Robert G.G. Moulder v Commission of Inquiry Into Historic Losses of Land in Bermuda
| Jurisdiction | Bermuda |
| Judge | Southey. AJ |
| Judgment Date | 08 March 2023 |
| Docket Number | CIVIL JURISDICTION |
| Court | Supreme Court (Bermuda) |
In the Matter of an Application for Judicial Review Under Order 53 of the Rules of the Supreme Court 1985
[2023] SC (Bda) 18 Civ
Assistant Justice David Hugh Southey KC
CIVIL JURISDICTION
2022: No. 178
In The Supreme Court of Bermuba
Mr Robert G. G. Moulder, Applicant in Person and Ms Judith Chambers, McKenzie Friend.
Mr Ryan Hawthorne for the Respondent
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.
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.
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.
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.
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.
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.
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.
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 management hearing. However, that does not excuse the fact that Mr Moulder appears to have concluded that he could unilaterally ignore the order for service of evidence. If disclosure issues meant a complete affidavit could not have been filed by Mr Moulder, a partial affidavit could have been filed addressing the Respondent's evidence as best as possible. The order to serve evidence remained effective until varied or set aside. [14] …
Mr Moulder appears to have failed to grasp that he was obliged to conduct himself in a manner intended to ensure that the matter progressed towards trial. [37] …
It appears to me that had Mr Moulder engaged promptly with matters, it would have been possible for this matter to progress to trial [38] …
It appears to me that that judgment makes it clear that court orders cannot simply be ignored. The fact that indemnity costs were ordered for the failure to comply with directions also makes that clear. It demonstrates that a failure to comply with directions has consequences. Paragraph 11 of the order dated 22 October 2022 was also intended to make that clear.
As already noted, the Applicant filed a skeleton argument today that seeks to respond to the summons.
That skeleton argument seeks to justify the failure to comply with the order dated 22 October 2022 by making reference to a summons issued against the Applicant's McKenzie Friend by the Respondent. That summons was served on 7 December 2022. However, the Applicant's McKenzie Friend appears to have filed nothing in response until 16 January 2022. I fail to see how summons against the Applicant's McKenzie Friend justifies 2 months of complete inaction. For example, it fails to justify any attempt to contact the Court and seek additional time. An application for an extension of time would have taken little time.
The skeleton also states that:
Both my McKenzie Friend and I are greatly affected by the various injustices that I have been subjected to in both the matter that led to my filing a claim with the Commission of Inquiry and my treatment by the Commission of Inquiry itself. It is my belief that the Former Commissioners are acting in bad faith, and that they deliberately misled the Court in relation to minutes that the Former Commissioners claimed not to be aware of (as accepted by the Court, as shown in the judgment dated 21 October 2022) but do in fact exist. [5] Having heard oral submissions, I understand that this is a reference to a claim that the Commission of Inquiry has failed to comply with its duty of candour.
In my October judgment I held that:
In relation to the minutes, Mr Perinchief [on behalf of the Respondent] states that:
“I am aware of the Commissioners' duty of candour in judicial review proceedings and I can confirm that I am not aware of any minutes of meetings or any other relevant documents that has not been disclosed to Mr. Moulder in these proceedings.”
I concluded that there was no basis for ordering disclosure in light of this statement. ([27] – [28])
I understand the...
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