Brandon v Shaw
| Jurisdiction | Cayman Islands |
| Judge | Parnell, J. |
| Judgment Date | 31 August 1976 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | 86 of 1976 |
| Date | 31 August 1976 |
Parnell, J.
86 of 1976
Grand Court
Practice and procedure - Judge — Immunity from suit for judicial act
Seymour Panton for the defendant
The Plaintiff in person
On the 31st August, the claim of claim of the plaintiff was dismissed with costs. Judgment was entered for the defendant. The plaintiff was also ordered to pay the costs of the Crown up to August 17, when he filed a notice of discontinuance against the Attorney General. I promised to give a detailed examination of the evidence and reasons for dismissing the plaintiff's action. This I now do.
The plaintiff is a practising attorney in the Cayman Islands. The defendant is the acting Stipendiary Magistrate of the Cayman Islands and is styled the “Judge of the Cayman Islands” by the local statute. The claim is based on an incident in Court on the 27th February 1976. The defendant was presiding over an affiliation proceeding. The Cayman Islands Law gives the Stipendiary Magistrate power to hear and determine a complaint touching affiliation. And in the proceeding, the plaintiff appeared as attorney for the defendant.
The spectacle of an attorney personally suing a judge as a result of a judicial act has not been seen. At any rate, I know of no reported English or Commonwealth case. In 1895, an attempt was made to sue three judges of the Supreme Court of Trinidad and Tobago for damages for acts done by them in the course of judicial proceedings. This case is well known to students of English Constitutional Law. The action failed on the ground that:
“No action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office.” See Anderson v. Gorrie [1895] 1 Q.B. 668; Thomas and Pellots' Cases in Constitutional Law, 7 th Edit. P.178.
The plaintiff must have been aware of the general principle applicable to judicial acts when he launched his proceedings on the 25th May 1976. And yet, in his initial move, he had a slight stumble. Although what the defendant is alleged to have done occurred during the course of a judicial proceeding, the Attorney General was also sued on the ground: “that the defendant Magistrate was an officer of the Crown and was at all material times paid in respect of his duties as an officer of the Crown.”
It seems that a subsequent reflection together with further research brought results. The Statute Law of Cayman prohibits an action against the Crown arising out of the discharge of responsibilities of a judicial nature or in connection with the execution of judicial process. As a result on the 17th August 1976 the plaintiff filed a notice of discontinuance against the Attorney General. But he continued with his action against the Magistrate.
The plaintiff in his opening address outlined what he was going to prove. The defendant had taken personal dislike of him and was spiteful. Public ridicule in court by the Magistrate had caused him pain and anguish. He gave an impressive history of 40 years standing, first as a solicitor for about ten years and thereafter as a Barrister-at-Law of Lincoln's Inn. He made reference to his legal and judicial service in Jamaica and his continuing practice in the Cayman Islands since 1963. And in his evidence, he referred to his “very successful advocacy” in the Courts of the Cayman Islands. During cross-examination he dismissed any show of modesty and said in answer to Mr. Panton: “I adjudge myself to be the most experienced lawyer in the Cayman Islands. The other lawyers have not got that experience. They may be more experienced than I am in Chamber work.”
The plaintiff's version of what took place on the 27th February may be stated briefly as follows:
A young lady by the name of Darlene Thomas has a child by one Hector Reid. At a previous hearing the defendant ordered Reid to pay to Thomas a certain sum weekly for the maintenance of the child. But Reid fell in arrears and was brought to Court to answer a disobedience summons. At this hearing, the plaintiff appeared for Reid. When the matter was called up the plaintiff informed the Magistrate that Thomas had given away the child to foster parents and that for weeks the child was being supported by the foster parents. An offer by Reid to pay the foster parents what was due and owing under the affiliation order, was refused. The plaintiff in his narrative mentioned this: “I said further that the mother was living in a room with a man and that there was no room for the baby.”
Darlene Thomas is a single woman. A single woman living with a single man may give rise to certain comments. But if the single woman happens to share her room with a married man, a different situation may develop. If the wife of the man should know about the rendezvous, there could be trouble ahead.
In his evidence in chief, the plaintiff did not mention that the ‘man’ with whom Thomas was living was the husband of his client; that he was handling a divorce petition for his client in which Thomas would be cited as the ‘woman named’ and that he, (the plaintiff) had paid an early morning visit to the room of Thomas along with his client and a third person.
According to the plaintiff, when he mentioned that Thomas was living with a man in a room, the defendant went ‘berserk’ and shouted at him and said “sit down”. The order may not have been obeyed immediately and so the defendant called the woman Police Constable Sylvia Lowe to “put Mr. Brandon out the Court or eject him from the Court room.” The plaintiff then watched the movements of the constable, she came within arms length and then he said: “I will go voluntarily as the order has been given.” He then left the Courtroom leaving his client behind. Said the plaintiff: “he lost his case and was ordered to pay the arrears.”
This, however, is not the correct picture after the plaintiff left. The case against Reid was not determined on February 27. The summons was adjourned to March 11 and Reid was told to inform his attorney of the date. Under cross-examination the plaintiff confirmed this: “I will now recall that my client did some to my office and explained that the case had been fixed for a later date.”
The plaintiff did not appear for Reid on March 11. He said he had many reasons for not going to Court and one reason was that he wanted a refresher fee. What the defendant did on February 27, by ordering the constable to put the plaintiff out of Court forms the ground for the plaintiff's claim for general and special damages.
In the lengthy statement of claim marked with more argument and comment than with clarity and conciseness, the following particulars are extracted:
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(1) The Stipendiary Magistrate on the 27th day of February 1976, “while the plaintiff was then engaged on his feet addressing the bench on behalf of his client without reasonable and probable cause, maliciously ordered a constable to eject him from the precincts of the courtroom.”
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(2) The illegal interference with counsel's rights had the effect of causing the plaintiff, “humiliation, embarrassment and much financial loss.”
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(3) The particular conduct, hostility and action by the defendant without reasonable and probable cause, is a culmination of a “serious and provocative, hostile and malicious conduct.”
The plaintiff has claimed for damages and prayed for an injunction to restrain the defendant from unlawfully prohibiting and interrupting the licence to practice as an attorney-at-law in all the Courts of the Cayman Islands.
Giving general particulars of what he has suffered; the plaintiff has maintained that clients have since deserted him and gone to other lawyers that the publicity has been disastrous to him financially and his reputation has suffered immeasurably: “as a result of what happened in Mr. Shaw's Court”
Not one deserted client, however, was called to support the plaintiff's assertion of adverse publicity of the incident of February 27 and of defection to another attorney as a result, in due course I shall refer to an attempt to secure the support of a former client on the question of damages. But the potential witness (Mr. Sherrel Wittaker) found himself in the opposite camp and like Aeneas before Queen Dido, he had an interesting story to release.
The plaintiff in his evidence in chief mentioned that the defendant went “berserk” before he gave the order to have him ejected. But since a judge is required to keep a calm composure and to listen to both sides before giving a decision, there was a gap in his evidence, when he suggested that the judge temporarily went mad with fury when he was told that Thomas was living with a man in a room. No reason was suggested why this ‘judicial frenzy’ should have emerged at the point it did or why it should have emerged at all. It was the cross-examination of the plaintiff, which gave some light as to what in fact did happen. The plaintiff alone gave reasons in support of his case. The defence called three witnesses as to the incident in Court. The suggestion to the plaintiff that he was guilty of “willful interruption and misbehavior” was vehemently rejected. That it was as a result of his own misbehavior and conduct why the order was given for his removal from the Court was equally rejected.
The Stipendiary Magistrate is required to attend the Petty Sessions Court and when sitting alone, he has all the powers and authority of any two ir more justices associated and sitting together. See Secs. 4 (1) and 4 (2) of Cap 76, Judicature (Stipendiary Magistrate) Law. By an enactment of Cap. 76 aforesaid, that is, by law 20/1968,...
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