Archive for May 28th, 2011
Ex-governor escapes law suit
(CNS): Full story — Stuart Jack, the former governor of the Cayman Islands, will not be held liable for the claim made by Stuart Kernohan, the former police commissioner whom he sacked, a judge has said. Following two days of legal wrangling by lawyers representing the Attorney General’s Chambers, the former Operation Tempura lead investigator and Kernohan, the judge made the decision that the claim did not demonstrate that the governor had acted illegally and therefore it should be the attorney general that should be left to face the law suit on behalf of the government. He made no decision on Bridger, however, as the former Metropolitan Police cop had not yet had the opportunity to defend his application to have his name taken off the writ.
Although the judge has prevented Kernohan from making a personal claim against Jack by denying his claim of misfeasance, Lord Justice Alan Moses has left room for Kernohan to seek more damages from the Cayman Islands government over and above the claim for loss of earnings if he is successful in winning his unlawful dismissal case and a breach of trust and confidence.
In his full ruling the judge gave some indication of his sympathy for Kernohan’s case and spelt out in detail the reasons for his judgement and his views on how Kernohan was treated.
Reviewing the circumstances of the case, Justice Moses described the incidents surrounding Operation Tempura as a “series of unusual events” that led to Kernohan’s dismissal. He revealed how Kernohan had been told in the first instance that he would be placed on required leave for only one month in March 2008, which would be under constant review. He was told at that point that he was not under investigation, despite the UK investigating team having already tried and failed to get a search warrant for his house. However, in May 2008 the special police investigation team led by Martin Bridger revealed that he was in fact under investigation for misconduct in a public office in connection with the Net News entry.
Bridger’s theory was that Kernohan not only acted improperly by asking the employees to search the newspaper offices but the former police commissioner did so for an ulterior motive against Anthony Ennis, though it was not clear exactly what the motive was.
It was not until September 2008 that Kernohan finally learned, as a result of the hearing regarding Justice Alex Henderson’s unlawful arrest, that the chief justice had already ruled that Kernohan had done nothing wrong when he authorized the employees to try and get copies of information that would indicated that the deputy commissioner was leaking sensitive information to the owner of the newspaper, Desmond Seales.
Kernohan was allegedly sacked for not returning to the island when asked to do so by the governor and for making disparaging remarks about members of Cabinet but was not officially cleared from the Operation Tempura investigation until more than a year after he was placed on required leave in April 2009.
In his claim against the various parties Kernohan claims that the governor acted in bad faith as he knew there was no proper grounds to place him on required leave, but not only did he do it, he allowed it to go on and on without responding to correspondence from Kernohan’s legal team.
The judge disagreed that this was an indication of malfeasance as he said it was not illegal to placeKernohan on suspension, so rather than bad faith it was more a case of “an error of judgement”. The judge also noted that the continuation of Kernohan’s required leave was at the advice of Bridger, who was the investigating officer, and the governor was not in a constitutional position to interfere with the operational details of the investigation and therefore was not himself directly liable, but the judge pointed out that the actions still bolstered Kernohan’s claim against the government in general.
He said the fact that Bridger did not accept the findings of the chief justice and carried on his investigation regardless did not mean the governor was acting in bad faith by not stopping him. He was, the judge stated, “restraining himself” from interfering with a police investigation, as he should.
The judge said the accusations that Kernohan was placed on required leave and kept there because the governor was trying to direct attention from his own involvement in the decision to allow the two Net News employees to enter their boss's office on the hunt for incriminating material made no sense.
He pointed out that if the chief justice had already noted that the entry into the newspaper office was not a crime then the governor had nothing to fear by being part of the decision to either instruct or agree to the decision to try that option before getting a search warrant or calling in the outside officers. “There is no rhyme or reason why the governor would need to distract attention … as his conduct, as already stated by the chief justice, was not considered to have been an offence,” the judge added.
In a ruling that took over two hours to deliver, the UK judge did point out, however, that this did not mean that many of the claims Kernohan was making about his treatment in the narrative of events might be valid. He said the governor did have a responsibility to see Kernohan did not suffer and that there was oversight of Bridger’s investigation.
The judge concluded that the Cayman Islands government in the form of the Attorney General was the correct defendant in Kernohan’s suit as there “was no basis for joining” Stuart Jack in person.
He pointed out that Kernohan had a wrongful dismissal case but more importantly there was room for damages to be claimed because of other issues that could be found to be breaches of trust and confidence but he said he would not allow a claim for aggravated damages in the case.
The judge said he believed that this was a case which “cries out for mediation” and that the parties should try to reach a settlement to save on expenses and to avoid further mistakes. He guessed that there would not be any winners in a long trial but lots of losers. He pointed out that during the investigation the ruling of the chief justice was kept from Kernohan and that he had never been given the chance to make representations about that. He also criticised the fact that despite the CJ’s ruling the Operation Tempura investigation continued without proper review.
The question of Bridger’s liability also remains unanswered as the judge said he could not rule on the claim against him as he had only just been served the papers directly when the hearing opened because of the situation that had arisen with his defence. Bridger had been represented by the attorney general’s office but as a result of a closed ruling made by Justice Charles Quin some weeks earlier the AG’s chambers had come off record, leaving the former Operation Tempura boss to fend for himself.
Anthony Akiwumi, who had come on record for the former Scotland Yard cop, pointed out at the end of the judge’s ruling that according to the Cayman Islands 1972 constitution, which was in effect at the time of Operation Tempura, the governor did have considerably more responsibilityfor the police, as he sought to define the position of his client who was faced with defending the suit without the protection of the Cayman government.
With the parameters of Kernohan’s claim now defined, unless the parties decide to settle there will be a long process of hearings and document exchange between the lawyers before the case itself comes before a judge to be heard. Setting out a timetable over the coming months, the parties agreed that if there was no mediation they would probably not be ready to set a date for trial until the end of the year and fixed a date for December for all the parties to return to the court.
Save Cayman out in force
(CNS): Campaigners aiming to protect the North Sound from proposed dredging projects and other major developments that could threaten the local environment were out in force Saturday at Grand Cayman’s local supermarkets collecting more signatures for the petition and recruiting people to assist with what is growing into a major green movement. Captain Bryan Ebanks, who is spearheading the campaign, said that the support for Save Cayman is growing and more and more people are pledging their support. Following a week of radio appearances and meetings to help promote this weekend’s push, Ebanks said he was really pleased that more and more people were willing to step up to the plate and say enough is enough.
The campaigners will be at Foster’s Republix in West Bay, Kirk’s Supermarket in George Town, Hurleys at Grand Harbour and at Fosters Countryside in Savannah. Campaigners will be there from around 9-30am until 4pm on Saturday and will have information about the campaign.
Although the main focus of the fight is to protect the North Sound, Save Cayman is also lending its support to the opposition of the East End Sea Port as well as proposals to move the West Bay Road. However, as the protest gathers pace it is shaping into a movement that is pressing for more controlled and sustainable development that includes greater participation of the local people.
“It is not easy to keep going with the campaign as there is a lot of work to do,” Captain Bryan said this weekend. “However, when we get so much moral support from people out there and have many people willing to help, it’s what keeps me going.”
Ebanks is still aiming to collect enough signatures from the local voting population to trigger a people initiated referendum to prevent government from dredging the North Sound. Although it is not clear if the current government has abandoned its latest plan for a channel, the issue keeps reoccurring. The campaigning captain says it is important to demonstrate to government the level of opposition to the principle of dredging the Sound to hopefully put a stop to any current or future considerations for a channel.
With past dredging already having damaging the water quality of one of Grand Cayman’s most important assets, the threat of a larger channel cutting through the reef could pose enormous risks to both West Bay and George Town during hurricanes but also it could threatened the very existence of the Sand Bar, which is one of Cayman’s leading tourist attractions.
Ex-top cop seeks at least $2M
(CNS):Former police commissioner Stuart Kernohan is seeking at least CI$2 million if he is successful in his claim for wrongful dismissal. The figure represents what he could have earned as a senior police officer from the pointof his sacking by the then governor Stuart Jack to his retirement at age 60 had his career not been cut short by the chain of events following Operation Tempura. However, if the ex-top cop succeeds in proving that the governor and the senior investigating officer of the failed UK police corruption probe, Martin Bridger, both acted in bad faith, there could be millions more awarded to him in damages. During the second day of the hearing lawyers continued to argue over the claim made by Kernohan as to who could remain on it and why.
During arguments Friday morning Andrew Hogarth QC, who is representing Kernohan in his claim that not only was he wrongfully dismissed but that those involved acted in bad faith, told the Lord Justice Alan Moses that if the governor was not acting maliciously he was “hopelessly incompetent”, which, he said, was the position being advanced by the defence attorney representing the attorney general and governor’s offices.
The AG’s office has applied to have the claim narrowed considerably but Hogarth argued that the claim cannot be edited just because the defendants refuse to believe the facts in the pleading. The attorney said that the judge had to look at the facts that are alleged in Kernohan’s claim but he could not as the AG’s team wanted him to throw out the claim by assuming they were untrue before a trial had taken place.
Hogarth said that during the investigation Bridger had made the deliberate decision to ignore the rulings of the chief justice and plough ahead with the resulting consequences for Kernohan. The senior cop was left suspended for some fifteen months without any action, even when it was known by all the parties that he was not guilty of any wrongdoing.
He also claimed that the AG and the governor had instructed Kernohan to go ahead with the plan to allow two employees to hunt for a file that may have held evidence of police corruption at a newspaper office, but had not told Bridger this when he arrived to begin his undercover investigation. Hogarth said this showed a “malicious intention to distract attention from their own involvement” in the incident regarding Cayman Net News.
The QC continued to advance his position that the governor had acted in bad faith and was guilty of malfeasance in his treatment of Kernohan, not least because he was kept on ‘required leave’ long after he had been exonerated by the chief justice. However, the judge queried the claim of misconduct on the part of the governor suggesting it was more likely to be poor management rather than deliberately malicious.
“You can’t just fling around allegations of misconduct without spelling them out,” the judge noted as he pushed Hogarth to demonstrate the bad faith. Lord Justice Moses observed on a number of occasions that he was not convinced the plaintiff could necessarily argue it was all intentional when it did indeed look more like a “very silly way of running” things. He pointed out that there was a gap in the claim between the governor’s actions being bad faith or just bad management.
However, the judge said it was clear when Martin Bridger persisted with his investigation against Kernohan, despite the ruling of the chief justice, that the governor should at the very least have tried to reign in the senior officer and make him spell out the reasons for going on. He also noted that the CJ's decision had not been appealed.
When Anthony Akiwumi spoke for the first time on behalf of Bridger, he said that there was no avenue in Cayman law for Bridger to have appealed the CJ’s decision not to allow a search warrant for Kernohan’s house. Akiwumi said thatBridger took the claim seriously as it appeared he had become the “sacrificial lamb” as he had been abandoned by the AG’s legal team and left to find his own representation to defend him against Kernohan’s claim.
Akiwumi, who came on record for Bridger when the hearing opened Thursday, argued to strike out the claims against his client. However, the judge pointed out that it was his defendant who had continued to advance the investigation against Kernohan despite the fact that the chief justice had pointed out that he had done nothing wrong and regardless of the consequences for the plaintiff. However, Akiwumi argued that Bridger had advanced his investigation with the blessing of the Cayman authorities, so he too had done nothing in bad faith.
The judge again raised the question over why the government or the FCO were not defending Bridger and why he was not allowed to know what was in the early the ruling that was given by Justice Quin that changed the shape of the claim and left Bridger out on a limb.
The judge will be making his ruling Saturday morning that will decide if the former governor Stuart Jack should remain in the suit and under what circumstances. Once that decision is made it will be up to the two parties to decide if the matter can be settled outside the court or whether the claim will be fought in a fully fledged trial.
Related article: Bridger pursues complaint re-Operation Tempura