Former Cayman Islands Governor Stuart Jack cannot be sued in a personal capacity for his actions in dismissing former Royal Cayman Islands Police Commissioner Stuart Kernohan, according to a ruling Saturday by a visiting UK judge.
In addition, Justice Sir Alan Moses struck off former acting Royal Cayman Islands Police Commissioner David George from the $2 million lawsuit, and stated he would not allow either former RCIPS Acting Commissioner James Smith or current Cayman Islands Governor Duncan Taylor to be sued in their personal capacities or to be held vicariously liable for any damages caused to Mr. Kernohan.
Mr. Kernohan sued the Cayman Islands government, as well as Mr. George, Mr. Jack, Attorney General Sam Bulgin and retired UK Metropolitan Police officer Martin Bridger, in 2009 after he was cleared in connection with the infamous Operation Tempura police corruption probe. However, prior to exoneration, Mr. Kernohan was fired from his post by former Governor Jack after the then-commissioner refused to return to the Islands on Mr. Jack’s orders.
Justice Moses also ruled from the bench Saturday that there were appropriate grounds for Mr. Kernohan to sue the attorney general, who represents the Cayman Islands Government in all such actions. He also said that there may be appropriate grounds for Mr. Kernohan to sue Mr. Bridger, who was the senior investigating officer in the Operation Tempura probe from September 2007 to April 2009.
However, Justice Moses left Mr. Bridger’s fate uncertain, stating that he would likely require another hearing to determine whether allegations of misfeasance in public office made against the former Operation Tempura chief would be allowed to stand in a lawsuit.
Case ‘cries out for mediation’
The UK judge made it clear he did not wish matters to progress to such a stage.
“This is a case which cries out for mediation,” Justice Moses said. “[Continuing the lawsuit] is merely likely to culminate in the further exposure of the mistakes those involved in this case… have made.”
Attorneys for both sides gave no indication that a settlement process was in the works and even set dates for a pre-trial schedule which – if followed – would put the start of Mr. Kernohan’s lawsuit against the government sometime toward the beginning of 2012.
In pleadings before the court, Mr. Kernohan’s attorneys sought $2 million in lost wages, breach of contract, and lost future earnings claims due to both his November 2008 firing and the actions that led up to it. Additional recovery may be sought for what are known as “exemplary damages”, however Justice Moses’ Saturday ruling made it likely that any such claims are likely to be significantly reduced in value.
Justice Moses also approved an amount for security of costs that Mr. Kernohan must pay – totalling US$49,200 – prior to proceeding with any further action against the government. This security, due by 13 June, acts as a surety bond to cover any future judgment enforcement costs should the former commissioner lose his case and have to pay government’s legal fees
Mr. Kernohan, who did not attend the proceedings in Cayman, was said to be living in California, where he is now attempting to get a helicopter pilot’s licence.
Why Mr. Jack was left out
The long history of the Operation Tempura investigation was reviewed by Justice Moses prior to handing down his decision on Saturday.
According to the judge, the investigation began immediately following a police-ordered search of the former Cayman Net News offices on 3 September, 2007. That night, two former Net News employees entered the building and one searched the offices of publisher Desmond Seales looking for “a box of documents” that purportedly was needed to assist in establishing that a senior RCIPS officer was giving sensitive police information to Mr. Seales.
The accusations came to nothing, but questions lingered about the legality of such a search, which was conducted without a warrant.
Mr. Kernohan, along with RCIPS Chief Superintendent John Jones and Deputy RCIPS Commissioner Rudolph Dixon, were investigated for their alleged roles in directing the 3 September, 2007, entry.
In February 2008, representatives of the Operation Tempura team went to Cayman Islands Chief Justice Anthony Smellie seeking search warrants against Mr. Kernohan and Mr. Jones. They were denied. They tried again on 13 and 20 March, 2008, to apply for the search warrants. The chief justice again denied the applications in a ruling dated 4 April, 2008.
About a week before the second application for warrants was turned down, Messrs. Kernohan, Jones and Dixon were placed on required leave by Governor Jack. They remained on leave after the 4 April, 2008, ruling from the chief justice stating that there was not enough evidence to obtain search warrants against Mr. Kernohan and Mr. Jones.
At a 27 March, 2008, press conference announcing the required leave for the three top RCIPS officers, then-Governor Jack announced that Mr. Kernohan was actually not under investigation, although he obviously was at the time. The suspended commissioner was not given a copy of the chief justice’s 4 April, 2008, ruling on the search warrants until nearly six months later.
Mr. Kernohan remained on required leave until he was fired in November 2008. He did not receive any response to a letter he sent in April 2008 enquiring as to why he remained on leave over decisions made in an investigation that the governor and attorney general had full knowledge of.
Justice Moses said showing Governor Jack knew of the initial entry and search at Cayman Net News wasn’t enough for the lawsuit’s claims. In order to prove “official misfeasance” against Mr. Jack, Mr. Kernohan’s attorneys would have to show the ex-governor acted “in bad faith” with “targeted malice” against Mr. Kernohan. In addition, the UK judge stated Mr. Jack would have to knowingly act outside his powers in a way that he believed would have brought harm to Mr. Kernohan.
Although he said the actions of the former governor might have amounted to bad management or even incompetence, Justice Moses said there was nothing in the facts of the lawsuit to show Mr. Jack knowingly went outside of his legal authority.
“The time of [Mr. Kernohan’s] suspension and the length of time it took for the investigation may be in breach of contract,” the judge stated. “But they are, in my judgment, miles away from being illegal acts – let alone outside the powers of the governor.”
Justice Moses also noted in his judgment that no claim of misfeasance in office was made against Attorney General Sam Bulgin in Mr. Kernohan’s lawsuit, even though the attorney general had attended all previous meetings that led up to the decision to search the Cayman Net News offices on 3 September. This did not assist Mr. Kernohan’s claim, the judge said.
Mr. Bridger on his own
Lead counsel for the government during the three-day hearing, Martin Griffiths, QC, made no move to strike Mr. Bridger from the lawsuit, despite the fact that the former senior investigator was under the direction of acting police commissioners George and Smith while he was in Cayman.
Mr. Bridger attended the proceedings on Thursday, Friday and Saturday, and was represented separately by attorney Anthony Akiwumi.
“We are not saying that the result of this hearing is that Mr. Bridger or the attorney general will come out of this matter,” Mr. Griffiths said on Thursday.
Justice Moses questioned defence counsel on why Mr. Bridger had been separated from the other government officials. He said he wanted to know why the Cayman Islands Government appeared to be “standing behind” the former Operation Tempura chief at one point and then changed direction following a ruling by local Grand Court Justice Charles Quin.
There were few specifics given regarding the decision by Justice Quin. Justice Moses noted that it was issued on 20 January, 2011, and indicated the attorney general’s chambers would no longer be representing Mr. Bridger.
“Is it your submission that one doesn’t really need to know why Justice Quin allowed your people to come off the record?” Justice Moses asked.
Mr. Griffiths answered that was the case.
“It distances you from his [Mr. Bridger’s] actions,” Justice Moses said.
On Friday, Mr. Akiwumi told the court that Mr. Bridger was being made the proverbial ‘sacrificial lamb”.
Justice Moses expressed his keen displeasure over the fact that Mr. Bridger was being required to pay his own legal fees and travel costs in order to defend himself.
“This all happened because they sent him out here,” Justice Moses said. “I’m very perturbed by this.”
Mr. Akiwumi also questioned who would pay Mr. Bridger’s legal fees if Mr. Kernohan’s lawsuit failed. He said he was concerned when Mr. Hogarth, Mr. Kernohan’s attorney, stated the lawsuit was being run on a “shoestring budget”.
At this point, Mr. Griffiths noted that representatives for Mr. Kernohan included Mr. Hogarth, QC, the Campbell’s law firm and legendary Cayman Islands attorney Ramon Alberga, QC.
“That’s quite a shoe,” Mr. Griffiths quipped, referring to the earlier “shoestring” comment.