Brandon v Shaw

• Jurisdiction: Cayman Islands
• Judge: (Parnell, Ag. J.)
• Judgment Date: 19 October 1976
• Court: Grand Court (Cayman Islands)
• Date: 19 October 1976

Grand Court

(Parnell, Ag. J.)

BRANDON

and

SHAW

S. Panton for the defendant.

Cases cited:

(1) Anderson v. Gorrie, [1895] 1 Q.B. 668; (1895), 71 L.T. 382, considered.

(2) Calder v. Halket(1840), 3 Moo. P.C.C. 28; [1835–43] All E.R. Rep. 306, dicta of Parke, B. applied.

(3) Doyle v. FalconerELR(1886), L.R. 1 P.C. 328; 4 Moo. P.C.C.(N.S.) 203, considered.

(4) Garnett v. FerrandENR(1827), 6 B. & C. 611; [1824–34] All E.R. Rep. 244, dicta of Lord Tenterden, C.J. applied.

(5) Jones v. National Coal Bd., [1957] 2 Q.B. 55; [1957] 2 All E.R. 155, dictum of Denning, L.J. applied.

(6) Panton v. Robinson, 1952–79 CILR 29; (1961), 4 W.I.R. 155, considered.

(7) Rondel v. Worsley, [1969] 1 A.C. 191; [1967] 3 All E.R. 993, dicta of Lords Pearce and Upjohn applied.

(8) Sirros v. Moore, [1975] 1 Q.B. 118; [1974] 3 All E.R. 776, observations of Lord Denning, M.R. applied.

Legislation construed:

Judicature (Stipendiary Magistrate) Law (Laws of the Cayman Islands, 1963, cap. 76), s.4:

‘(1) It shall be the duty of the Stipendiary Magistrate to attend the Petty Sessions Court and the Petty Court in Grand Cayman, and in Cayman Brac as often as may be practicable, and when present at any such Court he shall be entitled to preside thereat.

(2) The Stipendiary Magistrate, if sitting alone in either Court, shall have all the powers and authority which are now, or which may hereafter be, by law committed to and exerciseable by any two or more Justices associated and sitting together . . . .’

s.5, as amended: The relevant terms of this section are set out at page 218, lines 25–27.

Justices of the Peace Jurisdiction Law (Laws of the Cayman Islands, 1963, cap. 78), s.66: The relevant terms of this section are set out at page 219, lines 1–8.

The plaintiff appeared in person.

Courts-immunity from suit-judicial proceedings-judge immune from personal suit for acts done in judicial proceedings even though wrong or irregular-by Justices of the Peace Protection Law (cap. 78), s.166, justice liable for acts done with malice and without reasonable and probable cause when not acting in judicial proceedings

Attorneys-at-Law-misbehaviour in court-remedies-court entitled to order removal of attorney wilfully interrupting proceedings and misbehaving, as alternative to penal sanction for contempt

Attorneys-at-Law-right to practise-interference by judge-improper for judge to refuse to hear cases involving particular attorney and to refuse to assign such cases to justices-unauthorized interference with attorney”s statutory right to practise if all Cayman courts within contemplated ban

The plaintiff, an attorney-at-law, brought an action against the defendant, the Stipendiary Magistrate, to recover damages for the injury to his reputation and the loss caused to him in his profession as a result of the defendant”s behaviour towards him in court, and sought an injunction to prevent his continuing to interfere with his practice of the law.

The plaintiff appeared as counsel for the respondent in affiliation proceedings before the defendant. The plaintiff became incensed at the evidence given by the complainant since it involved his personal involvement in another matter, and began to shout and behave in a disruptive manner with the apparent objective of preventing the complainant from continuing with her evidence. After the defendant had unsuccessfully ordered the plaintiff to sit down several times, he ordered the police to remove the plaintiff from the court. At that point, the plaintiff left of his own volition.

He brought the present proceedings for damages and sought an injunction to restrain the defendant from unlawfully preventing his appearance in court and interfering with his practice as an attorney-at-law. He submitted, inter alia, that (a) the defendant had for some time manifested a personal dislike of him and his order for the plaintiff”s ejection from the court was without reasonable and probable cause and actuated by malice; (b) the defendant”s actions were outside the proper scope of his jurisdiction, or an improper exercise of his discretion within his jurisdiction, and amounted to the authorizing of the commission of

the tort of trespass against his person; and (c) this improper interference with his rights as counsel had caused him humiliation, embarrassment and financial loss since his reputation had been adversely affected and he had consequently lost clients.

The plaintiff initially joined the Attorney General as a co-defendant on the ground that the defendant was an officer of the Crown but discontinued the proceedings as against the Attorney General before the trial began.

The defendant submitted that (a) the plaintiff”s claim disclosed no reasonable cause of action and his assertions were unsupported by counsel; (b) in any event, he was in principle immune from civil suit in respect of his acts in the course of proceedings before him and the destruction of that immunity by malice and absence of reasonable and probable cause was, by the Justices of the Peace Jurisdiction Act (cap. 78), s.66, limited to acts done otherwise than in the course of judicial proceedings; (c) further, the burden of proving malice and absence of reasonable and probable cause lay on the plaintiff and he had failed to discharge it even on the balance of probabilities.

The court also considered the significance of the statement made by the defendant in evidence that he would not in future hear any case in which the plaintiff appeared as counsel and would not refer any such case for hearing by lay justices.

Held, dismissing the suit:

(1) Although it was ex facie apparent that the plaintiff had no reasonable cause of action against the defendant, the issues raised in the case were of general importance in the Cayman Islands. His claims, even if unmeritorious, deserved a public hearing in such a small community, since it involved a dispute between two parties who had significant roles to play in the administration of justice in the Islands (page 220, line 38 – page 221, line 1).

(2) Nevertheless, it was clearly the case that in principle a judge was always personally immune from civil suit in respect of acts done by him in the course of proceedings before him even though these acts might be wrong or irregular. That protection was removed oy the Justices of the Peace Jurisdiction Law (cap. 78), s.66 from justices of the peace who acted maliciously and without reasonable and probable cause when carrying out their functions otherwise than in the course of judicial proceedings. As the plaintiff had alleged malice and absence of reasonable and probable cause in the present case, he bore the burden of proving them and had failed to do so (page 214, line 37 – page 215, line 8; page 218, line 19 – page 219, line 36; page 233, line 10 – page 235, line 19).

(3) It was, however, clear that the defendant had not acted wrongly or irregularly. There was overwhelming evidence that the plaintiff had been guilty of wilful interruption of the proceedings and misbehaviour in court and the defendant had plainly been acting within his jurisdiction when ordering the removal of the plaintiff from the courtroom. Since his

statutory powers extended to punishing the wilful interruption of proceedings and misbehaviour in court with a custodial sentence, he impliedly had power to avoid the infliction of punishment by ordering the removal of the plaintiff as the source of the interruption and misbehaviour (page 227, lines 35–38; page 231, line 27 – page 232, line 3).

(4) The plaintiff had thus failed to establish any factual basis for his suit. Not only was there no evidence to support his allegations of malice on the part of the defendant or the loss he had allegedly suffered but his representation of the facts, both with respect to those allegations and to the damage, had put his credibility seriously in doubt. Since the plaintiff had failed in every respect to establish and prove his cause of action, the suit would be dismissed (page 229, line 36 – page 230, line 4; page 235, line 19 – page 238, line 7).

(5) The defendant was nevertheless in danger of acting improperly in threatening that he would not allow the plaintiff to appear before him in future, or allow his cases to be heard by lay justices. This would effectively prevent the plaintiff from appearing in any court in the Islands, since the defendant acted both as Stipendiary Magistrate and Judge of the Grand Court, and would therefore interfere with the plaintiff”s statutory right as a qualified attorney-at-law to practise in any such court. Moreover, it would also have the effect of depriving litigants of their right to counsel of their choice. It was true that a judge might wish to disqualify himself from hearing a particular case for good and sufficient reason but the fact that the plaintiff had once brought civil proceedings against the judge was not a good and sufficient reason for nim to disqualify himself generally for the duration of his tenure of office from hearing cases in which the plaintiff appeared (page 238, lines 10–41).

PARNELL, Ag. J.: On August 31st, the claim of the plaintiff
20	was dismissed with costs. Judgment was entered for the defen-
dant. The plaintiff was also ordered to pay the costs of the Crown
up to August 17th, 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
25	plaintiff”s action. This I now do.
A practising attorney sues a judge
The plaintiff is a practising attorney in the Cayman Islands. The
defendant is the Acting Stipendiary Magistrate of the Cayman
30	Islands and is styled the ‘Judge of the Cayman Islands’ by the
local statute. The claim is based on an incident in court on
February 27th, 1976. The defendant was presiding over affilia-
tion

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