Natural Justice and Delays in Bermuda’s Human Rights Tribunal system

On 21 April 2017, Bermuda’s Court of Appeal handed down judgment in the case of Battiston v Grant [2017] CA Bda (Civ) 8.

The Court of Appeal’s judgment was the second decision on appeal in the case, the first appeal having been heard by the Chief Justice, who gave judgment on 31 May 2016.

The Court of Appeal were extremely critical of the delay taken by the parties, and by the Board of Inquiry (‘the Tribunal’), to progress the case (which related to events that had taken place as long ago as 2008), which had involved procedural skirmishing, delays in assessing compensation, and one of the corporate defendants being struck off the Register of Companies in the meantime.

The Court of Appeal were also critical of the fact that the Grounds of Appeal were not carefully particularized.

Against this background, the Court of Appeal (in a leading judgment given by Justice of Appeal Geoffrey Bell QC) concluded that the Tribunal (which had been made up of Paul Harshaw as Chairman, Angela Berry, and Thaddeus Hollis III) had committed errors of natural justice during the tribunal phase of the case, by making findings based on a case that had not, in fact, been properly presented against, or addressed by, the defendants to the human rights complaint. In light of that conclusion, the Court of Appeal set aside the Tribunal’s decision, as well as the Chief Justice’s ruling (which had upheld the decision but for different reasons).

The President, Sir Scott Baker, summarized matters concisely in a short concurring judgment:

whilst it is desirable that proceedings of a tribunal appointed under the Human Rights Act 1981 should be relatively informal, the ordinary rules of natural justice apply and cannot be watered down. The Tribunal’s findings carry serious consequences to the individuals concerned in the present case in terms of compensation. Second, the delay that has occurred is entirely unacceptable and it is incumbent on courts and tribunals to manage their processes so that delays of this nature do not occur.”

It is impossible to comment on the rights and wrongs of this case from a distance, without a full and complete understanding of the facts. It is also hard to anticipate whether a further appeal might be pursued to the Privy Council (although three appeals would be somewhat extraordinary in a case such as this).

But it seems legitimate to ask, in the abstract:

  1. what does it say about a human rights tribunal if it forgets to apply the rules of natural justice in the course of its own proceedings? Is this case an unusual aberration from the norm, or does it represent a wider problem?
  2. how many lawyers (and how much time and resources) has it taken to result in Mr. Grant’s complaint eventually being dismissed?

 

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