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.

Law report - wrongful dismissal

Woods-Forde v The Bermuda Hospitals Board [2013] SC (Bda) 77 Civ

The Plaintiff worked at the hospital, and was the subject of a disciplinary investigation arising from an allegation concerning a personal dispute with a work colleague. The plaintiff denied the allegation and was later fired for gross misconduct both for the personal dispute itself and for lying about it.

She claimed for wrongful dismissal on the basis that her conduct was not gross misconduct such as to justify firing her. At trial it was conceded by the hospital that the actual allegation that had resulted in an investigation was not itself gross misconduct, and they relied only on the lying about the allegation.

Justice Hellman HELD that the denial was not gross misconduct (at [49]-[54]). The hospital's policies set out the type of dishonesty which it considered to be gross misconduct, which were essentially financial dishonesty.

He awarded her three months' salary in damages, which he said was equivalent to a suitable period to enable her to find another job ([62]-[65]), taking into account her poor health and the difficult labour market.

The plaintiff was also diabetic, so also claimed damages for the loss of her health insurance and having to finance her own overseas medical treatment. The judge agreed that these were damages that could be claimed, as when she entered into employment, the parties could have anticipated that wrongful dismissal would result in her losing the benefit of the health insurance [69]. He calculated the loss by looking at her medical expenditure over the year following her dismissal, and then pro-rating it to the three month period that he found was a reasonable notice [72].

The plaintiff also claimed damages for loss of reputation, as it is more difficult to find a job when you are fired in such circumstances. However, this would have involved the court choosing not to follow the House of Lords case of Addis. Justice Hellman acknowledged that Addis has been criticised but that it is not for him to depart from House of Lords authority at the Supreme Court level ([73]-[76].

Comment - it is surprising that the issue of loss of health insurance has not come up before on termination of employment. This judgment gives a helpful guide as to how such a loss might be calculated in suitable cases.

Child of Bermudian unable to travel?

The Royal Gazette has published an article about the problems of a Bermudian woman getting Bermudian status or a passport for her son, as she only acquired Bermudian status after her son was born.

She says she is unable to travel with her son as she has been unable to obtain travel documents for him.

If the circumstances of the case are as reported, there should be a relatively simple procedure to get a British Overseas Territories (BOT) passport for her son. She could ask the Governor to register him as a BOT citizen, and she would then be able to get a passport for him.

The story reports that the mother was not Bermudian at the time of birth, but the father was. Provided that paternity can be proven then the child should be entitled to Bermudian status from birth.
 I also wonder whether the mother might have an argument for claiming that she was entitled to Bermudian status at birth. She was born overseas, but if her Bermudian dad was domiciled in Bermuda at the time of her birth (which doesn't necessarily mean he was living here) then she would also be Bermudian from birth and so her son would be too.

Even if her son cannot get Bermudian status from birth, he will be deemed to be Bermudian until he turns 22, so it is not too much of a problem right now. The key thing is the passport, which shouldn't be difficult to get.

Law report - naturalisation as British Overseas Territories citizen

Stevens v The Governor and the Deputy Governor [2013] SC (Bda) 75 Civ

The applicant was the husband of a Bermudian who applied to the Governor to be naturalised as a British Overseas Territories citizen on the basis that he met all the requirements, including that he had no restrictions on the period for which he was allowed to remain in Bermuda for.

The Deputy Governor refused the application on the basis that the conditions placed on the husband of a Bermudian in order to continue to enjoy the spouse's rights amounted to such restrictions.

Hellman J held - being guided by 30 years of established nationality law practice in the UK - that restrictions on the period did not have the meaning given to it by the Deputy Governor. He quashed the refusal and ordered the Deputy Governor to reconsider. He noted that there is still discretion in whether or not naturalisation would be granted.

Comment - this is a welcome judgment which helps to clarify when somebody is able to naturalise. Naturalisation enables the person to acquire a Bermudian passport, which is helpful in particular for people from countries who find it difficult to obtain visas when travelling. It can also simplify the process of obtaining Bermudian status for non-Commonwealth citizens. Naturalised BOT citizens are also deemed to belong to Bermuda under the Constitution, although it is unclear what effect this actually has.

This judgment might affect other people who had their naturalisation applications refused. If an application is refused, the reasons must be communicated to the applicant, and the refusal must be a reasonable decision.