Junos v Governor of Bermuda (renewed application for judicial review)

• Jurisdiction: Bermuda
• Judgment Date: 10 March 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2019 No 201

Between:

XXXX

Plaintiffs

and

XXX

Defendant

[2023] Bda LR 20

Civil Jurisdiction 2019 No 201

In The Supreme Court of Bermuda

Renewed application for leave to apply for judicial review — Constitutionality of the Judicial Legal Services Committee

The following cases were referred to in the judgment:

Sharma v Browne-Antoine [2007] 1 WLR 780

Darrell v Board of Inquiry [2010] Bda LR 48

Re Chief Justice of Gibraltar [2009] UKPC 43

Re Levers J [20100] UKPC 24

Applicant unrepresented

Ms L Sadler-Best for the Respondent

JUDGMENT of Wolffe J

1. Pursuant to Order 53, rule 3 of the Rules of the Supreme Court 1985 (the “RSC”) the Applicant filed a Notice of Application dated 17 May 2019 seeking leave to judicially review a decision of the Respondent which required the Applicant to resubmit a complaint against The Hon Chief Justice Narinder Hargun (the “Chief Justice”) to the Judicial and Legal Services Committee (“JLSC”). The relief sought by the Applicant was (and still is) as follows:

• (a) A Declaration that the JLSC is an unconstitutional body which has no statutory existence and therefore has no legal authority to vet, investigate or hear complaints against judges and/or the judiciary;

• (b) An Order of Mandamus – that the Governor appoint a Tribunal in accordance with section 74(4) of the Bermuda Constitution Order 1968 (the “Bermuda Constitution”) to investigate the Applicant's complaint against the Chief Justice.

• (c) A Protected Costs Order in favour of the Applicant and the Civil Justice Advocacy Group (“CJAG”).

2. In determining the Applicant's application for leave without a hearing being conducted (which is permitted under RSC Ord. 53, rule 3(3)), and by way of a written ruling dated 8 July 2022, Assistant Justice Delroy B Duncan KC refused leave for the Applicant to apply for judicial review. In his decision Duncan AJ stated that:

“The Applicant seeks a declaration that the Judicial Legal Services Committee has no legal authority to carry out its stated functions, including hearing complaints against judges. However, such a declaration in isolation would not achieve the stated ultimate purpose of the application, which is to secure an investigation into the conduct of the Chief Justice. The application for an order of Mandamus asserts that such an investigation can only be carried out by the 1st Respondent appointing a tribunal under section 74(4) of the Bermuda Constitution Order 1968.

The Judicial Legal Services Committee is yet to decide how to respond to and address the Applicant's complaint. That Committee has a range of options, one or more of which may satisfy the Applicant's complaint. Further, the Judicial Legal Services Committee is empowered to make recommendations to the 1st Respondent which address the complaint. Only after the Judicial Legal Services Committee has made a decision can the Applicant determine whether it will obtain the ultimate relief it seeks. If the Applicant is not satisfied with the response from the Committee, at that juncture it can reconsider its application for judicial review. For this reason, in my judgment, this application for judicial review is premature. R (on the application of Paul Rackham Ltd) v Swaffham Magistrates Court[2004] EWHC 1417 (Admin). (at paragraph 16).”

3. With leave having been refused by Duncan AJ, on the 15th July 2022 the Applicant filed a “Notice of Renewal of Application for leave to apply for Judicial Review” pursuant to RSC Ord. 53 rules 3(4) and 3(5), thereby renewing her application to bring judicial review proceedings against the decision.

4. It should be noted that on or about the 2 September 2022 the Applicant filed a “Summons for Recusal” (supported by an affidavit) asserting that Duncan AJ should recuse himself from this matter. In a written ex tempore ruling dated 21 September 2022 Duncan AJ acceded to the Applicant's application. In doing so he made it clear that he unequivocally denied each and every allegation contained in the Applicant's affidavit but that he should “err on the side of caution” and grant the Applicant's recusal application.

5. Before turning to the substantive issues in this matter I should also deal with the Applicant's suggested time frames within which she repeatedly stated that I should have heard the issues in dispute and render my decision on her renewed application. By reference to a document entitled “The Administrative Court – Judicial Review Guide 2022” (the “Guide”), which seemingly was produced by the Courts and Tribunals Judiciary in October 2022, the Applicant submitted that the standard time for the hearing of a renewed application is 30 minutes and that this includes the time needed by the judge to give an oral judgment (as set out in paragraph 9.5.1 of the Guide). By this, the Applicant presumably suggested that I should strictly follow suit and constrain the hearing of submissions and the delivery of my decision to 30 minutes.

6. To this I make two points. Firstly, whilst the Guide is of some assistance, and may have some persuasive value, it is not binding on judicial review applications heard in Bermuda.

7. Secondly, whilst it is vitally important to observe the overriding objective of dealing with matters “expeditiously” there is the concomitant overriding objective of dealing with matters “fairly” (see RSC Ord. 1A rule 1(2)(d)). Therefore, one must be careful not to slavishly abide by suggested times frame, such as those set out in the Guide, at the risk of not affording the parties sufficient time to fully ventilate their respective positions.

8. Of course, at the commencement of the hearing it was my intention to provide an ex tempore decision at the end of the parties' submissions if the circumstances permitted. However, the manner in which the hearing unfolded did not permit such. The Applicant commenced her oral submissions to the Court at approximately 10.21.53am and concluded them at 10.55.35am. Therefore, although the Applicant exercised brevity in laying out her position she still required approximately 34 minutes to do so. By my calculations, the Applicant therefore exceeded the 30 minutes which is suggested by the Guide to take for the entirety of a judicial review application (inclusive of the Respondent's response and the Court rendering a decision). This is not a criticism of the Applicant as I am genuinely of the view that she acquitted herself well in economically putting forth her arguments, but it is necessary for me to illustrate how achieving a 30 minute time constraint in a judicial review hearing can be impractical and may even offend the overriding objective of ensuring fairness to the parties. Had I hurried the Applicant and/or Ms Lauren Sadler-Best along so that I may not encroach past the suggested 30 minutes then either of them would have had a legitimate gripe that I did not afford them ample time and opportunity to advance their arguments or that I rushed to judgment.

9. It is for this reason that at the conclusion of the hearing that I deemed it necessary for me to reserve my decision so that I may fully consider the submissions and authorities presented by the Applicant and Ms Sadler-Best (I explained to the parties that I would not be able to do so until now due to jury trial commitments).

The Law

10. There is no dispute that in accordance with the RSC that the Applicant can renew her application for leave to apply for judicial review. Nor is there any dispute...