I have previously commented in a blogpost on the (not so new, now) Registrar’s apparent readiness to assume an increasingly judicial role, with respect to certain types of Court proceedings.
Further evidence of the Registrar’s judicial activism is now provided by a Ruling dated 9 May 2017 in the case of Gaudreault et al v Sousa et al  SC (Bda) 37 Civ.
Although it is always hard to comment on a case without a full understanding of its details, the case strikes me as very curious (and therefore interesting) for a number of reasons:
- The case appears to have involved an Originating Summons dated 8 March 2017, although the cause number was 2016 No. 101 – so query whether the Summons was not an originating process at all, but an application made within existing Court proceedings.
- The substantive application appears to have been made under section 47 of the Trustee Act 1975, but without reference to any of the Bermuda or international case law on section 47 (or statutory equivalents in other jurisdictions). Section 47, it may be remembered, is a particularly attractive feature of Bermuda’s trusts legislation, although it is more often considered and addressed by Commercial Court judges than the Registrar.
- The Registrar appears to have accepted, without argument, that the application was properly dealt with by her, in Chambers, rather than by a Judge (whether in Chambers or in open Court) – although there was no discussion of the scope or source of her jurisdiction in her Ruling.
- The Plaintiffs (as prospective sellers of a property) were represented by a Bermuda lawyer, Mr. Swan, who also claimed to represent the Defendants (as prospective buyers of the property), albeit not on the record for them in these proceedings. Mr. Swan was not only the advocate for the Plaintiffs in the case, he was also the only witness to give factual evidence in support of the application through the medium of an untested and unchallenged affidavit (which is a little bit unusual, in itself, save perhaps with respect to uncontroversial procedural matters).
- The Defendants did not appear and were not represented in these proceedings, and yet the most obvious opponent to the Plaintiff’s application (being the Government of Bermuda) was not named or joined as a party (whether at the outset or on the Court’s direction). On the contrary, the Registrar appears to have proceeded in the absence of any submissions or evidence from any Governmental representative, while directing that notice of the proceedings and her Ruling should be given to the Government’s legal representative (the Solicitor General rather than the Attorney-General, for some reason), apparently with a view to binding the Government to the outcome after the event, while also affording the Government an opportunity to apply to set aside or vary her Ruling.
- The procedural history of the case appears to have been described as a legal ‘quagmire’. To some extent the parties do not appear to have helped themselves by their apparent decision not to seek any legal advice from lawyers with specialist expertise in probate, estate, trusts, and land law in Bermuda (or at the London Bar).
I should say that even the Registrar appears to have found aspects of the case quite curious (‘curious’ being a word that she herself used to describe the affidavit evidence of Mr. Swan…).
Hopefully, the parties will find some way out of their ‘quagmire’ in due course, one way or another.