Js v as (Bias)

• Jurisdiction: Bermuda
• Judgment Date: 25 May 2021
• Docket Number: Divorce Jurisdiction 2020 No 17
• Court: Supreme Court (Bermuda)

[2021] Bda LR 45

In The Supreme Court of Bermuda

Divorce Jurisdiction 2020 No 17

Between:

JS

Petitioner

and

AS

Respondent

Mrs G Marshall for the Petitioner

Mr C Hill for the Respondent

The following cases were referred to in the judgment:

Williams v R [2020] Bda LR 49

Athene Holding Ltd v Sidiqui et al [2019] Bda LR 21

Recusal — Apparent bias — Risk of appearance of bias — Ancillary relief

RULING of Wheatley R

Introductory

1. The proceedings relate to both the Petitioner's and Respondent's applications for ancillary relief in divorce proceedings, comprising of both substantive and interim applications. This matter was first listed on 29 September 2020. From 29 September 2020, the various applications were heard before me on four occasions in court, and one occasion where Counsel submitted a consent order. The orders made on these occasions are as follows:

• • 19 October 2020

• • 26 October 2020 (Consent Order)

• • 3 November 2020

• • 17 November 2020

• • 1 December 2020

2. On 7 December 2020, the Respondent filed an application for my recusal (“the Recusal Application”) which is the subject of this application and seeks the following relief:

“1. The Learned Registrar be recused from taking any further part in these proceedings in her role as Registrar, whether administrative or Judicial, or, as the case may be Assistant Justice or Acting Puisne Judge on the grounds that she expressed herself in terms that are pejorative and damming in correspondence with Cameron Angus Hill, Counsel to the Respondent, the said pejorative language continuing in her complaint to the Complaints Committee of the Bermuda Bar Association to the extent that the well informed neutral individual would have the apprehension of real risk that she was biased, and;

2. That the time for the filing of the Affidavit of the Respondent ordered to be filed by the Registrar be extended to such time as appears appropriate in the circumstances, and;

3. Costs, and;

4. Such further and other relief as appears appropriate.”

3. The Recusal Application was issued on 10 December 2020 and listed for 22 December 2021. Counsel subsequently agreed for the Recusal Application to be adjourned to 5 January 2021. On 5 January 2021, Mr Hill failed to appear and an order was made in his absence as I was satisfied he had notice of the hearing. On 5 January 2021, inter alia, I adjourned the recusal application to 12 January 2021. On 12 January 2021, Mr Hill failed to appear again and I was satisfied Mr Hill had notice of the said hearing. On this occasion the Recusal Application was adjourned sine die with liberty to restore.

4. Thereafter, this matter was listed before me on six additional occasions where orders were made as follows:

• • 5 January 2021

• • 12 January 2021

• • 23 February 2021

• • 9 March 2021

• • 16 March 2021

• • 19 March 2021

5. It was not until this matter was listed for mention for the various application relating to ancillary relief on 19 March 2021, at the instance of Counsel for the Petitioner, that Mr Hill confirmed the Respondent would be proceeding with the Recusal Application and requested the Recusal Application to be re-listed for directions. Taking into consideration the overriding objective as well as the numerous difficulties and delays experienced in these proceedings due to the Respondent's and Counsel for the Respondent's non-compliance of the orders made in paragraphs 1 and 4 above, I re-dated the Recusal Application during this hearing for this day as well. Counsel confirmed acceptance of short service in order that directions could be made specifically for the Recusal Application at that appearance.

The Evidence

6. The Respondent relies on paragraphs 113 through 126 of her first affidavit sworn on 15 January 2021 (“the Respondent's Affidavit”). Notably, the affidavit was sworn almost six weeks following the filing of the Recusal Application by the Respondent's Counsel. Counsel for the Respondent relied on written submissions filed prior to the hearing as well as various legal authorities. Supplemental, written submissions were also sent by Counsel for the Respondent during the course of the hearing.

7. Counsel for the Respondent accepted the Respondent's sole evidence to support this application is based on the correspondence I penned to Bar Council addressing Mr Hill's appearance before me as an Acting Puisne Judge in January 2020 (“the Letter to Bar Council”). The letter to Bar Council was not produced for the record or disclosed to the Petitioner.

8. Paragraph 117 and 118 of the Respondent's Affidavit state as follows:

“117. This affidavit, however is primarily concerned with addressing the first issue that is of primary importance. I have been shown a complaint made by the Registrar against my Counsel in which she suggests a motive for his alleged conduct and alleges knowing dishonesty. My Counsel tells me that she has made similar allegations, in court before opposing counsel, in this matter. I have no reason to disbelieve his account. She clearly has poor opinion of Mr. Hill that she has expressed in public. She may allow that attitude to interfere with her oath of neutrality.

118. I do not seek to apportion any blame I merely point out that Ms. Wheatley has made a complaint of criminal conduct on the part of Mr. Hill, my counsel. His conduct is described as disgraceful and motives of...