Bermuda still grappling with duty of care issues

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  • Magistrates' Court (file photograph)

    Magistrates' Court (file photograph)

Is law and its adjudication applicable only because they have been written and only then to be observed and followed? Or is law improvisational and can be determined in the moment whose true efficacy is eternally meant as to be discovered through reasoning?

It is generally understood that case law and practice has been a subject that has evolved over the years and students of law and practitioners rely on the arguments that have been reasoned and over which logic has been tested over time and upheld, then presented as exemplary positions. Yet the core question will still remain on its implicit or intrinsic lawfulness. Is law to be as an immutable cannon for society, or should it be an organic, living, breathing rationalisation of ethics and best practice?

As a great example, we have court and the records of its proceedings. In most cases, these records are available to the public and the ethical question we need to ponder is why are they available to the public? Is there an ethical reason behind why records are open to the public, or do things exist just because of tradition, or for no reason at all?

We know in certain cases, such as for minors or children, there are limits as to what the public can or will be allowed to access and, again, the question is why?

We have seen instances where the public have insisted on disclosure of individuals who are paedophiles or physical abusers, sexual predators and serial killers. Although the courts have wrestled with the issue of disclosure, isn’t the underlying premise behind all of the disclosures because of a felt “duty” to the public?

Implicit in this issue of public duty is the “care” that withholding such information or the release of such, in either case, is the prevention of harm. It is generally accepted that by releasing distasteful information about a child, it will be harmful to their development and future. Therefore, even though unwritten, there is evidence of an accepted duty of care for the child’s wellbeing, as to why the information is concealed.

We have known of cases in Bermuda, and internationally, where significant penalties have been levied on accountancy firms that have failed to disclose, or have withheld, information about the true financial status of companies. The reason is clearly that others, such as shareholders and trade partners, can be harmed by not knowing. It is therefore an implicit understanding that there is a duty of care to report accurately the financial or any issue that affects the status and wellbeing of others interacting with the company.

Don’t the courts hold a similar position with the public?

The words in the preamble to the United States Constitution are instructive: “We hold these truths to be self-evident.”

Given the nature of society, it has been accepted that the public are entitled to openness and access to certain information, we have evolved to the point that we have Public Access to Information legislation, where the public can almost demand access. It should logically follow that the reason the courts publicise debtors in default is as a result of a duty to inform the public and the world.

Otherwise, if there is no duty, why have it available? Shouldn’t it be kept private?

Given that the information causes and prevents harm to the debtor or others, one should be judicious about its care.

The accuracy of the information at the courts and the maintenance of any payments or settlement of the debtors concomitantly is a crucial function, which helps to ascertain the truth of the matter at hand. Even though we have just legislated Pati as law, is it fair to say there always existed an underlying premise for its relevance? Was it self-evident, as a duty of care, which has only just become written law or as we term an evolutionary step towards openness?

We have no written law on Bermuda books that says the courts or creditors have any duty of care to maintain proper records, or even to have correct records. A government department can obtain through the courts judgments about anyone, or have their debts settled in open court and, ten years later as plaintiff, express no responsibility or acknowledgement of having been paid. However, although manifestly wrong in having no law against it, does that mean there is no original self-evident duty of care?

The relationship between customer and service provider is contractual and any breach may end up in the public domain as a notice that a breach has occurred. The contract of service establishes the relationship between the parties and the public notification of a breach has the potential of causing harm. However, it is a harm that the plaintiff has a public obligation and duty to advertise to prevent others from such similar fate.

Should it not be the case that when the debtor has settled their debt, the plaintiff has a duty to remove the harmful information? The debtor has no right or power to alter the books except as a “proxy” authorised by the creditor. The primary right belongs to the creditor or judge, only after such failure or negligence on their part; the debtor can apply to alter the cause book — in most jurisdictions — but only because the creditor has not removed the information.

Canada has made the observation and has clearly defined the law, making it an absolute duty of the plaintiff and the courts to update their records and offer a punishment where there is unreasonable delay.

Other jurisdictions have clearer procedures and time considerations, but Bermuda, perhaps unfamiliar with the debate, still grapples over the basic question of whether there even exists any duty of care of its government services and courts to maintain and update its records as accurate.

We have already seen the case where a government has uprooted the sanctity of a contract through retroactive laws. Now the public and the world must beware: hold on to your receipts because this government may argue that it has no duty of care to maintain its own records.

Unlike Bermuda, I can only assume Canada took responsibility and clarified the issue of who has duty of care because it was to them self-evident, while we still grapple with the subject.

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Published Aug 24, 2017 at 8:00 am (Updated Aug 24, 2017 at 7:26 am)

Bermuda still grappling with duty of care issues

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