Williams J
THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN CAUSE NO. 486 OF 2011 BETWEEN: THE ATTORNEY GENERAL - AND - MARTIN BRIDGER - AND - STUART KERNOHAN PLAINTIFF DEFENDANT PROPOSED SECOND DEFENDANT Appearances: Mr. Douglas Schofield for the Plaintiff Mr. Anthony Akiwumi for the First Defendant Mr. Shaun McCann for the Proposed Second Defendant Before: Hon. Justice Williams Heard: 14th December 2011 Delivered: 27th January 2012 RULING
This matter came before me on the application of Stuart Kernohan dated 11th November 2011 for leave to intervene and to be joined as the Second Defendant, in injunction proceedings commenced on 28th October 2011 by the Attorney General. Mr. Kernohan submits that he has a very significant interest in the outcome of the proceedings and that he will be affected by any order therein made. If successful on the Application Mr. Kernohan seeks, pursuant to paragraph 2 of his Summons, specific details in relation to the documents the Attorney General claims are subject to legal privilege.
The relevant proceedings primarily concern an application brought by Originating Notice of Motion by the Attorney General for an order restraining Martin Bridger from permitting any party in Cause No. 255 of 2009 ("the Kernohan Proceedings") to inspect or take copies of any documents referred to in his disclosure list in those proceedings dated 19th October 2011, without the Attorney General's written consent.
The Attorney General submits that the said documents are subject to legal privilege. The Attorney General contends that Mr. Kernohan has no locus standi to participate in the hearing and therefore opposes the application for joinder. It is contended that the issue for me to determine will be whether Mr. Bridger should be allowed to disclose to Mr. Kernohan in the separate Kernohan proceedings documents which are contended to be legally privileged and over which privilege has not been waived. It is submitted that if Mr. Kernohan, being the actual person who is not entitled to know anything about any privileged documents, is present when the question of privilege is being argued that it will "obstruct and hamper" the argument.
Mr. Bridger submits that, "all things being equal," Mr. Kernohan should have the opportunity to inspect the documents. He appears to take a neutral position on the application for leave to intervene. At paragraph 36 of Mr. Bridger’s Amended Defence he stated: "...The First Defendant further avers that all decisions on the issuance of the Notice of Investigation were taken in good faith and after careful and conscientious consideration and deliberation. The first Defendant acted at all times with the benefit of appropriate legal advice. For the avoidance of doubt privilege in respect of this legal advice has not been waived." However, it is clear that Mr. Bridger is now of the view that if the Attorney General succeeds in his application concerning the documents then that will have "far reaching consequences" on his ability to successfully defend the misfeasance of office claims brought by Mr. Kernohan against him and the Second Defendant. At this stage, on the papers before me, I have no particularised written submissions or evidence from Mr. Bridger to counter the contention that the documents are privileged or why any privilege has been waived. These will need to be filed and served well in advance of the hearing of the Originating Motion. Background
Mr. Kernohan was appointed as Commissioner of the Royal Cayman Islands Police Force pursuant to a written contract commencing on 15th October 2005. It was a fixed term renewable contract due to expire on 14th October 2009. On 18th November 2008 Mr. Kernohan was summarily dismissed from the Police Force.
In his Amended Writ of Summons re-issued on 17th June 2011 and Amended Statement of Claim re dated 17th June 2011 in Case No. 255 of 2009 Mr. Kernohan makes a claim for wrongful dismissal contending that the termination of his contract of employment was unlawful. This is denied by the Attorney General, as Second Defendant, in his Amended Defence re-dated 28th July 2011. Mr. Kernohan claims that Mr. Bridger is liable to him for damages for the tort of misfeasance in public office. This is denied by Mr. Bridger, as First Defendant, in his Amended Defence re-dated 1st August 2011. Mr. Kernohan also alleges that the Government of the Cayman Islands (represented by the Attorney General) is vicariously liable for misfeasance in public office and this is also denied in the said Amended Defence filed by the Attorney General.
On 28th May 2011 Sir Alan Moses, (AJ) made various orders including comprehensive directions in the Kernohan proceedings. The parties were ordered to exchange disclosure lists by 7th October 2011 with inspection of documents to follow within seven days thereafter. Exchange did not take place until around 17th October 2011.
The Attorney General claimed legal professional privilege over documents detailed as follows in Part 2 of Schedule 1 of his list dated 17th October 2011. "1) Confidential correspondence, instructions, opinions, memoranda, notes and other communications and documents passing between the First Defendant, the Strategic Oversight Group, the Governor and/or others concerned with Operation Tempura; and their legal advisers; including, Mr. Andre’ Mon Desir, independent special counsel to Operation Tempura, Mr. Marin Polaine, successor to Mr. Mon Desir, Ms. Arvinder Sambei, a colleague of Mr. Polaine, the Second Defendant, and other members of the Cayman Islands Attorney General’s Chambers and/or the Cayman Islands Government Legal Department; for the purposes of giving or obtaining legal advice, which are subject to legal professional privilege, and copies, notes, extracts, summaries and discussion thereof and other references thereto. 2) Confidential correspondence, instructions, opinions, memoranda, notes, drafts of pleadings, affidavits and statements, and other privileged documents passing between and/or in the possession, custody or power of the Second Defendant and other members of the Cayman Islands Attorney General’s Chambers and/or the Cayman Islands Government Legal Department and/or counsel made in contemplation and/or during the conduct of these proceedings for the purpose of information, evidence and advice in connection therewith, which are privileged, and copies, notes, extracts and summaries thereof and other references thereto. 3) Confidential correspondence, instructions, opinions, memoranda, notes and other communications and documents passing between the parties or former parties to this action or their attorneys or counsel for the dominant purpose of informing each other of the facts, or the issues, or advice received, or of obtaining legal advice in respect of contemplated or pending litigation, which are subject to common interest privilege.”
Mr. Bridger served his List of Documents around 19th October 2011, in which Schedule 1 Part 1 detailed all the documents that he would make available for inspection by the other parties. It is suggested that Mr. Bridger retained copies of these documents comprising legal advice that was presented in relation to the investigation, some of which were given to him at a time when both he and the Attorney General were jointly represented by Members of the Attorney’s Chambers. The Attorney General, upon reviewing the list of documents mentioned in the Schedule, formed the view that a number of them were subject to legal professional privilege and that Mr. Bridger had made a deliberate decision to disclose them to all parties. It is claimed that the documents contain legal advice from the Attorney General and his Chambers, Mr. Andre Mon Desir (who was appointed by the Governor to act as independent special counsel to the investigation from November 2007 up to 17th May 2008) and Mr. Martin Polaine, who took over when his Company was appointed to do so by the Ministry of Internal and External Affairs. The expenses incurred in the investigation, including for the services of the special counsel, were paid for from that Ministry’s budget.
Various exchanges took place between the Attorney General and Mr. Akiwumi, which eventually resulted in the current sensible holding position, namely an undertaking from Mr. Bridger not to permit inspection of the documents until determination of the Court of the Notice of Motion. The matter cannot proceed until the Attorney General’s Notice of Originating Motion has been determined by the Court. Factual Background – Operation Tempura
The background of this matter is set out in some detail in the previous decision of the Chief Justice in the matter of Operation Tempura [2008] CILR 111, and R v Ebanks, ex parte Henderson [2009] CILR 57 as well as the in the Ruling of Lord Justice Moses made on 28th May 2011 in the Kernohan proceedings. I am not required for the purpose of this ruling to go into the same detail herein.
It is alleged by Mr. Kernohan that at a meeting held on 27th August 2007 involving amongst others himself, the former Governor of the Cayman Islands and Mr. Larry Covington Her Majesty’s police representative for the Caribbean and other nearby territories a discussion was held concerning the investigation of allegations that Anthony Ennis, Deputy Commissioner of Police, had passed confidential information concerning police affairs to Desmond Seales, the Editor of the Cayman Net News newspaper.
It is said that at the meeting it was agreed that these allegations would be investigated by an independent team comprised of overseas police officers. Mr. Kernohan alleges that, during the meeting, the Governor with the consent and approval of the Attorney General and Mr. Covington authorised and instructed him to procure Mr. John Evans and Mr. Lyndon Martin to obtain copies of relevant documents from the office of Cayman Net News, where they both worked. The Attorney General denies that the Governor has ever made a decision in relation to the investigation into the Deputy Commissioner.
On 3rd September 2007 Evans unsuccessfully searched the office of the proprietor for a box file which he thought contained the documents.
Mr. Kernohan contends that at a meeting held on 29th August 2007 between himself, the Governor and the Attorney General it was agreed that he would stand down as officer with oversight of the operation and that the Governor would take his place. Mr. Kernohan’s position is that it was agreed that Chief Superintendent Jones would assume that role and report direct to the Governor.
In September 2007 Chief Superintendent Bridger, as he was then, arrived and headed the team of investigators made up of officers from the Metropolitan Police. The police operation became known as Operation Tempura. He was sworn in as a special constable by Mr. Kernohan on 17th September 2007.
On 22nd February 2008 Mr. Mon Desir unsuccessfully applied to the Chief Justice for a search warrant against Mr. Kernohan on the basis that he had procured Mr. Evans to commit a burglary at the offices of the newspaper. He was again unsuccessful in applications made on 13th and 20th March 2008. The Chief Justice found in a detailed ruling delivered on 4th April 2008 that there were no reasonable grounds for issuing a search warrant on the basis of suspecting Mr. Kernohan of misconduct contrary to statute.
By a letter written by the Governor dated 27th March 2007 Mr. Kernohan was placed on “required leave.” The letter stated: “...after discussion with the Attorney General, it has been decided to place you on Required Leave in the public interest for an initial period of one month commencing immediately. This is to facilitate the enquiry into the events of the 3rd September 2007 and matters related thereof.” The “required leave” was to be kept under review on “an ongoing basis” and Mr. Kernohan was to be kept informed. The Governor stressed in the letter that the “required leave” was not a disciplinary action, but that the breaking of the expressed conditions of the “required leave” could result in disciplinary proceedings.
On 15th May 2008 Mr. Kernohan was given notice, under a complaint from then Chief Superintendent Bridger, that he was under investigation for misconduct in public office contrary to common law. The allegation being that he: “...failed to carry out a proportioned investigation by not undertaking reasonable lines of enquiry in relation to allegations made by Mr. Lyndon Martin against Deputy Commissioner of Police Anthony Ennis and Mr. Desmond Seales the editor in Chief of Cayman Net News which culminated in an unlawful act, namely – the unlawful entry into and search by John Evans of the office of Mr. Desmond Seales.” This allegation was exactly the same basis for the first failed application for a search warrant.
On 18th November 2008 Mr. Kernohan was dismissed as Commissioner of Police. The letter of dismissal did not contain any reference or did not purport to be on the grounds of the surrounding events being investigated in Operation Tempura. The dismissal was because; (i) he did not return to the Cayman Islands following a number of requests and then orders for him to do so by the Governor and (ii) it was alleged he had made unsupported spurious allegations of potential impropriety against members of the Government.
On 30th November 2009 Mr. Kernohan was informed that any suggestion that he had committed a criminal offence had been withdrawn. The Law
Although not clearly stated in the pleadings Mr. Kernohan’s application to intervene is made pursuant to Order 15, r6 (2) (b) of the Grand Court Rules 2000, which provides: “(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application – (b) Order any of the following persons to be added as a party, namely- (i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined; or (ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter."
In exercising this discretion the Court will give regard and effect to the overriding objective and the considerations set out in Paragraph 1 of the preamble to the Grand Court Rules. The Court will therefore take into account the principles of equality, proportionality and justice espoused as the philosophy of the overriding objective.
The learning in England under Order 15 suggests that the Court’s power to join parties is a generous one. The Court’s consideration is whether the proposed party is a “necessary or proper party” or whether the joinder is “necessary” or “just and convenient” to determine the issues in the main claim. In other words, it empowers the Court to add as a party any person who ought to have been joined as a party whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectively and completely determined and adjudicated upon. A significant object of the rule is to prevent multiplicity of proceedings.
Adopting the approach in Lord Ashburton v Pape [1913] 2 Ch. 469, a case involving the equitable jurisdiction to grant injunctions to protect breach of confidence once a privileged document has been disclosed, the Attorney General’s application for an injunction has been made in separate proceedings. The purpose of these separate proceedings is to determine whether the documents referred to in Mr. Bridger’s disclosure list and which Mr. Bridger seeks to provide to Mr. Kernohan are protected by legal privilege, and if they are, has privilege been waived. Where legal professional privilege is not waived or abrogated it is paramount and absolute and not subject to the balancing exercise of weighing competing public interests against one another. As is oft quoted Lord Taylor said in R v Derby Magistrates Court Ex Parte B [1996] 1 AC 487 at 507: "The principle which runs through all cases... is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyers in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests....Nobody doubts that legal professional privilege could be modified, or even abrogated by statute, subject to the objection that legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental freedoms...but whatever inroads may have been made by Parliament in other areas, legal professional privilege is a field which Parliament has so far left untouched."
The Attorney General's application is for an injunction to prevent Mr. Bridger disclosing the disputed documents to Mr. Kernohan or anyone else. The documents in question are not "in evidence" and if the Court is satisfied that they are covered by privilege Sir Nicholas Brown-Wilkinson, Vice Chancellor stated in English American Insurance Company Limited v Herbert Smith [1998] Fleet Street Reports 232 at page 236 that there would be an entitlement to "an injunction restraining the other side from making use of them, including the use in the proceedings that are pending."
Any disputed question concerning privilege needs to be decided by putting evidence relevant to that disputed question before the Court. The Attorney General, as the party asserting privilege, will rely upon evidence to prove the relevant facts. It will be for Mr. Bridger to have the Court take into account any facts which tend to suggest that there never was a privilege, or to contend that, if ever there was privilege, there are facts which mean that it has been lost. He will need to file affidavit evidence that prove those facts. The issue is between the two of them.
This is not the type of case where a party upon whom a list has been served wishes to challenge the claim of privilege that has been made and who then, to ensure the issue is actually determined by the Court, must serve a notice of motion seeking that the documents in question be produced for inspection. This is because the Court is already due to carry out that very exercise, namely to determine the same issue after inspecting the documents in question, considering the affidavit evidence and hearing full submissions made on behalf of Mr. Bridger and the Attorney General in the separate proceedings. It is patently clear from Mr. Akiwumi’s submissions before me that at the injunction hearing, for which he indicates an intention to instruct leading counsel, any application for such an order will be forcefully opposed, as the documents in question are contended to be of fundamental importance to his client’s Defence. Therefore, all the parties necessary for the Court to determine the question arising will be present before the Court. Mr. Kernohan’s presence would not be necessary to ensure that the issue of privilege is effectually and completely determined.
If the hearing of the injunction involves only the Attorney General and Mr. Bridger, then the parties will be able to make their respective submissions referring the Court directly to the content of the documents in question which they and the Court will have before them. However, if Mr. Kernohan is joined, then the hearing will become most disjointed and laborious, resulting in unnecessary complication as he and his representatives will not be able to remain in Court whilst such detail is discussed.
I am not satisfied that the case raised by Mr. Kernohan’s affidavit sworn on 16th November 2011 and the submissions of Mr. McCann that it would be just and convenient to determine the issue of privilege of the documents in question between Mr. Kernohan as proposed intervenor as well as the current parties to the application.
Accordingly, the application of Stuart Kernohan dated 11th November 2011 for leave to intervene and be joined as the Second Defendant in injunction proceedings commenced on 28th October 2011 by the Attorney General is dismissed. Williams J. Judge of the Grand Court