Ming v Greaves (Magistrate)
| Jurisdiction | Bermuda |
| Judgment Date | 14 August 2007 |
| Date | 14 August 2007 |
| Docket Number | Civil Jurisdiction 2006 No. 173 |
| Court | Supreme Court (Bermuda) |
In The Supreme Court of Bermuda
Kawaley, J
Civil Jurisdiction 2006 No. 173
Mr M Johnson for the Applicant/Defendant
Mr R Horseman for the Respondent/Plaintiff
Sirros v MooreUNKELR [1974] 3 All ER 776; [1975] 1 QB 118
Heath v Commissioner of Police for the MetropolisUNK [2004] EWCA Civ 493
Attorney-General v BBCELR [1981] AC 303
Darker v Chief Constable of the West Midlands PoliceELR [2001] 1 AC 435
R v Manchester City Magistrate' Court ex parte DavisUNK [1989] 1 All ER 90
McC v Mullan and OthersUNK [1984] 3 All ER 908
Shaw v TrudelUNK [1988] Man R (2d) Lexis 596
Ming v TacklynBDLR [2002] Bda LR 16
Nisselle v Brouwer [2007] VSC 147
Maharaj v Attorney General of Trinidad and TobagoELR [1979] 1 AC 385
Bermuda Constitution, s. 5(4)
Protection of Justices Act 1897
Strike-out application — Enforcement of child support order — Whether magistrate exceeded his jurisdiction by ordering imprisonment and work release — Judicial immunity — Limitation of actions
1. On or about February 1, 2000, the Applicant, sitting in the Family Court, was the Chairman of a Panel which committed the Respondent to prison for 90 days pursuant to the provisions of section 17(3)(b) of the Affiliation Act 1976. Similar orders were made on four subsequent occasions in the course of the following nine months, whilst the Respondent was still incarcerated.
2. The laudatory rationale for the committal orders was to enforce child support obligations and to compel the Respondent to discharge the relevant obligations by participating in a work release programme whilst in prison. On December 7, 2000, the Respondent appealed to this Court against the three sentences then imposed upon him whilst he was in prison on the grounds which included the following. It was complained that the Magistrate exceeded his jurisdiction by (a) committing him to prison without releasing him, and (b) by ordering the Respondent to do work release when there was no power to so order. These grounds of appeal were, on the face of the Chief Justice's April 12, 2002 Judgment, allowed by this Court, and the sentences were set aside.
3. On the basis of this Court's finding that the committal orders complained of were made without the jurisdiction of the Family Court, the Respondent on June 6, 2006 filed a Generally Indorsed Writ together with a Statement of Claim seeking damages for false imprisonment. The Applicant applied by Summons dated August 21, 2006 to strike-out the action on various grounds, including the grounds that (a) the Statement of Claim disclosed no reasonable cause of action, and (b) the claim was frivolous and vexatious.
4. At the hearing of the application, Mr. Johnson for the Applicant conceded that the first principal limb of his strike-out application was not entirely straightforward, but asked the Court to consider his submission that, if magistrates were potentially liable for mere errors of law which were not actuated by malice, this state of the law was unsatisfactory.
5. In the event, argument focussed on the second main limb of the strike-out application, namely whether or not the claim was liable to be struck-out because it was time-barred.
6. The Statement of Claim avers that the Plaintiff fell into arrears in respect of his child maintenance payments under two separate orders and on or about February 1, 2000 was committed to prison for ninety days under the provisions of section 179(3)(b) of the Affiliation Act 1976, which allows a defaulting party to be imprisoned for up to ninety days for wilfully failing to comply with his payment obligations. Thereafter, he was sentenced to four consecutive ninety day terms of imprisonment ‘with work release’.
7. On or about December 7, 2000, it is then pleaded, the Plaintiff appealed in each proceeding on various grounds, the first ground being as follows:
‘That the Learned Magistrate exceeded his jurisdiction by committing the Appellant to three1 consecutive terms of imprisonment without releasing the Appellant.’
8. The Statement of Claim concludes as follows:
‘12. By Judgment dated the 12th day of April, 2002, the Chief Justice of the Supreme Court allowed all of the aforesaid appeal grounds.
13. As a result thereof, the Supreme Court has ruled that the Magistrate acted unlawfully, in excess and without jurisdiction.
14. The Plaintiff will aver that the Magistrate acted in excess of jurisdiction and the Plaintiff was unlawfully imprisoned.
15. The Plaintiff avers that he is entitled to compensation and/or damages for the period of his unlawful incarceration and/or false imprisonment of 360 days during the period of the 1st May, 2000 to the 25th of April, 2001.’
9. The Writ was issued on May 30, 2006, together with an attached Statement of Claim. By Summons dated August 21, 2006, the Defendant, represented by the Attorney-General's Chambers, applied to strike-out the claim on the grounds that ‘it discloses no reasonable cause of action; the Defendant is entitled as of right to Judicial Immunity’. This limb of the strike-out application essentially turns on the following legal question. Is it arguable, as a matter of law, that where a Magistrate imposes a sentence of imprisonment which he is not lawfully empowered to impose, the detention in question is unlawful and the detained person may maintain a claim in damages for false imprisonment?
10. Mr. Johnson firstly submitted that the scope of judicial immunity at common law was no different for ‘inferior’ or ‘superior’ courts. He relied on dicta from the English Court of Appeal decisions in Sirros v Moore and othersUNK[1974] 3 All ER 776 and Heath v Commissioner of Police for the MetropolisUNK[2004] EWCA Civ 493, and the House of Lords decisions in Attorney-General v B.B.C.ELR[1981] A.C. 303 and Darker and others v Chief Constable of the West Midlands PoliceELR[2001] 1 AC 435.
11. The common law position was in effect that as long as the judge or magistrate honestly believed that he was acting within the scope of his jurisdiction, a mere mistake of law would not be actionable against him in his personal capacity. This
position did not involve any consideration of whether the Crown might be liable for any unlawful detention of the citizen.12. Mr. Horseman made the first broad riposte that section 5(4) of the Bermuda Constitution provided for compensation as of right, and the Plaintiff's case was a clear case of unlawful imprisonment. Under section 5 of the Bermuda Constitution Order, the existing laws had to be construed in conformity with the Constitution.
13. He next contended that the common law rules relied upon by the Defendant were inconsistent with the express statutory right to bring an action against magistrates under the Protection of Justices Act. If they already had immunity under the common law, the added protection of the six month limitation period would not have needed to be enacted. The position in England was, in any event, that justices could be sued for errors in excess of jurisdiction: R v Manchester City Magistrate' Court ex parte DavisUNK[1989] 1 All ER 90 at 93f–95b.
14. Finally, he submitted that the true position was that the liability to suit of magistrates was different to that of judges of higher courts: McC v Mullan and OthersUNK[1984] 3 All ER 908.
15. The common law position as far as magistrate' judicial immunity is concerned is of historical interest only as the position is to a large extent now governed by statute. The position as far as judges of other courts and the judicial members of tribunals is, perhaps, still substantially governed by common law rules, subject to the effect of the Constitution.
16. As Counsel for the Crown relied on the common law position, and this may still appertain to judges other than magistrates or lay justices, it may be helpful to consider the scope of the common law rules on judicial immunity. Twaddle J, giving the judgment of the Manitoba Court of Appeal in Shaw v TrudelUNK[1988] Man R (2d) Lexis 596, helpfully analysed the position as follows:
‘[9] Judicial immunity from action is a rule of some antiquity. There is reference to it in the Year Books, Hil. 9 Henry 6, fo, 60. Over the course of the next 400 years, it became established that a judge of a superior court could not be sued for what he did whilst acting within his jurisdiction: Fray v BlackburnENRENR(1863) 3 B & S 576; 122 ER 217; Anderson v GorrieELR[1895] 1 QB 668.
[10] The rationale for the rule was explained by Lord Bridge of Harwich in McC v MullanUNK[1984] 3 All ER 908, when he said (at p. 916):
‘If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.’ [**195]
[11] No doubt that is why, in Sirros v MooreELR[1975] QB 118, Lord Denning, M.R., said (at p. 136):
‘[A]s a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land—from the highest to the lowest—should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure that they will be free in thought and independent in judgment”, it applies to every judge, whatever his rank.’
[12] Although Lord Denning's judgment in Sirros v Moore was criticized by the Law Lords in McC v Mullan, supra...
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