Adam Bilzerian v Terrence v Byron
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Carrington JA |
| Judgment Date | 22 October 2021 |
| Judgment citation (vLex) | [2021] ECSC J1022-4 |
| Docket Number | SKBHCVAP2020/0003 SKBHCVAP2019/0029 SKBHCVAP2019/0030 SKBHCVAP2019/0031 SKBHCVAP2019/0032 SKBHCVAP2019/0033 SKBHCVAP2019/0040 SKBHCVAP2019/0044 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mde. Louise Esther Blenman Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal
The Hon. Mr. John Carrington, QC Justice of Appeal [Ag.]
SKBHCVAP2020/0003
SKBHCVAP2019/0028
SKBHCVAP2019/0029
SKBHCVAP2019/0030
SKBHCVAP2019/0031
SKBHCVAP2019/0032
SKBHCVAP2019/0033
SKBHCVAP2019/0040
SKBHCVAP2019/0044
Mr. Victor Elliot-Hamilton for the Appellants in Appeal No. 3 of 2020 and Appeal Nos. 28, 29, 30, 31, 32, 33, 40, 44 of 2019
Mr. Terrence Byron for the Respondents in Appeal No. 3 of 2020 and Appeal Nos. 30 and 32 of 2019
Ms. Jean Dyer for the Respondents in Appeal No. 33 of 2019 and holding a watching brief for the Respondents in Appeal No. 40 of 2019
Ms. Miselle O'Brien for the 1 st and 3 rd Respondents in Appeal No. 29 of 2019
Ms. Vanessa Fennell for the Respondents in Appeal No. 28 of 2019 and holding a watching brief for the Respondents in Appeal No. 44 of 2019
Ms. Renal Edwards holding papers for Ms. Angelina Sookoo-Bobb holding watching brief for the 3 rd Respondent in Appeal No. 31 of 2019
Interlocutory appeals — Appeal against refusal of applications for recusal — Apparent bias — Whether learned judge erred in refusing recusal application — Whether fair-minded informed observer would conclude that there was real possibility of bias — Whether power of attorney confers right of audience — Rule 26.2(2) of Civil Procedure Rules 2000 — Right to be heard — Whether appellant given reasonable opportunity to make representations — Whether supporting affidavit must be made by applicant himself — Whether judge erred in exercise of his discretion
These appeals arise from various interlocutory orders made by the learned judge in the High Court.
These appeals raise three main issues for determination by this Court. The first is whether the learned judge erred in refusing the recusal applications filed in SKBHCVAP2019/0028 (“Appeal No. 28 of 2019”), SKBHCVAP2019/0029 (“Appeal No. 29 of 2019”), SKBHCVAP2019/0030 (“Appeal No. 30 of 2019”), SKBHCVAP2019/0031 (“Appeal No. 31 of 2019”), SKBHCVAP2019/0032 (“Appeal No. 32 of 2019”) and SKBHCVAP2019/0033 (“Appeal No. 33 of 2019”). The first recusal application was based on the alleged apparent bias of the judge. Mr. Paul Bilzerian (“Paul”) complained that he appeared as an attorney in fact for his sons Adam and Dan Bilzerian (respectively “Adam” and “Dan”) and, as director of the relevant companies, as he was entitled to do, but was denied a fair hearing by the judge in the proceedings in the court below. The second recusal application was made in response to the judge's direction that the parties should consider an authority from the Irish Supreme Court on rights of audience under a power of attorney. Both recusal applications were dismissed.
The second issue raised in these appeals (“Appeals Nos. 29 to 33”) is whether the judge erred in concluding that the power of attorney granted to Paul, by his sons, could not confer a right of audience. As a consequence, the judge ordered that Paul was prohibited from representing Adam and Dan in civil proceedings in the court below.
The final issue for the court's determination concerns the judge's exercise of discretion in SKBHCVAP2020/0003 (“Appeal No. 3 of 2020”), SKBHCVAP2019/0044 (“Appeal No. 44 of 2019”), and SKBHCVAP2019/0040 (“Appeal No. 40 of 2019”). In Appeal No. 3 of 2020, the judge made an unless order that unless the appellants are represented by an attorney-at-law on the next adjourned date, the claim will be struck out without further order of the court. The appellants complained that they were not given a reasonable opportunity to make representations in breach of rule 26.2(2) of the Civil Procedure Rules 2000 (“CPR”); that the judge erred in making an order in breach of Adam's right to represent himself as a litigant in person and the second and third appellants' right to be represented by a director under rule 22.3(1) of the CPR; and that there was no evidential basis for the judge to make an unless order.
The appellant in Appeal No. 40 of 2019 contended that the judge erred in dismissing the appellant's set aside application (“the set aside application”) on the basis that it was made by Paul, not Adam, the party to the proceedings, and further that the affidavit was defective as it was sworn by Paul and not Adam. The accompanying stay application (“the stay application”) was dismissed accordingly. The appellant also complained that in relation to Appeal No. 40, the judge erred in not holding an oral hearing to determine the set aside application.
In relation to Appeal No. 44 of 2019, the appellants advanced two grounds in support of the appeal, namely that the learned judge failed to exercise his discretion to reconsider a previous order that he had made on 17 th October 2019 (“the previous order”) which had not yet been perfected and that he erred in striking out the defence for non-compliance with that order.
Held: dismissing Appeal No. 3 of 2020, Appeal Nos. 28 to 33 of 2019 and Appeal No. 44 of 2019; allowing Appeal No. 40 of 2019 and making the orders set out in paragraph 68(5) and (6) of the judgment, that:
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1. The test for apparent bias is well-settled. Essentially, the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Having reviewed the complaints made by Paul and the explanations offered by the learned judge in his decision on the recusal applications as well as considering the context of the state of the proceedings in the various matters and the right and powers of the judge to case manage these matters, it is unlikely that a fair-minded and informed observer would come to the conclusion that there was a real possibility that the learned judge was biased against Paul or those he purported to represent.
Porter v Magill [2002] 2 AC 357 applied; Keston Riley v The Attorney General and Director of Public Prosecutions [2020] ECSCJ No. 313 (delivered 17 th September 2020) followed; Vance Amory v Thomas Sharpe, QC et al Saint Christopher and Nevis High Court Civil Appeal No. HCVAP2009/0013 (delivered 27th August 2012, unreported) followed; Walsh v Ward and others (2015) 87 WIR 101 applied.
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2. The only persons at common law who have rights of audience are duly admitted legal practitioners or the litigants in person subject to the specific provisions of Part 22 of the CPR. Parts 22 and 27 cannot be relied on to show that our procedural rules provide for representation of a litigant otherwise than by a legal practitioner. Part 22 deals with specific situations where third parties may represent parties, none of which applies in the circumstances of this case. Similarly, rule 27.4 allows a representative of a party to attend a case management conference or pre-trial review but this person attends in addition to and not in place of the legal practitioner, where the party is represented by one. Further, rule 63.4 which is applicable to these facts does not refer to allowing the party to act through an agent. It follows then that the judge correctly concluded that Paul has no right of audience on behalf of Adam and Dan in the proceedings below.
Parts 22, 27 and rule 63.4 of the Civil Procedure Rules 2000 considered; In the Matter of Applications for Orders in Relation to Costs in Intended Proceedings by Coffey and others [2013] IESC 11 applied.
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3. In relation to Appeal No. 3 of 2020, when the order is read as a whole, it is evident that the judge intended to give the appellants the opportunity to make representations why the claim should not be struck out for failure to have legal representation at the adjourned hearing. This is clear from the fact that the judge gave the appellants the opportunity to file submissions in respect of the proposed strike out order prior to the next hearing date on which the order would take effect, if there were non-compliance. This was sufficient to protect their fundamental right to be treated fairly as it is the striking out rather than the unless order that was likely to affect them.
Rule 26.2(2) of the Civil Procedure Rules 2000 considered.
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4. In so far as it concerns Appeal No. 40 of 2019, a review of the set aside and stay applications show that they were both made and signed by Adam. It also reveals that that the affidavits in support were made by Paul who indicated that he is not a party to the proceedings but is duly authorised by Adam, that the matters sworn to are within his personal knowledge and stated...
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