Tuesday, 23 October 2012

Law report - constitutional claim against Prisons Commissioner

Nisbett v Commissioner of Prisons [2012] SC( Bda) 57 Civ

The Applicant had brought a constitutional motion to complain about his treatment whilst in prison for seven years.

The acts complained of were:
  1. being beaten by prison officers or fellow prisoners on their instigation;
  2. subject to inhuman solitary confinement;
  3. being given unjustifiable restrictions on family visits;
  4. being given unjustifiable restrictions on his religious diet requirements;
  5. parole documents being destroyed by corrections officers;
  6. loss of earnings due to release on licence being delayed by two years;
  7. exposure to second-hand cigarette, cannabis and crack cocaine smoke from other cells

The respondent sought to strike out the claim because one should not bring a constutional motion if there are other means of legal redress.

Hellman J held that for (1), above, the applicant could have brough a civil claim for assault or battery [33]. However, the allegation of the abuse of state power meant that this might not be adequate redress in the circumstances [34]. He did not strike out the claim but invited the parties to make submissions on what should happen with that claim next [40].

Similarly for (5) above, which might constitute wrongful imprisonment, the consitutional claim would be allowed to proceed [41].

The remaining issues were more suitable for judicial review proceedings regarding whether the prison rules had been correctly applied [45]. These allegations were struck out for the constitutional motion [48]. Presumably the applicant could re-apply for leave to commence judicial review proceedings.

Monday, 15 October 2012

Law report - bringing action against a company in liquidation

Re Kingate Management Limited [2012] SC (Bda) 52 Com

This judgment marks another episode in the liquidation of Kingate Management Limited ("Kingate"), which is linked to the Bernie Madoff affair. See previously here and here.

Liquidators for other Kingate entities had brought a civil claim against Kingate alleging that they were entitled to recover generous management fees which had been paid to Kingate. The action was also brought against certain trustees who had held shares in the corporate shareholders of Kingate.

It is necessary to obtain the permission of the court to continue an action against a company in liquidation. Other aspects of the judgment were whether the other defendants in the civil action were entitled to be joined to the application for permission to continue an action; and whether discovery should be ordered.

Joining of co-defendants
Regarding joining the other defendants to the application, Kawaley CJ said that normally the company will be the only respondent to such an application. The other defendants could not identify a single case where a creditor or shareholder had appeared, despite such case law going back to the nineteenth century [21]. Although circumstances might exist where a creditor would be entitled to be joined, it would be unusual circumstances [22].

Although a creditor has the right to challenge the exercise of a company's powers to bring or defend legal proceedings, this did not extend to appearing on an application to lift a stay for proceedings in which the company was a defendant. [24] It is for the creditor to make the application that the company should defend the proceeding [24].

Furthermore, if a creditor is unwilling to finance a proposed litigation course, it will not lie in their mouths to complain if the liquidator fails to do so due to lack of funds [26].

The lifting of a stay is a matter between the party suing and the company itself and is of no legally cognisable concern to co-defendants. [28]

Lifting of stay
The company has no assets to distribute at present. It follows that the civil action will not interfere with an active liquidation [48]. Furthermore, it would be appropriate for claims against the company and the co-defendants to be heard in the same proceedings to prevent overlap or inconsistent findings [47].
The plaintiffs in the civil action would not gain any advantage over other creditors by bringing the action, as any successful claim would be paid by insurance monies for the benefit of third parties rather than the insolvent estate. It would not increase the plaintiff's share due out of the company's assets. [49]

The Liquidators for other Kingate entities argued that they were entitled to know the commercial value of Kingate's insurance policy. Kawaley CJ agreed that this was appropriate under the Third Parties (Rights Against Insurers) Act 1963, s.3(1), which states that a plaintiff is entitled to such information as is reasonably required for the purpose of ascertaining whether any rights have been transferred to and vested in him and for the purpose of enforcing such rights.

Friday, 12 October 2012

Law report - appropriate sentence for importing cannabis

Hewey v Raynor [2012] SC (Bda) 54 App

The Appellant had been sentenced to eighteen months in prison for importing cannabis with a street value of around $100,000.

He had flown into the airport, having checked in a bag containing the cannabis, which he then left on the baggage conveyor belt. He said at the Magistrates' hearing that he had had a change of heart and so had just left the bag there.

Kawaley CJ held that it was open to the Magistrate to impose an immediate custodial sentence, given that:
  • the Appellant had said that he intended to leave Bermuda as soon as he was released from custody;
  • he had not cooperated to any great extent with the authorities; and
  • he had been at liberty for some years before the charges had been laid [14]
Furthermore, lack of previous convictions was not a mitigating factor for such an offence, given its planned nature and that it is common sense to employ individuals for smuggling who have no previous convictions [13].

This was not a case where the drugs were left at the airport as part of a plan to be recovered by an accomplice. It was one where the appellant had had a change of heart, or abandoned his plans part-way through it, and had left the drugs where it was extremely likely that they would be picked up by the appropriate authorities. [21]

Had he actually come clean at the airport and handed the drugs in, a custodial sentence might not have been required [21].

However, given his change of heart, a sentence of 12months was more appropriate [22].

Law report - eviction and care of property

Ingram v Robinson [2012] SC (Bda) 50 Civ

The Plaintiff had been evicted by the Defendant.

On the instructions of the Bailiff, some of the Plaintiff's property was left on the side of the road; some were stored in a warehouse; and others were left in the premises with a changed lock.

The Plaintiff then claimed that some of the items were damaged or missing, including jewellery.

Hargun AJ held that the Defendant had not become a bailee of the goods and was not responsible for their loss.

Three factors were considered:
  • the list of missing items was not the result of a physical inspection but was from memory;
  • it is probable that some of the missing items were lost after having been deposited on the side of the road;
  • the plaintiff entered the premises on numerous occasions after the eviction and so it could not be said with certainty whether they had ever come into the hands of the Defendant.

Even if the Defendant had become a bailee of the goods, she had done what was right and reasonable in the circumstances, as:
  • the Plaintiff knew of the eviction in advance;
  • she could have removed her own belongings;
  • she did not attend the eviction;
  • the bailment was involuntary as the items should not have been left there in any case;
  • the Defendant acted under the control of the bailiff; and
  • the storage location used was secure.

Law report - Claims under the Workers' Compensation Act

Peiris v Bermuda Building Services Co. Ltd. [2012] SC (Bda) 49 Civ

This was a claim under the Workers' Compensation Act.

S.4(1)(b) states:
if it is proved that the injury to a worker is attributable to the serious and wilful misconduct of that worker, any compensation claimed in respect of that injury shall be disallowed:

Provided that where the injury results in death or serious and permanent incapacity, the court on a consideration of all the circumstances may award the compensation provided for by this Act or such part thereof as it shall think fit.

The Court found that the Plaintiff had suffered serious and permanent incapacity.

Counsel for the Defendant submitted that the second part of s.4(1)(b) was a free-standing provision, giving the court a general discretion in the case of death or serious injury that it would not otherwise have.

Hellman J held that it would be surprising if the court had a free-standing discretion regarding compensation for serious injury or death when it did not for less serious injuries [23]. The discretion is only engaged when the injury is due to the serious and wilful misconduct of the worker. [24].

Counsel for the Defendant submitted that failure to wear a safety harness on a forklift truck amounted to serious and wilful misconduct. However, Hellman J approved passages from the House of Lords in Johnson v Marshall [1906] AC 409 and Bist v London & South Western Railway Co [1907] AC 209 that a very high threshhold was required for serious and wilful misconduct: much higher than that required for negligence, for example. [28]-[31].

Where an arm is of little practical use and only has some limited movement in the hand, it was enough to amount to loss of use of the entire arm. The judge awarded damages on this basis, with a slight reduction for there being some function in the arm at the shoulder. [34]

Amounts paid to the Plaintiff as salary since the incident should not be offset from the award, because compensation and salary are seperate and distinct. [35].

Law Report - Litigants in person - costs and case management

Junos v Minister of Tourism & Transport [2012] Bda SC 55 Civ

Another judgment relating to litigants who represent themselves. See here for the previous judgment in Junos' ongoing litigation.

The applicant was attempting to clarify the rules for litigants in person ("LIPs") claiming their costs when successful.

Kawaley CJ held that a distinctive case management approach may be required with LIPs to ensure that their fair trial rights are adequately met [7]. The court has to tread a line between efficient case management where LIPs are unaware of court procedures and may lack the mutual trust that opposing lawyers share; and ensuring that LIPs feel their case is heard fairly [8].

The court will often have to devote more time to hearing a LIP's side of the case, as they often do not present it in the most effective manner. If their case is ultimately unmeritorious, the other side will recover the costs of the increased amount of time required. If the LIP is successful, the other side has the comfort that the LIP recovers costs on a reduced rate to make up for the increased time spent [9].

Where a LIP has suffered financial loss in preparing his case he will be able to recover 2/3rds of what an attorney would have charged [14]

Where a LIP has suffered no loss in preparing the case, they will be able to recover a discretionary rate of no more than $50 per hour. The time allowed is based on how long it would have taken an attorney to do the work, uplifted to allow for the LIP's inexperience. However, it is still subject to the cap of 2/3rds of what an attorney may charge for the item. [14]

Great care is required in applying the English rule that lawyers cannot charge for research time in the Bermudian context, taking into account the lack of local academic and vocational legal qualifications and the limited availability of practicioners' texts. [19]

Thursday, 11 October 2012

Law Report - delay and judicial review and the Ombudsman

Davis v The Minister of Economy Trade and Industry & Anor. [2012] Bda SC 48 (Civ)
Mr Davis had applied for judicial review of:
  • the Minister of Economy Trade and Industry's decision not to refer an unfair dismissal complaint to a tribunal; and
  • the Minister for National Security's decision not to revoke the work permit of Mr Davis' former general manager, which may have enabled the Applicant to apply for his job
The Respondents sought to set aside the grant of leave to apply for judicial review. Rosewood Limited, the Applicant's former employer, appeared as an interested party.
JR had initially been granted without a hearing. The Respondents submitted that, as it concerned decisions made more six months prior to the application, it was too late to review the decision.
Kawaley CJ held that seeking legal advice and preparing the case did not account for an excessive delay [10].
It was highly prejudicial for the first Respondent's staff to have to think back to the decision months after it was made [15]. Furthermore Rosewood had been prejudiced in its ability to defend against the unfair dismissal complaint so long after the fact [16] and after a key witness had left their employ [17].
It was also prejudicial to the Minister for National Security for his decision to be considered after such a delay and, further, the Applicant had already received significant redress regarding one of his complaints to the Minister [24].
In light of the prejudice caused to the Respondents by the delay, strong public interest reasons are required to hear the application [25].
Such reasons did not exist. Considering the facts of the Applicant's complaints:
  • the Employment Inspector had made a carefully reasoned decision based upon legal advice [26];
  • the Ombudsman had assisted the Applicant in resolving the procedural problems he had faced [28];
  • revoking the work permit would not have saved the Applicant's job [30];
  • the reprimand given by the Minister for National Security was not the type of response that the court would review [31]
Accordingly there was not sufficient public interest to justify the prejudice to the Respondents or Rosewood.
Regarding the Ombudsman
The Ombudsman had been involved in the complaints prior to the JR application. The case illustrates the value that the Ombudsman's services provide as an alternative to JR in circumstances where it is not reasonable to expect an individual to resort to court action.
JR will rarely be appropriate after the Ombudsman has reviewed a case. Exceptionally it may be done in order to attempt to enforce recommendations made by the Ombudsman [38]. However, in the present case, the application was designed to obtain relief that the Ombudsman's findings did not support [39].
Where a complainant has referred a dispute to the Ombudsman and her recommendations have been implemented, the complainant will normally be deemed to have elected to pursue an alternative public remedy to JR [46].