Peter Bromby and Mark Bromby v Henry Talbot

• Jurisdiction: Bermuda
• Judgment Date: 19 March 2008
• Docket Number: Civil Jurisdiction 2007 No. 116
• Date: 19 March 2008
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Ground, CJ

Civil Jurisdiction 2007 No. 116

BETWEEN:

Peter Frederick Bromby and John Mark Bromby

Plaintiffs

and

Henry A. Talbot

Defendant

Mr R Horseman for the Plaintiffs

Mr K James for the Defendant

The following cases were referred to in the judgment:

Martin v WatsonUNK [1995] 3 All ER 559

Electra Private Equity Partners v KPMG Peat Marwick [1999] EWCA Civ 1247

Rules of the Supreme Court, O. 24, r 8

Application to strike out — Cross application for discovery — Malicious prosecution

RULING of Ground, CJ

1. This Judgment is given on the defendant's application to strike out the specially endorsed writ as disclosing no cause of action and as frivolous, vexatious and an abuse of process. The plaintiffs also have a cross-application for discovery.

2. The background is as follows. The parties are neighbours. On 16^th May 2004 the defendant had workmen and an excavator working on a beach which adjoins their properties. The plaintiffs, who objected to the work, armed themselves with a piece of pipe and a stick respectively and went to the beach, where they had an altercation first with the driver of the mechanical excavator, and then with the defendant. The police were called, and various officers attended the scene at the beach. At some point thereafter the defendant made a statement to the police, and subsequently the plaintiffs were charged with unlawful assault contrary to section 314 of the Criminal code, and uttering threatening words, contrary to section 12 of the Summary Offences Act 1926. They were tried before a Magistrate, and on 18^th May 2005 convicted of the charges, but given absolute discharges.

3. Notwithstanding the discharges, the plaintiffs were aggrieved by this outcome and appealed to the Supreme Court. On 10^th March 2006 Bell J quashed the convictions and directed ‘that a judgment of dismissal of the informations as against both appellants be entered’. He did so because of the learned Magistrate's failure to address and resolve conflicts in the evidence at trial:

‘77. If the learned magistrate had, in his judgment, reviewed the evidence and made proper findings of fact in relation to that evidence, he would no doubt have identified the conflicts in the evidence which I have referred to in paragraphs 34 and 40 above, and having identified such conflicts, it would obviously have been necessary for him to resolve them. Hence the learned magistrate would necessarily have needed to explain why it was that he preferred the evidence of Mr. Talbot to that of PS tucker on one issue, why he preferred the evidence of Mr. Talbot to the three police officers and Mr. Waldron on another issue, and how he felt able to disregard the evidence Ms. Lima and Mr. Simons in relation to yet another issued’

Bell J concluded—

‘It is the lack of proper findings of fact which render the judgment as a whole unsafe.’

4. The matter may have rested there, but it did not. More than a year later, on 3^rd May 2007, the plaintiffs issued the writ in...