Rea v Gibbs

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Kerr and Collett, JJ.A.)
• Judgment Date: 07 December 1995
• Court: Court of Appeal (Cayman Islands)
• Date: 07 December 1995

Court of Appeal

(Zacca, P., Kerr and Collett, JJ.A.)

REA

and

GIBBS, COMMISSIONER OF POLICE and ATTORNEY GENERAL

R.D. Alberga, Q.C. and S.T. McCann for the appellant;

P. Lamontagne, Q.C. and I.F. Archie, Senior Crown Counsel, for the respondents.

Cases cited:

(1) Abbott v. Refuge Assur. Co. Ltd., [1962] l Q.B. 432; [1961] 3 All E.R. 1074, considered.

(2) Abrath v. North E. Ry. Co.ELR(1883), 11 Q.B.D. 440; 52 L.J.Q.B. 620; on appeal (1886), 11 App. Cas. 247, considered.

(3) Brown v. Hawkes, [1891] 2 Q.B. 718; (1891), 60 L.J.Q.B. 332; on appeal, [1891] 2 Q.B. 718, followed.

(4) Cotton v. JamesENR(1830), 1 B. & Ad. 128; 109 E.R. 735, followed.

(5) Elsee v. Smith(1822), 2 Chit. 304; 1 Dow. & Ry. K.B. 97.

(6) Everett v. Ribbands, [1952] 2 Q.B. 198; [1952] 1 All E.R. 1, considered.

(7) G v. S, 1992–93 CILR 203, distinguished.

(8) George v. Rockett(1990), 93 Aust. L.R. 483.

(9) Glinski v. McIver, [1962] A.C. 726; [1962] 1 All E.R. 696, considered.

(10) Hope v. EveredELR(1886), 17 Q.B.D. 338; 55 L.T. 320, not followed.

(11) Hussien v. Chong Fook Kam, [1970] A.C. 942; [1969] 3 All E.R. 1626.

(12) Inland Rev. Commrs. v. Rossminster Ltd.ELR, [1980] A.C. 952; sub nom. R. v. Inland Rev. Commrs., ex p. Rossminster Ltd., [1979] 3 All E.R. 385; on appeal, [1980] A.C. 952; [1980] 1 All E.R. 80, distinguished.

(13) Lea v. CharringtonELR(1889), 23 Q.B.D. 272; 58 L.J.Q.B. 461, considered.

(14) McLean (D.D.) v. R., 1952–79 CILR 382.

(15) Purcell v. MacNamaraENR(1808), 9 East 361; 103 E.R. 610.

(16) Reynolds v Metropolitan Police Commr., [1985] Q.B. 881; [1984] 3 All E.R. 649, considered.

(17) Rhesa Shipping Co. S.A. v. Edmunds, The Popi M., [1985] 1 W.L.R. 948; [1985] 2 All E.R. 712, considered.

(18) Roy v. Prior, [1971] A.C. 470; [1970] 2 All E.R. 729.

(19) Taylor v. WillansENR(1831), 2 B. & Ad. 845; 109 E.R. 1357.

(20) Tempest v. Snowden, [1952] 1 K.B. 130; [1952] 1 All E.R. 1.

(21) Young v. NicholUNK(1885), 9 O.R. 347.

Legislation construed:

Misuse of Drugs Law (Second Revision) (Law 13 of 1975, revised 1985), s.16M, as added by the Misuse of Drugs (Amendment) Law, 1988 (Law 8 of 1988), s.6: The relevant terms of this section are set out at page 558, line 40 – page 559, line 24.

Police Law (Law 5 of 1976), s.27(1): The relevant terms of this sub-section are set out at page 601, lines 2–8.

Criminal Law-drugs-investigation into drug trafficking-search warrants-under Misuse of Drugs Law (Second Revision), s.16M, no need to specify grounds for suspicion in application or warrant

Criminal Law-drugs-investigation into drug trafficking-search warrants-under Misuse of Drugs Law (Second Revision), s.16M, application to be by ex parte notice of motion or summons, usually accompanied by affidavit-judge to make notes of evidence presented, constituting official record of application-application need not be presented by police officer as can be assisted by officer of Attorney General”s chambers

Criminal Law-drugs-investigation into drug trafficking-search warrants-issue of search warrants by Judge of the Grand Court raises rebuttable presumption of regularity but not complete defence to action for malicious abuse of process

Criminal Law-drugs-investigation into drug trafficking-search warrants-burden of proving defendant obtained search warrant without reasonable or probable cause lies on plaintiff-only slight evidence needed before burden shifts to defendant-burden shifted if plaintiff claims to have done nothing to give rise to suspicion, criminal proceedings not instituted and no claim to public interest immunity by defendants, who do not give evidence and fail to seek legal advice prior to applying for warrant

Police-immunity from suit-malicious abuse of process-Police Law, s.27(1) no defence to claim of maliciously obtaining search warrant without reasonable and probable cause as does not apply to acts before issue of warrant- if warrant obtained maliciously without reasonable and probable cause, s.27(1) no defence in relation to acts committed after warrant issued as police officer has imputed knowledge of invalidity

The plaintiff brought an action for damages against the defendants for maliciously and without reasonable cause obtaining a search warrant and/or for trespass and the illegal seizure of goods.

The plaintiff was managing director of PHP (Cayman), which was part of an international banking group with headquarters in Amsterdam. An unexpected audit of PHP (Cayman), conducted by officials from the bank”s headquarters, revealed that the plaintiff, in breach of the strict terms of his contract, had a substantial interest in several companies. The bank”s concern led it to arrange an independent audit of the plaintiff”s companies and it required him to visit Amsterdam for further discussions.

While the plaintiff was abroad, the first defendant laid three informations before a Judge of the Grand Court in support of applications for search warrants under the Misuse of Drugs Law (Second Revision), s.16M. Each information stated that there were reasonable grounds for suspecting that the plaintiff had carried on or benefited from drug trafficking. The judge who heard the applications made no notes of the evidence put before him, but issued warrants to search, inter alia, the offices of PHP (Cayman) and the plaintiff”s residence. The warrants were executed and various articles were seized by the police from the premises searched.

At the Amsterdam meeting, the plaintiff was told by bank officials, who were being kept fully informed of events in the Cayman Islands, that unless he resigned he would be dismissed. He accepted dismissal, although he was given no reasons for the bank”s action and was instead told that he would understand once he returned to the Cayman Islands.

On his return, he attempted to discover the grounds on which he was suspected of drug trafficking but the defendants refused to reveal them. No criminal proceedings were instituted against him and he commenced the present proceedings, claiming damages for the tort of maliciously and without reasonable cause obtaining a warrant and/or for trespass and the unlawful seizure of property. The defendants maintained their silence as to their grounds for suspecting the plaintiff throughout the proceedings, with the first defendant not giving evidence. The defendants originally submitted, as part of their defence, that the first defendant”s suspicion was based upon information from an authoritative and normally reliable source, but this defence was removed by an amendment before the trial.

The Grand Court (Harre, C.J.) dismissed the plaintiff”s claim, holding inter alia that (a) the defendants were protected by a presumption of regularity as to their reasonable and probable cause for suspecting the plaintiff of drug trafficking offences, which arose as a consequence of the warrants” having been issued by a Judge of the Grand Court; and (b) the plaintiff had not made out a sufficiently strong case to shift the burden of proof onto the defendants and require them to give evidence. The proceedings in the Grand Court are reported at 1994–95 CILR 158.

On appeal, the plaintiff submitted that (a) the warrants were unlawful by virtue of their failure, and the failure of the applications for them, to state the first defendant”s grounds for suspicion; (b) any presumption of regularity was rebuttable and in any case could not afford a complete defence to an action alleging that the warrants had been obtained maliciously and without reasonable and probable cause; (c) although the burden of proof of establishing the absence of reasonable and probable

cause lay on the plaintiff, he only needed to give slight evidence of that absence to shift the burden of proof on to the defendants, and since inter alia (i) the plaintiff”s evidence as to his good character was unchallenged by the defendants; (ii) no criminal proceedings had been instituted; (iii) no evidence had been given by the defendants to indicate any basis for the first defendant”s suspicion; (iv) no public interest immunity or privilege had been claimed by the defendants; (v) the first defendant had obtained no legal advice prior to applying for the warrants; and (vi) the assertion that the first defendant had obtained information from a reliable source had been expressly removed from the defence, the plaintiff had made out a sufficiently strong case to require an answer, which had not been forthcoming, from the defendants; (d) furthermore, malice could be inferred from the first defendant”s lack of reasonable cause for his suspicion, thus establishing the defendant”s liability; (e) s.27(1) of the Police Law, which protected police officers from suits relating to acts done in obedience to a warrant, could not afford the first defendant a defence to the claim of malicious absence of process because those tortious acts occurred prior to the issue of the warrant, and could not afford a defence to the claim in trespass because the first defendant had imputed knowledge of the warrant”s invalidity; and (f) the plaintiff was entitled to damages as it was clear from the evidence that his dismissal was a result of the police investigations, of which the bank”s officers were aware, and not his outside business interests.

The defendants submitted in reply, inter alia, that (a) the warrants were not unlawful because of their failure to state the first defendant”s grounds for suspicion; (b) they were protected by the presumption of regularity which arose as a result of the first defendant”s having satisfied the Judge of the Grand Court of his suspicion and that judge”s having issued the warrant; (c) in the circumstances of the case they did not need to give evidence regarding their reasonable grounds for suspicion, since the plaintiff had not put forward sufficient evidence to require them to do so; (d) since the plaintiff had failed to prove absence of...