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Mitchell v. Georges

An appeal was lodged by a former Prime Minister  and  Minister  of  Finance  of  Saint  Vincent  and  the  Grenadines on the grounds of apparent bias in the conduct of a Commission of Inquiry into the failure of the construction of a marina and shipyard at Ottley  Hall. The Commission was called to inquire into all the facts and circumstances of and relating to the project and role played by persons and corporate entities to establish whether or not any criminal act or offence was or may have been committed as well as whether or not there was any dereliction of duty, violation of any law, conflict of interest and/or breach of trust on the part of any Minister of Government or civil servant. The appellant argued that the interim report and other preliminary statements gave rise to an appearance of bias, did not conform to procedural fairness and breached the rules of natural justice. 

Destacados

[22] On the same date the Commission sent a Salmon letter to the appellant accompanied by a witness summons requiring him to attend to testify on 10 September 2007. It contained a number of allegations against the appellant. It identified a list of aspects of the Project in which it suggested he was aware or was involved. It also included a number of serious allegations as follows: [...]

“10. The lack of transparency and the shroud of secrecy which generally characterized the Ottley Hall Development Project especially in its early stages and the absence of involvement of Cabinet generally and key professional civil servants in particular in the planning and financing stages.

11. The absence of due diligence and good governance on the part of the main persons involved in the preparatory stages of both Projects including yourself.

12. The palpable absence of proper checks and balances to protect the interests of the Government and people of St Vincent and the Grenadines in the Ottley Hall Development Project thus placing the Government in financial jeopardy and the NCB facing grave financial loss. [...]

[33] The Board has reached the conclusion that, contrary to the conclusions of the courts below, the Interim Report was expressed in such terms that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the respondent was biased such that he would not approach the remainder of the Inquiry with an open mind or, put another way, that he would not conduct an impartial Inquiry, so far as the conduct of the appellant is concerned. In reaching that conclusion the Board has considered the relevant context. It appreciates that the respondent is not presiding over adversarial proceedings but over an Inquiry. However, the Inquiry involves a detailed examination of the conduct of the appellant (among others) over a considerable period and both the Salmon letter and the Interim Report make it clear that the appellant faces serious allegations of impropriety.
[37] In para 16 the evidence to date is said to disclose conspiracy to defraud or the obtaining of a pecuniary advantage by deception. In para 17 the principal offender is described as Dr Aldino Rolla. Reliance is placed on the following particular passages: [...]

The evidence is that no due diligence was ever requested or conducted. In the words of the Members of the Cabinet and Parliament who have already given evidence, the person behind the projects was Sir James Mitchell, Prime Minister and Minister of Finance of St Vincent and the Grenadines. He was the moving light behind the Ottley Hall and Union Island projects and failure to properly inform and advise the members of Cabinet and Parliament is inexcusable. So too was the decision to exclude senior members of the Public Service. The decision not to so inform and to exclude them which was obviously made by Sir James Mitchell suggests that such action and deliberate failure to act in accordance with the law and his duties as a Minister of Government is tantamount to misbehaviour in public office and therefore was not, in all of the circumstances, ‘the Government of St Vincent and the Grenadines’. [...]

The Ottley Hall project had a most unfortunate beginning. The then Prime Minister and Attorney General visited Valdetarro Shipyard and publicly represented to the people of St Vincent and the Grenadines that Rolla and Valdetarro were bona fides. That was a complete misrepresentation of the true facts. That representation was made without any due diligence having been carried whatsoever. Further, there was no business plan, financial data, assessment, independent or otherwise of any of the Ottley Hall or Union Island Projects. On that the evidence is pellucid and confirmed by the Chartered Accountants who gave evidence.

Decisión

The Privy Council allowed the appeal as there was a real possibility that the respondent had made up his mind by the date of the Interim Report that the appellant caused wrongdoing leading to the collapse of the project. The final report would, thus, not be impartial.

Fecha de la sentencia

18/12/2014

Órgano resolutor

Judicial Committee of the Privy Council (UK)

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