WF (Intervener); Sannapareddy and ors v Commissioner of Police (No 2)
| Jurisdiction | Bermuda |
| Judge | Clarke P,Kay JA,Smellie JA |
| Judgment Date | 21 June 2019 |
| Date | 21 June 2019 |
| Court | Court of Appeal (Bermuda) |
| Docket Number | Civil Appeal 2019 Nos 2 and 6 |
[2019] Bda LR 45
In The Court of Appeal for Bermuda
Clarke P; Kay JA; Smellie JA
Civil Appeal 2019 Nos 2 and 6
Mr M Pettingill and Ms V Greening for the Intending Appellant
Mr D Duncan for the Applicants
Mr M Diel and Mr D Williams for the Respondent
The following cases were referred to in the judgment:
R v Crown Court at Stafford [2007] 1 WLR 1534
F v Scottish Ministers [2016] SLT 359
R v Department of Health ex part Source Informatics Ltd [2001] QB 424
Application for stay pending appeal — Patients' rights of confidentiality — Passage of time — Public interest — Anonymisation of data
JUDGMENT of Clarke P
1. This is an application by WF, the intervener, for a stay, pending appeal, of the decision of Subair Williams J dated 14 February 2019. An application for such a stay was made to her and refused on 4 March 2019. Mr Pettingill and Ms Greening of Chancery Legal (“CL”) appear on behalf of WF to make the application.
2. The history behind this application is somewhat lengthy and has been set out in greater detail in the judgment which we have just handed down in relation to the question as to whether CL is conflicted in acting for WF and those whom she represents.
3. The Bermuda Police Service (“BPS”) has been carrying out an investigation into the affairs of the 1st Applicant, whom I will call Dr Reddy, and the 2nd and 3rd Applicants for some time. The 2nd and 3rd Applicants are the proprietors of clinics in Bermuda (the BHC and BD clinics) and are owned by Dr Brown, the former Premier, and his wife.
4. The reason for the investigation is that the BPS suspects that unnecessary diagnostic services have been ordered for patients of the two clinics the cost of which has been charged to them or their insurers.
5. On 2 and 10 February 2017 the Senior Magistrate issued two Special Procedure Warrants (“SPWs”) authorising the BPS to search the BHC and BD clinics. The Magistrate had before him an Information (with a schedule of patient names) and a Dramatis Personae.
6. These warrants were executed on Saturday 11 February 2017 at about midday. On the same day the Applicants, represented by Trott & Duncan Ltd (“TD”), sought leave to issue the present judicial review proceedings.
7. On 11 February 2017 Hellman J ordered the return of the files seized by the BPS to the clinics by 8 a.m. on Monday 13 February. The order allowed the BPS to copy the seized material but prevented them from reviewing its content.
8. On 13 February 2017 the Applicants filed an amended application for leave to apply for judicial review. There was a court hearing before Hellman J to determine directions on the execution of the SPWs. The court made an order prohibiting the BPS from reviewing and/or utilising the seized material for the purpose of their investigation pending the outcome of the application for leave to apply for judicial review or further order. The order permitted the copying of any uncopied material subject to various conditions.
9. On 14 March 2017 there was a public meeting at the Cathedral Hall in Hamilton attended by over 100 patients of the BD clinic, who voiced their concern about the seizure of their medical files.
10. On 13 April 2017 the Applicants filed the final version of their application for leave to apply for judicial review.
11. On 15 June 2017 Hellman J gave the Applicants leave to apply for judicial review on the basis of the final version of their judicial review application. The application sought, inter alia, an order quashing the decision of the Senior Magistrate to grant the SPWs, a declaration that the searches were unlawful, directions that the items seized be returned and a continuation of the interim relief granted on 13 February 2017.
12. Thereafter the Applicants appear to have done nothing to advance their judicial review claim for nearly a year. At the same time the BPS appears to have done nothing to secure access to the documents seized.
13. By a summons dated 11 June 2018 (“the Access Summons”) Marshall, Diel & Myers (“MDM”), on behalf of BPS, sought access for the BPS to the files seized. What was sought was that an independent agency from overseas should store the files on a secure server. and they would then be inspected by two independent medical experts. The Second Affidavit of Mr Briggs, filed in support, indicated that the BPS sought to agree a protocol, a version of which was filed with the summons, to keep the identity of the patients hidden through the use of a numbering key.
14. WF is an intervener in the judicial review proceedings. She is a patient at the BD clinic, and one of those whose files were seized. On 22 November 2018 an Order was made by which WF was permitted to intervene in the proceedings, representing a significant number of patients.
15. On 29 November 2018 and 4 January 2019 MDM for the BPS wrote to CL in relation to the Access Summons, seeking to secure agreement on a draft protocol which would facilitate access by the BPS to the medical files. MDM indicated that consideration would be given to all reasonable suggestions. The letter of 29 November 2018 enclosed a copy of the draft protocol which had previously been shared with the Applicants.
16. On 14 January 2019 CL wrote to MDM to say that they would:
“not agree, nor sanction any attempt by you to use [the medical files], period. These files belong to our clients, it is our view that you came by them illegally and we want them back. We have no confidence in the integrity of the police in this regard.”
17. On 12 February 2019 the parties' counsel appeared before Subair Williams J. She refused an application by the Intervener for an adjournment of the Access Summons pending the determination of a Contempt Summons issued by the Intervener dated 25 January 2019, alleging that the BPS was in breach of the Court Order of 13 February 2017. (That contempt has subsequently been held not proven). She also refused to adjourn the Access...
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