‘The Privy Council finds no apparent bias in a judge’s comments deprecating the use of unregulated campaign finance, which he made in a judgment deciding a dispute over the terms on which money was advanced to fund a political campaign.’
In a judgment delivered on 13 November 2023, on an appeal from Trinidad and Tobago, the Privy Council has allowed the appeal of Real Time Systems Limited (Real Time) and ordered Jack Warner, the former Vice President of FIFA, and two companies associated with him to repay to Real Time a loan of $1.5m, plus interest.
The legal issues in the appeal concerned, first, whether the Court of Appeal had been entitled to overturn the judge’s findings and second, whether the Court of Appeal had been right to find that comments made by the judge in his judgment gave rise to an appearance of bias.
Those comments concerned an eye-opening account of the circumstances in which the disputed payments were made. Real Time was one of a number of associated companies associated with a well-known businessman, Krishna Lalla, who had paid substantial sums of money to Mr Warner, as the judge found, to fund the election campaign of the United National Congress (UNC), of which Mr Warner was deputy leader.
Real Time claimed these payments were loans. Mr Warner denied this, saying that they were political donations, intended to be gifts. At the trial, the case put to Mr Lalla was that he and his businesses had received the benefit of many public contracts, once the UNC had attained power, in return for their donations to the party via Mr Warner.
This case, in the words of the trial judge, “instilled a sense of disquiet” in his mind. In the final paragraphs of his judgment, after making his findings, he drew attention to the evidence and arguments that had been presented to him, which he said tended to confirm the public perception that elected officials will ensure favourable treatment for the people who finance their campaigns. He described this as inconsistent with the oath of public office and called for regulation to reform campaign finance.
The grounds of appeal filed by Mr Warner and his companies attacked the judge’s findings only and did not raise a complaint of apparent bias. But after the judge repeated his comments in a speech to an anti-corruption conference some 10 months after his judgment, the arguments in support of the appeal were widened to add a complaint of apparent bias in that, it was said, the judge had shown a decided antipathy to elected officials who, like Mr Warner, accepted campaign financing.
A majority in the Court of Appeal found that the judge’s comments gave rise to an appearance of bias. The Board disagreed, finding that the judge had not come to the case with preconceived or partisan views; that his comments were occasioned by the case that had been advanced before him; and that they were even-handed, containing criticism of both parties.
There was no issue before the Board about the principles to be applied in addressing a complaint of apparent bias (citing Porter v Magill [2001] UKHL 67; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; Hoekstra v Her Majesty’s Advocate 2000 SCCR 367; and the Trinidad and Tobago case of Attorney General v Kublalsingh Civ App No P018 of 2014).
However, one interesting factor in the Board’s assessment was the perception of the judge’s conduct of the trial. The Board said that there was no complaint about the conduct of the trial, finding that the judge engaged carefully with the facts and the arguments (that is to say, including those which he said had caused him disquiet).
And the Board found it significant that the complaint of apparent bias had not been made in the grounds of appeal settled after the trial, but had been added 10 months later. This, said the Board, reflected the fact that “those who were present and understood the dynamics of the trial did not consider the comments made in the judgment raised a real possibility of bias”.
Robert Strang successfully represented Real Time in the appeal to the Board.
The case has been covered extensively in the press including:
Read the judgment here.
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