The Judge’s (and the Magistrate’s) duty to give reasons, under Bermuda law

On 21 November 2016, the Privy Council gave judgment in the BVI case of Smith & Ors v Molyneaux (British Virgin Islands) [2016] UKPC 35.  The facts of the case are relatively unexceptional, being a property dispute involving claims of squatter’s title by adverse possession over 20 years: nec clam, nec  vi, nec precario.

Of interest, however, is the Privy Council’s recital of the nature of a trial judge’s duty to give reasons for his judgment (which is a duty that is applicable just as much in Bermuda as in the BVI or in England and Wales), per Dame Mary Arden:

“It is an important duty of a judge to give at least one adequate reason for his material conclusions, that is, a reason which is sufficient to explain to the reader, and the appeal court, why one party has lost and the other has succeeded: see, generally, the decision of the Court of Appeal of England and Wales in English v Emery Reimbold & Strick Ltd [2002] EWCA 605; [2002] 1 WLR 2409, especially at paras 15 to 21. The judge does not have to set out every reason that weighed with him, especially if the reason for his conclusion was his evaluation of the oral evidence:

“… if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon. (English v Emery Reimbold & Strick, para 19 per Lord Phillips MR, giving the judgment of the court)”

If an appellate court cannot deduce the judge’s reasons for his conclusion in a case, it will set aside the conclusion and either direct a retrial or make findings of fact itself: see English v Emery Reimbold at para 26″.

By way of testament to his industriousness (and his contemporaneous reading of the daily law reports), Chief Justice Kawaley cited and applied this passage in his judgment dated 23 November 2016, only 2 days later, in the case of Leader v Stewart [2016] SC (Bda) 101 App (being an appeal against a decision of the Magistrate’s Court).

As Chief Justice Kawaley found, “The importance of express reasons being given by the Magistrates’ Court on the most important points in controversy in a case which has been seriously contested cannot be over emphasised. This is an important part of the judicial function, both in terms of explaining to the parties and an appellate court the basis for a significant decision“.



Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s