Kernohan v Governor

• Jurisdiction: Cayman Islands
• Judge: (Moses, Ag. J.)
• Judgment Date: 11 July 2011
• Court: Grand Court (Cayman Islands)
• Date: 11 July 2011

Grand Court, Civil Division

(Moses, Ag. J.)

KERNOHAN

and

H.E. THE GOVERNOR, BRIDGER, ACTING COMMISSIONER OF POLICE and H.M. ATTORNEY GENERAL

A. Hogarth, Q.C., R.D. Alberga, Q.C., R. Davison and S.T. McCann for the plaintiff;

M. Griffiths, Q.C. and D.S. Schofield, Senior Crown Counsel, for the first, third and fourth defendants;

A. Akiwumi for the second defendant.

Cases cited:

(1) Addis v. Gramophone Co. Ltd., [1909] A.C. 488, followed.

(2) Ashcroft (Lord) v. Att.-Gen., [2002] EWHC 1112 (QB), referred to.

(3) Bank of Credit & Comm. Intl. S.A. v. Ali (No. 2), [2002] 3 All E.R. 750; [2002] I.C.R. 1258; [2002] EWCA Civ 82, referred to.

(4) Calveley v. Chief Const. (Merseyside), [1989] A.C. 1228; [1989] 2 W.L.R. 624; [1989] 1 All E.R. 1025, referred to.

(5) Cannock Chase D.C. v. Kelly, [1978] 1 W.L.R. 1; [1978] 1 All E.R. 152, referred to.

(6) Carter v. Chief Const. (Cumbria), [2008] EWHC 1072 (QB), referred to.

(7) Elliott v. Cayman Islands Health Servs. Auth., 2007 CILR 163, followed.

(8) Fisher v. Oldham Corp., [1930] 2 K.B. 364, followed.

(9) Gong v. CDH China Mgmt. Co. Ltd., 2011 (1) CILR 57, followed.

(10) Johnson v. Unisys Ltd., [2003] 1 A.C. 518; [2001] 2 W.L.R. 1076; [2001] 2 All E.R. 801; [2001] UKHL 13, followed.

(11) Malik v. Bank of Credit & Comm. Intl. S.A., [1998] A.C. 20; [1997] 3 W.L.R. 95; [1997] 3 All E.R. 1, followed.

(12) Operation Tempura, In re, 2008 CILR 111, referred to.

(13) R. v. Ebanks, ex p. Henderson, 2009 CILR 57, referred to.

(14) Three Rivers D.C. v. Bank of England (No. 3), [2003] 2 A.C. 1; [2000] 2 W.L.R. 1220; [2000] 3 All E.R. 1, followed.

Legislation construed:

Crown Proceedings Law (1997 Revision), s.3: The relevant terms of this section are set out at paras. 22–23.

s.11: The relevant terms of this section are set out at para. 24.

Grand Court Rules 1995, O.23, r.1(1):

‘Where, on the application of a defendant to an action or other proceedings it appears to the Court-

(a) that the plaintiff is ordinarily resident out of the jurisdiction; or

. . .

(c) subject to paragraph (3), that the plaintiff”s address is not stated in the writ or other originating process or is incorrectly stated therein . . .

then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant”s costs of the action or other proceedings as it thinks just.’

O.23, r.1(3):‘The Court shall not require a plaintiff to give security by reason only of subparagraph (1)(c) if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive.’

Tort-misfeasance in public office-elements of tort-(a) exercise of public power for improper purpose by holder of public office; (b) proof of bad faith or targeted malice, in not honestly believing that actions lawful and knowing that injury probable; and (c) loss-bad faith may be inferred from facts pleaded

Tort-vicarious liability-police officers-Cayman executive not vicariously liable at common law for torts of police officers-control by executive unconstitutional, dangerous and contrary to officers” independence as public servants, notwithstanding Government supervision and legal oversight-officers Crown appointments not Government employees-Crown vicariously liable for police officers as ‘servants’ or ‘agents’ under Crown Proceedings Law (1997 Revision), ss. 3 and 11

The plaintiff, a former Commissioner of Police, brought an action for wrongful dismissal and misfeasance in public office against certain public officials.

The plaintiff”s action for wrongful dismissal was brought against the former Governor, the investigating officer (Chief Supt. Bridger), the Acting Commissioner of Police, and the Attorney General (on behalf of the Cayman Government). His action for misfeasance in public office was brought against the former Governor and Chief Supt. Bridger personally.

The plaintiff had been informed of an allegation by an employee of Cayman Net News, Mr. Martin, that another police officer had leaked confidential police information to the proprietor of the newspaper, which had then been used for its economic advantage and had even been disseminated to certain criminal groups. After several conversations with Mr. Martin and senior executive and legal officials, their lack of evidence and the seriousness of the allegations, which posed a threat to individual police officers and the national security of the Cayman Islands, was highlighted. The plaintiff decided, with others, that while search warrants would be difficult to obtain, it was necessary to retrieve the documentary evidence that Mr. Martin claimed to exist in the newspaper”s office. They therefore enlisted the help of Mr. Martin who himself, after failing to gain

access to the alleged evidence, enlisted the help of a colleague at Cayman Net News, Mr. Evans, whose search was also fruitless.

The plaintiff then requested that the Governer invite an independent team from the United Kingdom to investigate the matter. The team was lead by Chief Supt. Bridger, who was sworn in as a special constable; the team ultimately concluded that the allegations made by Mr. Martin were unfounded. They raised the issue whether the plaintiff had been aware of this fact, and therefore acted in breach of his duties, as well as the law, by procuring Mr. Martin and Mr. Evans to conduct illegal searches in the absence of proper search warrants.

The investigating team made an ex parte application for a search warrant in respect of the plaintiff, under the Criminal Procedure Code (2006 Revision), s.26, which the Grand Court dismissed with the caveat that the applicants could apply for reconsideration of the decision, which they then did. Prior to the reconsideration hearing, the former Governor placed the plaintiff on required leave and notified him that he was under investigation for failing to carry out a proper investigation into the illegal search of the Cayman Net News office. During this time, the plaintiff returned to the United Kingdom to visit his ailing father and failed to respond to requests from the investigators for information. At the reconsideration hearing, the Grand Court (Smellie, C.J.) held that the plaintiff had not committed any criminal offence and dismissed the application for a warrant in respect of him. However, the plaintiff was subsequently dismissed by the Government on the grounds that he had failed to respond to requests and orders from the former Governor to return to the Cayman Islands and had made spurious accusations of impropriety against members of the Government.

The plaintiff alleged wrongful dismissal, defamation, and misfeasance in public office, but subsequently abandoned the defamation claim. The former Governor, Acting Commissioner and Attorney General applied to strike out some of the claims against them and for security for costs. The plaintiff had property and assets in Scotland, England and California, but had not initially disclosed his address in his summons. The proposed amendments were not served on Chief Supt. Bridger until the start of the hearing and he was therefore unable to make his own applications.

The former Governor, Acting Commissioner and Attorney General submitted that (a) the claim against the former Governor for misfeasance in public office should be struck out as no facts had been pleaded that supported any inference of bad faith on his part; (b) the former Governor and Acting Commissioner could not be vicariously liable for the actions of the Chief Supt. Bridger, who was an independent investigator and special constable, not answerable to the former Governor or under his control-liability, if any, for the actions of Chief Supt. Bridger could only rest on the Crown; consequently, the proposed amendment to claim exemplary damages against the former Governor, should also be refused; (c) the plaintiff, in claiming breach of the implied term of trust and confidence in his contract of employment, could not recover damages in respect of the

dismissal or manner of dismissal and therefore could not claim aggravated damages or damages for loss of employability on the labour market; and (d) security for costs should be ordered to reflect the risks inherent in enforcing judgment abroad, as the plaintiff had previously failed to provide his address, without innocent explanation, and had property and assets in Scotland, England and California.

The plaintiff submitted in reply that (a) the claim against the former Governor for misfeasance in public office should not be struck out as the court should not make any detailed assessment of the facts, and those pleaded were capable of supporting the claim; (b) the former Governor and Acting Commissioner were vicariously liable for the actions of Chief Supt. Bridger, and could have controlled or halted the investigation; consequently, the proposed amendment to permit a claim for exemplary damages against the former Governor should also allowed; (c) the claim for breach of the implied term of trust and confidence enabled the recovery of aggravated damages, and damages for loss of employability on the labour market; and (d) he would be willing to accept a reasonable and proportionate order for security for costs.

Chief Supt. Bridger made brief submissions supporting the other defendants.

Held, striking out various claims:

(1) The claim against the former Governor for misfeasance would be struck out. To establish misfeasance in public office, a plaintiff was required to prove that the office holder had exercised public power for an improper purpose, involving targeted malice, or had knowingly acted both illegally and in circumstances that would probably injure the plaintiff. This required proof of bad faith, in not honestly believing the actions to be lawful and the court would scrutinize the...