Renraw Investments Limited and others v Real Time Systems Limited (Trinidad & Tobago)

An appellate court should interfere with trial findings of fact only where there is an identifiable error or the decision cannot reasonably be explained or justified. A different view of the probabilities is insufficient. Apparent bias requires a two-stage inquiry: identifying the relevant circumstances, then asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Judicial comments on legal or public-policy concerns arising from the evidence do not ordinarily establish apparent bias. They may do so if expressed so trenchantly or unqualifiedly as to suggest that the judge could not approach the issue with an open mind. Context, timing and whether the comments reveal prejudgment are material.

Real Time Systems Limited claimed TT$1,505,493 from Renraw Investments Limited, CCAM and Co Limited and Jack Austin Warner. It alleged that five payments made in 2007 were loans repayable by February 2008. The defendants said that the payments were gifts made to finance the United National Congress’s election campaign.

The High Court found that the payments were loans and ordered repayment. The Court of Appeal of Trinidad and Tobago unanimously allowed the defendants’ appeal, substituted a finding that the payments were political donations and dismissed the claim. It also considered apparent bias as an alternative ground. The claimant appealed to the Privy Council on the issues of appellate interference with factual findings and apparent bias.

The Board unanimously allowed the appeal and ordered the defendants to repay TT$1,505,493 with interest at the statutory rate from 15 May 2018 until repayment.

1. Appellate review of factual findings. The applicable test, drawn from Henderson v Foxworth Investments Ltd [2014] UKSC 41, is that an appellate court may intervene only where there is an identifiable error, or where the trial decision cannot reasonably be explained or justified. The Board rejected all six alleged errors. The trial judge was entitled to find that the contemporaneous emails supported an expectation of repayment, while also accepting that the payments related to campaign financing. A judge may accept parts of each party’s case without accepting either case in full.
2. The judge did not materially misunderstand the evidence. The absence of internal documentation did not point more strongly to a gift than a loan. A loan remained an asset of the company, whereas a substantial gift would ordinarily call for formal authorisation. The judge had also considered the absence of security and was entitled to accept the explanations for continuing payments. The Court of Appeal had impermissibly substituted its own view of the probabilities.
3. Apparent bias. The Board applied the two-stage approach described in Porter v Magill [2001] UKHL 67 and Attorney General of Trinidad and Tobago v Dr. Wayne Kublalsingh Civ App No P018 of 2014. The relevant circumstances included the evidence and case advanced by the defendants, the judge’s conduct of the trial, the timing of his comments and their content.
4. Under Locabail (UK) Ltd v Bayfield Properties Ltd and another [2000] QB 451, extra-curricular comments do not ordinarily establish apparent bias. Here, the comments arose from the evidence, were made after the findings and reasoning, criticised conduct on both sides and did not show prejudgment. A fair-minded and informed observer would not conclude that there was a real possibility of bias.

• Privy Council: The claimant’s appeal was allowed. The defendants were ordered to repay TT$1,505,493 with interest at the statutory rate from 15 May 2018 until repayment.
• Court of Appeal of Trinidad and Tobago: The defendants’ appeal was unanimously allowed on the basis of material errors in the assessment of evidence. The finding was substituted that the payments were gifts by way of political donation, and the claim was dismissed. Smith and Pemberton JJA would alternatively have allowed the appeal and remitted the case on apparent-bias grounds; Jones JA dissented on that issue.
• High Court of Trinidad and Tobago: Seepersad J found that the payments were loans and ordered repayment with interest and costs.
• Earlier procedural appeal: A strike-out order was set aside, and the Privy Council upheld that procedural outcome in [2014] UKPC 6.