White and White v Trew; Trew v HSBC Bank Bermuda Ltd and Dwyer

• Jurisdiction: Bermuda
• Judgment Date: 24 December 2021
• Docket Number: Civil Jurisdiction 2018 No 2115 and 2019 No 379
• Court: Supreme Court (Bermuda)

Between:

Molly White

Steven White

Plaintiffs

and

Denise Priscilla Trew

Defendant

Denise Priscilla Trew

Plaintiff

and

HSBC Bank Bermuda Limited

Dennis William Dwyer (as Executor of the Estate of Robert Allen Trew)

Defendant

[2021] Bda LR 104

Civil Jurisdiction 2018 No 2115 and 2019 No 379

In The Supreme Court of Bermuda

Application for recusal of judge — Unconscious bias — Leave to appeal filed out of time

The following cases were referred to in the judgment:

Brown v Director of Public Prosecutions et al [2021] Bda LR 82

O'Driscoll (a minor) v Hurley and Health Service Executive [2016] IESC 32

Goode Concrete v CRH Plc & Ors [2015] 2 ILRM 289

Howell & Ors v Lee Millais & Ors [2007] EWCA Civ 720

Davidson v Scottish Ministers [2004] UKHL 34

Williams v R [2020] Bda LR 49

JS v AS [2021] Bda LR 45

Helow Secretary of State for the Home Department [2008] UKHL 62

Athene Holding Ltd v Siddiqui [2019] Bda LR 21

Mr M Scott for Mrs Trew

Mr J Hindess for the Bank

Mr K White for Mr and Mrs White

RULING of Mussenden J

Introduction – Recusal

1. These two matters are only consolidated for the purposes of an application by Denise Trew (“Mrs Trew”) that I recuse myself from hearing any further proceedings in these two cases for the reasons as set out below. Once a determination has been made on the recusal application then the matters will resume as individual cases. All counsel had previously agreed this course of action.

2. This application arises by Summons in respect of each matter as follows:

• i. In the matter 2019: No. 379 Denise Trew v HSBC Bank Bermuda Limited and Dennis Dwyer (as Executor of the Estate of Robert Allen Trew) (the “HSBC Matter”):

  • (a) Mrs Trew's Summons dated 28 September 2021 for an application that I recuse myself from the matter on the grounds of judicial bias.

  • (b) Mrs Trew's Summons dated 1 October 2021 for an application to file the additional affidavit evidence of Mrs Trew sworn 1 October 2021.

• ii. In the matter 2018: No. 315 Molly White and Stephen White v Denise Trew (the “White Matter”) — Mrs Trew's Summons dated 15 September 2021 for an application that I recuse myself from the matter on the grounds of judicial bias.

3. Mrs Trew filed an affidavit sworn 1 October 2021 (“Trew1”) in support of both recusal applications.

Preliminary Point — The Notices of Motion for Leave to Appeal were filed out of time

4. Mrs Trew had filed a Notice of Motion for Leave to Appeal in respect of both the HSBC Matter and the White Matter. Mr White and Mr Hindess raised a preliminary point that the Notices of Motion were filed late and are time barred pursuant to the Rules of the Court of Appeal (the “Rules”). They submitted that if I determined that preliminary point first in their favour then I would not have to deal with the recusal applications. Mr Scott requested that I, as a single Judge of the Court of Appeal, grant leave for an enlargement of time to file the Notices of Motion. I heard submissions on the preliminary point during the hearing for the recusal applications. I informed the parties that I would first address the recusal applications and if I did not recuse myself from these proceedings then I would address the preliminary point. I deal with the preliminary point at the end of this Ruling.

Background

5. Mrs Trew is represented by her counsel Mr Michael Scott in both these matters.

6. In earlier proceedings in both the HSBC Matter and the White Matter, I issued Rulings that were not in favour of Mrs Trew but in favour of the opposing parties (the “Rulings”). Mrs Trew then filed a Notice of Motion for Leave to Appeal in each matter. Before the Notice of Motion applications could be heard, Mrs Trew filed these recusal applications.

7. Mrs Trew contends that as a result of information that she has learned since I issued my Rulings in her two matters, that she felt vulnerable and continues to feel vulnerable that I, as the judge in her cases, have bias including unconscious bias, against her counsel Mr Scott. She did not assert that I have any bias against her.

8. As a result of the position of Mrs Trew, in respect of the White Matter, Mr Scott filed a letter in the Court dated 15 September 2021 addressed to me. The letter stood as an informal request to me to recuse myself from these proceedings and it set out a factual matrix and legal basis for recusal. I did not answer the letter but proceeded to hear the applications for recusal.

The Evidence in Support of the Applications for Recusal

9. Mrs Trew set out in Trew1 a number of wide-ranging matters including:

• (a) Law, in particular the Bangalore Principles and other case authorities;

• (b) Some references to the exhibited Official Hansard Report of the Bermuda House of Assembly session dated 17 February 2017 (the “Hansard”);

• (c) Some references to watching the YouTube hearing of court proceedings in Bermuda on 26 August 2021, namely an unrelated matter 2020: No. 474 Brown v the Director of Public Prosecutions, the Attorney General and the Deputy Governor and another unrelated matter 2021: No. 09 R v Brown, and some references to the Ruling dated 10 September 2021 of Subair Williams J in respect of that YouTube hearing (for simplicity “R v Brown”);

• (d) Some information and assertions about a Joint Investigation and Prosecution Team (the “JIPT”) set up for investigations of public corruption along with some assertions about my purported membership on the “oversight team” of the JIPT when I served as the Director of Pubic Prosecutions (the “DPP”); and

• (e) References to an exhibited letter dated 31 January 2018 to Mr Michael Scott from me in my capacity as the then DPP (the “DPP Letter”).

10. Counsel for the opposing parties, Mr White and Mr Hindess, made early applications on 6 October 2021 to exclude parts of Trew1 on various grounds including that some of the content was hearsay and some was legal argument. I issued a Ruling that same day that some parts of Trew1 were inadmissible as they were indeed legal submissions and substantial hearsay.

Submissions on behalf of Mrs Trew

11. Mr Scott submitted that I should recuse myself for a number of reasons based on the factual matrix and the applicable law. First, for factual evidence in these proceedings, he sought to rely on the Trew1 references to the R v Brown hearing and to the R v Brown Ruling itself for the submissions of counsel in that case and references to other affidavit evidence to support his assertions. For example, he was referring to some affidavit evidence of Dr Brown and of a Mr Briggs about the establishment of the JIPT in 2013 and its alleged continued existence into the time when I was the DPP. Also, about my purported membership of and involvement in the oversight group of JIPT which according to Mr Briggs also consisted of the Deputy Governor, the Commissioner of Police and the UK Overseas Territories Law Enforcement Officer. On several occasions I canvassed Mr Scott as to whether he was using R v Brown to seek to establish facts in these proceedings or whether he was relying on it for legal principles. He submitted that he was using R v Brown for legal principles and to distinguish the facts in it from the present proceedings but added that the DPP's membership of the oversight group of JIPT was a matter of public record. However, in my view, Mr Scott was also seeking to set out a factual basis in these present applications by relying on the contents of R v Brown.

12. Second, for factual evidence, Mr Scott relied on the DPP Letter which set out that the Bermuda Police had conducted investigations in respect of corruption and/or fraudulent conduct involving public officials, including Mr Scott, who at all material times was a Member of Parliament for the Progressive Labour Party (the “PLP”) political party and was sometimes a Minister of Cabinet. The investigation was focused on a period of time 2006 to 2012 before and during the time when Mr Scott was a Minister. The DPP Letter informed Mr Scott that after a thorough review of materials including witness statements, documents and other exhibits that it was determined that no criminality or charges of corruption arose out of the review in his respect and therefore no further action would be taken against him and the investigations against him had been closed. The DPP letter closed by thanking him for his cooperation and patience. I had signed the DPP Letter.

13. Third, for factual evidence, Mr Scott sought to rely on the Trew1 exhibited Hansard of questions and comments by himself as the Shadow Attorney General to the Deputy Speaker of the House of Assembly and the answers by the then Attorney General Mr Moniz, a member of Parliament for the One Bermuda Alliance (the “OBA”) political party when he was in office. The Hansard records that the question and supplementaries were about the “Attorney General's Civil Action against Lahey Clinic” which was about Mr Moniz's conduct of civil litigation in Boston, USA in respect of the Lahey Clinic based in or about Boston (the “Lahey Litigation”) and about Mutual Legal Assistance Treaties (“MLATS”). Mr Scott also sought to rely on Trew1 where Mrs Trew was told by Mr Scott that he had seen Mr Moniz and me, when I was the DPP, talking in the precincts of the House of Assembly and again in the office of the DPP when he was present and overheard a conversation between us about MLATS.

14. Fourth, Mr Scott submitted that the Bermuda Constitution set out the duties for the Deputy Governor at sections 18 and 19 and set out the duties for the Director of Public Prosecutions at section 71A specifically stating that the DPP shall not be subject to the direction or control of any other person or authority. Mr Scott submitted that my membership on the oversight group of the JIPT was politically charged and was a breach of the DPP's constitutional mandate of independence as the Deputy Governor was a ranking member of the Executive...