Judge formally steps down from EMBD appeal

JUSTICE of Appeal Maria Wilson says it is imperative she recuse herself from the appeal on Estate Management Business Development Company Ltd’s multi-million-dollar cartel claim involving a group of contractors and a former government minister.

On Thursday, the judge said this was to ensure the impartiality and independence of the panel of judges of which she was a member, which also included Justices of Appeal Nolan Bereaux and Mark Mohammed and to maintain the public’s confidence in the Judiciary.

On Monday, Wilson said she had to step down from the appeal, explaining that her brother, attorney Fulton Wilson, was a member of the EMBD board from December 2015-January 2021. His tenure spanned the entire life of the case from the filing of the claim for unpaid sums by the contractors; EMBD’s filing of its defence and counterclaim as well as the filing of the appeal of a ruling of the High Court in 2020.

She said she believed the information she received from her brother affected her ability to continue on the panel. She also admitted she was “totally shocked by this revelation.”

“Despite my willingness to continue, it is pellucid to me there is an imperative to ensure justice is not only done but seen to be done.”

On Thursday, she said while her brother was a board member, it could be assumed he had an interest in the case and although he was no longer one, it could still be assumed he continued to have an interest.

She said his interest could be perceived as her bias.

Wilson said she voluntarily decided to step aside from the appeal. She said it was a “self-recusal.” Wilson said she was aware of the oath she took as a judge and could sit on the appeal with independence and impartiality.

“That is not an issue.” She said the test to be applied was whether the fair-minded observer could conclude there was a real possibility of bias.

She said judges had to do a balancing exercise when considering a recusal. On one side, they had to maintain the appearance of impartiality while they also had to sit on cases assigned to them and only refuse to do so for good reason.

Wilson was assigned the appeal in May 2023. When she first announced her decision to recuse, attorneys for the contractors who filed the appeal accepted her recusal. Former attorney general Ramesh Lawrence Maharaj, SC, who represents them, said while it was “unfortunate,” they had no alternative but to accept the judge’s decision.

On Wednesday morning, Maharaj maintained that position. He said Wilson had satisfied the requirement in law to recuse herself from the appeal.

Maharaj maintained no judicial authority can order her to hear the case. He said her disclosure and statement were couched emphatically and robustly, as is expected of a professional judge.

“We seem to be indirectly calling into question the decision of the judge. Having made that decision, it cannot be questioned.”

At variance with this position were attorneys for the EMBD, who, at Monday’s hearing, asked the judges to allow them to make submissions on the recusal.

King’s Counsel David Phillips said the threshold for recusal had not been crossed and it would be wrong to direct Justice Wilson to do so.

“A professional judge will determine the issues dispassionately.”

He said since the court allowed the parties to make further submissions on the issue, it did not treat the judge’s position on Monday as determinative, otherwise, an order would have been given.

He said for the judge to continue, she would have to consider whether doing so would cause her “concern or embarrassment.” However, Phillips said they will accept whatever the panel decides.

Thursday’s hearing was the fourth emergency hearing called after the judges had reserved their ruling on the substantive appeal on May 26. They were expected to give their decision on Friday. A case management hearing will be held with the new panel of judges and notices will be sent out to the parties.

In addition to Monday’s and Wednesday’s hearings, there was one last week Friday, held to discuss statements made by Opposition MP Dr Roodal Moonilal at a political meeting on June 19 in response to comments by the Prime Minister at a press conference on June 12.

At the UNC’s presentation of local government candidates in San Fernando, Moonilal said he was shocked by the judge’s disclosure and that “judgment could have been handed down by a judge to determine the merits of her brother’s decision to persecute me.”