Attorney General v Simamba
| Jurisdiction | Cayman Islands |
| Judge | (St. John-Stevens, Ag. J.) |
| Judgment Date | 28 October 2021 |
| Court | Grand Court (Cayman Islands) |
(St. John-Stevens, Ag. J.)
Civil Procedure — restraint order — civil restraint orders — litigant restrained for two years from issuing claims, actions or proceedings relating to previous cause of action — litigant had persistently issued claims and applications which were totally without merit, would bring further proceedings if unrestrained (as demonstrated by past conduct), and order necessary and proportionate response
Held, granting a restraint order:
	(1) The respondent would be restrained from issuing any claims, actions or proceedings or making applications (whether personally or through any servant or agent) in any court concerning any matter involving, relating to or touching upon those raised in the previous causes of action without first obtaining the permission of a judge of the Grand Court, with such restraint remaining in effect for two years from the date of order unless extended by the Grand Court (para. 82).
	(2) Power to prohibit the institution of an action without leave was vested in the Chief Justice pursuant to s.2 of the Vexatious Actions Act (1998 Revision). The Grand Court also had an inherent power emanating from common law to grant a restraint order (paras. 45–51).
	(3) The basis for making a civil restraint order was settled. The court must apply a three-stage test. (i) The threshold test: whether the litigant had persistently issued claims or made applications which were totally without merit. (ii) The discretion test: whether an objective assessment of the risk which the litigant posed demonstrated that he would, if unrestrained, issue further claims or make further applications which were an abuse of the court’s process. (iii) The proportionality test: what order, if any, was it just and proportionate to make to address the risk identified (paras. 52–53).
	(4) The threshold test was met as the respondent had persistently issued claims and made applications which were totally without merit. The repeated attempts to litigate the same issues, in the form and manner in which the respondent had, fell squarely within the description of conduct justifying restraint. The respondent had pursued litigation and complaints ancillary to primary issues, of which the court could take account when considering the threshold test and proportionality in making any order. Not only were the series of actions attempting to relitigate issues which were unarguable, the respondent had also sought a criminal avenue by writing to the Director of Public Prosecutions seeking to explore the possibility of prosecuting Kawaley, J. The respondent had been afforded a hearing and additional time to file expert evidence. The lack of that evidence was the only basis on which his action was struck out. The respondent did not appeal that decision until he was out of time. He pleaded that Kawaley, J. had falsified a record, the effect of which was that he did not have a fair hearing before the Court of Appeal. Such accusations were wholly unmeritorious, without foundation and unarguable. Once unsuccessful in his first cause and in his application to the Court of Appeal, the respondent turned his frustration to others, including Kawaley, J.’s personal assistant and the Governor (paras. 60–62; paras. 66–67; paras. 70–72).
	(5) In exercising its discretion, the court had to make an objective assessment of whether the risk which the litigant posed demonstrated that he would, if unrestrained, issue further claims or make further applicationswhich were an abuse of the court’s process. The chronology of the causes flowing from the striking out of the medical/dental action based on unsustainable grounds in and of itself demonstrated that there was a future risk. Although past action, it provided evidence of a course of conduct. Despite courts including the Court of Appeal adjudicating on the respondent’s complaints, he would not take “no” for an answer. The court considered that the striking out of the two recent causes would not deter the respondent from instituting further proceedings. The court also had to make an objective assessment of any material supporting or undermining the contention that the respondent would institute further proceedings. This involved, inter alia, emails from the respondent and any other declaration of intent from him. The historical pattern left the court in no doubt that if unrestrained the respondent would issue further claims or make further applications which were an abuse of the court’s process (paras. 73–78).
	(6) The court had no doubt that a civil restraint order was a necessary and proportionate response to protect the integrity and standing of the courts. Whilst it was acknowledged that a restraint order was an impairment of the right of access to the courts, which was enshrined in s.7 of the Constitution of the Cayman Islands, the impairment in extent and duration was minimal and proportionate. The integrity of the court systems and the need to deal with all matters in a just, expeditious and economical way, had to be protected for the good of all (paras. 79–81).
(1)	Att. Gen. v. Barker, [2000] EWHC 453 (Admin); [2000] 1 FLR 759; [2000] 2 F.C.R. 1; [2000] Fam. Law 400, applied.
(2)	Bhamjee v. Forsdick (No. 2), [2003] EWCA Civ 1113; [2004] 1 W.L.R. 88, applied.
(3)	Ebert v. Birch, [1999] EWCA Civ 3043; [2000] Ch. 484; [1999] 3 W.L.R. 670, dicta of Woolf, M.R. considered.
(4)	Grepe v. Loam (1887), 37 Ch. 168; 75 L.J. Ch. 435; 58 L.T. 100, referred to.
(5)	Mahajan v. Department of Constitutional Affairs, [2004] EWCA Civ 946, considered.
(6)	Nowak v. Nursing & Midwifery Council, [2013] EWHC 1932 (QB), referred to.
(7)	Philcox v. Wilson, [2018] EWHC 3138 (QB), referred to.
(8)	Sirros v. Moore, [1975] Q.B. 118; [1984] 3 All E.R. 776, referred to.
(9)	South Bucks. D.C. v. Porter (No. 2), [2004] UKHL 33; [2004] 1 W.L.R. 1953; [2004] 4 All E.R. 775; [2005] 1 P. & C.R. 6; [2004] 4 P.L.R. 50, considered.
(10)	Suratt v. Att. Gen. (Trinidad & Tobago), [2007] UKPC 55; [2008] 1 A.C. 655; [2008] 2 W.L.R. 262, referred to.
Grand Court Rules 1995, O.19, r.19(1): The relevant terms of this subrule are set out at para. 44.
Vexatious Actions Act (1998 Revision), s.2: The relevant terms of this section are set out at para. 46.
Cayman Islands Constitution Order 2009 (S.I. 2009/1379), s.94(1): The relevant terms of this subsection are set out at para. 37.
Senior Courts Act 1981 (c.54), s.42: The relevant terms of this section are set out at para. 48.
R. Sharma, Q.C., Solicitor General and H. Walker for the applicant.
	The Attorney General applied for a civil restraint order.
	In 2014, the respondent brought a personal injury claim in the Grand Court against the Health Services Authority, alleging that he had suffered loss and damage as a result of medical negligence. In 2019, Kawaley, J. indicated (in a judgment reported at 2019 (2) CILR 213) that the respondent’s claim was bound to fail in the absence of medical evidence. The respondent was required to file the specified expert evidence. The action was later struck out because of the respondent’s failure to adduce expert evidence, despite having been granted an extension of time in which to do so.
	In November 2019, the respondent filed with the Court of Appeal an “Application for leave to file Constitution Motion (pursuant to section 26 of the Constitution).” That application was refused by the Court of Appeal with reasons given in August 2020. Before that matter was determined, the respondent filed with the Grand Court in June 2020 an “Application for Leave to File a Constitutional Petition, pursuant to section 26 of the Constitution.” The respondent then filed an application with the Court of Appeal for leave to appeal out of time against the decision of Kawaley, J. relating to medical negligence. The Court of Appeal rejected that application. The respondent filed a personal action with the Grand Court, while his constitutional petition was still pending before that court. The respondent joined Kawaley, J. and his personal assistant as defendants to the personal action. There were therefore four actions brought by the respondent involving the same complaints.
	The statements of claim in the constitutional petition and the personal action were struck out.
	The Attorney General sought an order restraining the respondent from issuing any claims, actions, proceedings or applications in any court relating to the matters raised in the above proceedings without first obtaining the permission of a judge of the Grand Court for a period of two years. The Attorney General submitted that the relevant threshold for thegranting of an order had been met given the persistent institution of meritless proceedings by the respondent.
1 ST. JOHN-STEVENS, Ag. J.:
Application for restraint order
The court has before it an originating summons (dated February 1st, 2021) supported by an affidavit of Heather Walker.
2 The applicant seeks an order that the respondent be restrained from issuing any claims or actions, proceedings or making applications in any court, without first obtaining the permission of a judge of the Grand Court, and that such an order to last for the period of two years from the granting of the said order—the ambit of the restraint being any claims, actions, proceedings or application involving, or relating to, or touching upon those matters raised in proceedings in the Grand Court and the Cayman Islands Court of Appeal (CICA) within any of the following four causes, namely:
(i)	Simamba v. Health Servs. Auth. of the Cayman Islands, Cause No. G0032 of 2014;
(ii)	Simamba v. Health Servs. Auth./Simamba v. Att. Gen. and Governor, CICA Cause No. G0036 of 2019;
(iii)	Simamba v. Att. Gen. and Governor, Cause No. G0093 of 2020; and
(iv)	Simamba v. Kawaley...
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