In an unusual ruling, the Judicial Committee of the Privy Council has 'with some reluctance' upheld a finding of a flaw in the apparent independence of a High Court judge sitting in the Cayman Islands.
In a 4-1 ruling the committee found that Mr Justice Peter Cresswell would have been regarded by a fair-minded observer as ‘unsuitable to hear proceedings’ in a case in the Grand Court of the Cayman Islands. The seven-year dispute, Almazeedi v Penner and another, is between Cayman-registered BTU Power Company and its predominantly Qatari shareholders.
Appellant Wael Almazeedi, BTU’s director, had been accused by shareholders of mismanaging company funds. In 2011, the shareholders filed a petition in the Cayman Islands where Cresswell, who has since retired, was sitting at the time. Cresswell appointed liquidators in January 2012. At a further hearing in 2014, Cresswell ordered Almazeedi to pay costs.
However at the time of the dispute, Cresswell was also a judge of the Qatar International Court and Dispute Resolution Centre (QICDRC). Almazeedi appealed against the liquidation order at the Court of Appeal of the Cayman Islands where he argued that another judge should have heard the case.
Almazeedi also noted that one of BTU’s shareholders, Ali Shareef Al-Emadi, had been appointed as Qatar’s minister of finance in June 2013. The appointment, it was claimed, gave Al-Emadi the power to appoint and remove Qatari judges.
In 2015, the appeal court found that although Cresswell’s decisions had not been affected by the Qatari government, he should have nevertheless disclosed his appointment. The court said Cresswell’s liquidation order should stand, but that orders after June 2013 [Al-Emadi’s appointment] should be set aside.
However, the privy council said the appeal court was wrong to treat the period prior to June 2013 any differently. It ordered proceedings to be set aside from the day before the liquidation order in January 2012.
In judgment, the council said ‘with some reluctance’ that the appeal court was right to regard it as inappropriate for Cresswell to sit without disclosing his Qatar links.
The committee added: ‘In the board’s view, and at least in the absence of any such disclosure, a fair-minded and informed observer would regard him as unsuitable to hear the proceedings from at least 25 January 2012.’
The committee said disclosure can itself serve as the sign of transparency and ‘may mean that no objection is even raised’ and that an alternative might have been to ask the chief justice to deploy another member of the court.
Dissenting, Lord Sumption said the case against Cresswell rests ’entirely on the notion’ that he might be influenced, possibly unconsciously, by a hypothetical possibility of action being taken against him in Qatar. ’This suggestion lies at the outer extreme of implausibility,’ he wrote. He noted that Cresswell 'is not alleged to have done anything which could raise doubts about his independence'.
Almazeedi was represented by James Guthrie QC, instructed by Robin Lloyds and Freddie-Nicole Brace of Axiom Stone Solicitors. The respondents were represented by Francis Tregear QC and Matthew Goucke, instructed by Walkers and Edwin Coe.