Where do we start with Hardell's recent securing of a Judgment in Default against the Government (namely Transport Minister Dr. Ewart Brown and Tourism Minister Renee Webb)? As the details of Hardell's complaint aren't yet too well known, although some aspects of it have been reported, I'll focus on the Attorney General's apparent negligence in putting up a defence.
I've been meaning to discuss this since the story broke but I've been trying to pin down some details, primarily whether a Judgment in Default can be obtained against the Crown. Well the answer seems to be yes, but it is very difficult.
Here's what Order 77, which deals with judgments in default against the Crown, says:
77/9 Judgment in default
9 (1) Except with the leave of the Court, no judgment in default of appearance or of pleading shall be entered against the Crown in civil proceedings against the Crown or in third party proceedings against the Crown.
According to an attorney friend of mine this means that:
"the proper interpretation of Order 77 is that the leave must be obtained via a summons. I certainly think that that is the way a court would interpret it since, the very fact that Order 77 exists must necessarily mean that, in order to obtain judgment in default against the Crown, you must do something above and beyond what would be necessary is the defendant was a private individual."
Additionally I understand that even though a Judgment in Default was obtained it is a relatively simple thing to set aside, probably even more so when it is against the Crown. So we're almost certainly back to the courts with this one. Many issues arise from the obtaining of this initial judgment and the potential exposure of the Bermuda Government (read YOU) to 4 million dollars in damages.
While working on this post I received an email in response to Paula Cox's statements in the Bermuda Sun on Friday. I've included excerpts from the email below as it more than adequately hits on all the relevant issues:
"1. Her (Ms. Cox) comments seem to imply wrongdoing on the part of Hardell’s attorney, Richard Horseman of Wakefield Quin – suggesting that he failed to follow ‘protocols’ and was incorrect to seek judgment in default in the circumstances. Absolute crap – he had already granted the AG’s chambers an extension within which they had to file a Defence, wrote a letter to them to remind them that, unless they served a Defence on Wakefield Quin within the new time limit, they would seek judgment in default against them AND he waited the best part of a week past the time limit before filing for judgment. Who’s in the wrong here?
"2. Whilst the judgment in default will probably be set aside (with costs awarded to Hardell, mind you), this should not be construed as any kind of vindication of the attorney general (for, ultimately, it is her responsibility that the judgment was obtained – I don’t care that she has a full time job with ACE, or that she has another Ministry to look after. This is precisely why we shouldn’t have politically-appointed AG’s). The judgment will probably be set aside – not because the government is in the right – but because it is incredibly easy to get a default judgment set aside. The government only needs to show that there is a ‘triable issue’ in dispute between the parties. In layman’s terms – unless the case is an absolute ‘slam-dunk’ for Hardell, the judgment will be set aside, even if the judge is of the view that Hardell are likely to prevail at the end of the day.
"3. Paula Cox’s implied suggestions of misconduct on the part of Hardell’s attorneys are, in themselves, in breach of the Barristers’ Code of Professional Conduct, which provides that no Barrister shall make disparaging comments about another.
"4. Most worryingly – and another reason why we shouldn’t have a politically-appointed AG – Paula Cox, by her comments today in the Bermuda Sun, shows that she has NO IDEA how a party even obtains default judgment against another in Supreme Court proceedings. She states that the Plaintiff may conduct ‘a search’ of the Supreme Court registry to see if a Defence has been filed and, if not, may seek default judgment. WRONG. There is no obligation at all for a party to file a Defence at the Supreme Court Registry. The Defendant’s only obligation is to serve a Defence on the Plaintiff. If the matter eventually gets set down for trial, the Plaintiff must compile and file a bundle of pleadings (including any Defence) at the Registry, but this doesn’t occur for quite some time after proceedings are commenced. Don’t you think that it is more than a little worrying that the most senior attorney for the Government of Bermuda has literally NO IDEA about a procedure as simple as that involving default judgment?"
I think the Royal Gazette was quite kind in referring to this as a "Blunder". I'd say the AG was negligent and this case has revealed that she is completely uninvolved in the day to day affairs of the AG's chambers. In Ms. Cox's own words:
"(I) take it very personally, but even though I may not have personal conduct, I am the Attorney General, so it would be unconscionable in my view if the Government’s case failed because in any way this could be seen as due to a lack of due diligence on the part of Chambers."
That looks to me like she is saying "Yeah, I'm the AG but I'm not involved in the running of the Chambers, so don't look at me".
Note that the AG stated that she was not personally involved! I'd hate to know what type of case would actually qualify for her attention if a $4M claim against the Government, because of the actions of two of her Cabinet colleagues, wasn't enough.
Additionally her comments appear to be attempting to shift the blame to the lawyers in Chambers. I hate to break it to the AG but she's the AG. It's her office. She runs it and ultimately she must accept ultimate responsibility, a foreign concept to PLP Ministers. Ms. Cox is clearly unable to balance two Ministries (Education and Attorney General) and her full-time job at ACE. Ms. Cox is getting paid handsomely for all of these responsibilities (including her private sector job) yet I'd bet none of them are getting the attention they deserve.
The AG needs to take personal responsibility for this debacle. Premier Scott should ask Ms. Cox to devote all of her energies to her ministries and take a leave of absence from her job. Alternatively she could step down if she isn't prepared to make the people's business paramount, since that's what she was elected for. Perhaps Premier Scott is aware that his backbenches are so devoid of talent that he has few options.
This also raises the additional question of who else could fill the Attorney General's role. The PLP have no other qualified lawyers in Parliament and I don't think you can have a Senator as AG! So it appears Ms. Cox refusing the role would necessitate a return to a non-Political AG - something the PLP will never allow.
As an aside, I spent the whole of July 24th, 2003 (Election day) standing in the sun with Ms. Cox outside our polling station. Towards the end of the day a friend of mine asked her specifically if she wanted to be the AG and she answered definitively "No, I'm not interested. Absolutely not."
It appears that she was telling the truth.