Judges aware of Counsel's advice to a party, unfair conduct of trial

Posted by David Miles on
In the case of Marie Joseph Charles Robert Lesage v the Mauritius Commercial Bank Limited (2012 UK PC41) the Privy Council considered, in circumstances where the defendant had written to the Chief Justice sending him a copy of a letter written to the defendant by his counsel advising him to accept terms of settlement, the judges should have recused themselves. The point was not raised by the defendant (appellant) at the start of the trial nor indeed by the judges.

The Privy Council considered that there were two possible explanations. The first was that it never occurred to the judges that the possibility of the appearance of prejudice or unfairness arose. The second possibility was that they were alert to the fact that the information that they had received gave rise to a situation of possible apparent bias or unfairness, but they decided not to raise it. The Board considered that the first of these was inherently more likely. The respondent argued that judges are trained and have extensive experience of keeping an impartial and unbiased approach independently of what counsel for one party may state. The more so because in this case, the letter indicated that another leading counsel who had advised the defendant was of a different view to that of the author of the letter.

The Board stated that the test for the presence of apparent bias was whether a fair minded and informed observer would conclude that there was a real possibility that the tribunal was biased. The notional observer would presumed to have full knowledge of the material facts. The Board held that an informed observer would conclude that there was at least the possibility that a trial judge, on considering the material in the defendant's letter, would be more doubtful and sceptical of the defence.

In this case, this view was reinforced by the way in which the trial was conducted, and a manner in which the court dismissed the defendant's defence as unworthy of belief. The Board observed that the defendant should have been allowed to elaborate his answers on cross examination. In refusing to permit him to do so, the court created the appearance of unfairness or bias. A retrial was therefore ordered.

It should be noted that this conclusion was reached in the light of other cumulative points taken by the defendant, namely the way in which the defendant's new counsel requested and was refused an adjournment, and the way in which the judge had been highly critical of the defendant's new counsel during the trial.

Blake Morgan acted for the Bank.

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David has acted as a Privy Council agent since 1993. He has conducted many cases from most of the Privy Council jurisdictions.

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