Re Bolton
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, P., Rowe and Taylor, JJ.A.) |
| Judgment Date | 23 January 2004 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 23 January 2004 |
(Zacca, P., Rowe and Taylor, JJ.A.)
D. Pannick, Q.C. for the appellant;
S.W. Bulgin, Attorney General, Ms. V. Ellis and Ms. J. Ziemniak, Crown Counsel, as amicus curiae.
(1) Allen v. Byfield (No. 2)UNK(1964), 7 W.I.R. 69, distinguished.
(2) Att.-Gen. v. Times Newspapers Ltd., [1974] A.C. 273; [1973] 3 All E.R. 54, dicta of Lord Reid applied.
(3) Balogh v. St. Albans Crown Ct., [1975] Q.B. 73; [1974] 3 All E.R. 283, dicta of Lord Denning applied.
(4) Lake v. Lake, [1955] P. 336; [1955] 2 All E.R. 538; (1955), 99 Sol. Jo. 432, distinguished.
(5) Locabail (UK) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451; [2000] 1 All E.R. 65; (1999), 149 New L.J. 1793, considered.
(6) Lonrho Plc., In re, [1990] 2 A.C. 154; [1989] 2 All E.R. 1100; (1989), 133 Sol. Jo. 120, distinguished.
(7) Moncris Invs. Ltd. v. Francis, Jamaica Court of Appeal, unreported, SCCA 50/92, distinguished.
(8) WX v. YX, 2002 CILR 514, dicta of Taylor J.A. applied.
Court of Appeal Law (1996 Revision) (Law 19 of 1975, revised 1996), s.20(4):
‘. . . [T]he Grand Court shall draw up, for the information of the Court, a statement of the reasons for the judgment appealed against and such statement shall be lodged with the Registrar . . .’
s.26: The relevant terms of this section are set out at para. 34.
Grand Court Rules, 1995 (Revised), O.52, r.5:
‘Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order of committal of its own motion against a person guilty of contempt of court.’
Rules of the Supreme Court, O.59, r.5(1)(a):
‘(1) Within 7 days after the later of (i) the date on which service of the notice of motion of appeal was effected, or (ii) the date on which the judgment or order of the court below was sealed or otherwise perfected, the appellant must set down his appeal by lodging with the registrar-
(a) a copy of the said judgment or order . . .’
Criminal Procedure-appeals-judgment appealed against-decision of Grand Court to cite for contempt and direct Attorney General to prosecute not ‘judgment’ for purposes of R.S.C., O.59, r.5-if final decision disposing of existing proceedings, nevertheless appealable as of right-failure to lodge judgment with Registrar (as required by R.S.C., O.59, r.5) excused by Court of Appeal Law, s.26 because by ‘necessity’ when no judgment delivered
The appellant was cited by the Grand Court for contempt of court.
The appellant was alleged to have committed contempt of court whilst appearing as counsel before the Grand Court, by attempting improperly to influence the conduct of proceedings by a private communication with the judge, suggesting that he might wish to consider recusing himself from continuing to hear the case. The court subsequently commenced proceedings of its own motion, pursuant to its inherent jurisdiction and O.52, r.5 of the Grand Court Rules, citing the appellant and others for contempt. The proceedings, which were characterized by the court as merely an inquiry into the alleged contempt, were concluded by the court, sitting en banc, 14 months after the alleged contempt had been committed. Although it disclaimed having reached any factual conclusions, the court decided that the appellant ought to be cited for contempt of court and directed the Attorney General to commence further proceedings against him. The court also decided that no further action was to be taken against the other parties.
The appellant appealed but was informed that in fact the Grand Court had not made a judgment, decision or order and he could not therefore comply with the requirements of the Rules of the Supreme Court, O.59, r.5(1)(a) that a copy of the judgment appealed from be filed with the appeal. Meanwhile, the Grand Court itself, on the Attorney General”s advice, brought further proceedings against the appellant for the same alleged contempt of court.
The appellant submitted that (a) in concluding the initial proceedings the Grand Court had made two decisions-first, that he should be cited
for contempt of court and, secondly, that the Attorney General should be directed to institute the further proceedings against him-which were final and therefore appealable; (b) moreover, the proceedings had been finally determined by the Grand Court, which had not then found him to be in contempt of court, and it could not pursue the issue in fresh proceedings; and (c) although the Grand Court had jurisdiction, in an emergency, to commit for contempt of court of its own motion, no conceivable emergency existed 14 months after the alleged contempt had been committed and it therefore did not have the power to commence the further proceedings.
The Attorney General submitted in reply that the Court of Appeal did not have jurisdiction to hear the appeal because (a) the Grand Court had not made a judgment, decision or order in its conclusion of the proceedings and the appellant could not therefore meet the procedural requirements for his appeal; (b) it could not provide the relief sought by the appellant, namely the striking out of the original notice of motion, as it did not have originating jurisdiction in civil cases and no application to strike out had been made to the Grand Court; and (c) despite the wording of the notice of motion issued by the Grand Court, the proceedings had been merely an inquiry into the alleged contempt rather than a determination of the case against the appellant.
Held, allowing the appeal:
(1) The Grand Court”s decision at the conclusion of the initial proceedings-that the appellant should be cited for contempt in fresh proceedings and that the Attorney General should be directed to institute those proceedings-was final and determinative of those proceedings. As the court did not find that the appellant had been guilty of contempt, he was accordingly entitled to be acquitted and the Grand Court had therefore erred in deciding that there should be further proceedings against him for the same alleged contempt. Furthermore, it was for the Attorney General, in his absolute discretion, to determine in the public interest whether or not to prosecute and he could not be given directions in this respect by the Grand Court. No further proceedings should be taken against the appellant in connection with this matter and the Grand Court”s decisions in its initial proceedings would be set aside (paras. 55–57).
(2) Although the Grand Court”s decisions had not been expressed in the form of a recognized judgment or order, as they were final decisions an appeal lay against them as of right. In accordance with s.26 of the Court of Appeal Law, there could be no procedural objection that a copy of the Grand Court”s judgment had not been filed with the appeal (as required by the Rules of the Supreme Court, O.59, r.5(1)(a), applicable in the Islands), since none was available and the breach was therefore of necessity (paras. 33–37).
(3) The Attorney General”s further objection, namely that the court could not hear the appellant”s appeal as it did not have the jurisdiction to
strike out the Grand Court”s original notice of motion, which was sought by the appellant, also failed. The unavailability of that specific form of relief sought did not prevent the court”s hearing the appeal (para. 29).
(4) The Grand Court unquestionably had jurisdiction under the Grand Court Rules, O.52, r.5 to proceed against the appellant of its own motion and commit him if contempt were found proved, but that jurisdiction was exercisable only by way of emergency (as in the case of contempt in the face of the court). It had in fact been exhausted at the conclusion of the initial proceedings, since no continuing emergency could be said to exist 14 months later (para. 38; para. 58).
1 ROWE, J.A., delivering the judgment of the court: On December 5th, 2003 we gave oral reasons allowing the appeal of Andrew Bolton, an attorney, in the above matter and we now provide our fuller reasons. Although Hunter & Hunter (a firm) is referred to in the heading of the case, the appeal did not concern them and they did not take any part as a law firm.
The background
2 The Attorney General participated robustly and for the background to this appeal we take the facts as set out in his introductory facts. Cause No. 389 of 1999, in which the plaintiff was Luis Roberto Demarco Almeida (‘Mr. Demarco’) and the defendants were: (1) CVC/Opportunity Equity Partners Ltd., (2) Citibank N.A. and (3) International Equity Investments Inc. (‘CVC’), was being heard by Kellock, Ag. J. in the Grand Court and he had reserved judgment, which he proposed to deliver on June 24th, 2002. There was a second matter, Cause No. 226 of 2002, which, from the notes of the court”s proceedings on June 24th, 2002, was to be dealt with at the same time as Cause No. 389. About 20 minutes before the time scheduled for delivery of judgment, Mr. Andrew Bolton, a partner in the firm of Hunter & Hunter which acted as attorneys for CVC, handed a letter to Kellock, Ag. J. in which it was suggested that the judge should consider recusing himself from the case.
3 The basis of the request for recusal was that Hunters had received communications from their clients wherein they expressed concern about the fact that the Canadian law firm of Blake, Cassels & Graydon, in which Kellock, Ag. J. was a partner, had acted for a company called TIW and some of its major shareholders. TIW is a Canadian company and is involved in litigation with CVC in which it is alleged that TIW acted in league with Mr. Demarco in seeking to damage CVC. Kellock, Ag. J. had ruled in those proceedings that CVC was not entitled to adduce evidence of a document which had become known as the ‘TIW letter,’ upon which CVC had been relying to show the TIW/Demarco connection.
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