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Policeman left with legal costs after losing promotion court case

Inspector David Bhagwan

A police officer who sought a judicial review of the decision not to promote him has been left with the legal costs of the case.

David Bhagwan had called for a review of Bermuda Police Service promotion procedures after failing to pass the Sergeant to Inspector interview panel in 2018.

His claim was dismissed by Chief Justice Narinder Hargun last year and the Court of Appeal this year, but he was subsequently promoted to Inspector this summer.

Phil Perinchief, counsel for Mr Bhagwan, argued in the Court of Appeal that no order for costs should be made because of the “immense public importance” of the case.

However the Court of Appeal said it was not persuaded that such a move would be justified.

In a written judgment, Justice of Appeal Anthony Smellie said: “While the appellant time and again in his arguments sought to invoke, in support of his challenge to the promotion process, the general public interest and the wider interests of members of the force in the proper regulation of its promotion process, in reality he was simply challenging the outcome of his own bid for promotion.

“His was nothing more than a personal cause and this remains clear notwithstanding that this court was told in e-mail correspondence that the Bermuda Police Association had agreed, to a limited extent, to underwrite the appellant’s attorney’s fees.

“And while the appellant’s challenges to the promotion process necessitated an examination by the Court of the complexities of the process, these were not found to be wanting in any significant way.

“Rather, the process was found to be fair and transparent, and well known to the appellant himself who had participated in their reform and was given to fair application across the board to all candidates.”

However the court rejected an application by the respondents for wasted and indemnity costs, and found it would be unfair to leave Mr Bhagwan with the legal costs for his defence against that claim.

In the circumstance, the court ruled that Mr Bhagwan should pay the respondents for the costs of the appeal.

However the respondents were ordered to bear their own costs for their application for costs, along with the costs of the appellants resistance of the application.

Mr Bhagwan had alleged bias by the interview panel and asked for a declaration that the promotions panel and the Commissioner of Police had acted beyond their authority.

He was told in September 2018 that he had fallen short of the 60 per cent pass grade in the examination for promotion – but that assessors were impressed with his performance and track record.

Mr Bhagwan complained that the process had been flawed and that Assistant Commissioner of Police Martin Weekes should have recused himself on the basis of an appearance of bias against him and against Caribbean police officers.

Chief Justice Narinder Hargun did not agree with Mr Bhagwan’s argument that the panel failed to remind him he was entitled to an observer from the Bermuda Police Association during the promotion process – in part, because Mr Bhagwan had been part of the working group that drew up the new policy.

The Chief Justice also highlighted that the appearance of personal bias dated to a 2007 incident which Mr Bhagwan had not flagged up until 11 years later.

Mr Justice Hargun added Mr Bhagwan was given time, but had not objected to Mr Weekes’ membership of the promotions panel.

He rejected the appearance of bias on the part of Mr Weekes and wrote that a fair-minded observer would not conclude that there was “real possibility” of anti-Caribbean bias.

Mr Justice Hargun accepted Mr Weekes’ evidence that “all candidates were given exactly the same opportunities to answer questions, including follow up questions and probing questions from the panel”.

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