AB v Mount Saint Agnes Academy (Discovery)

• Jurisdiction: Bermuda
• Judgment Date: 30 March 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2021 No 142

Between:

AB

Plaintiff

and

Mount Saint Agnes Academy

Defendant

[2023] Bda LR 29

Civil Jurisdiction 2021 No 142

In The Supreme Court of Bermuda

Application for strike out — Limitation of actions — Sexual exploitation by a teacher at school — Application for specific discovery — Legal professional privilege

The following cases were referred to in the judgment:

Re Braswell and Gero Vita International Inc [2001] Bda LR 41

Daniel v Exxon Services (Bermuda) Ltd [2011] Bda LR 54

Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48

Chubb Bermuda Insurance Ltd v Ford Motor Co [2017] Bda LR 113

Startbev GP Ltd v Interbrew [2013] EWHC 4038

Wong v Grand View Private Trust Co Ltd [2021] Bda LR 23

Ms V Greening for the Plaintiff

Mr K Masters and Ms E Duffy for the Defendant

RULING of Mussenden J

Introduction

1. The Plaintiff caused a Specially Endorsed Writ of Summons to be issued dated 17 May 2021 (the “Writ”) along with an Amended Statement of Claim dated 28 October 2021 (the “ASOC”). She claims that when she was a student at the school run by the Defendant, a teacher (the “Teacher”), groomed and sexually exploited her during the period 1998 to 1999.

2. By a Summons dated 1 December 2021, the Defendant applied to strike out the Plaintiff's Writ and ASOC (the “Strike-Out Application”) on the grounds that it was statute barred by virtue of the Limitation Act 1984 (the “1984 Act”) and thus discloses no reasonable cause of action and further, or in the alternative, is frivolous or vexatious or an abuse of process of the Court. The parties agreed on the utilisation of expert reports in the Strike-Out Application but did not agree on the remit of discovery for the purposes of the Strike-Out Application. The documents sought by the Defendant from the Plaintiff were agreed but the documents sought by the Plaintiff from the Defendant were not.

3. I had earlier ordered that the Plaintiff's application for discovery be supported by evidence and listed the matter for hearing (the “Specific Discovery Application”). The Plaintiff filed her Third Affidavit (“AB 3”) and the Defendant filed the Third Affidavit of Carlos Ferreira (“Ferreira 3”).

4. The Plaintiff submitted that the issues to be determined by the Court in the Strike-Out Application are: (a) whether the action is time-barred pursuant to section 12 of the 1984 Act, that is, the time limit for personal injury; and (b) whether the Court is entitled to exercise its discretion to disapply the limitation period pursuant to section 34 of the 1984 Act. Thus, the Plaintiff made a request for specific discovery of the following:

• (a) The knowledge of the Defendant as a result of which it would have dismissed the Teacher had he not resigned (the “Dismissal Material”);

• (b) All facts and matters set before or provided to Helen Snowball (“Ms Snowball”) and her report (the “Snowball Report”) (jointly the “Snowball Material”);

• (c) All facts and matters provided to T&M Protection Resources (“T&M”) and any report(s) by them (the “T&M Material”); and

• (d) All documents referring to or concerning other allegations of inappropriate conduct of the Teacher towards pupils of the Defendant (the “Other Allegations Material”).

5. The Plaintiff submitted that the reason for requesting the documents at this stage was so that the Court could carry out its task under section 34(3) of the 1984 Act to have regard to all the circumstances of the case and, in particular to subsection 3(b) and 3(c). Ms Greening argued that in carrying out this task, there is nothing more useful or relevant in this regard than the material that has been requested from the Defendant. She argued that the Plaintiff was not on a fishing expedition.

6. The Defendant's position was that the Specific Discovery Application was premature, some documents were protected by privilege and the documents sought were not relevant to the issues in the Strike-Out Application.

Factual Background

7. In the First Affidavit of Carlos Ferreira (“Ferreira 1”), he stated that: (a) Sister Judith Rollo (the “Principal”) was the Principal at all material times; (b) once the complaint of allegations of sexual impropriety by the Teacher was reported to her in January 1999, the Principal demanded that he resign, escorted him off the premises and suspended him, he resigned shortly thereafter; (c) the Principal reported the matter to the then equivalent of Child & Family Services, a government department responsible for the protection of children; and (d) the Principal died on 27 July 2021.

8. In the Second Affidavit of Carlos Ferreira (“Ferreira 2”), he stated that: (a) former chairman of the Board of the Defendant, Mr Paul Fortuna, had numerous discussions with the Plaintiff regarding her allegations and he was involved in the decision to commission the investigation conducted by Ms Snowball; (b) Mr Fortuna died in 2019; (c) the Defendant had launched two independent investigations, “extensive in nature”, during the period 2018 – 2021, at the request of the Plaintiff, namely: (i) the investigation by Helen Snowball; and (ii) the investigation conducted by T&M; (d) the Plaintiff was provided with the terms of reference that were given to Ms Snowball to carry out her investigation; (e) to suggest that that the investigation was merely an attempt for the Defendant to obtain the advice of a lawyer on how to get out of being held...