Kernohan sues for damages

Attorneys for former Commissioner of Police Stuart Kernohan have filed a claim against Governor Stuart Jack and others, seeking damages for alleged unlawful termination of employment plus loss of reputation and future loss of earnings.

Stuart Kernohan

Former Commissioner of Police Stuart Kernohan

The writ, filed on Monday, does not mention any specific amount sought.

Listed as defendants are Mr. Jack on behalf of the Government of the Cayman Islands; Martin Bridger, the special constable seconded from the Metropolitan Police Service and leader of Operation Tempura; the acting commissioner of police, currently James Smith; and Attorney General Samuel Bulgin.

The writ first sets out background to the claim, noting Mr. Kernohan was appointed commissioner for a term starting 15 October 2005 and ending 14 October 2009. The contract of employment could not be varied unless employer and employee agreed in writing.

By a letter dated 27 March 2008, Mr. Jack placed Mr. Kernohan on required leave. The writ states this was unlawful and in breach of the contract, which contained no term permitting the governor to do so.

The letter included a condition that Mr. Kernohan could not leave the island, which amounted to false imprisonment.

Also on 27 March, Mr. Jack held a press conference, attended by Mr. Bridger, at which it was stated ‘falsely and with deliberate effect, that [Mr. Kernohan] was not under investigation for any disciplinary or criminal offence.’

That statement was false because Mr. Kernohan was under investigation at the time and both Mr. Jack and Mr. Bridger knew it, the writ states. The investigation was code-named Operation Tempura.

In fact, two special constables had applied to Chief Justice Anthony Smellie for search warrants in respect of Mr. Kernohan and others on the basis there were reasonable grounds for suspecting he had committed offences, as part of an ongoing investigation into suspected criminal activity.

The press conference of 27 March 2008 ‘was of such tone and nature as to imply by innuendo serious misconduct and/or criminal activity on the part of [Mr. Kernohan], causing serious damage to his professional and personal reputation and to the jurisdiction of the Cayman Islands….The innuendo was false.’

The press conference also amounted to a serious breach of the implied trust and confidence that is essential between employer and employee, the writ states.

In his ruling on 4 April 2008, the chief justice said there was no reasonable basis for concluding that Mr. Kernohan had committed any criminal offence. He therefore refused the application for a search warrant.

On or about 15 May 2008, the governor gave Mr Kernohan notice that he was under investigation for misconduct in a public office. The complainant was Mr. Bridger. But the notice did not disclose matters sufficient to amount to an allegation of ‘misconduct in public office’ at common law.

In any event, the allegations were substantially the same as had been put before the chief justice previously. Accordingly, they had no realistically possible chance of successfully prosecuting Mr. Kernohan on the basis of that material.

Mr. Kernohan’s writ states he was unaware of the application for a search warrant and unaware of the chief justice’s decision until 1 October 2008. The decision was made public after the arrest of Justice Alex Henderson in September 2008.

Although the governor had promised to keep Mr. Kernohan’s required leave under review, he did not reinstate the commissioner to his post even after it ought to have been clear there were no grounds for keeping him on required leave.

After becoming aware of the chief justice’s decision, Mr. Kernohan demanded he be reinstated in a letter dated 9 October 2008. He received no reply.

By a letter dated 18 November 2008, the governor dismissed Mr. Kernohan from his position as commissioner of the RCIPS. The letter contained no reasonable grounds for dismissal, the writ states (Compass, 19 November).

By a letter on 30 April 2009, Mr. Kernohan was informed that the investigation had been closed and he would not be charged with any criminal offence arising out of the investigation (Compass, 1 May).

Mr. Kernohan seeks salary and benefits until the end of his term of contract in October this year plus repatriation expenses.

He seeks compensation for damage to his reputation and future loss of earnings ‘as he will or may be unable to obtain a replacement position of similar standing as result of the wrongful stigma attaching to him by reason of [the governor’s] conduct.’