Tuesday, 8 July 2014

Law report - setting aside default judgments

Blakeney v Lister [2014] SC (Bda) 7 Civ

The Plaintiff had obtained default judgment against the Defendant nine years previously, due to failure to file and serve a document in breach of a court order that the Plaintiff could enter judgment if the Defendant failed to do so.

As it turned out, the Defendant had filed the document but had neglected to serve it on the Plaintiff. Nothing then was done for many years. In 2013, the Defendant applied to set the judgment aside.

Kawaley CJ found that the judgment was irregular, as the Registrar should have been requested to check the file (or should have checked the file in any event) before issuing judgment. He set the judgment aside. Due to the passage of time, he held that it would now be unjust for the parties to continue with the action, resulting in the case being aborted.

Friday, 6 June 2014

Law report - purchase of a minority shareholding

MFP-2000 LP v Viking Capital Limited [2014] SC (Bda) 6 Com

The Respondents, as holders of more than 95% of the shareholding of a company, had given notice to buy out the shares of the Applicant. Before the purchase took place, the Respondents were no longer the holders of more than 95%. The court was required to resolve the issue of whether this prevented the Respondents from enforcing the purchase.

Hellman J balanced the competing constructions and concluded the more commercially sensible construction was that the Respondents were not required to still hold more than 95% at the time of the purchase.

Law report - security for costs

Galloway v Roth [2013] SC (Bda) 81 Civ

The overseas Petitioner was of very limited means and the Respondent sought security of at least $7,000.

It was held by Hellman J that, having regard to the Consitutional right to a fair hearing, the court must have regard to the amount of security a party might be able to raise.

In the event, $1,000 security was ordered.

Friday, 17 January 2014

Law report - costs in judicial review

The Corporation of Hamilton v The Ombudsman for Bermuda [2014] SC (Bda) 1 Civ

The Corporation had been unsuccessful in its contested application to seek leave to commence judicial review proceedings. The Ombudsman sought her costs of the leave application.

The Ombudsman was seeking her costs in connection with the leave application. Justice Hellman noted that previous Bermudian cases on costs in these circumstances did not appear to have been fully argued and did not refer to relevant authorities such as Mount Cook Land Ltd v Westminster City Council  [2004] CP Rep 12, which is that costs should not be awarded on unsuccessful leave applications other than exceptionally.

However, the judge pointed to exceptional circumstances in this case: the Ombudsman had a constitutional duty to publish her report on the Corporation as soon as she was able. It was reasonable for her to be actively involved in the leave application from the earliest stage in order to pre-empt any court order which might prevent her from publishing her report (at [26]). Furthermore, the Corporation had delayed in applying for leave anyway, and it was relevant for the Ombudsman to raise this delay point at the earliest opportunity (at [27]).

The decision is also notable for pointing to the possibility of interim awards on account of costs (at [53]) on the basis that if the successful party is ultimately found to be entitled to a lesser sum she must refund the difference. This is a potentially useful device for obtaining swift payment of costs in litigation, otherwise costs can take many months after the case itself to be resolved.

Law report - requirement to take a full plea

Cox v the Queen [2014] SC Bda 2 App

The Appellant had been sentenced to a term of imprisonment for a sex offence on the basis of a purported guilty plea in the Magistrates Court. He appealed against his conviction and sentence.

Unfortunately, it appeared that this was based on a mistake. Although the appellant had indicated that he had wished to change his plea from not guilty to guilty, this was not formally accepted by the court. The matter was adjourned and, the next time it came before the court, the court mistakenly proceeded on the basis that he had already pleaded guilty.

Justice Hellman ruled that there had not been any conviction, as the law provides that there can only be a conviction after a plea or finding of guilt (at [21]-[32]). However, he went on to quash the conviction (at [39]). He also ruled that it would not be in the interests of justice to order a re-trial on the basis that he had already spent over a year in prison, the offence was not a particularly serious one, and it would be an ordeal for the 13 year old complainant to have to give evidence again.

Comment - The judge commented that it might appear illogical to quash a conviction that had not actually occurred (at [44]). He also said that he could achieve a similar result by treating it as an application for judicial review and granting public law relief (at [45]).

I think that the judge's indication of a similar result with public law relief points to a solution which would have avoided any logical inconsistency. In my view, the proper analysis is one of an unlawful imprisonment, which could have been dealt with by treating the appeal as an application for habeas corpus or judicial review, and making an order mandating the prisoner's release and a declaration that he had not been convicted.

Law report - security for costs

Galloway v Roth [2013] SC (Bda) 81

The plaintiff lived outside of Bermuda and so the defendant was seeking security for costs in the event that the plaintiff lost the case. The plaintiff was of very limited means such that it would be very difficult for her to pay security for costs of any substantial amount.

Considering the right of both parties to be given a fair hearing, Justice Hellman awarded security of just $1,000

Law report - bring complaints before Employment Tribunal

Fleming v Director of Labour and Training [2013] SC (Bda) 80 Civ

The applicant had submitted a complaint about her employer to the Employment Inspector, in order to determine whether or not it should go before an employment tribunal.

The Inspector refused to forward the complaint to the Tribunal, stating that the employer had not breached the Employment Act.

It was HELD that when an inspector is deciding whether to forward a complaint to the Tribunal, the relevant test is similar to the test for striking out in the Supreme Court as to whether the case has any reasonable prospects of success. It is not for an inspector to make findings of fact and law for himself.