Indar Singh v Kisundaya Soogrim

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice V. Kokaram
• Judgment Date: 01 February 2019
• Neutral Citation: TT 2019 HC 24
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV 2018-00103
• Date: 01 February 2019

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice V. Kokaram

Claim No. CV 2018-00103

Between

Indar Singh

Claimant

and

Kisundaya Soogrim

Defendant

Appearances:

Mr. Edwin K. Roopnarine Attorney at Law for the Claimant.

Mr. Ancil. W. Moses Attorney at Law for the Defendant.

Judge - Recusal — Apparent bias — Impartiality — Duty to sit — Previous decision made against claimant on procedural application — Whether application for recusal was sustainable — Application dismissed.

1 The Claimant would like me to recuse from hearing his claim. He is anxious that I may have pre-determined the outcome of this claim based on my previous decision made against him on a procedural application in an earlier claim. In that earlier claim 1 (the 2015 Claim) he sought to set aside a consent order 2 which brought that claim to an end. I held that he used

the wrong process to do so and further that there was no merit in the allegations advanced by him in that application to set aside the order 3. Those allegations included unilateral mistake and lack of informed consent. Instead of appealing that order he has, now accepting that he did file the wrong application 4, filed the present claim to set aside the consent order and has now asked that I recuse myself from hearing the present claim. He would prefer that another Judge investigate and interrogate fully his allegations for setting aside the consent order

2 In making this application for a recusal based on apparent bias no question of impropriety, improper association, ill-advised adverse remarks or intemperate language against the Claimant arise. The real question that arises is whether a Judge making findings on matters which were properly before him can be said to have pre-judged the matter if he is asked again to investigate the dispute in a different forum with more forensic tools available to determine the claim. It is the task of every Judge to make a sober assessment of the evidence placed before the Court. Absent any other complaint of pre-disposition or predetermination evincing that the Judge's mind is closed, a Judge's mind could never be closed to a dispute upon which the Judge is properly called upon to adjudicate based upon the available evidence. More so, in relation to a consent order which was entered before me, as a Judge must always be anxious to ensure that such consent orders express the

• e) There shall be the option to purchase the one-half share of the other in the said premises, based on the said valuation report extended in a priority to be agreed when the Valuation Report is produced and disclosed.

• f) The requisite Memorandum of Transfer and the attendant cost shall be borne by the purchasing party and the other party shall execute the necessary Memorandum of Transfer presented so his/her Attorney will in 30 days of the said presentation and payment equivalent to the one half share.

• g) The Defendant shall pay to the Claimant the sum of Twenty Thousand Dollars ($20,000.00) in full and final settlement of her Claim in respect of motor vehicle PCE 558. The said amount to be paid to the Claimant, shall be paid at the time of settling the payment in respect of the property.

• h) There shall be liberty to apply.

• i) There shall be no order as to costs.”

informed consent of the parties or were entered with due authority from the parties

3 It is the task of this Judge, as it is the task of any other Judge, to adjudicate on the Claimant's claim in the face of my previous judgment. The Claimant surely is not asking another Judge to revisit my previous ruling by way of appeal but rather to investigate the merits of the Claimant's complaint in a full blown trial, something which has not been done before. If that is the case, absent strong grounds of apparent bias, there should be no impediment to this Judge embarking upon such an inquiry. The Claimant's own apprehensions apart, the question is whether the fair minded and informed observer (not the Claimant) would hold the view that there is a real (not fanciful or speculative) possibility that a Judge conducting such an inquiry would be biased in that he would not be willing to change his mind. Alternatively, would such an observer be of the view that the Judge would hold steadfast to the oath of office, to properly sift the facts which may be revealed in full disclosure at this trial and balance the scales of justice evenly as Judges are sworn to do regardless of previous decisions.

4 Administratively, of course, nothing could be simpler than to recuse from a case. A form is signed. The file re-assigned randomly to another civil Judge. Committed and dedicated as they are, the newly assigned Judge would, without demur, manage the claim and if necessary, conduct the trial. Another file would come to my desk. But the fact that a recusal can be accommodated easily administratively does not mean that a Judge must eagerly abdicate his constitutional function and responsibility and the duty to manage cases to give effect to the overriding objective. The Judge has a “duty to sit” and ought not to recuse for trivial reasons, worse to encourage “forum shopping” by litigants.

5 This is not to say I am insensitive to the question asked by the Claimant. Far from it. His application strikes at the heart of a fundamental pillar of procedural justice: Impartiality. With impartiality one builds trust in the judicial system. The litigant is guaranteed a voice. He feels respected. These four pillars of Voice, Respect, Impartiality and Trust are the cornerstones of procedural justice. Even further, it is an important question for me in the discharge of my judicial function as our judicial system must be seen through the therapeutic lens as being sensitive to the impact the law has on the lives of litigants such as both the Claimant and Defendant in this claim. I am of the view that the fundamental question of trust which comes from the impartiality of the Judge can only be attained if the system is properly explained to the Claimant which I will do in this judgment.

The Claimant's Complaint

6 The Claimant's complaint is a feeling that he will not get a “fair shake” at a trial. His assertion of apparent bias really calls for an examination of the work and the duty of the Judge. In his grounds of his application he states:

• a) That I was misguided in law in delivering a judicial decision on the merits of his procedural application 5 in the 2015 Claim instead of dismissing the said application as the application was improperly before the Court.

• b) That any parts of the decision pertaining to the 2017 Application in the 2015 Claim are obiter-the considered opinion of the Court but not conclusive or binding on the merits of the instant claim before the Honourable Court.

• c) That the Claimant has a realistic prospect of success of this claim.

• d) That the refusal to grant this application will prejudice the Claimant's case as I have already determined the instant claim on the facts set out in an improper application before the Court in the 2015 Claim.

7 The direct answer to these grounds are:

• a) No appeal was filed against my decision. The decision dealt with both aspects of the Claimant's submission that the procedure adopted by the Defendant was wrong and the Defendant's submission that I should, notwithstanding the process, exercise a discretion to set aside the consent order.

• b) I agree that the statements made in that procedural application ought not to be binding on the merits of this claim.

• c) It is not necessary at this stage to deal with the real prospect of success.

• d) I have not determined the instant claim which calls for a far deeper examination of the Claimant's claim.

8 The Claimant's written submissions are brief and do not properly articulate the ground of apparent bias. I can only cull from his submission in reply and by reference to Stubbs v The Queen [2018] UKPC 30 that the issue raised is whether the Judge should recuse on the basis of having a closed mind or made a pre-determination of the Claimant's case.

9 Recusals on the basis of pre-determination raise a very narrow issue of whether the Judge has demonstrated a pre-disposition not to change his mind. However, no one case is alike and in all applications for recusal the answer lies in the context of the allegations made and the Court's task in judging with a therapeutic key is ensuring that the pillars of procedural justice are not compromised.

Judging in a Therapeutic Key

10 Litigants must feel that they have accessed a forum in which their complaints are treated with respect by a neutral party where they are able to voice their opinions and in so doing build trust in the institution of the Judiciary and the rule of law. In ground-breaking research by the JEI the pillars of procedural justice were further interrogated.

11 In the JEI Handbook “Exploring the role of the CPR Judge” nine (9) elements of procedural fairness were identified as the core features of the CPR judge's work:

“Voice: The ability to meaningfully participate in court proceedings throughout the entire process, by expressing concerns and opinions and by asking questions, and having them valued and duly considered (“heard”) before decisions are made.

Respectful Treatment: The treatment of all persons with dignity and respect, with full protection for the plenitude of their rights, ensuring that they experience their concerns and problems as being considered seriously and sincerely, and having due regard for the value of their time and commitments.

Neutrality: The independent, fair, and consistent application of procedural and substantive legal principles, administered by impartial and unbiased decision makers and judicial personnel, without discrimination.

Trustworthy Authorities: Decision makers, judicial personnel, and court systems that have earned legitimacy by demonstrating...