In January 2012, former Grand Court Justice Peter Cresswell appointed liquidators over the BTU Power Company, a Cayman-registered company whose shareholders included several Qatari government entities.
However, Mr. Cresswell did not disclose that he had also been appointed as a judge of the Qatar International Court around the same time, according to Cayman Islands Court of Appeal records.
That non-disclosure led to challenges that have made their way up to the London-based Judicial Committee of the Privy Council, which will hear arguments in December over whether all of Mr. Creswell’s decisions in the case should be set aside.
The case stems from a dispute between the Qatari shareholders and management of the BTU Power Company, which partially owned a power station in Tunisia and a water desalination plant in Abu Dhabi.
The shareholders had accused BTU Director Wael Almazeedi of mismanaging company funds and engaging in other wrongdoing, and filed a petition in Nov. 2011 for Mr. Cresswell to appoint liquidators over the firm.
Mr. Cresswell granted the petition in Jan. 2012, ordering liquidators from Deloitte to wind up BTU. During the liquidation, Mr. Almazeedi argued that he was owed US$672,635, but the liquidators disputed that claim. Mr. Cresswell again sided with the liquidators, and ordered in February 2014 that Mr. Almazeedi should pay some US$287,000 in court costs.
But during that time, Mr. Cresswell was also a judge of the Qatar International Court, according to the Cayman Islands Court of Appeal records. Mr. Almazeedi said he discovered this in June 2014, and told liquidators in September of that year that he wished to challenge “jurisdiction to hear this matter.”
Mr. Almazeedi indeed appealed Mr. Cresswell’s liquidation order, and his attorney, James Guthrie QC, argued at an April 2015 Court of Appeal hearing that another judge should have presided over the matter instead of Mr. Cresswell. Mr. Guthrie also pointed out at the time that one of BTU’s shareholders, Ali Shareef Al Emadi, was appointed to be Qatar’s minister of finance in June 2013, giving him the power to appoint and remove Qatari judges.
The attorney for the liquidators, Francis Tregear, disputed the appeal, arguing that it was an attempt “to wreak havoc in the liquidation, to retaliate in some way for the presentation of the petition against BTU, and to frustrate the liquidators in their attempts to realize the full value of the BTU’s assets, properly and fully investigate BTU’s affairs.”
Mr. Tregear also stated that Mr. Cresswell, who retired from his Cayman position in April 2014, had an impeccable reputation as an honest justice, and that there was not the “remotest possibility” that the judge would jeopardize that reputation by allowing the Qatari government to affect his judgment.
The Court of Appeal justices agreed with Mr. Tregear that Mr. Cresswell has an impeccable reputation and that his decisions were not persuaded by the Qatari government.
“Nevertheless, we think that the judge ought to have disclosed his appointment in Qatar, so that the position could have been clarified as necessary,” wrote Justice of Appeal Bernard Rix in his November 2015 judgment.
Mr. Rix stated that a “fair-minded observer” would not have questioned Mr. Cresswell’s partiality when he made the initial liquidation order in January 2012.
However, after Mr. Al Emadi became Qatar’s minister of finance in June 2013 – giving him power to appoint and remove judges – a fair-minded observer would have concerns about Mr. Cresswell’s partiality, Mr. Rix said.
Therefore, the Court of Appeal ruled that Mr. Cresswell’s liquidation order should stand, but that all of his orders after June 2013 should be set aside.
Mr. Almazeedi appealed the court’s ruling, and is asking the Privy Council to overturn all of Mr. Cresswell’s decisions.
The liquidators, for their part, are also appealing, asking the Privy Council not to set aside any of Mr. Cresswell’s orders.