Mizrachy (A Minor) v Ministry of Education

• Jurisdiction: Bermuda
• Judge: Kawaley JA,Hargun JA,Hickinbottom JA
• Judgment Date: 21 March 2025
• Docket Number: Civil Appeal 2025 No 3
• Court: Court of Appeal (Bermuda)

Between:

Reef Isaac Mizrachy (A Minor) (through his parents and legal guardians Amir and Jennifer Marie Mizrachy)

Appellant

and

Ministry of Education

Respondent

[2025] Bda LR 36

Before:

Kawaley JA; Hargun JA; Hickinbottom JA

Civil Appeal 2025 No 3

In The Court of Appeal for Bermuda

Extension of time for Notice of Appeal — Academic appeal — Security for costs — personal injury

Appellant as Litigant in Person

Mr R Horseman for the Respondent

JUDGMENT ofHickinbottom JA

Introduction

1. On 21 February 2025, the Plaintiff/Appellant (“the Plaintiff”) through his father (“Mr Mizrachy”) applied for orders to dispense with security of costs and for remission of court fees in respect of an appeal he had brought against an interlocutory order of Acting Justice Diel dated 10 June 2024 striking out the Plaintiff's documents entitled “Further and Better Particulars”, “Plaintiff's Notice to Admit Facts” and “Interrogatories”; refusing his application to strike out the Defence; and ordering him to pay the costs of the Respondent/Defendant (“the Defendant”).

2. The application came before us on 17 March 2025, at a hearing at which Mr Mizrachy appeared on behalf of his son, and Mr Richard Horseman of Wakefield Quin Limited appeared for the Respondent. Mr Mizrachy has been an attorney in New York and Israel, but has never practiced in Bermuda. He represents his son, effectively, as a litigant in person.

3. At the end of the hearing, having concluded that the Notice of Appeal was well out of time, and the substantive appeal was academic and there were no other grounds which required or made it appropriate to proceed, we made the following Order:

• (i) recording and giving effect to the party's agreement to vary the order for costs in the Order of 10 June 2024 to an order that the costs of and occasioned by the applications before the Court on 10 June 2024 be reserved to the Supreme Court to be dealt with by the Supreme Court Justice who deals with the assessment of loss and damage at the conclusion of that assessment;

• (ii) refusing to extend time to file the Notice of Appeal on the grounds that the substance of the appeal has become academic because of the admission of liability by the Defendant and the judgment on liability in the Plaintiff's favour, and there were no other grounds which required or made it appropriate for it to proceed; and

• (iii) making no order for costs on the appeal.

4. We said that we would provide brief reasons for this Order. In this judgment, I set out my reasons.

5. The hearing before us on 17 March 2025 was in the morning. For the sake of completeness, I should say that, at 1.49pm that day, Mr Mizrachy filed a 16-page document entitled “Notice regarding Procedural Unfairness in Hearing” which seeks (amongst other things) an order declaring the hearing “procedurally unfair” and the Notice of Appeal “procedurally valid”, and for the re-hearing of the Plaintiff's applications for security for costs and remission of fees (“Mr Mizrachy's Post-hearing Submissions”). Unless convenient to consider matters raised earlier, I will deal with those submissions at the end of this judgment.

Background

6. The claim is for personal injury sustained while the Plaintiff was at school. During outdoor playtime on 5 February 2021, when the Plaintiff was 5 years old, he fell off a piece of playground equipment and injured his elbow. In respect of liability, the main issues were whether the duty of care owed by the school (and, so, by the Defendant) extended to supervising the Plaintiff during the play period; and, if so, whether that duty had been breached causing the fall and consequently the injury that he suffered.

7. The Defendant initially lodged a Defence, accepting that the Plaintiff had fallen as claimed, but denying breach of duty.

8. The Plaintiff served three lengthy documents, entitled “Further and Better Particulars” (58 pages), “Plaintiff's Notice to Admit Facts” (82 requests) and “Interrogatories” (67 questions). The first document set out particulars of loss and damage, but also included a substantial amount of both evidence and submissions in relation to loss. The second and third documents focused on issues of liability.

9. On 10 June 2024, following a hearing on 25 March 2024, Acting Justice Diel struck out those three documents, dismissed the Plaintiff's application to strike out the Defence, and ordered the Plaintiff to pay the Defendant's costs.

10. On 12 June 2024, the Plaintiff filed a Notice of Motion seeking leave to appeal the Order of 10 June 2024.

11. On 3 October 2024, at the hearing of an ex parte application made by Mr Mizrachy, the Chief Justice granted leave to appeal.

12. On 31 October 2024, the Plaintiff advised the Court that he was no longer seeking to advance the appeal in relation to disclosure issues, and the Chief Justice gave directions for the matter to be stayed pending the determination of the Plaintiff's other grounds of appeal to this Court.

13. On 25 November 2024, following receipt of an Amended Statement of Claim, the Defendant filed a Notice of Admission of Liability on the basis that the playground equipment was not safe. On 5 December 2024, there was an application by Mr Mizrachy for judgment on liability at an inter partes hearing before the Chief Justice, which was granted.

14. On 23 December 2024, the Chief Justice discharged the Order of 31 October 2024 staying the claim, and gave directions in respect of the assessment of damages which I understand require the Plaintiff to lodge a document setting out a schedule of his loss together with the evidence and submissions upon which he relies in support by 31 March 2025.

15. On 12 February 2025, the Appellant filed a Notice of Appeal under the leave granted on 3 October 2024.

16. On 21 February 2025, the Plaintiff applied for an order dispensing with any requirement of security for costs and remission of court fees in relation to this appeal. It was this application which was set down for hearing before this Court on 17 March 2025.

Discussion

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