Robert Strang Instructed by BDB Pitmans LLP (London) for the Appellant.
This appeal arises in the context of proceedings brought by Real Time Systems Ltd (“the claimant”) against Renraw Investments Ltd, CCAM and Co Ltd and Mr Jack Austin Warner (“the defendants”) in which proceedings the claimant seeks to recover a debt of TT$1,505,493 from the defendants. The defendants admitted they had received the money from the claimant. The issue at trial was whether, as the claimant alleged, the money was paid by way of a loan to the defendants repayable on 28 February 2008, or whether as the defendants alleged, the money was a gift by the claimant to the defendants, in the form of a donation to finance a political party, the United National Congress (“the UNC”), in respect of its 2007 general election campaign.
The trial judge, Seepersad J (“the judge”) in his judgment dated 15 May 2018 made several factual findings based on which he found that the payment of the money was a loan to the defendants. Accordingly, the judge ordered the defendants to repay to the claimant the sum of TT$1,505,493 together with interest at the statutory rate from 15 May 2018 until repayment, and costs.
The defendants appealed to the Court of Appeal against the judge’s order. The defendants made two submissions in the Court of Appeal. First, that the judge had made material errors in his analysis of the evidence. Second, that remarks made by the judge in his judgment and subsequent remarks made by him in a speech on 28 March 2019 to the Trinidad and Tobago Transparency Institute met the test for apparent bias so that his order should be set aside on that alternative ground.
The Court of Appeal (Smith, Jones, and Pemberton JJA) unanimously allowed the appeal on the ground that the trial judge had made material errors in his analysis of the evidence. The Court of Appeal substituted its own assessment of the evidence which was that the payment of the money by the claimant to the defendants had been a gift in the form of a political donation. Accordingly, the Court of Appeal set aside the orders of the judge and dismissed the claimant’s claim. The Court of Appeal also ordered the claimant to pay the defendants’ prescribed costs quantified on the sum of TT$1,505,493 plus the costs of the appeal determined at two-thirds of the amount of the quantified prescribed costs.
If the Court of Appeal had not allowed the appeal on the basis that the trial judge had made material errors in his analysis of the evidence, then Smith and Pemberton JJA (Jones JA dissenting on this issue) would have allowed the appeal and remitted the proceedings for rehearing based on a finding that the judge had given the appearance of bias.
The claimant now appeals to the Judicial Committee of the Privy Council contending that the judge was entitled to make his findings on the evidence and that the test for establishing apparent bias on the part of the judge has not been satisfied.
2. The factual background and an outline of the issues in dispute
Mr Krishna Lalla is “well known in the business and political landscape of Trinidad and Tobago”: see para 1 of Smith JA’s judgment in the Court of Appeal. In 1982 Mr Lalla incorporated Super Industrial Services Ltd (“SISL”), a general contracting and construction company. Mr Lalla states that he passed control of SISL to his sons in 1999 but was retained as a consultant.
The claimant is a company involved in the business of providing information technology services. The claimant shares premises with SISL. For the purposes of these proceedings the parties and the courts below proceeded on the basis that Mr Lalla was the controlling mind of the claimant and that he was the claimant’s agent.
Romila Marajh was at all material times the general manager of the claimant. She was responsible for the claimant’s finances and had control of the claimant’s financial records, including its bank records, and returned negotiated cheques.
Mr Einool Hosein is a former employee of Mr Lalla who at the trial was called as a witness by the defendants.