Bermuda Press (Holdings) Ltd v Registrar of Supreme Court

• Jurisdiction: Bermuda
• Judgment Date: 24 July 2015
• Neutral Citation: [2015] SC Bda 49 Civ
• Date: 24 July 2015
• Docket Number: CIVIL JURISDICTION 2015: No. 307
• Court: Supreme Court (Bermuda)

[2015] SC (Bda) 49 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2015: No. 307

In the Matter of Order 58(1) of the Rules of the Supreme Court of Bermuda 1985

In the Matter of the Supreme Court (Records) Act 1955

Between:-

Bermuda Press (Holdings) Ltd

Appellant

and

Registrar of the Supreme Court

Respondent

Introductory

1 The Appellant applied to the Registrar pursuant section 3(1) (c) of the Supreme Court (Records) Act 1955 (‘the 1955 Act) to obtain copies of Affidavits filed in the Related Proceedings and was refused on July 20, 2015. The Related Proceedings are constitutional proceedings brought by a local company and a local trust, the Allied Trust and Allied Development Partners Ltd. (‘the Allied Parties’), to challenge the voiding of substantial contracts entered into between the Allied Parties and the Corporation of Hamilton for the development of the Hamilton Waterfront. The proceedings have excited considerable public attention, not least because an Affidavit sworn in the Related Proceedings which makes serious allegations of corrupt conduct against Government Ministers is already in the public domain and has been discussed in Parliament.

2 A strike-out application in those proceedings was heard on July 20–21, 2015 with various press representatives present. In the course of argument, Leading Counsel for the Government parties to the Related Action made oral reference to various Affidavits filed refuting the allegations made in the Allied Parties' Affidavit which is already (in circumstances that are unclear but unimportant for present purposes) in the public domain. Against this background Mr. Marshall sought to challenge the orthodox legal view that the documents which he sought access to were not open to public inspection, even in the absence of opposition from the parties to the Related Proceedings, by virtue of the following provisions of the Supreme Court (Records) Act 1955:

‘3. (1)…

(2) Nothing in the foregoing provisions of this section shall be construed so as to require or authorize the Registrar, on the application of any person not entitled by any provision of law, and not duly authorized in that behalf, to allow the inspection or examination, or to prepare and furnish copies, of any of the following documents, that it to say, —

(a) any pleadings or other documents relating to any civil proceedings then pending in the Supreme Court;…’ [emphasis added]

3 It was essentially argued that the press had a duty to inform the public as fully and fairly as possible about court hearings of public interest. That required access to written evidence as much as oral evidence rather than being limited to reporting on such selective extracts which counsel chose to emphasise. This was primarily an incident of the common law and/or constitutional requirements of open justice.

4 The appeal was listed on an urgent basis and notice given to the Attorney-General, who was in any event represented in Court as a Respondent to the Related Proceedings because:

• (a) constitutional arguments were raised; and

• (b) it was self-evident that the appeal could be rendered nugatory if not adjudicated during the short “shelf-life” that “hot” news items typically enjoy.

5 Prior to the hearing I caused to be supplied to the Appellant's counsel various documents which (as a result of the Public Access to Information Act 2010-‘PATI’) are a matter of public administrative record in the Judicial Department and requested that he serve them on the Attorney-General for consideration at the appeal hearing. Most significantly, these documents included my own September 12, 2014 proposals for broadening access to Court records.

6 These proposals were prompted by complaints from the Miami-based Offshore Alert organization (which provides information about court filings in offshore jurisdictions to its clients) that Bermuda's access to court records regime was outdated and inconsistent with that which appertained in both the British Virgin Islands (‘BVI’) and the Cayman Islands (‘Cayman’). My own proposals to the Bermuda Bar Council (which were promptly assented by that body) set out examples of how the courts in various jurisdictions (BVI, Cayman, England and Wales and Hong Kong) regulated access to Court documents in essentially the same way:

• (a) by Rules of Court enacted by the Judiciary rather than by primary legislation proposed by the Executive and enacted by Parliament;

• (b) by permitting general automatic public access to originating process (e.g. writs, originating summonses or petitions);

• (c) by permitting discretionary access to other documents (e.g. pleadings or affidavits or witness statements in active cases).

7 I also supplied to counsel a copy my proposed amendment to the Rules of the Supreme Court to adopt just such an approach which, it also a matter of public administrative record, was supplied to the Attorney-General's Chambers in late October with a request that the amendment be gazetted for entry into force on December 1, 2014. On April 14, 2015, almost six months' later, I was informed (as I noted in the course of the hearing of the appeal) that Chambers took the view that a legislative change was required. My response, it is also a matter of administrative record, was to dissent from their legal view but welcome the Attorney-General'ssupport for the principle of the change sought. I did not, it must be conceded, apply my mind in this administrative context to the constitutional propriety of the Executive and/or Legislative branches of Government regulating by primary legislation matters falling within the proper domain of the Judiciary.

8 A further document which I drew to counsel's attention was a June 12, 2015 “Offshore Alert” online article entitled “Bermuda's Secretive Court System: Time to Emerge from the Dark Ages” by David Marchant, which stated in part as follows:

‘Bermuda prides itself on being one of the most advanced, best-run offshore jurisdictions in the world. In many respects, that boast is deserved.

However, in one key area, Bermuda is so far behind the times, it's embarrassing, with the jurisdiction long overtaken not only by all of its major offshore rivals but even unsophisticated jurisdictions that Bermuda looks down on, such as Grenada and Antigua.

That area is Litigation Transparency or, in Bermuda's case, lack thereof.

Members of the public are entitled to no documentation whatsoever when a civil lawsuit is filed at Bermuda Supreme Court, not even a copy of the writ of summons, which provides basic details of a case, such as the names and addresses of the plaintiffs and defendants and the nature of the dispute….

That's not to say that no information about lawsuits is available. It is … but the system that has been in place since, apparently, the 1950s is ridiculously crude….It's a disgraceful system for such an important international financial center…’

9 This article is a very serious critique of the failure of the Judicial branch of Government in Bermuda to manage its processes in an efficient and modern way in terms of public access to Court records. It was precisely to forestall this sort of criticism that draft amendments to the Rules of the Supreme Court approved by the Bermuda Bar Council were forwarded to the Attorney-General's Chambers for publication in late October 2014.

10 Finally, I drew to counsel's attention an authority which demonstrates how existing laws enacted prior to the Bermuda Constitution may be construed by the courtswithout granting declarations of invalidity under section 5(1) of the Bermuda Constitution Order: Attride-Stirling v Attorney-General [1995] Bda LR 6.

11 These materials were shared with counsel in the interests of transparency as they formed a significant part of the provisional thinking which I would bring to bear in the hearing of the present appeal and both contained relevant legislative and/or judicial precedents and shed light on the wider policy implications of the existing statutory framework. For the same reason this background is recorded here. In the event, the arguments presented on both sides in the course of the hearing of the appeal (including the submissions received later) succeeded in displacing most of my initial provisional views on the legal basis on which the appeal ought to be determined. But the history of these frustrated efforts on my part to modernise the access to Court records rules is relevant in a general way in explaining in part why the Appellant in this case had to prepare such comprehensive arguments in support of its appeal.

Legal Findings: interpreting section 3(2)(a) of the Supreme Court (Records) Act 1955

12 Mr. Marshall first made the initially interesting argument that the word ‘pending’ in the phrase ‘proceedings then pending in the Supreme Court’ was meant to exclude access to documents in cases which were awaiting hearing-as opposed to in active cases. If the position was at least ambiguous, that ambiguity could be resolved in favour of a construction which gave effect to constitutional public hearing and access to information rights. I accept that rule of statutory construction but I am unable to accept the proposition that ‘pending’ means or potentially means ‘pending trial’ rather than ‘pending final judgment’ or ‘active’ or ‘open’.

13 In their “Preliminary Submissions of the Attorney-General”, Mr. Howard and Mr. Ambrosio submit as follows:

‘22. The definition of pending does not admit of any serious disagreement: “A legal proceeding is “pending” as soon as it is commenced…and until it is concluded, i.e. so long as the court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein” (see Stroud's Judicial Dictionary of Words and Phrases, Seventh Ed.. 2006)….’

14 I accept this submission. I find that the natural and ordinary meaning generally of the...