The constitutional rights of a Supreme Court judge were breached by the Court of Appeal in a “complex and important case” involving Puisne Judge Nicole Stoneham, a judge has found.

A ruling this month by Assistant Justice Hugh Southey, KC, also called for “a hearing to assess whether damages are payable for this constitutional breach and, if they are payable, what level of damages should be awarded”.

Mr Justice Southey’s ruling, dated Friday, found the Court of Appeal “caused harm” and “acted unfairly” in its suggestions that Mrs Justice Stoneham had potentially engaged in a “serious matter of misconduct”.

He concluded that the gravity of the court’s remarks meant she ought to have been afforded “an opportunity to address its concerns before it delivered its judgment”, which was not done — adding: “As a consequence, the Court of Appeal acted unfairly.”

Mr Justice Southey highlighted that “suspicion can be very harmful for a judge in light of their need to be seen as being of the highest moral character”.

“The matters identified are particularly significant in the context of a small society like Bermuda,” he wrote.

“The reality is that criticisms such as those in issue are more likely to have an impact on a judge’s standing because they are more likely to be noticed.”

His judgment quoted Mrs Justice Stoneham that she only learnt of the contents of a highly critical ruling by the Court of Appeal from press reports “some time shortly after the judgment was publicly handed down” on May 15, 2023.

She said she had been subjected to “constant gossip” and noticed “whispers behind my back and snideness from counsel”.

Her statements included: “Former friends, prominent lawyers, began to disassociate themselves from me — one even making it clear to me by directly telling me upon a happenstance encounter on the street that she had now decided to do so, to avoid any tarnish or stain spreading to her.

“Bermuda is small.”

Mrs Justice Stoneham had denied complaints emanating from a divorce case in which a wife alleged that the judge 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.

However, the judge was ordered by the Court of Appeal to recuse herself from the Family Court matter in 2023 because of concerns over bias.

The ruling made adverse claims against her but failed to make any conclusions on those.

She was cleared last year by a tribunal over the implications of misconduct, and subsequently argued in the Supreme Court that her constitutional rights had been breached, launching legal action against the Governor, the Chief Justice and the Attorney-General over their handling of the complaint.

When it came to the Court of Appeal’s findings, Mr Justice Southey ruled: “In this case it appears to me that once the Court of Appeal had delivered its judgment, any harm could not be undone.”

He specified a breach under Section 1(a) of the Bermuda Constitution, which cites “life, liberty, security of the person and the protection of the law”.

The ruling found that the Chief Justice acted straightforwardly in the matter and was merely “passing on the concerns raised by the Court of Appeal to a body charged with giving independent consideration to allegations of misconduct” — in this case, a judicial committee.

The full 42-page judgment is available on the website of the Supreme Court.

Separately, an October 15 ruling was issued by Mr Justice Southey on a civil case against the Chief Justice, launched this year by Mrs Justice Stoneham, which sought a judicial review into her dispute over sick leave entitlement.

The judge found under the circumstances that the application for judicial review should be refused.

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