Re Cayman Islands Public Service Ltd

• Jurisdiction: Jamaica
• Judge: (Duffus, P., Waddington and Eccleston, JJ.A.)
• Judgment Date: 16 June 1967
• Court: Court of Appeal (Jamaica)
• Date: 16 June 1967

Court of Appeal of Jamaica

(Duffus, P., Waddington and Eccleston, JJ.A.)

IN THE MATTER OF CAYMAN ISLANDS PUBLIC SERVICE COMPANY LIMITED

R.N.A. Henriques for the appellants;

H. DaCosta, Q.C. for the respondent.

Cases cited:

(1) Dimes v. Grand Junction Canal (Proprietors) (1852), 3 H.L. Cas.759; 10 E.R. 301, dicta of Lord Campbell applied.

(2) R. v. Edwards(1922), 1 Stephens 36, dicta of DeFreitas, Ag. C.J. applied.

(3) R. v. Sussex JJ., ex. p. McCarthy, [1924] 1 K.B. 256; [1923] All E.R. Rep. 233, dictum of Lord Hewart, C.J. applied.

(4) R. v. Great Yarmouth JJ.ELR(1882), 8 Q.B.D. 525, dicta of Field J. applied.

Civil Procedure-fair trial-bias-judge who is a member of Executive Council and Legislative Assembly to disqualify himself from hearing case involving Governments interest because sufficient to cause reasonable suspicion of likelihood of bias and infringes strict impartiality principle

The creditors of a company in liquidation appealed on the ground that the Acting Judge of the Grand Court should have disqualified himself from hearing an action they had brought in connection with the liquidation.

Two creditors of a company in liquidation sought, inter alia, a ruling on the extent to which the Government was a secured creditor of the company and whether the enhanced remuneration granted by the court to the liquidator was valid in the absence of proper notice to the creditors and shareholders.

The hearing was presided over by the Stipendiary Magistrate of Grand Cayman, sitting as Acting Judge of the Grand Court. He was also at the time an official member of the Legislative Assembly and the only legal member of the Executive Council, both bodies which would have had knowledge of Government affairs and been instrumental in making various decisions on behalf of the Government.

The Grand Court (Horsfall, Ag. J.) ruled that the Government was a secured creditor of the company to the full extent of the companys indebtedness to it and upheld the basis on which the liquidators fees were to be calculated and paid.

The creditors appealed, submitting as a preliminary point that the judge erred in adjudicating upon the matter because he was a Government official and as such should have disqualified himself from hearing the case; since the Government stood to gain from his ruling, there was a conflict of interest and he had, in effect, been a judge in his own cause, contrary to the principles of natural justice.

The liquidator submitted in reply that (a) the several appointments of the judge were common knowledge and it should be taken that the appellants had waived any objection they might have had to his hearing the matter in dispute; and (b) moreover, neither pecuniary nor personal interest had been shown which would disqualify him from hearing the case.

Held, allowing the appeal:

It was wrong in principle for a judge who was both a member of the Executive Council and the Legislative Assembly to hear a case to which the Government was an interested party, especially when it stood to gain considerably if judgment were given in its favour. In particular, being the only legal member of the Executive Council, the judge was bound to have been a party to its deliberations and decisions and would, presumably, have had to advise the Government on its legal position. A judge in these circumstances would have an interest in such matters before him which, though neither pecuniary nor personal, would be sufficient to cause reasonable suspicion of the likelihood of bias. Moreover, even without any actual involvement by him in a particular matter before the Executive Council, his subsequent function as judge in relation to it would call into question the strict impartiality which should be the hallmark of the administration of justice. In this particular case, the judge had a duty, on reading the documents filed, to disqualify himself from hearing the case. The appeal would therefore be allowed and an order made for a new trial before another judge (page 85, line 28 page 86, line 30; page 87, line 10 page 88, line 9; page 89, lines 2231).

ECCLESTON, J.A.: This is an appeal from an order made on
30	December 5th, 1966 by Mr. G.J. Horsfall, Stipendiary Magistrate
of Grand Cayman and Acting Judge of the Grand Court of the
Cayman Islands.
Prior to November 30th, 1961 there was in existence, known as
the Cayman Islands Public Service Ltd., a limited liability com-
35	pany operating in Grand Cayman which supplied electric services
to the community. On November 30th, 1961 this company,
because it could no longer supply such services, entered into an
agreement with the Administrator of the Cayman Islands by virtue
of s.20 of the Electric Lighting Law, 1934 whereby the Adminis-
40	trator took over all the works of the company, together with all
wires and electric plant belonging to the said company. The

licence of the company was cancelled as from that date. The new
name under which the operations taken over by the Administrator
functioned was The Cayman Islands Government Electricity
Undertaking. There are specific matters incorporated in this agree-
5	ment to which I need not now refer.
Mr. James D. McDonald was on January 27th, 1962 appointed
official liquidator for the winding up of the company and the
disposal of its assets at a remuneration of 1% of the realizable
assets, but in any event not to exceed 200. On March 23rd, 1965
10	this remuneration was increased to 3% by order of the court made
on an ex parte summons.
The assets of the company were on May 10th, 1966 sold to the
Caribbean Utilities Ltd. for a price of 85,000 and it was being
contended by the liquidator that an amount of 35,056.7s.6d. was
15	to be appropriated to reimburse the government for the price of
two generators said to be the property of the Government on loan
to the bankrupt company, leaving a balance of approximately
50,000 to be distributed among the creditors.
Two creditors of the original company, Cayman Islands Public
20	Service Ltd., namely, Auto Marine Engineers, Inc. and Plato Cox,
who were also shareholders in the said company, applied on a
summons to the court on November 10th, 1966 for the following
relief: (a) review of the liquidators fees which were increased
from 1% to 3% by order of the court dated March 23rd, 1965
25	and in respect of which increase notice of application was not
given to the creditors or shareholders; (b) a ruling as to whether
the Cayman Islands Government is a secured creditor for the whole
of the indebtedness due to them; and

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