Reasons for Decision
Kawaley explains media ban from casino hearing
The Chief Justice has revealed why he barred the media and public from a court hearing involving an attempt by the island’s gaming commission to silence its former executive director.
The chambers session on March 7 in the matter of Bermuda Casino Gaming Commission versus Richard Schuetz was held behind closed doors, despite a request from The Royal Gazette to attend and report on the civil proceedings.
Chief Justice Ian Kawaley said in a decision released on Monday that Richard Horseman, the lawyer representing the publicly funded commission, convinced him there was a “sufficient risk of damage to the plaintiff” if the regulatory body’s application for an injunction against Mr Schuetz was held in open court and if Mr Schuetz himself was aware of it.
A temporary injunction was later granted and Mr Schuetz is now barred from talking about his time at the commission on the grounds that he breaches his contract by doing so.
The gagging order obtained by the commission, in the absence of any counsel representing Mr Schuetz, bars the former executive director from any disclosure “whether directly or indirectly, and/or to further use the confidential information that is either in his custody, or care or possession or control or he has access to, or at all”.
It states Mr Schuetz could be jailed, fined or have his assets seized if he breaches the order, as could “any other person who knows of the order” who helps or permits him to breach it.
In his decision on the need for a secret hearing, Mr Justice Kawaley said: “Excluding the press from the ... hearing was, in my judgment, justifiable on the facts of this particular case. The private hearing was reasonably required both to support a claim designed to protect confidential information and to protect the authority of the court.
“Whether the right balance has been struck will not always be a straightforward question and this is par excellence the difficult sort of issue upon which reasonable judges and reasonable journalists are likely to differ.”
The Chief Justice added: “The plaintiff adduced what was on its face credible and cogent evidence that the defendant had in recent months flagrantly breached [his] contractual obligations and had embarked upon a concerted campaign to undermine the plaintiff’s operations.
“In part because of this evidence, it was not obvious to me what further contractual breaches might be triggered by giving the defendant notice of the injunction application.
“However, Mr Horseman eventually persuaded me that a sufficient risk of damage to the plaintiff flowing from further disclosures and/or disparaging remarks was made out to justify proceeding with the merits of the application in private.”
The writ filed by the commission against Mr Schuetz was available to the public last week, according to lawyer Jordan Knight, of MJM law firm, who obtained a copy from the Supreme Court. The Royal Gazette has applied for a copy but has yet to receive it.
Mr Schuetz resigned from the commission in July and left Bermuda in December to return to the United States. He was an outspoken figure while here and has commented since his departure on the potentially bleak outlook for the island’s fledgeling casino industry.
In his resignation letter, he said the island lacked the “political will” to address the “glaring deficiencies in the anti-money-laundering regime of this island’s betting sector”.
“From my experience on this island over the last 22 months, I believe that Bermuda should seriously consider not having casinos and other forms of gaming,” he wrote.
Neither the commission nor Mr Schuetz responded to requests for comment.
• To read Chief Justice Ian Kawaley’s decision in full, click on the PDF under “Related Media”
• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.
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