Attorney General Plaintiff v Martin Bridger Defendant

• Jurisdiction: Cayman Islands
• Judge: Hon. Justice Richard Williams
• Judgment Date: 21 August 2013
• Court: Grand Court (Cayman Islands)
• Docket Number: Cause No. 486 of 2011
• Date: 21 August 2013

Between:

The Attorney General

Plaintiff

and

Martin Bridger

Defendant

[2013] CIGC J0821-1

Before:

Hon. Justice Richard Williams

Cause No. 486 of 2011

IN THE GRAND COURT OF THE CAYMAN ISLANDS

Application

1 I have before me the Defendant's Summons dated and filed on 22^nd March 2013. In the Summons the Defendant seeks leave to adduce in evidence his third affidavit and exhibits sworn on 16^th November 2012. However, although not mentioned in the Summons, the Defendant is also seeking leave to file the Affidavit of Lord lan Blair sworn on 23^rd October 2012. It appears that both affidavits were served on the Plaintiff on 20^th November 2012. At the outset of the hearing Mr. Murphy made an oral application to amend the Defendant's Summons to permit the Court to also consider admitting the Blair affidavit. Mr. Griffiths Q.C., commendably and not for the first time in these proceedings, took a pragmatic view and did not oppose the amendment. I gave leave to amend and will also consider whether to admit the Blair affidavit.

2 The relevant proceedings primarily concern an application brought by Originating Notice of Motion by the Attorney General for an order restraining Martin Bridger permitting any party in Cause No. 255 of 2009 (‘the Kemohan proceedings’) to inspect or take copies of any documents referred to in his disclosure list in those proceedings dated 19^th of October 2011, without the Attorney General's written consent.

3 The Attorney General submits that the said documents are subject to legal professional privilege. Mr. Bridger now submits that Mr. Kemohan should have the opportunity to inspect the documents. Mr. Bridger is of the view that if the Attorney General succeeds in his application concerning the documents it will have‘far-reaching consequences’ on his ability to successfully defend the misfeasance of office claims brought by Mr. Kemohan against him and the Second Defendant and the Second Defendant's Contribution Notice.

4 It is contended that the issue I will have to determine, after I have resolved the issues concerning additional affidavit evidence, is whether Mr. Bridger should be allowed to disclose to Mr. Kernohan, in the separate Kernohan proceedings, documents which are contended to be legally privileged and over which privilege has not been waived.

5 The factual background in relation to the Kernohan proceedings is set out in a ruling delivered by me on 27^th January 2012. With that in mind, I do not intend to rehearse the same again herein.

Chronology Relevant to the Summons Before the Court

6 When considering the Summons before me it is important to have regard to the chronology of events in order to put matters into context. Due to some inaccurate representations made in attorney correspondence and apparently in the media1 concerning the reasons for the delay in the hearing of this matter, correspondence was sent, on my instructions, from the Clerk of the Court to the parties' attorneys on 25^th March 2013 (‘the March letter’). That letter set out a chronology prepared by me from the papers in the Court file.

7 Having carefully considered the further written submissions filed by the Defendant's attorneys dated 16^th August 2013, the Court is still of the view that it is important to understand at this stage why there has been such a delay in these

proceedings. It is necessary to set out the reasons for the delay on the record for the purposes of this and the related substantive judgment on the privilege issues that will follow. One has to be aware of the sequence of events in order to put the current state of affairs into context and ‘to give full effect to the ruling.’ Accordingly, I make substantial reference to the content of that chronology herein, but at the same time have regard to the written submissions received from the parties following the circulation of the draft judgment.

8 The relevant chronology commences prior to the September hearing. In order to enable the Plaintiff to properly prepare for the privilege hearing the Defendant was required to set out in affidavit evidence:

• (i) the basis for disputing the Plaintiff's claim that the relevant documents were privileged;

• (ii) the basis that the Defendant contends that the privilege had been waived or lost; and

• (iii) any facts relied upon in opposition to the Plaintiff's Notice of Originating Motion. With this in mind, at paragraph 4 of my written ruling delivered on 27^th January 2012 in the application by Mr. Kemohan to be joined to these proceedings I stated:

  ‘At this stage, on the papers before me, I have no particularised written submissions or evidence from Mr. Bridger to counter the contention that the documents are privileged, or why any privilege has been waived, these will need to be filed and served well in advance of the hearing of the Originating Motion’

At paragraph 27 therein I stated:

‘It will be for Mr. Bridger to have the Court take into account any facts which tend to suggest that there never was a privilege, or to contend that, if ever there was privilege, there are facts which mean that it has been lost. He will need to file affidavit evidence that prove those facts.’

9 Despite this clear indication, the Defendant did not file any such evidence. As a consequence, a Summons was filed by the Plaintiff on 20^th April 2012 seeking orders in relation to the filing of such affidavit evidence. The Summons was issued with a hearing date of 10^th August 2012. On 8^th August 2012 the parties reached a Consent Directions Order. The Order provided that, in preparation for the hearing due to commence on 11^th September 2012, the Plaintiff file further evidence by or on 13^th August 2012. The Order provided that the Defendant was to file his evidence addressing the above issues by 24^th August 2012. Finally, the Order provided that the parties thereafter could file any additional evidence upon which they intended to rely at the hearing by 31^st August 2012.

10 The Plaintiff filed his evidence, complying with the time limits set out in the consent order. Regrettably, the Defendant did not file and serve his evidence until 28^th August 2012, four days after the due date. Despite this, the Plaintiff still ensured that he filed his additional evidence on 31^st August 2012, the due date set out in the Consent Order. That was not the end of the Defendant's noncompliance with the Consent Order. The Defendant failed to file any additional evidence by 31^st August 2012, and the Plaintiff was entitled to attend September's privilege hearing with the expectation of receiving no further affidavit evidence from the Defendant. However, that did not turn out to be the case, because on Friday, 7^th September 2012, only two days before the hearing and one week after the deadline agreed to in the Consent Order, the Defendant attempted to file two additional affidavits which had been in his possession for some time. One of the affidavits was sworn by Mr. John Yates, retired Assistant Commissioner of the Metropolitan Police Service. Mr. Griffiths Q.C. indicated that he felt that this affidavit evidence from Mr. Yates had been ‘sprung’ on his client and that his client had been ‘ambushed’ because, due to the proximity of the hearing, he had been unable to take instructions and ‘canvas’ the contents with Mr. Yates. The Defendant was indulged by the Court and permitted to rely upon those affidavits. The extract from my note book on 12^th September 2012, day two of the hearing, reads:

‘In relation to the affidavit from Mr. Yates if Mr. Griffiths feels that he needs to have an opportunity to speak to Mr. Yates andfile any affidavit in reply I will give leave for him to do that. I'd like to conclude the submissions andfinish this hearing. If that affidavit is filed then both parties can have the opportunity to put in brief written submissions if anything arises out of that affidavit. At that stage I will then give my judgment.’

11 On 13^th September 2012, towards the end of the privilege hearing, the Defendant sought to also file the Second Affidavit of Martin Bridger. Despite the Defendant's failure to comply with the timetable for filing affidavits set out in the Consent Order, the Court further indulged him by giving him leave to file the affidavit. Mr. Griffiths Q.C. took a pragmatic view and eventually did not oppose the application, but only on the basis that the Plaintiff could consequently submit a further affidavit. In my notebook I recorded:

‘Leave given to file, but 28 days given to the Attorney General to consider whether he wishes to file any evidence in reply to the late affidavit filed by Mr. Bridger — if he chooses to do that, then each party will have liberty seven days after that to file any very brief written submissions related that.’

12 On 4^th October 2012, a letter was received by the Court from the Plaintiff confirming that he would be filing an affidavit. Shortly thereafter, on 9^th October 2012 the Plaintiff, with leave, filed a hard copy of an affidavit sworn by John Yates in reply to the contents of the John Yates affidavit which Mr. Bridger had been given leave to file during the hearing.

13 On 9^th October 2012, my secretary emailed both parties on my instructions offering them the opportunity to file, by 19^th October 2012, brief written submissions dealing with the contents of the affidavits recently filed with leave. The email stated that I would then review and prepare my ruling on the issues raised in the privilege hearing upon my return to the jurisdiction at the end of October 2012.

14 On 10^th October 2012 Mr. Akiwumi emailed the Court stating that he would like to take up the opportunity of filing further submissions.

15 On 19^th October 2012 the Defendant's attorneys filed written submissions dealing with the content of the recently filed affidavits. However, on the same date, the Defendant's attorneys submitted, without...