Bermuda Press (Holdings) Ltd v Evatt Tamine
| Jurisdiction | Bermuda |
| Judge | Clarke, P,Smellie J.A.,Gloster J.A. |
| Judgment Date | 13 December 2023 |
| Neutral Citation | BM 2023 CA 28 |
| Court | Court of Appeal (Bermuda) |
| Year | 2023 |
| Docket Number | Civil Appeal No. 50 of 2022 |
Neutral Citation Number: [2023] CA (Bda) 28 Civ
THE PRESIDENT, Sir Christopher Clarke
JUSTICE OF APPEAL Sir Anthony Smellie
and
JUSTICE OF APPEAL Dame Elizabeth Gloster
Civil Appeal No. 50 of 2022
IN THE COURT OF APPEAL OF BERMUDA
(CIVIL DIVISION)
IN ITS CIVIL JURISDICTION
BEFORE THE HON. MR JUSTICE MUSSENDEN
CASE NUMBER 2021: NO. 303
Ms Heather Rogers KC, Mr. Allan Doughty and Ms Safia Gardner of MJM Limited for the Appellant
Mr Adam Speker KC, Mr. Paul Harshaw of Canterbury Law Limited for the Respondent
Mr Robert Brockman (“Mr Brockman”) was, at the time when the orders at issue in this case were made, a man in his eighties (he died on 5 August 2022), who stood accused in the United States of what the prosecution claimed was a “decades long scheme” to conceal about US $ 2 billion from the US Internal Revenue Service. In October 2020 a Grand Jury returned a 39-count indictment against him, including charges of tax evasion, wire fraud, money laundering and other offences. On 15 October 2020 he entered a plea of not guilty. He is alleged to have set up secret bank accounts in Bermuda and Switzerland with estimated assets of over $ 6 billion. The prosecution described the case as the “largest ever charge against an individual in the United States”. Mr Brockman and his alleged fraud were a matter of public interest and widely reported.
Mr Evatt Tamine, the respondent (“Mr Tamine”), is an Australian, who was called to the Bermuda Bar. He worked for Mr Brockman in respect of the A. Eugene Brockman Charitable Trust (“the Brockman Trust”), and various other structures connected with Mr Brockman, from 2001 until September 2018. The Brockman Trust was a trust set up by Mr Brockman in May 1981. The beneficiaries of the Trust were Mr Brockman and other members of his family and “any organization qualifying as a charitable organisation under the laws of Bermuda, the United States or Great Britain”. It appears that significant distributions have only been made in furtherance of charitable activities.
In 2003, with a view to obtaining a work permit, Mr Tamine set up Tangarra Consultants Limited (“Tangarra”), a Bermuda company, which employed him. He moved to Bermuda in January 2004 formally to begin his new role working for Mr Brockman. In around October 2020 Mr Tamine gave evidence in support of the prosecution case before a Grand Jury in the United States.
Bermuda Press (Holdings) Limited is the publisher of the Royal Gazette newspaper. I shall refer to it hereafter as “the Gazette”. On 16 September 2021 the Gazette published four articles (“the Articles”) in both its online and print editions. The two most significant articles were entitled “Secretive billionaire accused of one of biggest tax crimes in US history — and the ‘nobody’ he employed” and “Lawyer is key witness in largest ever US tax evasion case”. These provided some previously unreported details concerning Mr Tamine's dealings with Mr Brockman. The Articles in part summarised some of the contents of an affidavit (hereafter referred to as “the Tamine Affidavit”) which Mr Tamine had sworn on 4 July 2020 in certain confidential Trust proceedings (referred to as the “Administration Proceedings”) in the Supreme Court of Bermuda entitled “In the matter of the B Trust”, which were started on 2 November 2018, in which the judge had ordered the court file to be sealed.
We do not have a copy of the sealing order but it appears from what Subair Williams J stated at [19]–[20] of her judgment of 23 July 2020 in Medlands (PTC) Ltd v The Attorney General, RTB & Ors [2020] SC (Bda) in Action 2018 /376 that on 5 November 2018 she ordered that the Court file be sealed and that the proceedings be heard in camera. She also ordered that any judgment be anonymized to protect the identity of the parties. She referred to this as “the Confidentiality Order”. The effect of such an order is that information cannot, without further order, be obtained from the file of the court in that case. There is an issue as to the impact, if any, of that order in respect of the Tamine Affidavit.
Subair Williams J also made an order authorising proceedings in Bermuda against Mr Tamine and Tangarra for the delivery of trust documents and the recovery of trust assets. An action was commenced in England soon afterwards. In June 2019 the Bermuda court sanctioned the co-prosecution of the claim by Spanish Steps Holdings Ltd, an indirect subsidiary of SJTC [see below], for the recovery of US $ 16.8 million.
The proceedings in which the Tamine Affidavit was filed were originally entitled St John's Trust Company (and another) v The Attorney General (and others) and numbered 2018/376. St John's Trust Company (“SJTC”) was then the Trustee of the Brockman Trust. SJTC is a company indirectly owned by Mr Tamine. From 2013 to 23 June 2017 Mr Tamine was its sole director. On 23 June 2017 Mr James Gilbert, a Grand Cayman resident, became a director also. On 28 September 2018 Mr Tamine resigned as a director.
The Tamine Affidavit was filed in support of an application made by Mr Tamine to be joined as a party to the proceedings in the Supreme Court, the purpose of which was said to be to set aside seriously adverse findings that had been made against him in the proceedings, on the basis of allegations made against him in those proceedings, which he said were untrue. Mr Tamine also sought access to the Court file and to be joined as a party to SJTC's appeal against orders made on 1 November 2019 and 19 December 2019 removing SJTC as trustee, and replacing it with Medlands Limited, a company owned by Mr Gilbert 1.
The order of 19 December 2019 (“the December Order”), which resulted from these findings which had only been seen by Mr Tamine in redacted form, is referred to at paragraphs [38] – [40] of the judgment of 14 December 2020 of Chief Justice Hargun in SJTC v Watlington & Ors in Action 2019 No 446 as follows:
“ 38 Recital (3) records that: “ And Upon the Court being of the opinion that the Plaintiff [SJTC] is not, in the circumstances set out in the evidence (including in light of the issues arising in the proceedings 2019: No. 447 [the injunction proceedings]), a proper and appropriate candidate for appointment as trustee of the B Trust and that any new trustee should be an entity unrelated and unconnected to Mr Evatt Tamine…”
39. Paragraph 15 records that SJTC was not validly appointed and acted as trustee de son tort:
“The Plaintiff as trustee de son tort, had the standing to issue the July Summons and the December Summons and seek the relief set out therein (subject to recital (1) above.”
40. Paragraph 18 appoints Medlands as successor trustee: “Pursuant to section 31 of the Trustee Act 1975 and the inherent jurisdiction of the Court, the Fourth Defendant [HSBC Private Bank (C.I.) Limited, the last validly appointed trustee] is hereby discharged as a trustee of the B Trust and replaced as trustee by Medlands on the terms set out below.”
In the event the Court of Appeal dismissed the appeal by SJTC against these orders in a judgment handed down on 22 December 2021, following an oral indication of the result on 2 February 2021. Mr Tamine as the Intervening Respondent was represented at the hearing. The Court of Appeal ordered that Medlands should be discharged as Trustee and replaced by BCT Limited, with effect from a date and on such terms as might be directed by Subair Williams J.
In those circumstances Mr Tamine's application would appear, for all practical purposes, to be spent. In its judgment the Court of Appeal concluded that “SJTC had been effectively removed as trustee of the Brockman Trust by the 19 December 2019 Order and had become a stranger to the Trust having no further right of audience or relief thereafter in the Administration Proceedings. SJTC could not therefore properly invoke the jurisdiction of this Court on an appeal from those proceedings for the vindication of personal rights to a fair hearing which it claims were breached in those proceedings for want of effective representation in them — a claim which, in any event, was found to have no basis in fact” [73].
The Tamine Affidavit had been filed by the US Department of Justice (“DoJ”) in the United States District Court for the Southern District of Houston. The Gazette had downloaded this affidavit from a US Government website which provides public access to Federal Court electronic records — the “docket” of documents filed in Court. Its name and address are publicly known and accessible to those who know of it.
The circumstances in which the Tamine Affidavit came to be filed in the District Court are as follows:
-
(1) Tangarra — as noted above, a company established by Mr Tamine and of which he was shareholder — applied on July 20 2021 2 to strike all references to Tangarra from the indictment against Mr Brockman on the footing that it was not involved in the underlying allegations in the indictment. In its response to that application on 10 August 2021 3 the DoJ deployed the Tamine Affidavit, which, it submitted, showed that Tangarra was closely aligned to Mr Brockman, was formed as an accommodation for him, and that Mr Brockman made all substantive decisions regarding Mr Tamine's management of Mr Brockman's offshore entities. Tangarra then requested that the US Court strike, or place under seal, the Tamine Affidavit 4. The United States opposed 5 and Tangarra replied. 6 All these documents seem to
have been filed on 17 September 2021 7. -
(2) On 23 August 2021, lawyers acting for Mr Tamine (Canterbury Law Limited; Mr Paul Harshaw) wrote to the Department of Justice in the US Proceedings to ask that the Tamine Affidavit be “removedfrom the public domain” and that it be made a sealed appendix to the DoJ's...
To continue reading
Request your trial