Thursday, 31 January 2013

Law report - notes of evidence at Employment Tribunals

Island Construction Services Co Ltd v Brangman [2013] SC (Bda) 7 Civ

In an appeal against the decision of an Employment Tribunal, Hellman J noted the problems caused by a lack of procedural rules for the Tribunal. He emphasised the importance of the Chairman of the Tribunal to take a full note of the evidence [9].

Law report - Appeals from Human Rights Board of Inquiry

Smith v Minister of the Environment [2013] SC (Bda) 8 App

A Board of Inquiry had decided against Ms Smith in her human rights complaint against the Minister of the Environment.

It did not make any subsequent order, as orders are generally made to order a party to do something, whereas in this case the complaint was merely dismissed.

Ms Smith appealed against the decision to the Supreme Court. The Respondent applied to have the appeal struck out, on the grounds that the Human Rights Act only allows for appeals against orders, not against decisions.

S.21 states that "any party against whom an order has been made ... may appeal"

However, Hellman J noted that the sidenote or heading to s.21 read "Appeal from decision of Board of Inquiry" [17]. This indicated that parliament intended "order" to include "decision".

It would produce an anomalous result to apply a literal approach to the meaning of the word "order". In some contexts, order can have the meaning of covering all decisions of a court [21].

Given the purposes of the Human Rights Act, it should be interpreted broadly so as to attain the objectives of the Act [23].

Furthermore there was no rational basis for not allowing appeals against decisions as opposed to orders [26], and it would merely result in an unsuccessful party having to bring judicial review, a remedy of last resort [27]. If somebody wished to challenge both a decision and an order, they would have to start two sets of proceedings, which would not make any sense. This indicated that "order" was intended to include "decisions"

Law report - hospital negligence

Williams v The Bermuda Hospitals Board [2013] SC (Bda) 1 Civ

The Plaintiff had gone into ER complaining of pains in his abdomen, which turned out to be appendicitis. He was seen after just over an hour, and the doctor ordered a scan. He had been in the hospital about three hours by the time the scan was ordered.

He was eventually scanned more than seven hours after his arrival, and the scan was sent overseas to be interpreted. It was another two hours before the results came back.

Eleven hours after arrival, he was finally operated on. It was noted that he had a ruptured appendix and acute appendicitis. There were complications during surgery, which resulted in a two week hospital stay.

He sued the hospital for having a system set up which negligently failing to diagnose and treat his appendicitis within a reasonable time.

There is a question as to whether hospital systems should be judged according to accepted professional standards (as in Bull v Devon Area Health Authority (English Court of Appeal)); or regardless of them, as in Collins v Mid Western Health Board (Irish Supreme Court). Hellman J held that a hospital system must be scrutinised on its merits. The court should take account of generally accepted practices. Insofar as medical matters are engaged, they will be judged according to whether they are accepted by a responsible body of medical opinion. Medical and administrative matters might overlap [92].

Hellman J found that the hospital was negligent due to the delay in diagnosing and treating Mr Williams, which caused him the pain and suffering of having to wait so long for surgery. However, he was unable to find that the delays were probably the cause of the further complications.

Law report - sentencing for drugs offences

Clarence James and Delroy Duncan v Raynor [2013] SC (Bda) 9 App

The Appellants were appealing against conviction and sentence for importation of cocaine. I had a moment of early morning confusion upon starting to read this judgment, as Delroy Duncan is the name of the President of the Bermuda Bar Council. However, I have it on good authority that this is an entirely different Delroy Duncan.

The noteworthy element of the judgment is the appeal against sentence. The appellants had both been sentenced to nine years in prison, which was higher than the recommendation of 7.5 years each by the Crown Counsel.

Kawaley CJ gave guidance on how defendants should be sentenced for drugs offences.

s.27B of the Misuse of Drugs Act states that the Court shall have regard to the street value of the drug and of its effect on society, and then add fifty per cent to the basic sentence.

s.27B does not define what a basic sentence is. If it is taken to mean sentences commonly given, then you could end up with sentences being rapidly inflated as 50% uplifts would start being added to basic sentences which already included a 50% uplift. To avoid this problem, it is necessary to consider what the sentence would have been before s.27B was brought in in 2005. Fifty percent is then added to that.

Comment - this case illustrates the problem with sloppy draftsmanship. Clearly parliament thought that drugs offenders were not being sentenced harshly enough, and came up with a solution of adding a 50% uplift to sentences. However, we now have a situation where judges are required to do a slightly complex exercise, looking back to 2005, to come up with a justifiable sentence. And the issue had to be litigated to work out what parliament meant, which has cost the public money.

One wonders whether the same result could have been arrived in a more straightforward manner by simply upping the maximum sentences, indicating that these were now seen as offences of greater gravity.

Friday, 4 January 2013

Law report - disclosure of funding agreement

Stiftung Salle Modulable v Butterfield Trust (Bermuda) Limited [2012] SC (Bda) 71 Com

Part of the Plaintiffs' claim for damages included the costs of pursuing its rights in the matter, including the cost of a funding arrangement for the litigation.

The Defendant sought disclosure of the funding arrangement, alleging that the Plaintiffs were unable to claim such damages as it was too remote from their claim and that such an agreement was champertous (i.e. it is unlawful for third parties to fund litigation with an expectation to receive part of the proceeds). The Plaintiffs disclosed only a redacted version, and the Defendant applied for full disclosure.

Kawaley CJ held that the document was covered by litigation privilege. However, such privilege can be waived when a party relies on the document for his case. Voluntary reliance on any part of a document normally waives privilege in the entire document. However, even when privilege has been waived it might still be the case that part of a document may be withheld due to irrelevance to the matters at hand.

In the circumstances, the redacted portions, relating to the amount of the financing and the budget and timeline, were irrelevant for the purposes of determining whether or not the agreement was unlawful. Such information could give away the Plaintiffs' litigation strategy and prevent the parties being on an equal footing before the court.

This is to say nothing about whether or not the document is lawful or not which, presumably will be a matter for another day.

Comment - Lawyers will wait with much interest to discover the outcome of the case, which might help clarify when funding arrangements may be entered into for litigation. Kawaley CJ has said previously, in First Atlantic Commerce Limited v The Bank of Bermuda Limited [2007] Bda LR 36,  that (my emphasis) "If maintenance is still a tort in Bermuda, public policy will rarely be offended by any funding arrangement which is recognised in the wider commercial world. "

Thursday, 3 January 2013

Law report - occupier's liability

Minors v Simon [2012] SC (Bda) 75 Civ

The Plaintiff had to have her leg off after a wall collapsed onto her at the Defendant's property. She sued for loss and damage, claiming that the wall was dangerously defective.

The Defendant argued that the wall was safe enough and that, in any event, the cause of the accident was an assault by the Plaintiff's boyfriend on an occupant of the property, during which he pushed the occupant and they both fell against the wall causing it to collapse.

HELD by Hellman J:

That the wall complied with the relevant building codes for the time when it was built and had managed to withstand Fabian. It was therefore safe enough.

That even if the wall was unsafe and the defendants knew it to be unsafe, the actions of the Plaintiff's boyfriend were a paradigm case of a deliberate, violent and unforeseeable act sufficient to relieve the defendants of any liability.

Comment - this case is a interesting illustration of intervening causes. If the wall had been unsafe, then the injuries would have been caused by the owner's negligence in failing to maintain the wall. In Horton v Taplin Contracts Limited [2003] ICR 179 CA, an employer was relieved of his statutory duty regarding unsafe scaffolding as the employee had fallen due to another individual deliberately shaking the scaffolding in order to make him fall. In this case, the plaintiff's boyfriend did not intend for the wall to collapse, but his violent actions led directly to this result.

Law report - delay and fair trial

Craig v Wilson [2012] SC (Bda) 74 Civ

The Plaintiff had had a sixteen month delay in taking out a summons for directions for trial. This was on top of existing delays for a writ that was issued in June 2008.
The Defendant said that the delays had prejudiced his right to a fair trial as he no longer had documents that he relied on for his defence.

Hellman J held that while the delay was excessive and inexcusable, it had not prejudiced the Defendant's right to a fair trial, as there was no evidence that the documents had been lost due to the period of delay. It was for the Defendant to obtain and preserve documents that he relied upon.

The lost documents do not go to liability but only to quantum. If documentation is unavailable, the court can where appropriate give allowance for this.

Law reports - costs of petition for segregated accounts company

Gottex v New Stream [2012] SC (Bda) 66 Civ

The Plaintiffs had successfully obtained an order to put the Defendant into receivership, with liberty for the Plaintiffs to apply for their costs

The point arose as to whether the costs should be paid only out of the general account or out of the segregated accounts (including the Plaintiff's own segregated account).

Kawaley CJ held that provided the litigation was linked to a segregated account, then it may be liable for costs. In the present case, the managers of the segregated accounts had pro-rated the company's costs to each account, and it was more likely than not that the directors had approved of such allocation. The company's bye-laws provided for such pro rating. There was no rational basis for inferring that the company would embark on litigation with such commercial significance without considering who might foot the bill.

Kawaley CJ also held that the costs should be pro rated also against the Plaintiff's own segregated accounts. All of the accounts are accounts of the company. The action had been brought against the company, challenging the validity of a transaction purportedly entered into by the company on behalf of all share classes. The costs therefore are expenses which were contemplated to be allocated across all accounts. This is part of the bargain that an investor makes when setting up a segregated account.

Unlike shareholders, segregated accounts do not have a seperate legal personality to the company but is merely an extension of the company's personality.

There might be circumstances where an account owner could claim that litigation charges were improperly charged, which might be a claim against the managers or directors.

The Chief Justice was careful to say that his findings were subject to refinement in future cases, given that this was a very novel area of law.

Law report - company appearing on minority oppression petition

Re Full Apex (Holdings) Ltd [2012] SC (Bda) 73 Com (14 December 2012)

The Company applied for an order to participate in the proceedings.

Kawaley CJ  held that the test for a company to participate in minority oppression proceedings was a simple one: whether such involvement is in the interests of the company having regard to the nature of the allegations raised and their impact on interests other than those of the disputing shareholders, being interests the company can legitimately claim to represent. In the case of a publicly listed company whose public shareholders are not before the court, those wider interests may be engaged [15]. Kawaley CJ considered Queensland authority in reaching this conclusion, and rejected the submission that this was inconsistent with English authority that a company ought not to be joined on such an application.

Law report - expert evidence on gang members

Cox v R (2011) Crim App 15/15A
Myers v R (2011) Crim App 17

The Appellants had been convicted of murder and using a firearm. In both cases the Prosecution had relied on "gang evidence", i.e. evidence of specialist police officers who were familiar with the gangs on the island.

The officers gave evidence that the Appellants were members of 42nd Street (Cox) and Parkside (Myers), which were rival gangs, and that their victims were members of the other gang. The officers gave evidence of a feud between the gangs and of the ongoing tit for tat retaliation between them, which they said was sufficient reason for the Appellants to kill rival gang members

The Appellants appealed on the grounds that the evidence was irrelevent, amounted to hearsay, that the police officers were not experts and so unable to give an expert opinion, and was inadmissible as it was putting evidence of general bad character before the court which could prejudice the jury.

It was HELD by Evans JA and Zacca JA that the evidence of the police officers was relevant as evidence of a motive is clearly relevant to whether somebody is guilty.

The police officers dealt with the gangs on a daily basis and so had sufficient expertise to give their expert opinion on how the gangs operated.

Although the gang evidence might show the bad character or tendency to violence of the accused, it was directly relevant to the offence and, without that evidence, the case put to the jury would appear incomprehensible or incomplete.

As long as the judge explains the source of the witness' expertise, it is acceptable to describe a police officer as an expert. However, "gang expert" is not a particularly helpful term, and it would be better to spell out that he is an expert on gang behaviour.
The Court of Appeal suggested that careful consideration in future cases should be given as to:
  • distinguishing factual evidence from opinion evidence;
  • what parts of factual evidence are based on hearsay;
  • establishing an officer's qualifications and experience;
  • using terms such as "experienced police officer" or "expert on gang behaviour" rather than "gang expert";
  • directing the jury as to the scope of the opinion evidence  and the basis for admitting it;
  • bearing in mind the potential prejudice to the defendent of the evidence before admitting it
The two judges dismissed the appeals

Auld JA also said that he would dismiss the appeals but dissented on the issue of the gang evidence. There was enough scientific and factual evidence to show that the defendants intended to kill their victims, without relying on the gang evidence. He said that at best the evidence shows a shared motive with other people, but does not provide evidence that the jury can rely on to be sure of the defendant's guilt.

 He also explained his unease with using gang evidence generally. Gang evidence is not a science, and so it is difficult for a trial judge to determine in what circumstances a purported expert is in fact an expert. If trial judges do not sufficiently scrutinise the issue of the value of the evidence and the prejudice to the defence, then there is a danger of drifting into a culture of prosecutors attempting to bolster borderline cases with gang evidence of limited value but which is highly prejudicial.
Such evidence should be admitted only when it has a clear probative effect or supporting the effect of other evidence, balanced against its prejudice to the defence.

It would be difficult for the defence to find its own experts to counter the prosecution's gang evidence and, given their relationship with the prosecution, police officers are unlikely to be perceived as impartial, which is normally expected of expert witnesses.

Comment - it appears that the issue of gang evidence will go onwards and upwards to the Privy Council for final determination.