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Litigants in COI case claim judiciary ‘in crisis’

Chief Justice Narinder Hargun

Two litigants battling to get a case about the recent Commission of Inquiry heard in the Supreme Court claim the judiciary is in “crisis” because of the lack of an impartial judge to preside over it.

Raymond Davis and Myron Piper wrote an open letter to Rena Lalgie, the Governor, on Tuesday requesting that she urgently appoint an experienced judge from overseas to hear the civil matter and any future cases relating to the Commission of Inquiry into Historical Loss of Land.

They asked that the judge not come from the Caribbean because of COI chairwoman Norma Wade-Miller’s “judicial and familial connections” there, but rather Britain or elsewhere in the Commonwealth.

The two men applied for a judicial review into the legitimacy of the COI in January 2021, claiming it was a sham and that commissioners failed to act impartially.

But the case has not been heard yet because all the full-time local civil judges, including Chief Justice Narinder Hargun, have conflicts of interest.

The pair revealed in their letter to Ms Lalgie that they recently reviewed the court file and found a February 10, 2021 memo from the Chief Justice in which he voluntarily recused himself from the case.

Mr Justice Hargun, who was director and head of litigation at Conyers law firm until he became Chief Justice in 2018, 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.”

The litigants said Mr Justice Hargun then wrote to the Governor on March 24, 2021 requesting that Jeffrey Elkinson, a director at Conyers, be appointed to hear the matter.

Mr Davis, also known as Khalid Wasi, and Mr Piper claimed in their letter to the Governor it was “astonishing“ that the Chief Justice would make that request.

“ … 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,” they wrote.

They alleged that the recommendation – and Mr Elkinson’s subsequent appointment by the Governor – delayed the matter from being heard for another eight months.

The pair said this was despite them raising an immediate concern with Supreme Court Registrar Alexandra Domingues about Mr Elkinson’s conflicts.

They wrote: “ … Mr Piper was not allowed (despite his written requests and availability) to participate via Zoom as a litigant-in-person in at least two hearings which were scheduled while he was off island.”

In November 2021, Mr Piper did raise the concerns at a court hearing.

The letter said that led to Mr Elkinson’s “protracted decision to recuse himself”.

Mr Davis and Mr Piper also shared with The Royal Gazette a letter they wrote to Ms Lalgie on February 19, 2021 in which they raised concerns about judicial independence in relation to their case.

“It would be difficult if not impossible for any of the local judges to be unaffected or impartial enough to adjudicate this with any degree of independence and autonomy,” they wrote.

The litigants told the Governor back then that the Chief Justice, along with Puisne Judges Shade Subair Williams and Larry Mussenden, would have conflicts of interest because of their historical involvement in a civil property case involving Mr Piper.

The pair added: “ … the Chief Justice would have a conflict of interest in matters involving an investigation into the banks’ role in land loss, as he was a director in a major local law firm which represented a major bank in Bermuda.”

They said the last time a judicial review was filed with regard to a Commission of Inquiry, in 2016, the matter “was expedited in the public interest”.

Their application, the men alleged, had instead been “stalled”.

A Government House spokeswoman said yesterday: “The Governor received a letter from Messrs Davis and Piper on January 11 and is considering its content. It would not be appropriate to comment further at this time.”

Ms Domingues said on behalf of Mr Hargun that it was the court’s policy not to comment on court cases.

Mr Elkinson did not respond to a request for comment.

* To read the open letter – partially redacted for legal reasons – please click on the PDF under Related Media.