A civil servant’s attempt to sue a quarry operator for a breach of contract has been scrapped by the Supreme Court, who ruled the contract was unlawful.

Cory Hill launched legal action against Joe and Michael DaCosta of Bermuda Slaters last year, claiming that the pair owed him $388,800 for helping them apply to reopen a government quarry.

However, the respondents subsequently filed to have the case thrown out for several reasons, including that the contract was unenforceable because it fell foul of the principle ‘ex turpi causa non oritur actio’ — that it was founded on an immoral or illegal act.

Mr Hill had alleged that in late 2002/early 2003, the parties agreed that Mr Hill would help the respondents apply to reopen a government quarry site in Ferry Reach, for which he would receive 20 cents per slate produced at the site.

In an affidavit, he told the court that he was employed as an Assistant Planner in Government’s Forward Planning Section. He wrote that when he was first approached, Michael DaCosta had suggested several potential sites, including one by Number One gate in St David’s. Mr Hill said he approached Senior Planning Officer, the late Brian Rowlinson, who said the area was not an option. Mr Hill said he later spoke to Michael DaCosta about the Ferry Reach site.

“I enquired of Mr Rowlinson whether or not the site was available and he advised me that it was and that I should arrange an agent on behalf of Mr DaCosta to assist him with the necessary application,” he wrote. “Consequently, I advised Mr DaCosta to instruct the company Compu-Cad in the making of his application.”

Mr Hill further explained that he had no direct influence on the decision of the Minister and had distanced himself from the possibility of influencing the processing of the application to prevent breaching the Civil Service Code of Conduct.

Permission to reopen the quarry was granted in or around October, 2003, and Mr Hill said that in 2003 or 2004, the DaCostas gave him 1,500 pieces of slate to help him build his house, but never paid him the 20 cents per piece of slate promised.

In a recently published judgement, Justice Stephen Hellman wrote: “It is not clear from the plaintiff’s pleaded case whether he was acting in the discharge of his office (ie charging the first defendant to do what the plaintiff was paid by the Government to do) or alternatively, as appears more likely, he was using his office to perform what might be described as private consultancy work.

“Either way, he was using his public office for private gain. The value of that gain, on the plaintiff’s case, ran to several hundred thousand dollars.”

He noted that the Civil Service Code of Conduct clearly states that civil servants must not engage in outside employment or in the conduct of business, trade or profession without written authority their Head of Department, which Mr Hill did not do.

“The plaintiff did not, as he should have done, obtain written authorisation from his Head of Department before entering into the contract which he now seeks to enforce,” Mr Justice Hellman wrote. “If he had sought written authorisation, I doubt whether he would have obtained it.

“Enabling a civil servant to use his public office for private gain would tend to interfere with the impartial discharge of his duties and to undermine public confidence in the Civil Service. In the premises, I am satisfied that, on the plaintiff’s case, the contract was both unlawful and contrary to public policy.

“I decline to enforce it. I need not go on to consider whether, on the face of it, the plaintiff has committed the offence of misconduct in public office or any other offence.”

As a result, he struck out Mr Hill’s statement of claim and dismissed the action.