Moulder v Commission of Inquiry into Historic Losses of Land in Bermuda

• Jurisdiction: Bermuda
• Judgment Date: 05 August 2022
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2022 No 178

Between:

Robert GG Moulder

Applicant

and

Commission of Inquiry into Historic Losses of Land in Bermuda

Respondent

[2022] Bda LR 75

Civil Jurisdiction 2022 No 178

In The Supreme Court of Bermuda

Principles to apply when authorising a McKenzie Friend — Flawed pleadings — Delay — In camera proceedings — Retention of records — Protective costs

The following cases were referred to in the judgment:

Paragon Finance plc v Noureiri [2001] 1 WLR 2357

Soo Kim v Young [2011] EWHC 1781

Perinchief v Public Service Commission [2009] Bda LR 56

R v Department of Transport, ex parte Presvac Engineering (1991) 4 Admin LR 121

R v University College London ex parte Riniker [1995] ELR 213

R (Crompton) v Police and Crime Commissioner for South Yorkshire [2018] 1 WLR 131

R (Lichfield Securities Ltd) v Litchfield District Council [2001] 3 PLR 33

Darrell v Board of Inquiry [2010] Bda LR 48

Kennedy v Charity Commission [2015] AC 455

Al Rawi v Security Service [2012] 1 AC 531

Human Rights Commission v Attorney General [2018] Bda LR 13

Applicant in person; J Chambers (McKenzie Friend)

Mr D Duncan QC for the Respondent

JUDGMENT of Southey QC AJ

Introduction

1. This application for leave to apply for judicial review arises from the work of the Commission of Inquiry into Historic Land Losses in Bermuda (‘the Commission of Inquiry’). The Commission of Inquiry was appointed under the Commissions of Inquiry Act 1935 (‘the 1935 Act’). On the date I deliver this judgment, I will also deliver judgment in a judicial review of the Commission of Inquiry brought by Raymond Davis and Myron Piper (‘the Davis and Piper judgment’). That judgment considers different issues regarding the work of the Commission. That judgment should be read with this judgment as it sets some of the factual background. I will not repeat that judgment, save where necessary.

McKenzie Friend

2. This matter was initially listed on 5 July 2022 to enable the Applicant to seek an adjournment in the judicial review of the Commission of Inquiry brought by Raymond Davis and Myron Piper.

3. On 5 July 2022 Ms Judith Chambers applied to assist the Applicant as a McKenzie Friend. She also applied to speak on behalf of the Applicant. I initially expressed some doubt about a McKenzie Friend speaking as an advocate. However, having consulted The Equal Treatment Bench Book (‘the Bench Book’), it appeared that Ms Chambers had been authorised to appear as an advocate in the Court of Appeal in an earlier case brought by Mr Moulder. In light of this and the fact that the hearing was not intended to consider the merits of the application, I indicated that I was willing to permit Ms Chambers to appear before the Court as an advocate on behalf of the Applicant.

4. When the application for leave came before the Court, counsel representing the Commission of Inquiry objected strongly to Ms Chambers assisting the Applicant as an advocate. There were a number of objections. The one that struck me as most powerful was summarised in the following paragraphs of the skeleton:

(i) Ms Chambers owed the [Commission of Inquiry] a duty of confidence both expressly in her contract of engagement as an investigator with the [Commission of Inquiry] and as a matter of law based on the fact that any confidential information she would have received would have been from that position of confidence, i.e. her engagement with the [Commission of Inquiry].

(ii) Ms Chambers should not be in a position of an advocate but then be held to a different stand for an advocates removal based on the possession of confidential information. Had Ms Chambers been a qualified attorney the [Commission of Inquiry] would no doubt have easily been able to apply for and obtain her recusal on the basis of the confidential information she possesses. The COI should not be prejudiced simply because Ms Chambers is unqualified.

5. Ms Chambers responded by, among other matters, seeking to assure the Court that she would not disclose confidential information. Nothing that I have seen suggests that confidential material was disclosed.

6. The Bench Book notes that the English Court of Appeal summarised the principles to be applied when deciding whether to authorise a McKenzie Friend in Paragon Finance plc v Noueiri[2001] 1 WLR 2357, as follows:

• (a) A McKenzie Friend has no right to act as such: the only right was that of the litigant to have reasonable assistance.

• (b) A McKenzie Friend was not entitled to address the court: if he did so, he would become an advocate and require the grant of a right of audience.

• (c) As a general rule, a litigant in person who wished to have a McKenzie Friend should be allowed to do so unless the judge was satisfied that fairness and the interests of justice did not so require. However, the court could prevent a McKenzie friend from continuing to act in that capacity where the assistance he gave impeded the efficient administration of justice.

7. The Bench Book also notes that McKenzie Friends have acted as advocates in Bermuda. As noted above, that seems to have happened in Mr Moulder's case.

8. In this case I concluded that Ms Chambers should be permitted to advise as a McKenzie Friend. However, she should not be permitted to address the Court. I reached this conclusion for the following reasons:

• (a) In general McKenzie Friends should be permitted to advise unless there is good reason for not permitting a McKenzie Friend.

• (b) Ms Chamber's history of representing Mr Moulder in the past appears to me to be a particularly powerful reason why she should be able to represent him again. Courts appear to have found that representation was in the interests of justice. There is no suggestion that her representation was unhelpful or contrary to the interests of justice.

• (c) However, the key difference between this case and earlier cases is the obvious conflict of interest. That conflict was not apparently a factor present in the past.

• (d) It appeared to me that it would be wrong to permit Ms Chambers to appear as an advocate. Advocacy rights are restricted for good reason and so it is exceptional to permit a McKenzie Friend to act as an advocate. Allowing Ms Chambers to act as an advocate when she has a conflict of interest would be to be to permit her to do something that those would regulated advocacy rights cannot do. Ms Chambers cannot be permitted to do more than a barrister.

• (e) I have wondered whether the conflict of interest means that Ms Chambers should be prevented from advising Mr Moulder. With some hesitation I have concluded that she should not be prevented from advising. I cannot in these proceedings prevent Ms Chambers and Mr Moulder consulting outside of court. The Commission accepts that different proceedings would be required to achieve that objective. Allowing Ms Chambers to advise in court is more efficient as it prevents there being a need for regular adjournments. It also allows the Court to get some sense of what the advice is about so that it has some idea of whether confidential information is deployed. Most importantly, as already noted, there is a long history of Ms Chambers advising Mr Moulder.

9. I should add that, having heard submissions from Mr Moulder advised by Ms Chambers, I am satisfied that the approach I adopted did ensure fairness. Mr Moulder was able to put his case effectively. In doing that, he was clearly dependent upon advice.

Factual background

10. The Davis and Piper judgment describes the establishment and work of the Commission of Inquiry at paragraphs 6 – 18. I will not repeat that summary in this judgment.

11. One matter that I wish to highlight is the fact that that the report of the Commission of Inquiry commented that:

The Commissioners determined that any case that had been, could be or was currently...