A judge exonerated by a tribunal over concerns of judicial misconduct argued in the Supreme Court that her constitutional rights had been breached.

Puisne Judge Nicole Stoneham launched a legal action against the Governor, the Chief Justice and the Attorney-General over their handling of complaints against her, arguing that she had not been given a fair opportunity to respond.

Mrs Justice Stoneham was ordered to stop working on July 11, 2023, by former governor Rena Lalgie after a complaint made by Narinder Hargun, who was Chief Justice at the time, to the Judicial and Legal Services Committee.

The complaint stemmed from a recusal application in a divorce case in which the wife alleged Mrs Justice Stoneham was connected to the husband’s family and alleged that she had released the husband on bail after he breached a Domestic Violence Protection Order.

She denied the application, but in a highly critical May 2023 ruling, the Court of Appeal ordered the judge to recuse herself immediately, finding that her response to the allegations was “wholly unsatisfactory”.

The ruling added that a puisne judge’s intervention to obtain the release of a person arrested “would appear to be irregular at best and unlawful at worst”, but did not make any conclusions on that claim.

However, a tribunal cleared Mrs Justice Stoneham of any misconduct, stating that there would have been no call for her to recuse herself had she given an explanation of the facts at her recusal hearing.

Dan Squires, KC, for Mrs Justice Stoneham, said that the Court of Appeal’s statements were unfair and unjustified, and had caused “irreparable damage” to her reputation.

He argued that the comments went beyond an “error of law” seen in some rulings and amounted to claims that she might have conducted misconduct in government office without offering her a fair opportunity to respond.

He said that the Chief Justice had also not provided her with any notice or an opportunity to respond before he sent the complaint to the Judicial and Legal Services Committee.

While the tribunal went on to clear Mrs Justice Stoneham, Mr Squires said that the ruling was an insufficient remedy for how her case had been handled.

Mr Squires said: “It is not an answer to wait two years and have a tribunal that will clear you.”

He said that had Mrs Justice Stoneham had the opportunity to respond to the claims earlier, the more serious allegations would have fallen away long before the case reached the tribunal.

Mr Squires said that while there may be cases in which a complaint can be passed on without giving the accused an opportunity to answer, there was a very high threshold that needed to be crossed.

However, in this case, he said that for months, Mrs Justice Stoneham was not even made aware that the complaints were proceeding against her.

Mr Squires also argued that the proceedings had hurt her and harmed her reputation, stating that even if the case was allowed to move forward, being able to respond would had given her some feeling of fairness or that justice was being done.

Sir James Eadie, KC, for the Chief Justice, responded that the Chief Justice had not served in a decision-making capacity in the case and had served only as a “conduit”, referring the matter to the JLSC.

Sir James noted that the concerns about Mrs Justice Stoneham had been raised by a senior court in a publicly released decision that had been the subject of reporting by the media.

In those circumstances, he said that it made sense for the Chief Justice to pass on the issue to the JLSC, arguing that attempting to adjudicate the matter himself would create more issues.

Sir James said: “It risks creating the impression that it’s simply been disposed of behind the scenes between colleagues.”

He added that because the concerns had been raised publicly, it was better that Mrs Justice Stoneham was publicly exonerated by a body such as the JLSC or a tribunal.

Sir James also argued that the Chief Justice was acting in his official capacity, and as a result had absolute immunity.

Keith Robinson, for the Attorney-General and the Governor, meanwhile argued that the complaints against the Court of Appeal fell flat because, while the court raised concerns, it made no findings against Mrs Justice Stoneham.

He added that there had no allegations of “actual” bias by the judge, although concerns were raised about “apparent” bias based on complaints made to which she had not responded.

Mr Robinson said: “The Court of Appeal is saying we haven’t heard from the judge. We are not making a finding.”

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