Evatt Anthony Tamine v Bermuda Press (Holdings) Ltd

JurisdictionBermuda
CourtSupreme Court (Bermuda)
JudgeMussenden J
Judgment Date24 January 2022
Docket NumberCIVIL JURISDICTION

In the Matter of Order 32, Rule 6 of the Rules of the Supreme Court of Bermuda, 1985

Between:
Evatt Anthony Tamine
Plaintiff
and
Bermuda Press (Holdings) Ltd.
Defendant

[2022] SC (Bda) 7

CIVIL JURISDICTION

2021: No. 303

In The Supreme Court of Bermuda

Appearances:

Paul Harshaw, Canterbury Law Limited, for Plaintiff

Allan Doughty, MJM Limited, for Defendant

REDACTED RULING

RULING of Mussenden J

Introduction
1

This matter comes before me on a Summons dated 12 October 2021 by the Defendant Bermuda Press (Holdings) Ltd. (“ BPHL”) the publisher of Bermuda's only printed daily newspaper, the Royal Gazette (the “ RG”), which also publishes an online version (the “ RG Online”). The application is for an order to discharge an ex parte order (the “ Ex Parte Order”) made by me and entered against BPHL on 24 September 2021 by the Plaintiff, Mr. Evatt Tamine (the “ Plaintiff” or “ Mr. Tamine”) in respect of the content of some articles and hyperlinks to documents in the articles as published on the RG Online as set out below.

2

The application to discharge is supported by the First Affirmation of Ms. Sam Strangeways dated 7 October 2021 (“ Strangeways 1”) along with accompanying Exhibits “ SS-1” to “ SS-9” and the Second Affirmation of Ms. Strangeways dated 12 October 2021 (“ Strangeways 2”) along with accompanying Exhibits “ SS-10” to “ SS-13”.

3

The application is opposed by Mr. Tamine.

The Application for the Ex Parte Order
4

On 24 September 2021 Mr. Tamine caused a Generally Indorsed Writ of Summons (the “ GI Writ”) to be issued. The basis of the GI Writ was that on or about 16 September 2021 BPHL caused to be published in the RG Online two articles providing previously unreported details concerning Mr. Tamine's dealings with a Mr. Robert Brockman (“ Mr. Brockman”), a US national who is presently under indictment in the United States for charges of tax fraud (the “ US Proceedings”). The articles also summarised an affidavit sworn by Mr. Tamine on 4 July 2020 (the “ ET 2020 Affidavit”) in filed in relation to Supreme Court trust proceedings known as “ In the Matter of the B Trust” bearing the Supreme Court cause number 2018: No. 376 (the “ Trust Matter”). The GI Writ set out that the court file in the Trust Matter is sealed and not available for inspection by non-parties. Further, each article also included a hyperlink to a copy of the ET 2020 Affidavit, such hyperlinks not pointing to the United States District Court for the Southern District of Houston (the “ Houston Court”), which is the Court referred to in the articles where the ET 2020 Affidavit was first disclosed, but instead pointing to a third party website 1.

5

The GI Writ also set out that at the time of publication, BPHL knew that the ET 2020 Affidavit was filed in the Trust Matter in which the Court file was sealed. Specific sentences were referenced from the articles, which referred to the ‘sealed affidavit’ being now a publicly-available court document in the US. Further, the material was being published in defiance of court orders that the court file be sealed. The GI Writ claimed that the hyperlinks to the ET 2020 Affidavit and any content from it should be removed from the RG Online articles, a declaration that by publishing the articles BPHL committed a contempt of court and damages.

6

On 24 September 2021 I heard an Ex Parte application for an order for BPHL to remove from the two articles in the RG Online the hyperlinks that accessed the third party website hosting the ET 2020 Affidavit and all the content in the article as taken from the ET 2020 Affidavit. The application was supported by the First Affidavit of Mr. Tamine lodged with the Court on 24 September 2021 (“ Tamine 1”) and the accompanying exhibits “ ET-1” and “ ET-1A2.

7

During the hearing of 24 September 2021, the Court was informed that the ET 2020 Affidavit had been published online by the US Government as part of a larger filing made by the US Department of Justice (the “ DOJ”) in the US Proceedings. In Tamine 1, Mr. Tamine had stressed that the ET 2020 Affidavit should never have been disclosed to a third party and it should never have been deployed by that third party in the US Proceedings. Mr. Tamine further stated that his US Counsel had informed him that an application was pending before the Houston Court to place the ET 2020 Affidavit under seal in the US Proceedings. However, I should point out at this stage that the Court was not informed that in an order dated 23 September 2021 signed by Judge George Hanks Jr. of the Houston Court, the application to seal the ET 2020 Affidavit in the US Proceedings was denied.

8

Counsel for Mr. Tamine, Mr. Jerome Lynch QC and Mr. Harshaw filed written submissions and made oral arguments relying on the case Attorney-General v The Times Newspapers Ltd. (No. 3) 3

In that case, the UK Attorney-General had obtained injunctions against several UK newspapers to stop them from printing extracts from the book “ Spycatcher” written by a former officer of Her Majesty's Secret Service. The former officer had earlier been prohibited from having Spycatcher published in the United Kingdom but he had arranged for it to be published in Australia and later in the United States
9

Mr. Lynch QC submitted that the relevant law under consideration in the Spycatcher case was the common law of contempt of court where Lord Ackner traced the history of the law relating to contempt of court and then posed the following question Whatever would be the point of a court making an order designed to preserve the confidentiality of material, the subject matter of a dispute between A and B, pending the trial of the action, if at the whim of C, the protection afforded by the court by its order could be totally dissipated? Counsel for Mr. Tamine answered that question by submitting that of course there would be no point and that the Courts do not embark on pointless exercises. They stressed that in the present case, the issue was that there was a confidentiality order in the Trust Matter and BPHL knowingly breached that order. They also argued that whilst they could not point to the precise terms of the confidentiality order because the Plaintiff does not have access to the court file, Mr. Tamine can point to the fact of the order and asserts that it is at least in “ standard Confidentiality Order” terms, that is, it (a) anonymises the title to the proceedings and (b) seals the file from public inspection.

10

On that same 24 September 2021, after hearing submissions from Counsel for Mr. Tamine, I granted the Ex Parte Order.

11

On 7 October 2021 Mr. Tamine swore his affidavit and on 12 October 2021 Mr. Tamine filed in Court his affidavit in support of his application for an interim injunction against the BPHL in accordance with counsel's undertaking.

The Application to set aside the Ex Parte Order
Preliminary points
12

On 13 October 2021 I heard submissions from counsel for BPHL. As a preliminary point, I ruled that no information about these proceedings could be published until I had ruled on the matter. I also made an order that the copies of the ET 2020 Affidavit filed in these proceedings would be sealed until further order. I also granted leave to admit Strangeways 2.

Main Application to set aside by BPHL
13

Mr. Doughty submitted that the Ex Parte Order should be set aside for several reasons. First, his initial concern was to query why Mr. Tamine failed to inform the Court and BPHL of the vital piece of information that the Houston Court had denied the application to seal the ET 2020 Affidavit in the US Proceedings. In reply to this point, Mr. Harshaw submitted that Mr. Tamine had only found out about the result after the injunction had been granted in the Bermuda Court.

14

Second, in recognizing that Mr. Tamine was alleging breach of confidence as the cause of action in the GI Writ, Mr. Doughty submitted that the Ex Parte Order should be set aside per the authority of American Cyanamid Co. v Ethicon Ltd 4 on the grounds that: (a) there is no serious issue to be tried in that the “djinni is now out of the bottle”; (b) Mr. Tamine has failed to establish that he will suffer irreparable harm that cannot be compensated through monetary damages; and (c) the balance of convenience does not favour Mr. Tamine's attempt to suppress BPHL's guaranteed right of freedom of expression and the public's interest in understanding how Bermuda was used as a base for an enterprise that the DOJ claims was a vehicle for tax evasion.

Whether there was a serious issue to be tried
15

Mr. Doughty submitted that as the claim was for “breach of confidence”, now that the information has lost its confidential nature through accessibility on the internet, the claim must fail. He relied on the ruling of the European Court of Human Rights in the Spycatcher case 5 which provided a comprehensive history of all the proceedings in Australia and the UK. He submitted that the UK Attorney-General sought interlocutory injunctions in the UK against The Mirror and The Guardian newspapers which had reported on the proceedings in Australia and quoted excerpts from Spycatcher's manuscript. The UK Attorney-General then sought permanent injunctions claiming breach of confidence against The Mirror and The Guardian and later against other UK based periodicals which published further excerpts from Spycatcher.

16

Mr. Doughty further submitted that the claims for permanent injunctions were ultimately rejected at their respective substantive hearings for the primary reason that that the information in question was no longer confidential in that: (a) Spycatcher had been published in the US and Canada; (b) copies of the book were attainable in the UK through mail order; and (c) copies of Spycatcher had been brought into the UK by UK citizens travelling abroad. He added that all of the courts reviewing the matter found that...

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