From November 2011 to September 2014, former Grand Court Justice Peter Cresswell presided over the liquidation of the the BTU Power Company, a Cayman-registered company whose shareholders included several Qatari government entities.
However, Judge Cresswell did not disclose that he was also an appointed judge of the Qatar International Court and Dispute Resolution Centre around the same time, according to court records.
As a result, on Monday the London-based Judicial Committee of the Privy Council set aside decisions the judge made in the case during that time, ruling that it was inappropriate for him to preside over the matter without disclosing his position in Qatar.
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 November 2011 for Judge Cresswell to appoint liquidators over the firm.
Justice Cresswell granted the petition in January 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. Judge Cresswell again sided with the liquidators, and ordered in February 2014 that Mr. Almazeedi should pay some US$287,000 in indemnity costs.
But during that time, Justice Cresswell was also a judge of the Qatar International Court, according to court records. Mr. Almazeedi said he discovered this around June 2014, and told liquidators in September of that year that he wished to challenge “jurisdiction to hear this matter.”
Mr. Almazeedi indeed appealed Judge 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 Judge Cresswell. Mr. Guthrie also pointed out at the time that an official for one of BTU’s shareholders – Ali Shareef Al Emadi, the chairman for BTU shareholder Qatar National Bank – was appointed to be Qatar’s minister of finance in June 2013, giving him the power over the appointment of Qatari judges.
The attorney for the liquidators, Francis Tregear, QC, 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 Judge Cresswell, who retired from his Cayman position in 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 Justice 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.
Justice Rix stated that a “fair-minded observer” would not have questioned Judge 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 over the appointment of judges in the Qatar civil and commercial courts – a fair-minded observer would have concerns about Judge Cresswell’s partiality, Justice Rix said.
Therefore, the Court of Appeal ruled that Judge 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, asking the Privy Council to overturn all of Judge Cresswell’s decisions.
The liquidators, for their part, filed a cross appeal, asking the Privy Council not to set aside any of Justice Cresswell’s orders.
“With some reluctance,” the Privy Council sided with Mr. Almazeedi. The Privy Council stated that the Court of Appeal was right in setting aside Justice Cresswell’s orders from June 2013, and that it should also have set aside his orders from the time before that. The Privy Council noted that before Mr. Al Emadi was the Qatar National Bank’s chairman and Qatar’s minister of finance in June 2013, those positions belonged to his father-in-law.
“In the Board’s view, and at least in the absence of any such disclosure, a fair-minded and informed observer would regard him as unsuitable to hear the proceedings from at least 25 January 2012 on,” the Privy Council stated in its judgment.
In the judgment, Privy Council Justice Lord Jonathan Sumption dissented from the majority opinion of his colleagues, stating that the facts of the case do not suggest that Justice Cresswell could have been biased in any way.
“The case against [Judge Cresswell] rests entirely on the notion that he might be influenced, possibly unconsciously, by the hypothetical possibility of action being taken against him in Qatar as a result of any decision in the Cayman Islands which was contrary to the Qatari Government’s interests,” wrote Lord Sumption in his dissent, adding, “In my opinion, this suggestion lies at the outer extreme of implausibility.”