Sir James loses appeal against Ottley Hall Commission of Inquiry

Former Prime Minister Sir James Mitchell has lost an appeal in a matter he brought against sole commissioner of the Ottley Hall Commission of Inquiry Ephraim Georges.{{more}}

In a judgement handed down on June 25, Justices of Appeal Davidson Kelvin Baptiste, Don Mitchell and Clare Henry confirmed the decision of Justice Gertel Thom to dismiss the attempt of Sir James to quash an interim report issued by Georges and to restrain the sole Commissioner from continuing with the inquiry.

The appeal arose out of Thom’s dismissal of a claim for judicial review of the sole Commissioner, whose terms of reference authorised him, among other things, to inquire into the bona fides and circumstances surrounding the Ottley Hall Marina Project and the Union Island Project.

“He was to report immediately in writing to the Governor General and the Director of Public Prosecution any facts, circumstances or evidence that might give rise to, show, or establish that any criminal act may have been committed and in any event he was to issue an Interim Report within six months of the date of the establishment of the Commission. The Commissioner issued to the Governor General and the DPP a ‘Report of Possible Criminal Acts or Offences by Certain Individuals’.”

According to the judgement, the report contained a number of allegations adverse to Sir James, who sought judicial review to quash the Interim Report and restrain the sole Commissioner from continuing with the inquiry.

Sir James complained that the Interim Reoprt “contained conclusionary statements and findings against him. They were arrived at without his having been given an opportunity to respond to any charges prior to the findings being made.”

In the judgement, the justices of the OECS Court of Appeal said that the court must take into account the special nature of a Commission of Inquiry.

“This is an investigative body and not an adjudicatory one. The Commissioner’s report was a confidential, interim report which was not published to the public. The Commissioner acted in compliance with his mandate which was to submit his Interim Report to the Governor General and the DPP. Sir James had earlier been given every opportunity to participate in the hearings, but he had chosen not to come forward or to take advantage of the opportunity given to him. If his name was now mentioned in an interim report before he has had an opportunity to respond to a Salmon Letter, he cannot be heard to complain that he had been deprived of a right to be heard,” the judgement said.

The judgement also said that, according to his Terms of Reference, the Commissioner was required to submit his Interim Report, once he had formed an opinion on any fact or circumstance which may have given rise to any of the matters in question.

“There was no obligation imposed on him to first hear Sir James before reporting. The fact that the Interim Report was entitled ‘Report on Possible Criminal Acts…’ would indicate at the outset to a fair-minded and reasonable observer that the Commissioner had not yet found or concluded that Sir James had in fact committed and was guilty of the criminal acts alleged.

“Nothing in the Interim Report suggested that the Commissioner had come to a concluded view, showed a closed mind, or had a particular view of the evidence amounting to a prejudgment, nor was there anything to suggest that there was other than co-incidence in the timing of the Interim Report. Sir James had long retired from active politics. There was no reason to believe that the Commissioner had any animus to Sir James political party, or wished to do it any harm.”

No order was made as to costs, as according to the justices, “Public interest litigation should not normally be inhibited by questions of costs.”

Mitchell was represented by Ramesh L. Maharaj SC and S. Louise Mitchell-Joseph of LMJ Chambers, while Georges was represented by Anthony W. Astaphan SC and Joseph Delves.

The Ottley Hall and the Union Island Resort projects commenced in the early 1990s when Sir James was Prime Minister and Minister of Finance. The project had been touted as a major tourism boost for St Vincent and the Grenadines

By 1995, the project was reported to be in serious financial trouble, with the EC$225 million project being valued at EC$20 – $40 million by auditors.