Darrell v Dale and Others
| Jurisdiction | Bermuda |
| Judgment Date | 03 September 2014 |
| Date | 03 September 2014 |
| Docket Number | Civil Jurisdiction 2014 No 162 |
| Court | Court of Appeal (Bermuda) |
[2014] Bda LR 83
In The Supreme Court of Bermuda
Civil Jurisdiction 2014 No 162
Mr J Durham for the Plaintiff
Mr S Froomkin QC for the 1st & 2nd Defendants
Mr M Douglas for the 3rd & 4th Defendants
The following cases were referred to in the judgment:
Bank of Bermuda Ltd v Minister of Community Affairs and SportBDLR [2004] Bda LR 36
Global Construction Ltd v Hamiltonian Hotel & Island Club LtdBDLR [2005] Bda LR 81
Ronex Properties v John Laing Construction LtdELR [1983] 1 QB 398
Cave v Robinson Jarvis & RolfELR [2003] 1 AC 384
Giles v Rhind (No 2)ELR [2009] Ch 191
Attorney General of Trinidad and Tobago v RamanoopELR [2006] 1 AC 328
Strike out applications — Limitation of actions — Right to fair hearing — Misfeasance in public office — Malicious influence — Improperly advising the Board
RULING of Hellman J
1. The Human Rights Act 1981 (‘the 1981 Act’) established a mechanism to address people's complaints that their human rights had been breached and resolve them in a relatively quick and informal manner. That, at any rate, was the theory. In the case of Harold Darrell, the Plaintiff, the reality has proven somewhat different.
2. The 1981 Act has been amended on several occasions, but at the material time the procedure was as follows. The complainant would make a complaint to the Human Rights Commission (‘the Commission’), which would attempt to resolve it by consent. If a consensual resolution proved impracticable, the Commission would refer the complaint to the responsible Minister, who might at his discretion refer it to a Board of Inquiry appointed under the 1981 Act. Once the Commission referred the complaint to the Minister its role was at an end and it became functus.
3. The terms of the complaint were settled by the Commission. In practice, they would be drawn up by the Commission's Executive Officer and agreed with the complainant. The Minister had no jurisdiction to amend them. Thus his role was described by Simmons J in Bank of Bermuda Ltd v The Minister of Community Affairs and SportBDLR[2004] Bda LR 36 as ‘a purely administrative one’. The Board had no jurisdiction to amend the complaint either.
4. Happily, the 1981 Act has been amended by the Human Rights Amendment Act 2012 (‘the 2012 Act’) to permit the amendment of terms of reference. Section 20(5) of the 1981 Act now provides that in any proceedings before the tribunal (the successor to the Board) an interested party may, with leave of the tribunal, amend its terms of reference or add parties to an application on any conditions that the tribunal considers appropriate. Unhappily for Mr Darrell, this amendment did not come into force until 26th October 2012 and does not apply to any proceedings before Board commencing prior to that date. See the transitional arrangements at section 18 of the 2012 Act.
5. The Commission was supplied with staff by the Third Defendant, the Department of Human Affairs (‘the Department’), which also provided administrative support to the Tribunal. Thus the Executive Officer was answerable to the Director of the Department, who was at the material time the First Defendant, or, in her absence, to the Acting Director of the Department, who was at the material time the Second Defendant.
6. Mr Darrell lodged a complaint of racial discrimination with the Commission. He alleged that in or about February 1996 the Bank of Bermuda Limited (‘the Bank’) improperly disclosed his confidential business and banking information to a third party, with the result that his communications company lost a potential inward investment of $3.2 million. He complained to the Bank, but maintained that the Bank did not deal with his complaint in a satisfactory manner. This, he alleged, was because he is black and the Bank is, or was at the material time, institutionally racist.
7. A written complaint was drawn up by the Commission's Executive Officer, Neville Darrell, and signed by the Plaintiff. It was dated 30th October 2000. Having set out the alleged facts, the complaint then analysed the motivation of those involved:
‘20. … It is almost impossible to believe that the events that have devastated me personally and what the Bank of Bermuda has allowed to happen to me are not driven by insidious racial behaviour by the Bank of Bermuda and its Board of Directors who are also currently well aware of my complaint and [the findings of an internal Bank investigation] in my favour.
21. The Bank of Bermuda is refusing to address my complaint in their normal manner because my witnesses and I are black. Instead the Bank has opted to use the full resources of the Bank to take this complaint to the courts in an effort to exhaust my own financial ability to fully pursue the successful and fair resolution of my complaint.’
8. It is clear from these passages that Mr Darrell intended to make a complaint against the Bank. It is therefore surprising that the Bank was not named as a respondent. That was to prove fatal to the complaint. Instead, the respondents were named as the Chief Executive Officer (‘CEO’) and Board of Directors of the Bank (‘the Directors’).
9. In a letter dated 21st November 2005 to the new Executive Officer, David Wilson (‘Mr Wilson’), Neville Darrell explained that the CEO and the Directors were made respondents on the theory that as the people in charge of the Bank they should be held accountable for any discriminatory acts which it committed. In other words, they were joined in a representative capacity. That is not a theory which appears to have found favour with the Board. As I have not heard argument on the point, which does not arise on the instant application, I express no view as to the correctness of the Board's approach.
10. A further reason for naming the Directors as a respondent may have been that the complaint expressly alleged that they racially discriminated against Mr Darrell by not taking his complaint seriously. Perhaps because I have not had the benefit of hearing the evidence that was before the Board, it is not clear to me why, as appears below, the Board concluded that it was unable to deal with this aspect of his complaint.
11. The Commission referred the complaint to the Minister, who referred it to the...
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