Re Application for Information About a Trust [SC (Bda)]

• Jurisdiction: Bermuda
• Judgment Date: 20 May 2013
• Neutral Citation: [2013] SC Bda 45 App
• Date: 20 May 2013
• Docket Number: CIVIL APPEAL NO. 8 OF 2013
• Court: Supreme Court (Bermuda)

[2013] SC (Bda) 45 App

In The Court of Appeal of Bermuda

CIVIL APPEAL NO. 8 OF 2013

In the matter of an Application for information about a Trust

Mr Andrew Martin, MJM Limited, for the Applicant (‘the Protector’)

Mr Narinder Hargun, Conyers Dill & Pearman, for the First Respondent (‘R1’)

Mr Keith Robinson, Appleby Bermuda Ltd, for the Second Respondent (‘the Trustee’)

RULING ON APPLICATION FOR INTERIM STAY

(In Court)

Introduction

1 On 14 ^th May 2013, sitting as a single Judge of the Court of Appeal, I gave a ruling dismissing the Protector's application for a stay of execution pending appeal of an order made by Kawaley CJ on 24 ^th April 2013. The order provided that the Trustee must disclose the Trust's audited accounts to R1. The instant ruling is to be read in conjunction with that previous ruling.

2 The Protector has applied for an interim stay pending a renewed application for a stay to the full Court of Appeal. The full Court will be available to hear the renewed stay application in June, but it will not be available to hear the full appeal until November.

3 I am required to determine 2 issues:

• (1) Whether I have jurisdiction to grant an interim stay (‘jurisdiction’); and

• (2) If so, whether I should exercise that jurisdiction (‘merits’).

Jurisdiction

4 The Court's jurisdiction is derived from the Court of Appeal Act 1964 (‘the Act’) and regulated by the Rules of the Court of Appeal for Bermuda (‘the Rules’).

5 The relevant provisions of the Act include:

‘ Interpretation

1 In this Act, unless the context otherwise requires —

‘appeal’ means an appeal from the Supreme Court to the Court of Appeal;

Determination of civil appeals

13 Upon the hearing of a civil appeal the Court may allow the appeal in whole or in part or may dismiss the appeal in whole or in part or may remit the case to the Supreme Court to be retried in whole or in part and may make such other order as the Court may consider just.

Interlocutory matter; single Justice of Appeal

14 To the extent prescribed by Rules the powers of the Court of Appeal to hear and determine any interlocutory matter may be exercised by any Justice of Appeal in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions:

Provided that every order made by a Justice of Appeal in pursuance of this section may, on application by the aggrieved party and subject to any Rules, be discharged or varied by the Court of Appeal.’

6 The relevant provisions of the Rules, which were issued pursuant to section 9 of the Act, include:

‘ 2/38 Interlocutory applications. Power of single Judge

38(1) In any cause or matter pending before the Court, a single Judge may hear, determine and make orders on any interlocutory application.

(2) Any order made by a single Judge in pursuance of this rule may be discharged or varied by the Court on the application of any person aggrieved by such order.’

7 The Protector submits:

• (1) The full Court has jurisdiction under section 14 of the Act and Order 2/38(2) of the Rules to vary my order refusing a stay.

• (2) I have jurisdiction under section 14 of the Act and Order 2/38(1) of the Rules to grant an interim stay pending the determination of her section 14 application to the Full Court.

8 R1 submits:

• (1) The jurisdiction of the Court is statutory, and the Court therefore has no inherent jurisdiction to grant an interim stay. This applies to both the full Court and the single Judge. R1 relies on the decision of the full Court in National Iranian Oil Company v Ashland Overseas Trading Limited, Civil Appeal No 15 of 1987, in which the Court held that, having granted conditional leave to appeal to the Privy Council, it had no inherent jurisdiction to grant a stay until the determination of that appeal.

• (2) The full Court's jurisdiction under Order 2/38(2) of the Rules is limited to discharging or varying a positive order made by the single Judge. Thus it cannot discharge or vary a negative order, such as an order refusing a stay.

• (3) The single Judge's jurisdiction to deal with interlocutory matters is limited to deciding the substance of interlocutory applications. It does not extend to making ancillary orders in aid of any application that a party may make to the full Court under Order 2/38(2) of the Rules.

• (4) The jurisdiction of the single Judge is therefore to be contrasted with the jurisdiction of the full Court under section 13 of the Act to make such orders as it sees fit on the hearing of the substantive appeal.

9 R1 referred me to the decision of the full Court in Bierman and Bierman's Concrete Products Ltd v Minister of the Environment [2002] Bda LR 22 a paras 46–50. The case confirms that the powers of the single Judge are...