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Review needed of Chief Justice cases that involved banks, pressure group insists

Chief Justice Narinder Hargun(File Photograph)

A review of court cases presided over by the Chief Justice that involved island banks should be carried out, a pressure group has said.

The Civil Justice Advocacy Group claimed the move was needed after it was revealed in January that Narinder Hargun recused himself from a lawsuit that questioned the legitimacy of a Commission of Inquiry because he earlier represented the Bank of Bermuda and other banks.

The group told The Royal Gazette it was “...calling for a review of all cases adjudicated by Chief Justice Narinder Hargun – inclusive of his term formerly serving as an Assistant Justice – where any of Bermuda’s banks were party to the proceedings”.

Campaigners added: “Mr Hargun’s private admission as a reason to decline to sit on a judicial review of public interest, concerning a legal challenge to an appointed Commission of Inquiry into historical land loss, in our opinion, calls into question the decisions rendered by the Chief Justice in cases where any Bermuda bank is an interested party to the proceedings.”

The lawsuit over the CoI was filed by Raymond Davis and Myron Piper in January last year and claimed the commission was a sham and that commissioners failed to act in an impartial manner.

The pair reviewed the court file for their case and discovered a February 10, 2021 memo in which the Chief Justice, who is a former director and head of litigation at law firm Conyers, recused himself from the proceedings.

Mr Justice Hargun wrote: “I think they may take the point that I may have a conflict due to my past representation of Bank of Bermuda and other banks.”

Mr Davis, also known as Khalid Wasi, and Mr Piper complained in an open letter to the Governor in January that Mr Justice Hargun went on to ask that Jeffrey Elkinson, a director at Conyers, be appointed to hear their case.

They said: “...Mr Elkinson was his former partner/director at Conyers, was still employed at Conyers and would have the same, if not even more, direct conflict as he admittedly did in the file memorandum.”

CJAG said they did not know how many judgements or court orders by Mr Justice Hargun would need to be reviewed but insisted an independent adjudicator should be brought in.

The group said: “Not everyone is equipped financially to launch an appeal.”

Campaigners added: “This matter is just the latest concern of CJAG with the state of Bermuda’s judiciary.

“If these expressed concerns continue to be met with silence and inaction, a concerted campaign to attract a UK or international review of Bermuda’s judicial system must be earnestly pursued.”

Mr Justice Hargun was asked for comment. Alexandra Domingues, the Supreme Court Registrar, highlighted that it was “not the policy of the Supreme Court to comment on any pending or decided cases”.

But she added: “In relation to the recusal issue, generally, I can say that that the terms of reference of the Commission of Inquiry required it to investigate alleged conflicts of interest on the part of various banks and/or lawyers.

“Accordingly, it was necessary to apply a stricter approach to recusal in relation to an application for leave to seek judicial review of the constitution of the Commission of Inquiry than would apply to the ordinary case involving a single bank and one or more private parties.”

Ms Domingues said: “The rules on the recusal of judges are deliberately flexible and fluid and how they work in practice is always shaped by the circumstances of each case.”

A spokeswoman for Government House said CJAG had not approached Rena Lalgie, the Governor, with its request.

She added that Ms Lalgie had made it clear on February 9 that an overseas judge would be brought in to hear the case brought by Mr Davis and Mr Piper.

The Commission of Inquiry’s 500-page report, released last December, said a legal mechanism should be created to allow for a Government apology to be made to victims of land loss.