Marie Joseph Charles Robert Lesage v The Mauritius Commercial Bank Ltd (Mauritius)

The constitutional guarantee of a fair hearing does not itself require a right of appeal from every first-instance decision. A state may regulate appeal access, provided the restriction preserves the essence of access to a court and satisfies legitimate-aim and proportionality requirements. In Mauritius, a full first-instance hearing before a two-judge court, together with permission to appeal to the Privy Council, sufficiently protected the constitutional right.

Apparent bias is assessed through the fair-minded and informed observer asking whether there is a real possibility of bias. Receipt of privileged adverse material, failure to address its effect, and the conduct of the trial may cumulatively create that appearance. Once established, the trial must be quashed and re-tried before a differently constituted court; inconvenience, cost and delay cannot outweigh judicial impartiality.

The Mauritius Commercial Bank sued Robert Lesage, a former employee, alleging fraud and substantial losses. His consolidated claim for salary and bonuses was dismissed. The Supreme Court of Mauritius, sitting as a two-judge court under section 36 of the Courts Act 1945, entered judgment against him on 30 June 2010.

On appeal, Lesage argued that the absence of a domestic Court of Civil Appeal route was unconstitutional; that an adjournment should have been granted; that the trial judge’s conduct showed hostility; and that the judges should have recused themselves after receiving his letter containing privileged settlement advice. The central issue was whether the trial was tainted by an appearance of unfairness or bias and, if so, whether a re-trial was required.

Appeal allowed. The Board quashed the Supreme Court’s decision and directed that the action be re-tried before a differently constituted court.

1. Right of appeal. Article 6(1) of the European Convention on Human Rights does not require states to create courts of appeal and does not guarantee a right of appeal. Where an appeal system exists, fair-trial guarantees apply at the appellate stage. Restrictions are permissible if they do not impair the essence of access to a court and bear a reasonable relationship of proportionality to a legitimate aim. The same reasoning did not require Constitution of Mauritius section 10(8) or section 3 to provide an appeal from every two-judge decision. A thorough first-instance hearing and permission to appeal to the Privy Council sufficiently safeguarded protection of the law. Sections 3 and 70 of the relevant legislation did not justify a different conclusion.
2. Apparent bias. Applying the test in Porter v Magill [2001] UKHL 67, the question was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The observer is neither complacent nor unduly sensitive or suspicious, and is assumed to know all facts capable of being known publicly.
3. Application. The judges had received privileged information adverse to Lesage’s defence but did not address whether they should continue hearing the case. The refusal to entertain further preparation time and the judge’s hostile exchanges with counsel would not alone establish bias. Considered cumulatively, however, they supported that appearance. Crucially, the court prevented Lesage from explaining that he had distinguished his own initiative in identifying funds from acting under instructions when answering the central question on which his defence depended. Requiring a confined yes-or-no answer created an appearance of unfairness.
4. Waiver and remedy. Failure to seek recusal did not amount to waiver. As explained in Millar v Dickson [2001] UKPC D4, waiver required a voluntary, informed and unequivocal election. Once the appearance of unfairness or bias was established, a re-trial was unavoidable. Administrative inconvenience, cost and delay could not outweigh the fundamental requirement of judicial impartiality, consistent with AWG Group Ltd v Morrison [2006] 1 WLR 1163.
5. Counsel’s withdrawal. The Board observed that rejection of counsel’s advice, including settlement advice, ordinarily did not justify withdrawal. Withdrawal should be confined to cases where insisting on proceeding would amount to an abuse of the court’s process.

• Privy Council. The appeal was allowed, the Supreme Court’s decision was quashed, and a re-trial before a differently constituted court was directed: [2012] UKPC 41.
• Supreme Court of Mauritius. A two-judge court entered judgment for the Bank against Lesage on 30 June 2010 and dismissed his consolidated salary and bonus claim.