Attorney General v Bridger

• Jurisdiction: Cayman Islands
• Judge: (Williams, J.)
• Judgment Date: 21 August 2013
• Court: Grand Court (Cayman Islands)
• Date: 21 August 2013

Grand Court, Civil Division

(Williams, J.)

ATTORNEY GENERAL

and

BRIDGER

M. Griffiths, Q.C. and D.S. Schofield, Senior Crown Counsel, for the plaintiff;

P. Murphy for the defendant.

Cases cited:

(1) Acosta v. Longsworth, [1965] 1 W.L.R. 107, referred to.

(2) Charlesworth v. Relay Roads Ltd., [2000] 1 W.L.R. 230; [1999] 4 All E.R. 397; [2000] C.P. Rep. 37; [2000] C.P.L.R. 109; [2000] R.P.C. 300, considered.

(3) K v. K (Abduction) (No. 2), [2010] 1 FLR 1310; [2009] EWHC 3378 (Fam), distinguished.

(4) Ladd v. Marshall, [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745, [1954] EWCA Civ 1, applied.

(5) M (Abduction: Non-Convention Country), Re, [1995] 2 F.C.R. 265; [1995] 1 FLR 89, distinguished.

(6) Mortgage Corp. plc v. Sandoes, [1997] P.N.L.R. 263, referred to.

(7) Royal Brompton Hospital NHS Trust v. Hammond (No. 8), [2001] C.P. Rep. 90; [2001] EWCA Civ 778, referred to.

Evidence-additional evidence-submission out of time-party seeking to adduce additional evidence after end of hearing but before judgment needs to show that evidence (i) not reasonably obtainable prior to hearing; (ii) likely to have important influence; and (iii) apparently credible-criteria can be relaxed in exceptional circumstances if just, expeditious or economical to do so, e.g. if substantial additional costs avoided or length of proceedings considerably shortened

Evidence-additional evidence-submission out of time-if one party allowed to adduce evidence out of time and other party adduces additional evidence in reply, no principle of natural justice requires opportunity be given to first party to make further submission-no party has right to have last word on evidence

The plaintiff applied to prevent the defendant from relying on a number of privileged documents in defence of an action for misfeasance in public office.

The defendant, a well-respected officer in the Metropolitan Police in London, was brought to the Cayman Islands with other officers of the Metropolitan Police as senior investigating officer of Operation Tempura. The operation began to investigate the then Police Commissioner (‘the Commissioner’), and applied for several search warrants. These were refused (in proceedings reported at 2008 CILR 111) as the Grand Court (Smellie, C.J.) held that there were no reasonable grounds for him to be investigated. The investigation continued, however, and the Commissioner was eventually dismissed from his position, though this was alleged to have been for reasons unconnected to the investigations. He was later informed that there was no longer any suggestion that he had committed a criminal offence. The Commissioner brought proceedings against the defendant (reported at 2011 (2) CILR 7) alleging that he had either maliciously caused him to be removed from his post or been recklessly indifferent as to the legality of his actions.

As part of the defence, the defendant”s attorney wished to show that the defendant had received legal advice at every stage of the investigation. He therefore showed the defendant several documents which had been created during the operation, which the defendant then retained. The attorney alleged that he had emphasized that the documents were privileged and

that the defendant was not entitled to retain the documents or to disclose them to any other party. The defendant then changed his legal representation and sought to rely on the privileged documents in his defence. The Attorney General applied for an injunction (in proceedings noted at 2013 (2) CILR N [9]) to prevent the defendant from disclosing the documents as part of his defence as they were subject to legal advice privilege.

Prior to the hearing to decide whether the injunction should be granted, the parties agreed that any evidence on which they wished to rely would be filed by August 31st, 2012. The defendant subsequently sought to adduce two affidavits on September 7th, and another at the conclusion of the hearing. The court allowed the defendant to do so, subject to the plaintiff being given an opportunity to respond; the plaintiff then filed ‘the Yates affidavit.’ Subsequently, the defendant sought leave to adduce two further affidavits.

The parties agreed that the defendant had to demonstrate that three criteria were satisfied before the evidence could be adduced: (i) the evidence could not have been reasonably obtainable prior to the trial; (ii) it was likely to have an important influence on the result of the case; and (iii) it was apparently credible. The defendant submitted that (a) the first criterion was satisfied as the affidavits could not have been obtained before the trial as they were adduced in response to the plaintiff”s late submission of the Yates affidavit; (b) the new affidavits directly contradicted the Yates affidavit and thus would have an important influence on the outcome of the application to grant an injunction; (c) the evidence was credible, as required by the third criterion, as the affidavits were given by highly decorated police officers; (d) in exceptional circumstances the criteria could be relaxed so as to prevent injustice, and here it would be unjust not to allow the defendant to respond to the plaintiff”s affidavit; (e) the accepted test could in any event be set aside as a final judgment had not already been given; and (f) the principles of natural justice required that a party be able to respond to submissions made by another party, such as the plaintiff”s submission of the Yates affidavit.

In reply, the plaintiff submitted that (a) the first criterion was not satisfied as the affidavits contained no new information, and any information they did contain could have been obtained before the September 2012 hearing; (b) the affidavits did not respond to the Yates affidavit as they merely recounted the defendant”s independence in the day-to-day management of the operation, which did not demonstrate that he had the power to waive the privileged nature of the documents, and therefore no new submissions were made; (c) the third criterion was not met as the affidavits were contradicted by previous affidavits made by the defendant accepting his subordination to the Cayman police force and the Governor (which suggested he was unable to waive the privileged nature of the documents); (d) as the defendant had exercised bad case management and already caused significant delays in proceedings, there was no justification for relaxing the application of the criteria; (e) the case law suggesting that the accepted test could be set aside if no judgment had been given was

solely confined to family law cases concerning the Hague Convention; and (f) natural justice did not require that the defendant be allowed to respond to the Yates affidavit as that affidavit was itself a response to late submissions made by the defendant.

Held, dismissing the application:

(1) The defendant had failed to meet the accepted criteria and would not be permitted to adduce the additional affidavits. He had to demonstrate that three criteria had been satisfied: (i) the evidence must not have been reasonably obtainable prior to the hearing; (ii) it must be likely to have an important influence on the outcome of the case; and (iii) it must be apparently credible. The first criterion was not satisfied as it appeared that, in substance, the additional affidavits contained no new material. The information contained within them could have been obtained before the hearing, and with reasonable diligence it would have been possible for the defendant to file the evidence in accordance with the agreed timetable. In effect, the defendant was attempting to put his case out of time as he had not shown that the affidavits responded to any changed aspect of the case (paras. 27–28; para. 30; para. 38).

(2) The second criterion had not been met as the affidavits only detailed general facts and did not address the specific question of whether the defendant was able to waive the privileged nature of the documents on which he sought to rely in the action for misfeasance in public office; instead, they simply detailed his independence in the day-to-day conduct of the police operation (para. 39).

(3) The third criterion-that the evidence must be apparently credible-had not been satisfied as there were inconsistencies between the affidavits and evidence which had been previously filed, including admissions previously made by the defendant himself (para. 40).

(4) Though the plaintiff had filed an additional affidavit subsequent to the hearing, this affidavit was allowed to enable the plaintiff to have the opportunity of rebutting the two affidavits filed by the defendant out of time. As such, natural justice did not require that the defendant be given the opportunity to respond to the plaintiff”s affidavit. There was no principle that one party in particular should have the last word on the evidence (para. 41).

(5) There were no discernible exceptional circumstances justifying a relaxation of the criteria. It would not be just, expeditious or economical to do so as the evidence could have been adduced before the hearing with reasonable diligence, and significant additional costs would be incurred by both parties if the evidence were admitted. This was particularly so given the court”s responsibility to promote good case management and ensure that its limited resources were used efficiently for the benefit of all court users. Further, case law which suggested that the criteria should be set

aside if a judgment had not yet been given was limited to family law cases concerning the Hague Convention (para. 14; paras. 42–43).

1 WILLIAMS, J.: I have before me the defendant”s summons, dated and filed on March 22nd, 2013. In the summons, the defendant seeks leave to adduce in...