Courtesy to the Court: scope for improvement?

The Bermuda Bar is usually well-known for its old-fashioned courtesy and politeness, both to the Court and to opposing Counsel.

However, there have been an increasing number of reported decisions published by the Bermuda Courts in which the judiciary have demonstrated remarkable patience with certain members of the Bar, who appear to have either forgotten (or never received proper training in) some of the most basic courtesies and responsibilities expected of Counsel, so far as the Court is concerned.

Three recent examples illustrate this proposition:

  • in Johnston v Proctor [2017] SC Bda 39 App, a civil appeal against a Magistrate’s refusal to set aside a default judgment in the sum of $1,500 as damages for the sale of a defective electric bed (!), the Appellant’s counsel was politely chastised by Chief Justice Kawaley for initiating and pursuing an utterly hopeless appeal;
  •  in Robinson v Simmons [2017] SC Bda 46 Civ, a claim for rental arrears in the sum of $25,000, the Registrar entered judgment in favour of the Plaintiff, on the basis of a very belated written admission of liability by the Defendant, and in circumstances where the Defendant’s counsel had rather cursorily notified the Plaintiff’s counsel by email (on the morning of trial) that he did not intend to attend Court for the hearing!
  • in Art Simons v Miller [2017] SC Bda 47 App, a criminal appeal against conviction in the Magistrate’s Court, Chief Justice Kawaley dismissed the appeal both on the grounds that it was hopeless and on the grounds that it had not been prosecuted diligently. In making these findings, he made passing (and quintessentially diplomatic) reference to the fact that the Appellant’s counsel had failed to appear at two directions hearings before the Registrar, and at the substantive hearing of the appeal before the Chief Justice (simply telling the Court by email that he was outside of the jurisdiction, but without applying for an adjournment, or returning the brief and allowing the client to instruct another lawyer in his place).

Each of these individual judgments reflects somewhat poorly on the individual lawyers concerned (while recognising that the facts of each case are not fully stated in the judgments, and there might be mitigating circumstances upon further investigation in each case).

But (without wanting to sound like a Victor Meldrew), I would venture to suggest that they reflect poorly on the Bermuda Bar as a whole, since they tend to suggest that there is a systemic issue regarding the education, maintenance and enforcement of basic ethical standards and expectations.

Does anybody but me care? If so, solutions on a postcard, please.


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