Moulder v Commission of Inquiry (application to bar further pleadings)

• Jurisdiction: Bermuda
• Judgment Date: 08 March 2023
• 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

[2023] Bda LR 19

Civil Jurisdiction 2022 No 178

In The Supreme Court of Bermuda

Judicial review proceedings pending — Application to bar further pleadings — Failure to file skeleton argument and comply with other directions

The following cases were referred to in the judgment:

Re Jokai Tea Holdings [1992] 1 WLR 1196

Bean v Caisey [2021] Bda LR 111

Applicant in person with Ms J Chambers as McKenzie friend for the Applicant

Mr D Duncan KC and Mr R Hawthorne for the Respondent

JUDGMENT of Southey KC AJ

1. The Applicant has brought judicial review proceedings. I granted leave to apply for judicial review in a judgment dated 5 August 2022. The substantive hearing is listed for 28–29 March 2023.

2. I have before me a summons seeking an order that:

“… the Applicant, having failed to comply with paragraph 7 of the Order dated 22 October 2022 … be barred from filing any further pleadings in the action or participating at the substantive hearing in accordance with paragraph 11 of the Order.”

3. Paragraph 7 of the order dated 22 October 2022 stated that:

“The Applicant shall file and serve his skeleton argument on or before 4:00 pm on or before 13 December 2022.”

4. There is no dispute that the Applicant has failed to file a skeleton argument despite the fact that 2 months have passed. He has failed to apply to the court for a variation of the order dated 22 October 2022. He has even failed to write to the court seeking an extension of the time limit set in paragraph 7 of the order. What he has done is attend a directions hearing listed today. That hearing was intended to enable the parties to confirm readiness for the substantive hearing. Instead it has been used to address the summons. The Applicant filed a skeleton argument today responding to the summons.

5. It should be noted that the order dated 22 October 2022 also required service of a trial bundle by 4pm on 7 February 2023. There has been a failure to comply with that direction and a failure to seek an extension of time for compliance with that direction.

6. Paragraph 11 of the order dated 22 October 2022 stated that:

“In the event any party fails to comply with any provision in this Order, that party may be debarred from filing any further pleadings in the action or participating in the substantive hearing.”

7. The background to the order dated 22 October 2022 is that the Applicant previously failed to comply with an order issued on 5 August 2022 that was intended to ensure an effective hearing on 18/19 October 2022.

8. On 21 October 2022 I issued a judgment confirming the adjournment of the hearing scheduled for 18/19 October 2022 and ordering indemnity costs against Mr Moulder in relation to the adjournment. In that judgment I stated that:

I accept that as a litigant in person, Mr Moulder may not have understood the purpose of a case...