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Plaintiff barred from his own hearing after failing to meet deadlines

Robert Moulder after getting evicted from his property in Sandys (File photograph)

A West End man fighting a long-running court battle over the loss of his Sandys property has been barred by the Supreme Court from taking part in his own court hearing this month for a judicial review into his case.

Robert Moulder was chastised in a judgment issued last Wednesday by Assistant Justice David Hugh Southey for failing to file his skeleton legal argument as ordered, after the court granted permission last August for him to apply for judicial review.

Mr Moulder brought his case before the Commission of Inquiry into Historic Losses of Land in Bermuda, begun in 2020, over a dispute dating back to 1999 when he claimed his property was unjustly sold by a neighbour.

He told the commission that he had evidence to prove that the land was illegally taken, and that lawyers, real estate agents and banks had colluded.

Mr Moulder’s testimony was heard behind closed doors after commissioners were told that his evidence could lead to criminal charges.

However, after hearing his case in camera, the commission declined to make recommendations and sealed its records on the matter for 50 years.

Mr Moulder argued last year that he was not given a fair hearing — and Mr Justice Southey granted him leave to apply for a judicial review.

On February 13, Mr Justice Southey delivered a sharply worded ruling in the wake of a hearing, saying his ruling on Mr Moulder’s application for the review would have to be done “without the assistance of the Applicant”.

He added: “That is something that is not entirely satisfactory.”

But the judge cited “repeated” noncompliance with court orders and wrote that prohibiting Mr Moulder from taking part in the substantive determination of the proceedings was “the only way forward”.

He said he had “no faith in the Applicant’s willingness to comply with orders”.

Mr Justice Southey highlighted an order from October 22, 2022, requiring submission of the skeleton argument by December 13.

He noted that Mr Moulder failed to request a variation of that order and “even failed to write to the court seeking an extension of the time limit”. He also failed to serve a trial bundle in time for February 7.

The judge noted that the court order from October 2022 stipulated that any party failing to comply “may be debarred from filing any further pleadings in the action or participating in the substantive hearing”.

As background, Mr Justice Southey wrote that Mr Moulder had previously failed to comply with an order issued on August 5, 2022, aimed at ensuring that a hearing would be able to go ahead that October.

He wrote that the applicant “appears to have concluded that he could unilaterally ignore the order for service of evidence”.

At the hearing of February 13, Mr Moulder filed a skeleton argument telling the court that the Commission of Inquiry had served a summons in December on his assistant before the courts, Judith Chambers.

He maintained that they were both “greatly affected by the various injustices that I have been subjected to” and said the commissioners were “acting in bad faith”.

But the judge wrote that this argument failed to justify “in any way” the failure to accede with the court’s order for the filing of his skeleton argument on time.

“As I pointed out in my previous judgment, court orders cannot simply be ignored.”

Mr Justice Southey noted that in his oral submission, Mr Moulder stated that he and Ms Chambers suffered from post-traumatic stress disorder.

But the judge wrote that he had seen no medical evidence to support the claim.

He was also unmoved by the claim that the hearing would fall in late March, more than a month from the February court appearance, and that as a result “no detriment has been caused by my inability to file and serve the documents ordered”.

Mr Justice Southey wrote that the repeated failure to comply with court directions had led to a waste of the court’s time and resources, causing delays that resulted in “unfairness” to the commission.

He added that his “greatest concern” was that he still needed to come to a decision on the outstanding application for a judicial review, and that he had no choice but to prohibit Mr Moulder from participating in the substantive determination of the proceedings.

“There must come a point where the court says enough is enough,” he wrote.

He ordered that Mr Moulder “be barred from filing any further pleadings in the action or participating at the substantive hearing”.

The hearing is listed for March 28 and March 29.

To read the judgment in full, click on the PDF under “Related Media”.

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