Bermuda Health Council v Dr. Jay Jay Soares and The Hamilton Medical Center Ltd

• Jurisdiction: Bermuda
• Court: Court of Appeal (Bermuda)
• Judge: Gloster, J.A.,Bell J.A.,Clarke, P.
• Judgment Date: 08 May 2025
• Neutral Citation: BM 2025 CA 12
• Year: 2025
• Docket Number: Civil Appeal No. 7 of 2021

Bermuda Health Council

and

Dr. Jay Jay Soares and The Hamilton Medical Center Ltd.

Clarke, J.A.; Gloster, J.A.; Bell, J.A.

Civil Appeal No. 7 of 2021

Court of Appeal

Appearances:

Ben Adamson, Conyers, for the Appellant.

Kyle Masters, Carey Olsen, for the Respondents.

JUDGMENT IN RELATION TO COSTS

INTRODUCTORY

Gloster, J.A.

1 This is the ruling of the Court in relation to the costs of this matter following an appeal to this Court from the judgment of Mr. Justice Mussenden (as he then was) dated 8 April 2021 (“the Judgment”) and two subsequent interlocutory rulings of this Court.

2 The appeal was brought by the Bermuda Health Council (“the Appellant”) against a decision of the Supreme Court on the application of Dr. Jay Jay Soares (“Dr. Soares”) and The Hamilton Medical Centre Limited (“HMC”), (together “the Respondents”) for judicial review of the Appellant's decision, made pursuant to its powers under the Health Insurance Act, 1970, its Regulations and the Bermuda Health Council Act 2004, in connection with the Respondents' application made in June 2019 for approval to provide services that are included as standard health benefits (“the SHB Application”). The Supreme Court ruled against the Appellant, finding that the decision of the Appellant's Appeal Committee (the “Appeal Committee”) was flawed in a number of ways, including on the ground that it was procedurally unfair in light of the involvement of Dr. Ricky Brathwaite (see Supreme Court Judgment at [79]).

3 The Respondents filed a further SHB application in June 2020, for consideration by the Appellant. However, the Appellant had not considered the Respondents' June 2020 application before the hearing of the appeal in November 2021.

4 Having heard the appeal on 12 November 2021, the Court delivered the following interlocutory ruling ex tempore on 19 November 2021 (“the November 2021 Ruling”):

“SIR CHRISTOPHER CLARKE, PRESIDENT:

• 1. This is an interlocutory ruling by the Court after hearing the appeal in this matter.

• 2. We have reached three preliminary conclusions. They are:

  • (i) that the SHB Review Committee was not in error in treating the application as a Mid-Year application, and the September 2020 Appeal Panel was not in error in upholding that decision for that reason;

  • (ii) that the decision of that Panel cannot stand because, based on Dr. Brathwaite's own evidence as to his participation at all stages of the proceedings from the original Technical and SHB Committees up to and including the July and September 2020 Appeal Panels, and in all the circumstances, “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that [the September 2020 Appeal Panel] was biased”; see per Lord Hodge in Porter v. Magill [2001] U.K.H.L. 67, at paragraph 103; approved by the Supreme Court in Halliburton Company (Appellant) v. Chubb Bermuda Insurance Ltd. at [2020] U.K.S.C. 48 at paragraph 52; see also Lord Phillips of Worth Matravers, M.R. in Re Medicaments and Related Classes Goods (No. 2) [2001] 1 W.L.R. 700, 726 para 83;

  • (iii) that, nonetheless, it was not appropriate for Mussenden, J. to take it upon himself to substitute his own decision for that of the September 2020 Appeal Panel.

• 3. In the light of those conclusions, taken by themselves (and irrespective of, and without prejudice to, any further conclusions which the Court might reach), given that:

  • (i) the order made by the judge at para 133(c) of the judgment reversing the September 2020 Appeal Decision and approving the application dated 6 March 2019 cannot stand; and

  • (ii) the September 2020 Appeal Panel Decision also cannot stand, this Court will need, in due course, to make orders and/or give directions as to:

    • (a) how, in all the circumstances, this appeal is to be disposed of;

    • (b) what, if any, relief is to be given to Dr. Soares /HMC; and

    • (c) what, if any, directions are to be given by this Court as to the future conduct of Dr. Soares'/HMC's applications?

• 4. We do not, however, propose to make such orders and/or give such directions at the present time. In our judgment, the course that should now be followed is for this appeal to be adjourned sine die pending consideration by the BHC of the extant Full-Year application made by Dr. Soares /HMC on 30 June 2020. That would mean the BHC is considering it as a Full-Year application (which does not, therefore, need to satisfy the Mid-Year conditions) on the footing that Dr. Soares and the HMC are not Incumbent Providers. Necessarily, they cannot fall to be treated as Incumbent Providers if the footing on which they became such, namely the decision of Mussenden, J., cannot stand even though that decision has not yet been formally set aside.

• 5. In our judgment, this is the correct course for a number of reasons. The tortuous history of the various applications needs to come to an end. The best way of proceeding towards that end is for the Full-year application to be properly considered as such. If that is done, and the application is granted, there will, we understand, be no problem arising from the fact that the application relates to the year 2021/2022, which is not that far from expiration, since, if it is granted, the BHC will, under its current policy, treat Dr. Soares/HMC as an Incumbent Provider whose status will remain that for the 2022/2023 year. If the application fails, it will have failed after consideration of a Full-Year application. If, on the other hand, we were immediately to set aside para 133 (c) of the judgment (rather than stating, as we have, that it falls to be set aside, as, in due course, it will be), Dr. Soares/HMC would find themselves in the position where they cannot lawfully provide the Imaging Services as an SHB in circumstances where they might then find that, when the BHC gets round to considering the extant Full-Year application Soares/HMC is entitled to do so. This is not a satisfactory method of proceeding, particularly in the light of the past history of this case.

• 6. When, or at any rate not before, the BHC has reached its decision on the Full-Year Application, the Appeal will be restored for hearing, and this Court will decide exactly what order to make. That will involve setting aside the judge's substitution of his own view. What is to be done in relation to the decision of the September 2020 Appeal Panel will be a matter for decision by this Court.

• 7. We shall deliver a judgment giving our reasons for reaching the conclusions to which I have referred, and dealing with other matters, in due course after the appeal has been restored for further hearing.”

5 After delays which we were informed were connected to illness (amongst other things), the ad hoc committee appointed to consider the Respondents' June 2020 SHB Application (“the Ad hoc Committee”), heard representations from the Respondents on 4 May 2023. On 2 June 2023, the Ad hoc Committee delivered its recommendation to the Appellant, recommending that the Respondents be approved to provide services under the standard health benefit.

6 In the meantime, the Court had fixed a case management hearing for 8 June 2023 so that it could be updated about the state of the applications and, in particular, to consider what was to happen in relation to the outstanding proceedings.

7 On 6 June 2023, the Respondents' lawyers, Carey Olsen Bermuda Limited, filed a report with the Court explaining “what has or has not been happening since this matter was last before the Court” and including a detailed chronology.

8 Following other emails from the respective parties updating the Court, on 7 June 2023, the Court issued the following directions by email to the parties (“the 7 June 2023 Directions”), vacating the directions hearing:

“In the light of the recent emails from the parties, we understand that the agreed position is as follows: that, following the Court of Appeal adjournment of the case in November 2021, the application for approval, on a full-year basis, was considered by a Heath Technology Review Committee on 27 January 2022; that the application was then referred to a Standard Health Benefit Committee in the Spring of 2022 and, after multiple adjournments, a hearing took place in May 2023; that a recommendation was issued by the SHB Committee dated 30 May 2023, recommending approval of the application; and that this recommendation is to be considered by the Council's board of directors at their next board meeting, which is scheduled for 6th July 2023.

The parties have, in an agreed email from Conyers dated 7 June at 12:31 p.m., suggested to the Court:

“In light of the recent recommendation by the Council's committee, which now needs to be considered by the Council's board (which is meeting on 6 July), the parties respectfully suggest that,

• 1. The Court defer handing down its ruling until after 6 July, to allow the Council to make its ultimate decision. The parties will write to the Court (again on a joint basis) as soon as this is done.

• 2. Upon circulating its Ruling, the Court invites submissions in writing on costs or the appropriate terms of the resulting order. Such submissions to be filed by both parties within 21 days.

• 3. The parties provide written submissions on those points and the Court provide any necessary rulings on such consequential matters in due course.

It may be that, in light of the above, there is no need for a hearing tomorrow. We look forward to hearing from the Court in due course”.

In the circumstances, the Court is content not to hold the directions hearing tomorrow pending the decision by the Council's board of directors and that hearing will be vacated. However, the Court is not prepared to follow the parties' suggested procedure in other respects. The Court directs as follows:

• 1. If the board does not approve Dr. Soares' application contrary to the recommendation of the...