Bank of Bermuda Ltd v Minister of Community Affairs & Sport

• Jurisdiction: Bermuda
• Judgment Date: 28 June 2005
• Date: 28 June 2005
• Docket Number: Civil Appeal 2004 No. 13
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Evans, JA

Civil Appeal 2004 No. 13

BETWEEN:

Bank of Bermuda Ltd.

Appellant

and

Minister of Community Affairs and Sport

Respondent

and

Harold Darrell

Affected Party

Mr J Goudie, QC for the Appellant

Mr. Jowell, QC for the Respondent

Ms. C Booth, QC for the Affected Party

The following cases were referred to in the judgment:

Roberts and Hayward v the Minister of Home AffairsBDLR [2004] Bda LR 5

Re 56 Denton Road, TwickenhamELR [1953] Ch 51

Rowland v Environment Agency [2002] EWHC 2785

Porter v MagillELR [2002] 2 AC 357

Lawal v Northern Spirit LtdICR [2003] ICR 856

In re Medicaments & Related Classes of Goods (No. 2)WLR [2001] 1 WLR 700

Rees v CraneELR [1994] 2 AC 173

Huntley v A-G for JamaicaELR [1995] 2 AC 1

Human Rights Act 1981, s. 18

Application for judicial review — Whether complaint to Commission was a valid subsisting complaint — Appearance of bias — Commission had never properly made a decision — Opportunity to be heard — Role of the Minister — Limitation

JUDGMENT of Evans, JA

By this application for Judicial Review, the Applicant and the Appellant in this Court, Bank of Bermuda Limited (‘the Bank’), seeks an Order to set aside the reference made by the Respondent, the Minister of Community Affairs & Sport (‘the Minister’) to a Board of Inquiry of a complaint which was made to the Human Rights Commission (‘the Commission’) by Mr Harold Darrell, a former customer of the Bank, on 30 October 2000. The Minister made the reference and appointed a Board of Inquiry pursuant to the power given to him by section 18(1) of the Human Rights Act 1981 (‘the Act’), in June 2002.

Mr Darrell is represented as an Affected Party in these proceedings by Miss Cherie Booth, QC. The Commission was not served and is not a party to the proceedings, but Professor Jowell, QC, counsel for the Minister, represents the interests of the Commission also.

James Goudie QC, counsel for the Bank, submitted that the Minister's decision should be quashed on two grounds, which essentially were these:

(1) in June 2002, when the decision was made, Mr Darrell's complaint to the Commission was no longer a valid, subsisting complaint; and

(2) the Minister gave an appearance of bias, which disqualified him from exercising the statutory power, and/or he acted unfairly towards the Bank.

The two grounds are entirely separate. Ground (1) calls for an account of the reasons for Mr Darrell's complaint and of its subsequent history. But first, we shall summarise the relevant provisions of the Act.

Human Rights Act 1981

Part III of the Act was analysed in some detail by Kawaley, PJ in Michael Roberts and Stephen Hayward v The Minister of Home Affairs etc, Civ Jur 2003: No 297. In the present case, Simmons PJ agreed with his judgment and expressed her indebtedness to it. We do the same, and it is unnecessary for us to repeat or even summarise his clear description of the statutory scheme. What follows is supplementary to it: we refer to those aspects of it which are particularly relevant to the present appeal.

The Commission is responsible to the Minister for the administration of the Act, and its statutory functions are set out in section 14. One of these is:

‘(f) in accordance with this Act, use its good offices for the conciliation and settlement of any complaints or grievances arising out of acts of unlawful discrimination and, where in its opinion such good offices are inappropriate, institute prosecutions for contravention of this Act.’

Section 15(1) provides that when a complaint of unlawful discrimination is made to the Commission, it:

‘shall have power to investigate, and it shall be the duty of the Commission as soon as is reasonably possible to investigate, and:

• (c) endeavour to settle the causes of the complaint; or

• (d) endeavour to cause the contravention to cease,

as the case may be.’

There is only one situation in which the Commission may reach a decision on the merits of the complaint. That is provided for in section 15(8), which reads:

‘(8) If, in the opinion of the Commission, a complaint is without merit, the Commission may dismiss the complaint at any stage of the proceedings after it has given the complainant an opportunity to be heard.’

Another possibility is that the Commission may institute a prosecution for the offence of contravening the Act, as it is empowered to do under section 14(f), quoted above. This, however, did not arise in the present case.

Section 15(9) authorizes the Commission to suspend or discontinue its own investigation, if it appears that the complaint is also under active investigation by some other department or agency of the Government. This clearly implies that the Commission has no such power, except in these special circumstances.

The fact that as a general rule the Commission has a statutory duty to use its good offices for the conciliation and settlement of complaints is borne out by section 18(1), the provision which is at the heart of this Appeal:

‘References to a board of inquiry

18(1) Where:

(a) it appears to the Commission that:

(i) it is unlikely in the circumstances to be able to settle the causes of a complaint; or

(ii) the Commission has been trying for a period of nine months to settle the causes of a complaint but has been unsuccessful,

and the complaint is not of such a kind or of such gravity as to warrant a prosecution, the Commission shall refer the complaint to the Minister who may, in his discretion, refer it to a board of inquiry appointed under subsection (2).’

Finally, the following three provisions of the Act regarding boards of inquiry appointed under section 18 may also be noted:

Section 19 provides that certain sections of the Commissions of Inquiry Act 1935 ‘shall apply to the hearing of complaints by a board of inquiry’;

Section 20(1) provides that a ‘board of inquiry after hearing a complaint shall decide whether or not any party has contravened this Act….’;and

Section 20(A)(i) provides that an unlawful act of discrimination ‘may be made the subject of civil proceedings in like manner as any other claim in tort.’

In summary, therefore, when a complaint of unlawful discrimination is made to the Commission, the Commission is under a duty to investigate and ‘endeavour to settle the causes of’ the complaint. If it fails to achieve a settlement within nine months, or if it appears to the Commission that a settlement is unlikely, the Commission is required to refer the complaint to the Minister (‘shall refer’—section 18(1)). There is only one situation where the Commission may reach a decision as to the merits of the Complaint: if it is of the opinion that the complaint is without merit, it may dismiss it ‘at any stage’, but only after it has given the complainant ‘an opportunity to be heard’ (section 15(8)).

We should also refer to the time-bar provisions of section 15(7):

‘(7) A complaint ….. must be made within six months after the alleged contravention took place:

Provided that the Commission may entertain a complaint up to two years after the alleged contravention if it is satisfied that there are good reasons for the delay and that no-one will be prejudiced by the delay.’

Two issues have been raised. First, whether the Commission was precluded from considering Mr Darrell's complaint under these provisions, and secondly, whether they are relevant and should be taken into account (1) by the Minister, when he decides whether or not to appoint a board of inquiry under section 18(1), and/or (2) by the board of inquiry, if one is appointed.

Mr Darrell's complaint

The background

Mr Darrell is a successful Bermudian businessman whose interests include Hardell Cable TV Ltd (‘Hardell Ltd’). He was a customer of the Bank. In 1995/96 he was negotiating with a third party with a view to that company making a significant purchase of Hardell Ltd's shares. He says that by June 1996 the potential investor was willing to buy at least thirty per cent and possibly forty per cent of the shares. But the other party abruptly ceased to show any interest, the reason being, Mr Darrell alleges, that an officer or employee of the Bank had leaked confidential information regarding his personal bank account to them. He says that he learned this soon afterwards, and that his many attempts to have the matter investigated were rebuffed or ignored by the Bank.

Mr Darrell's knowledge of the response to his complaints and inquiries inside the Bank is limited, and there is no evidence from the Bank, except its denials of his claims. He says that the Bank failed to carry out or complete any internal inquiry until 1999/2000 when Mr Allan Richardson, Executive Vice-President of Retail Clients, he says, did cause this to be done. He alleges that the report of this inquiry was favourable to him, but that the directors, or senior management of the Bank, nevertheless decided to reject his claims. He asserts in his complaint to the Commission that the Bank's attitude towards him, and specifically its failure to accept what he says was the outcome of Mr Richardson's inquiry, was because of his colour: ‘my witnesses and I are black’. He alleges that the Bank was guilty of unlawful discrimination against him, in contravention of the Act.

Civil proceedings

In June 2000, Mr Darrell commenced civil proceedings against the Bank, alleging that there were leakages of confidential information to third parties at the time of the 1995/6 negotiations, and claiming damages for breaches of the Bank's duty towards him.

These proceedings are defended by the Bank and the trial is fixed to take place in the Supreme Court in October 2005.

The complaint to the Commission

On 28^th September 2000, Mr Darrell wrote a lengthy letter of complaint to Mr Kenneth Dill, then the Director of the Department of Human Affairs. He also drafted a complaint to the Commission, and on 20^th...