr Bertrand was the CEO and

a board member of Trinidad Cement Limited (“TCL”) from 1998 to 2014, when he

resigned from the board immediately preceding his dismissal from the Company as its

CEO. The circumstances surrounding the determination of his employment with TCL is

the primary source of contention between the parties. Two actions have arisen therefrom.

TCL initiated proceedings against Dr. Bertrand on 25 January 2017 for recovery of legal

fees paid and breach of his fiduciary duties as director (“the first Claim”). Dr. Bertrand

subsequently initiated his own proceedings against TCL on 24 May 2017 for wrongful

dismissal (“the second Claim”).

[3] TCL, on 30 June 2017, filed a Notice of Application seeking to consolidate the two Claims

before this Court on the basis that there was significant overlap of the issues. In objecting

to the application for consolidation, Dr. Bertrand filed an affidavit in response as well as

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an application for summary judgment on 4 September 2017. Dr. Bertrand contended that

the application for summary judgment ought to be dealt with first as a summary dismissal

of the first Claim would negate the need for consolidation of the two Claims. The Court,

however, gave directions for the filing of written submissions in relation to the application

for consolidation. In filing their respective submissions, both parties, however, made

passing submissions on the application for summary judgment.

[4] On 29 May 2018, the Court delivered a written decision on TCL’s application for

consolidation. In its decision, the Court found that it would be more prudent to consider

the application for consolidation first – since, if consolidated, Dr. Bertrand could then have

his application for summary judgment heard on both Claims before the same Court. In that

regard, the Court did not give the parties any directions for the filing of submissions for

the summary judgment application and thus, found that the application for summary

judgment was not yet fit for determination. The Court, in its decision, further stated that if

there were no overlapping issues, which justify consolidation, then Dr. Bertrand’s

application for summary judgment could be heard on the first Claim and that the second

Claim would remain in the jurisdiction of the other Court (see paragraph 10 of the Court’s

written decision).

I, subsequently, decided that the two Claims should be consolidated and heard together. In

that regard, there was no need to consider the merits of the application for summary

judgment. Unfortunately, however, when I was delivering the judgment of the Court, I

erroneously ordered as follows:

“The Defendant’s (Dr. Bertrand) application for summary judgment filed on

the 4th September 2017 be and is hereby dismissed.”

[5] Junior Counsel for TCL, Mr. Heffes-Doon, immediately drew to my attention that the

application for summary judgment was not before me for determination as yet nor had full

submissions been canvassed. Thereafter, I immediately recalled that part of my decision

since the application before me was the consolidation of the two Claims and not the

application for summary judgment. I further directed that copies of the written decision,

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which were distributed to the parties, be handed back to me for the purpose of effecting the

appropriate amendment.

[6] Dr. Bertrand, thereafter, filed the Notice of Application on 25 October 2018 seeking the

following orders:

(a) an order that the Honourable Mr. Justice Robin Mohammed do recuse himself

from presiding over these consolidated proceedings, that is the TCL action and

the Bertrand action;

(b) an order that the Learned Judge, consequent upon his recusal, do refer these

consolidated proceedings to the Registrar of the Supreme Court for

reassignment before another High Court Judge.

I thereafter directed that written submissions be filed and served by the parties. By the 8

February 2019, all submissions had been filed and served as directed.

II. Submissions

[7] Counsel for Dr. Bertrand submitted that the basis of the Application is that the Court’s

dismissal of the summary judgment application, without a hearing, is likely to establish in

the mind of a fair-minded and informed observer that there is a real possibility I have

prejudged the summary judgment application.

Counsel submitted that the test of apparent bias is that pronounced by the House of Lords

in Porter v Magill1 and which was applied in The Attorney General of Trinidad and

Tobago v Wayne Kublalsingh and ors2, that is, in determining whether there is apparent

bias, the question is whether the fair-minded and informed observer having considered the

facts would conclude that there was a real possibility that the tribunal was biased.

[8] Counsel for Dr. Bertrand contended that a decision-maker ought not to give the impression

of having prematurely formed a conclusive view of an issue in dispute. He relied on the

1 [2002] 2 AC 357 2 Civ App No P018 of 2014

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Privy Council authority of Stubbs v The Queen3 wherein Lord Lloyd-Jones remarked at

paragraph 17 as follows “it is not acceptable for a judge to form, or to give the impression

of having formed, a concluded view on an issue prior to hearing full argument by all parties

on the point.”

Counsel, therefore, submitted that my ruling, in dismissing the summary judgment

application, constituted a premature determination that Dr. Bertrand would not be able to

establish that TCL had no realistic prospect of success on its Claim against Dr. Bertrand

(the first Claim). It was further submitted that none of the issues which fall for

consideration in the First Claim was ventilated before a Judicial Officer who was properly

seized of the facts.

[9] Counsel for Dr. Bertrand also relied on the Court of Appeal case of Lake Asphalt of

Trinidad and Tobago (1987) Limited v TRINRE Insurance Company Limited and

FIDES Limited4 where the Court of Appeal had to consider whether a claim of apparent

bias could be sustained against a judge following statements that she made while delivering

her oral ruling on a summary judgment application. The Court of Appeal considered that

the judge’s remarks were inappropriate and had appeared to give the impression, whether

intentionally or not, that she had made up her mind on the issues of law and fact involved.

The Court of Appeal accordingly held that the judge was disqualified on the ground of

apparent bias.

Counsel also relied on the following cases: Benjamin Exeter et al v Winston Gaymes et

al5, Steadman Byrne v Amjad and Others6 and Vakauta v Kelly7.

In Benjamin Exeter et al v Winston Gaymes et al, the Court held that the test for apparent

bias was well settled. The question to be asked is “whether the fair-minded and informed

3 [2018] UKPC 30 4 Civ App No P181 of 2018 5 SVG HCVA P2016/0021 6 [2007] EWCA Civ 625 7 167 CLR 568 (5 October 1989)

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observer, having considered the facts, would conclude that there was a real possibility

that the tribunal was biased.” A real danger of bias

might well be thought to arise if on any question at issue in proceedings before

him, the judge had expressed views, particularly in the course of the hearing, in

such extreme and unbalanced terms as to throw doubt on his ability to try the issue

with an objective judicial mind.

In Steadman Byrne v Amjad and others, the Court of Appeal held that the test of bias

was whether a fair-minded observer informed of all the relevant circumstances would have

concluded that there was a real possibility that the judge was biased. Bias in the context

had to mean the premature formation of a concluded view adverse to one party. A judge

could form views about the evidence as the trial progressed and legitimately tell the parties

what was in his mind. However, it was not acceptable for the judge to form, or give the

impression of having formed, a firm view of one side's credibility when the other side had

not yet called evidence, which was intended to impugn it. The same test applied to

comments made by the judge in his chambers as if he had spoken in open court.

In Vakauta v Kelly, the Court stated that “an experienced lawyer would appreciate the

ability of a trial judge to ensure that preconceived views do not cause the actual decision

to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at

the heart of the requirement of the appearance as well as the reality of impartial justice.”

[10] Counsel for Dr. Bertrand contended that I have arrived at a determination of the primary

contest between the parties to the Claim. It was submitted that the issue to be determined

is whether my ruling would lead a fair-minded and informed observer to conclude that

there was a real possibility that I have prejudged the summary judgment application. It

was further submitted, however, that it is difficult to see how an informed observer could

reach any other conclusion since I had actually arrived at the point of delivering a

considered written decision on the application.

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Counsel advanced that the mere fact that I have pronounced on the prospects of success

for the Claim of Dr. Bertrand, would cause any informed observer to reasonably

apprehend that I have already formed a view on the summary judgment application and

the substantive Claim. Therefore, I am incapable of treating with the summary judgment

application objectively.

[11] In response, Counsel for TCL submitted that the fact that the Court immediately realised

that it had applied its mind to the summary judgment application by mistake and before

full arguments were presented, does not preclude the Court fully considering the

application now. It was further submitted that the Court rightly exercised its power to

recall the decision immediately after being alerted to its mistake since the Court’s decision

dated 29 May 2018 at paragraph 10 expressly states that “the summary judgment

application… is not yet fit for determination in this judgment.”

[12] Counsel for TCL submitted that where an administrative body, or judicial officer,

previously decides an issue, a rehearing of the same issue before the same administrative

body or judicial officer is not sufficient to raise a conclusion of apparent bias. Counsel

relied on the Privy Council authority of Grant v Teacher’s Appeal Tribunal and anor8

where disciplinary proceedings against a teacher were heard by a Committee of a Board

at a time when the term of appointment of the Board had expired. Accordingly, the

proceedings were considered a nullity and a new Board was later appointed which

included three members of the previous Board. The teacher objected to the rehearing of

the disciplinary charges by the same persons who had taken part in the ineffective hearing.

The Privy Council rejected the teacher’s submissions ruling that no unfairness was caused

to the teacher. The Board stated as follows “… the rehearing may still be fair and valid

even if the committee has earlier reached a conclusion on the subject matter, provided it

gives genuine and fair consideration to the case and any further facts or arguments put

before it on the second occasion.”

8 [2006] UKPC 59

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The Board referred to the opinion expressed by Lord Reid in Ridge v Baldwin [1964]

AC 40 at 79 as follows:

“I do not doubt that if an officer or body realizes that it has acted hastily and

reconsiders the whole matter afresh, after affording to the person affected a

proper opportunity to present his case, then its later decision will be valid.”

[13] Counsel for TLC also relied on the authority of AMEC Capital Projects Ltd v

Whitefrair City Estates Ltd9 where the UK Court of Appeal ruled that the mere fact that

a tribunal had previously decided the issue was not of itself sufficient to justify a

conclusion of apparent bias since judges are assumed to be trustworthy and to understand

that they should approach every case with an open mind.

[14] Counsel for TCL contended that since there was no hearing of the summary judgment

application and Dr. Bertrand was yet to make arguments in support thereof, there is a

stronger likelihood that the reasonable observer would not apprehend the possibility of

unconscious bias.

Counsel advanced that none of the authorities put forth by Counsel for Dr. Bertrand

support the proposition that the Court’s mistaken determination of the summary judgment

application without a hearing, disqualifies the Court from receiving Dr. Bertrand’s

submissions and properly determining the application. It was submitted that the

authorities all deal with cases of judges expressing themselves in conclusionary terms.

[15] Counsel for TLC submitted that in the instant case, on being alerted to its error in

considering the summary judgment application, the Court immediately withdrew that part

of the decision. Therefore, this is not a case of a judge making and maintaining final and

conclusive findings.

9 [2005] 1 All ER 723

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III. Law and Analysis

[16] The general rule is that a Judge must recuse himself, that is, disqualify himself for hearing

a cause or matter if he has a personal interest in the outcome of an issue he has to decide,

or if the parties or the public might have a reasonable apprehension that he might not

bring an impartial or an unbiased mind to the adjudication of such cause or matter:

Locabail (U.K.) Ltd v Bayfield Properties Ltd10. The purpose of recusal is to preserve

the impartiality of the judicial process and preserve confidence in the integrity of the

administration of justice.

[17] However, a Judge, should not lightly recuse himself. He has a duty to sit. When he has to

decide an issue of self-recusal, he has to do a balancing exercise. On the one hand, the

Judge must consider that recusal aims at maintaining the appearance of impartiality and

instilling public confidence in the administration of justice. On the other hand, the Judge

has a duty to sit on the cases assigned to him, and may only refuse to hear a case for good

reason: Mendonҫa J.A. in The Attorney General of Trinidad and Tobago v Dr. Wayne

Kublalsingh and Ors11 (referring to Nelson, J. on Judicial Recusal, April 2012). Where

the ground is apparent bias good reason would satisfy the test of apparent bias.

[18] The test for apparent bias on the part of a Judicial Officer in this jurisdiction was settled

by the Court of Appeal in Basdeo and Oma Panday v Her Worship Ejenny Espinet

and the Director of Public Prosecutions12. In that appeal, Mendonҫa J.A. held that the

proper test for apparent bias was that laid down in Porter v Magill13. Thus, the question

is whether the fair-minded and informed observer, having considered the facts, would

conclude that there was a real possibility that the tribunal was biased.

10 [2000] QB 451, 472 11 Civ App No P018 of 2014 12 Civ App No 250 of 2009 13 [2002] 2 AC 357

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[19] Counsel for Dr. Bertrand accurately submitted the authority of Stubbs v The Queen

(supra) which explains the aspect of apparent bias being alleged where there has been an

allegation of pre-determination or pre-disposition.

[20] Kokaram J in Singh v Soogrim14 highlighted the important principles from Stubbs v

The Queen on whether a Judge should recuse on the ground of pre-disposition or pre-

determination as follows:

“a) The fact that a Judge has previously made a decision adverse to the

interests of a litigant is not, of itself, sufficient to establish the appearance of

bias. See Zuma’s Choice Pet Products Ltd v Azumi Ltd [2017] EWCA Civ

2133 where Floyd LJ observed that the fair-minded and informed observer

does not assume that because a Judge has taken an adverse view of a previous

application or applications, he or she will have pre-judged, or will not deal

fairly with, all future applications by the same litigant.

b) The appearance of bias as a result of pre-determination or pre-judgment

is a recognised ground for recusal. The appearance of bias includes a clear

indication of a prematurely closed mind. See Amjad v Steadman-Byrne

[2007] EWCA Civ 625; [2007] 1 WLR 2484 and Otkritie International

Investment Management Ltd v Urumov [2014] EWCA Civ 1315. In Otkritie

Longmore LJ observed at paragraph one:

“The concept of bias … extends further to any real possibility that a judge

would approach a case with a closed mind or, indeed, with anything other

than an objective view; a real possibility in other words that he might in some

way have ‘pre-judged’ the case.”

c) It is not acceptable for a Judge to form or to give the impression of having

formed a concluded view on an issue prior to hearing full argument by all

parties on the point. See Re Q (Children) [2014] EWCA Civ 918 where a

Judge, at a case management hearing made it clear that he accepted the

account given by the father and rejected the allegations made by the mother

14 CV2018-00103

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even though the mother had not given her evidence. McFarlane LJ observed

that there is a thin line between case management and premature

adjudication. The Judge had strayed beyond the case managing role and had

stated his analysis in unambiguous and conclusive terms that could only have

established in the mind of a fair-minded and informed observer that there was

a real possibility that the Judge had formed a concluded and adverse view of

the mother.

d) The degree of proximity between the subject matter of the earlier decision

and the later decision can clearly have an important bearing on the

appearance of bias: See Livesey v The New South Wales Bar Association

[1983] 151 CLR 288 where the appellant applied for the recusal of two

Judges from hearing professional misconduct proceedings against him. The

two Judges had earlier sat in similar proceedings involving the fitness of

another person to be admitted to the Bar who might have been a witness in

the appellant’s case. The High Court of Australia held that the Judges should

have recused themselves from sitting in the second case because of the

appearance of pre-judgment.

“It is, however, apparent that, in a case such as the present where it is not

suggested that there is any overriding consideration of necessity, special

circumstances or consent of the parties, a fair-minded observer might

entertain a reasonable apprehension of bias by reason of prejudgment if a

judge sits to hear a case at first instance after he has, in a previous case,

expressed clear views either about a question of fact which constitutes a live

and significant issue in the subsequent case or about the credit of a witness

whose evidence is of significance on such a question of fact. The

consideration that the relevant question of fact may be conceded or that the

relevant person may not be called as a witness if the particular judge sits

would not, of course, avoid the appearance of bias. To the contrary, it would

underline the need for the judge to refrain from sitting.”

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See also Sengupta v General Medical Council [2002] EWCA Civ 1104 it was

submitted that Laws LJ should recuse himself on the grounds of pre-judgment.

The Court of Appeal dismissed the appeal. Laws LJ observed at paragraph

35:

“[35] But the ordinary case is far from those instances. It is of the kind that

has happened here: the judge in question has not himself had to resolve the

case's factual merits, and has not expressed himself incontinently. All he has

done is to conclude on the material before him that the result arrived at in the

court below was correct. And he has done so in the knowledge that, at the

option of the applicant, his view may be reconsidered at an oral hearing. In

such a case is there a reasonable basis for supposing that he may not bring

an open mind to bear on the substantive appeal if, after permission granted

by another judge, he is a member of the court constituted to deal with

it?....……………………

[38] This I think is important, because oral argument is perhaps the most

powerful force there is, in our legal process, to promote a change of mind by

a judge. That judges in fact change their minds under the influence of oral

argument is not an arcane feature of the system; it is at the centre of it.

Knowledge of it should, in my judgment, be attributed to the fair-minded and

informed observer; otherwise the test for apparent bias is too far distant from

reality. It is a commonplace for a hearing to start with a clear expression of

view by the judge or judges, which may strongly favour one side; it would not

cross the mind of counsel on the other side then to suggest that the judge

should recuse himself; rather, he knows where he is, and the position he has

to meet. He often meets it.”

[21] Applying the principles articulated above, the question to be answered, is whether the

fair-minded and informed observer, having considered all the facts, would conclude that

there is a real possibility that I am biased in hearing the summary judgment application

and the substantive Claim.

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[22] As I stated earlier in this judgment (see paragraph 4 above), on 29 May 2018, when I

erroneously ordered that the summary judgment application be dismissed, I immediately

recalled that part of the decision when it was brought to my attention that the said

application was not before me. Counsel for Dr. Bertrand, however, submitted that as a

result of that action, I have pre-judged and/or predetermined the summary judgment

application as well as the substantive Claim. However, it is clear from my written decision

that the summary judgment application was not yet fit for determination before me as

directions for submissions on the application were not given (see paragraph 10 of the

written decision delivered on 29 May 2018).

[23] Accordingly, when paragraph 10 of the written decision and my “slip-up” are considered

together, it is not possible, in my opinion, to realistically conclude that a fair-minded and

informed observer would form the view that this Court has a preconceived adverse

opinion on the summary judgment application or the substantive Claim before the Court.

The Court cannot be said to have made a pre-determination on the summary judgment

application or on the substantive Claim.

[24] Given the explanation in my written decision on 29 May 2018, there is nothing to suggest

that my mind is closed on the summary judgment application or on the substantive Claim.

The statement that “the Application for Summary Judgment is dismissed” was

inadvertently made in open Court which I instantly recalled. Thus, it cannot be said that

it was a conclusive finding of the application and on the substantive Claim.

[25] This Court is of the view that a fair-minded and informed observer, seized of all the

circumstances in this matter, would not conclude that I am biased. The Court is also firm

in its view that a fair-minded and informed observer would not be able to conclude that

there exists a real possibility that the Court’s mistake would affect and/or adversely

impact on the Court’s ability to render an impartial determination of the summary

judgment application as well as on the substantive Claim.

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[26] The art of masterful advocacy is the ability to convince even in the face of adversity. This

Court considers that both sides are endowed with tremendously skilful senior advocates

(silks) of pre-eminence who are more than capable of navigating the outstanding

application for summary judgment. Both silks, on opposite sides, are supported by their

respective experienced team of attorneys. This Court looks forward to receiving full and

comprehensive submissions in relation to the said application upon the appropriate

directions being given by this Court, which this Court will entertain with an open mind. I

am quite aware that it brings no comfort, nor does it carry much or any probative value,

to say that this Court will receive arguments with an open mind which is not tainted with

a pre-determination of the application. However, it is important for me to declare that I

have no personal interest in the outcome of these consolidated matters nor do I know or

had dealings with any of the parties to these Claims.

[27] In that regard, the Court is of the view that the application for recusal is without merit and

ought to be dismissed. It would have been easy and less burdensome for me to recuse

from further hearing these Claims but that would have been, in my opinion, a shameful

failure to fulfil one’s duty; a dereliction of one’s responsibility by a transference of my

burden onto the docket of another judge. No judge, including myself, fancies receiving

matters case-managed by another judge on the basis of a recusal, especially where the

reason for the recusal is unmeritorious and reflects the adoption of the “easy way out”. In

The Attorney General of Trinidad and Tobago v Wayne Kublalsingh and ors

Mendonça JA stated as follows:

“A judge, of course, should not lightly recuse himself. He has a duty to sit.

When he has to decide an issue of self-recusal, he has to do a balancing

exercise. On the one hand the Judge must consider that recusal aims at

maintaining the appearance of impartiality and instilling public confidence

in the administration of justice. On the other hand, the Judge has a duty to sit

on the cases assigned to him, and may only refuse to hear a case for good

reason (see Nelson, J. on Judicial Recusal, April 2012). Where the ground is

apparent bias good reason would satisfy the test of apparent bias.”

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In applying the “balancing exercise” as guided by Mendonça JA, I have found that the

scale is tipped in favour of my duty to sit as there is no serious challenge to my impartiality

or ability to determine any summary judgment application filed by Dr. Bertrand or the

substantive Claims before this Court on their merit.

IV. Disposition

[28] In light of the above analyses and findings, the order of the Court is as follows:

ORDER:

1. Dr. Bertrand’s Notice of Application filed on 25 October 2018 be and is hereby

dismissed.

2. Costs of the said Notice of Application to be paid by Dr. Bertrand to TCL to be

assessed in accordance with CPR Part 67.11, in default of agreement.

3. In the event that there is no agreement on the quantum of costs, the attorneys for TCL

to file a Statement of Costs for assessment on or before 20 June 2020.

4. Thereafter, the attorneys for Dr. Bertrand to file Objections, if any, to items on the

Statement of Costs, on or before 6 July 2020.

5. Decision on the quantum of costs to be announced after compliance with all directions

given herein.

6. The Consolidated Claims are fixed for a case management conference on 23 July 2020

at 1:30pm in courtroom POS22.

___________________

Robin N. Mohammed

Judge