A, B, C and D v Cumberbatch

• Jurisdiction: Bermuda
• Judgment Date: 10 November 2020
• Docket Number: Civil Jurisdiction 2014 No 119
• Court: Supreme Court (Bermuda)

[2020] Bda LR 67

In The Supreme Court of Bermuda

Civil Jurisdiction 2014 No 119

Between:

A, B, C and D

Plaintiffs

and

Jonathan Jon Cumberbatch

Defendant

Ms A Flood for the Plaintiffs

Ms E Christopher for the Defendant

The following cases were referred to in the judgment:

Gibbons v DeSilva [2020] Bda LR 61

KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85

BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188

Sutherland v Hatton [2002] EWCA Civ 76

Williams v Bermuda Hospitals Board [2016] UKPC 4

Bonnington Castings v Wardlaw [1956] AC 613

Dickins v O2 plc [2008] EWCA 1144

Application to set aside default judgment — Test to be applied — Whether real prospect of establishing a defence on liability — Damages for sexual assault — Delay

RULING of Hargun CJ

Introduction

1. This is an application by Jonathan Jon Cumberbatch, the Defendant, to set aside a default judgment dated 28 April 2014 whereby Kawaley CJ ordered that “Interlocutory Judgment in Default of an Appearance and/or Defence is granted to the Plaintiffs with Damages to be assessed.” Despite the fact that the default Judgment was granted in April 2014 the assessment of damages remains outstanding to date.

Background

2. As set out in the Decision of the Court of Appeal dated 9 June 2014, the Defendant, was convicted, on 3 May 2010, on his own confession of four offences, one of serious sexual assault contrary to section 325 (1) (d) of the Criminal Code and the other three of sexual exploitation contrary to section 182B (1) of the Criminal Code. On 16 July 2010, he was sentenced to 12 years imprisonment being made up of 12 years for the serious sexual assault and 10 years concurrent for the other three offences. Simmons J made an order under section 70P of the Criminal Code that he should serve at least half of the sentence before consideration for parole.

3. By an Order made on 29 May 2014, the Court of Appeal set aside the Defendant's conviction on the count of serious sexual assault on A, on the ground that in order to elevate to the offence to serious sexual assault, B and C would have to be active participants in the offence with the Defendant rather than the instruments by which he alone committed the offence. The Court of Appeal therefore quashed the Defendant's conviction on Count 1 and substituted a conviction for sexual assault contrary to section 323 of the Criminal Code. However, the Court of Appeal concluded that an appropriate sentence on Count 1, as substituted, remained 12 years imprisonment.

4. The background facts relating to the conduct of the Defendant and the convictions are summarised in the judgment of Baker JA in the Decision dated 9 June 2014 as follows:

“5. It is not necessary to go into the particularly unpleasant facts of the case save in the barest detail. The victims to whom we shall refer as A, B, and C, were respectively 11, 10, and 9 years old at the time of the offences in 2008. They are siblings who resided temporarily with their mother. The appellant acted as surrogate uncle.

6. Whilst with the appellant, A, B, and C touched each other's private parts with the encouragement of the appellant. He demonstrated how to perform oral sex placing his finger in B's mouth and making a sucking sound. When naked on the appellant's bed he told them to have sexual intercourse with each other. A was lying on the bed on her back with B on top of her. The appellant pushed B on the buttocks forcing his penis to penetrate A. He also instructed C to masturbate. He then told C it was his turn but C did not have a sufficient erection. B was also instructed to lick A's genitalia. There were two other children present in the room at the time.

7. About 18 months later the appellant was arrested. He made substantial admissions as to what had occurred saying he had set up barriers for himself when dealing with children and that at times those barriers had been broken. He admitted he knew the children and explained his behaviour as the consequence of bad choices.”

5. For purposes of this application Ms Christopher, who appears for the Defendant, accepts the summary of the facts set out in the judgment of Baker JA above and the Summary of Evidence presented to the Supreme Court by Senior Crown Counsel, Cindy E. Clarke, in a document dated 18 June 2010. The facts set out in the Summary of Evidence are incorporated in this Ruling and the document appears as a Confidential Appendix to this Ruling.

6. The Plaintiffs commenced these proceedings by a Specially Endorsed Writ of Summons dated 28 March 2014, claiming personal injury sustained by the Plaintiffs due to the actions of the Defendant.

7. The Statement of Claim alleges that between 1 July 2008 and 31 August 2008, A, B, and C, 3 minor Plaintiffs, whilst in the Defendant's care, the Defendant procured the sexual assault of MSL. The Statement of Claim further alleges that the Defendant, for a sexual purpose, counselled or incited the 3 minor Plaintiffs to commit indecent acts in his presence and sexually abused IH by touching his buttocks directly with his hands.

8. As a result of the minor B, the 2nd Plaintiff, informing his mother, D, the 4th Plaintiff, the Defendant's actions were investigated and led to the Defendant being charged with four offences. The Statement of Claim expressly pleads that on 16 July 2010 the Defendant was convicted of four offences set out in paragraph 2 above and that he was sentenced to a term of 12 years imprisonment. The Plaintiffs rely upon these convictions as evidence of the commission of these offences by the Defendant under section 70A of the Evidence Act 1905.

9. The Plaintiffs assert that as a result of the conduct of the Defendant, which resulted in his conviction of four offences, the Plaintiffs have suffered injury, loss and damage. The Plaintiffs claim that as a result of the Defendant's conduct, the Plaintiffs sustained psychological injury. In particular, each minor Plaintiff was removed from the care of the 4th Plaintiff and institutionalized. Each minor Plaintiff received extensive psychological treatment, with certain psychotropic medications being prescribed, and extensive counselling.

10. In the case of A, it is claimed that as a result of being sexually abused by the Defendant and counselled by the Defendant to engage in sibling abuse, A began exhibiting oppositional behaviours, hyper—sexualised behaviour and self-injury. A was clinically diagnosed with Dysthymic Disorder, Post-traumatic Stress Disorder and Mood Disorder NOS. A was referred to the Pines Residential Treatment Centre in February 2009, and in August 2009 was transferred to the Foundation School in Hancock, New York. She was admitted to the Jane Addams Treatment Centre at Germaine Lawrence Inc., on April 6, 2010. A was returned to her mother's care on or around July 2011.

11. In the case of B, it is claimed that he was clinically diagnosed with Dysthymic Disorder, Post-traumatic Stress Disorder and Depression. B received psychiatric treatment in order to counteract self-destructive anger and depression. His Post-traumatic Stress Disorder was severe and intensified his feelings of depression, curtailed his ability to concentrate and produced acting out behaviours. In February 2009, B was admitted and received treatment at the Pines Residential Treatment Centre. B was returned to his mother's care in January 2011 and began treatment at the Bermudian treatment centre, Family Centre.

12. C, it is claimed, was clinically diagnosed with Post-traumatic Stress Disorder, Mood Disorder NOS, Bipolar Disorder NOS Intermittent Explosive Disorder, Conduct Disorder, Attention Deficit Hyperactivity Disorder-Combined Type, Sexual Abuse of Child-Perpetrator, Parent-Child Relational Problem and Sibling Relational Problem. As at March 2014, C was still in treatment. C returned home in July 2012 but regressed regarding his psychological state and was sent for further treatment and evaluation to a treatment centre in Utah, US, the Oxbow Academy.

13. In the case of D, it is claimed, that that she was diagnosed with clinical depression. She had to close a lucrative beauty salon which was opened in May 2009, as she was unable to cope with the results of a fractured family life and demands of work.

14. On 2 April 2014, the Defendant was served with the Specially Endorsed Writ of Summons at the Westgate Correctional Facility in Sandys Parish. The Defendant failed to enter an Appearance or a Defence within the required time. As a result, the Plaintiffs issued an ex parte Summons dated 8 August 2014, seeking judgment in default. Ms Flood, Counsel for the Plaintiffs, advised the Chief Justice at the hearing on the 18 April 2014, that the ex parte Summons had been served upon the Defendant at the Westgate Correctional Facility, as a matter of courtesy.

15. As noted above, Chief Justice Kawaley, granted to the...