Judge Priya Levers

In order to provide the public with ease of access to the historical record of the Judicial Tribunal appointed by H.E. the Governor Stuart Jack to inquire into allegations of misbehaviour against Grand Court Judge Priya Levers, Cayman Net News will be publishing the daily transcripts of the Tribunal proceedings in their entirety.

Day 4 of the Tribunal concludes as counsel and the Chairman discuss procedural matters.

Monday, 11th May 2009
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CAYMAN TRIBUNAL RE: SECTION 493
OF THE CONSTITUTION
AND
LEVERS J
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Before The Tribunal:
Sir Andrew Leggatt (Chairman)
Sir Philip Otton
Sir David Simmons
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MR TIMOTHY OTTY QC (instructed by Messrs Clifford Chance LLP) appeared as Counsel to the Tribunal.
MR STANLEY BRODIE QC (instructed by Messrs Stuarts Walker Hersant) appeared on behalf of Madam Justice Levers.
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PROCEEDINGS
DAY FOUR

MR OTTY: Or alternatively, if the Tribunal does wish to hear from him, then at least issues three and five in Stuarts’ statement of issues that I have just referred to should be excluded and they should be excluded on the basis that to include them would be inconsistent with the stance previously articulated by Madam Justice Levers’ representatives that she intends to make no allegations against other members of the judiciary and, in relation to item five, on the further basis that it would give rise to significant practical difficulty because of the sensitivity of some of the documents which apparently would be investigated.

That is a third matter. The fourth and final matter is the question of Mr Christopher Levers.

THE CHAIRMAN: Right.

MR OTTY: As to that, the Tribunal will have appreciated that there is a conflict of evidence between Mrs Webb and both Madam Justice Levers and Mr Christopher Levers in relation to the circumstances surrounding the alleged sight of the Leticia Barton letter. Mr Christopher Levers has put in a witness statement at tab 23 of the PL bundle in which he disputes the assertions made by Mrs Webb at paragraph 27 of her principal witness statement which is at tab 44 of the first bundle. As to this matter, perhaps, in contrast to the issues arising in relation to Nora Ebanks, the Leticia Barton letter is clearly a particularly important matter before the Tribunal and the Tribunal may feel that in those circumstances it would therefore wish to hear from Mr Christopher Levers, to hear him respond and assess his demeanour in responding to Mrs Webb’s allegations. But I make it clear and I made it clear to Mr Brodie that I have no material to put to him other than formally Mrs Webb’s allegation. His evidence will, therefore, be short.

I appreciate that it has not been able to reduce these points to writing before now and I apologise for that. It may well be that the Tribunal will wish to consider the matters overnight and announce their decision in the morning, but I thought that it might be helpful to raise those points now.

THE CHAIRMAN: Yes, thank you very much for doing so. (Tribunal conferred)
We are content that Nora Ebanks and Christopher Levers should be called. We would like to hear you about Dale Sanderson QC. Mr Brodie, if you have anything you wish to say about that ...

MR BRODIE: We have recently received today another document also by the Chief Justice. We are not quite sure where it appears in the core bundle, because it was only produced by Campbells this morning, but it has some relevance to this matter. (Document handed) Your lordship may or may not have appreciated that what seems to have happened, and I have only just woken up to it recently, is that Dale Simons, the head of judicial complaints in London, came out here in early June and gave a report to the Governor, I think it was. Only yesterday we discovered that there was a supplementary addendum which had not been disclosed to us which we regard as quite an important document, but it is not to do with this particular issue, but these things are coming to us quite recently and this morning we have had this document, which is headed “Comments on Dale Simons’ report”. Has your lordship
got that?

THE CHAIRMAN: Yes.

MR BRODIE: “Discussed with the Governor on 18th June 2008” is in the top right-hand corner. He is dealing with various matters which arise out of Dale Simons’ addendum or his report which is already in your lordships’ bundle. About five pages in, this is the Chief Justice’s document, it says this at the bottom

THE CHAIRMAN: I think on the fifth page I have the words “missing page” written.

MR OTTY: There should be a loose page. It came in two parts to us this morning.

MR BRODIE: It is unnumbered this, unfortunately, but it is at the bottom of page 3. “The different but related questions over the judge’s entitlement to healthy coverage benefits, I agree should be approached with special care and caution”. This is the suggestion that Madam Justice Levers took the job well knowing that she was ill for the purposes of getting health benefit.

THE CHAIRMAN: Had we better read it to ourselves?

MR BRODIE: Well, there is just one passage that ... Well, you can if you like. Certainly later on, but on the issue of Sanderson it goes on, “They should not be raised as charges at all, they have arisen as part of the background to what may be perceived as a vendetta on the part of the judge against another judge”, and the asterisk goes down to the bottom, “Sanderson J acting”. Your lordship may remember that a situation arose in which I think it was Mr Foldats had a conversation which led to an interview between the Chief Justice and Madam Justice Levers and Mr Foldats about the suggestion, I think, made by a few of us, a few of us including the said Justice Sanderson, that Madam Justice Levers had come here for that purpose of taking advantage of the health insurance. Your lordship will remember that in Madam Justice Levers’ evidence. So what one gets here is the Chief Justice himself acknowledged that there was at least some sort of bad feeling between Madam Justice Levers and Justice Sanderson. You will have also seen the letter written by Mr Justice Quin, as he now is, raising various matters of concern and where one gets to on this is that, whether one likes it or not, the role of Justice Sanderson and his behaviour and whether he is suitable to appear in this jurisdiction were matters of concern not just to Madam Justice Levers, but to others as well. When one is presented with this and one sees all the documentary material, it is impossible to close one’s eyes to the fact that one of the factors that may - and I empathise the word “may” - arise in this story is the situation of Justice Sanderson. My learned friend is wrong in saying that we said that we would not make allegations against other judges - in fact, it is only one judge - what we were asked for was whether we were going to make the allegations which were the subject matter of the rumours and we are certainly not doing that. But what is said against Madam Justice Levers is that she was promulgating and circulating rumours. If one is going to make that kind of allegation, plainly the foundation of the rumours is something that has got some materiality.

But where we are getting to in this is that Justice Sanderson certainly in one way or another comes into this case - it is entirely a matter for the Tribunal as to whether you regard it as peripheral or not - and we would submit that, since that appears to be a possible factor in this story, that it is something that the Tribunal may or may not wish to deal with. If that be right, then, looking at the various things which are being said, your lordships may wish to deal with it for the purposes of dismissing it, for all I know. But it has been raised, it is there, allegations are made, there is a memorandum of the Chief Justice on 2nd October in which the position of Justice Sanderson was discussed with Madam Justice Levers, there is evidence that there has been meetings between Mr Justice Quin or Mr Charles Quin, as he then was, and the Chief Justice and the Governor concerning Justice Sanderson and it is one of the things that muddies the waters in this case. But we have put forward allegations. As we say, we have no direct evidence, but there is circumstantial material here which may or may not lead to certain conclusions.

THE CHAIRMAN: I am sorry, Mr Brodie, I am sure that it is my fault, but could you be kind enough to say in a sentence what it is about Mr Sanderson that makes it appear that he is a “possible factor”, in your expression?

MR BRODIE: Perhaps I can take your lordship to some documents to have a look at. One needs to look at the Chief Justice’ memorandum of 2nd October 2007, which your lordships will find at pages 268 to 270 in the core bundle. You will see that it is headed “Meeting with Levers J”. Has your lordship got there yet?

THE CHAIRMAN: Yes, thank you.

MR BRODIE: “Meeting with Levers J re Governor’s report of calls to his office by Wayne Panton (and perhaps Charles Quin) that Quin/Panton had protested Sanderson’s return. 9.15 am 2nd October 2007.

“I expressed my concern to Levers J that she must have inveigled Charles Quin and Wayne Panton to call the Governor to protest against Sanderson coming here to act. It was a matter of inference that she was behind it) because only three people within the administration knew that Sanderson was expected and she had pointedly asked one of them (the listing officer) who had confirmed that that was my intention. She said Quin had called her to discuss a silk from London coming here to act as a judge and she mentioned in passing to him that Sanderson was coming. She knew nothing of how Wayne Panton came into the matter. Implicitly her reaction was that Quin must have taken it upon himself to call the Governor.

“I told her I did not accept (that account) because it was well known that she held animosity towards Sanderson; to which he responded that she was afraid of him because she had reason to think he was out to ‘destroy her’. She then told me that as we spoke she was having typed up a memo to me in which she was bringing to my attention the fact that she had just in the past couple of days received two anonymous telephone calls to her cell phone from persons warning her that Sanderson was coming again to Cayman and that he had said he ‘was going to destroy her’.

“I told her I awaited her memo before deciding what to do. [It never came.]”

Well, in fact, it did come, it is at page 267 and I think I am right in saying the Chief Justice acknowledges later that he did, in fact, have it, but it is on the same date and you will see what she wrote there at page 267.

“Recently, while you were in Kenya I received two telephone calls of a rather disturbing nature. I did not wish to make a fuss about them because I dismissed them as not worthy of consideration. However, I did mention one of the telephone calls to the court administrator.

“The calls were to the effect that Mr Dale Sanderson QC has said that anyone who crosses him in the Cayman Islands would not survive. As he was not in the Island and I did not think he would necessarily do anything about it, as he was your friend, I did not mention it to you.

“It has now been brought to my attention, however, that he may come to act and, if that be the case, I would be grateful if, perhaps, this can be placed on my file in the event that untoward transpires. I should be grateful if you would keep this confidential and I write simply because I need to have you formally notified. I do not wish to have anything done about it, but, if the occasion arises, then my family and/or I will have this on record.”

Then going back to the other side of the page, “She then said that she had spoken to Quin and Alberga about Sanderson coming here, because she thought I was well informed about the ‘profession’s concerns’ about him; but because I am his friend (as she said everyone perceives me to be) I had decided to do nothing about it. She said she had been made to believe that Quin and Alberga QC had spoken to me about Sanderson’s conduct in particular and that was why she had not bothered herself to tell me the specifics that she knew. It was then that she suggested I should speak to Alberga QC and proceeded to tell me specifically of Simone March Thompkins’ complaint to her. (She also mentioned an incident at a nightclub involving her own daughter Lianne and another young miss being asked not to bring her daughter into the matter and said she was making no official complaint in that regard).

“I told her that the perception of my relationship with Sanderson J was misconceived and that if I felt that there was any proper basis to be concerned about his conduct, I would regard myself as duty bound to raise it with him and consider whether it is in the interest of the Administration that he should continue to act as a judge here.

“I then told her that I would speak to Simone Thomkins and Alberga QC and would be raising my concerns about his own conduct with Quin. I had also immediately earlier spoken to Quin who denied calling the Governor’s office against Sanderson’s return. He and I paid the Governor a visit immediately when it was confirmed that he had not been involved and declared that he had no reason to be: he had no reason to object to Sanderson’s appointment. Wayne Panton had called the Governor’s office without Quin’s knowledge or consent].

“I also advised Levers J against the habit she had reportedly gotten into of inviting members of the Registry Staff ...” And that goes on to other matters.

4.00
If your lordships would be kind enough to go to our written submissions, I will then take you to another document, it is a PL document, if your lordships will go to the end of the PL bundle, there is a memorandum first of all - if your lordship would just give me one moment, so I get this in the right order. Would your lordship go to divider 20, where you need to start in the PL bundle? He was asked some questions by Madam Justice Levers’ lawyers and on page 2 he answers the questions. I do not think that your lordships need to look at those particularly. He says this, “On my visit to His Excellency with the Chief Justice, the Governor indicated that he ...”

THE CHAIRMAN: I am sorry, I cannot see where you are reading.

MR BRODIE: I beg your pardon, it is divider 20. This is a letter from Mr Justice Quin, as he now is, in this jurisdiction, dated 23rd March.

MR OTTY: I hesitate to interrupt Mr Brodie, but I have noticed some concern on the part of Campbells and I wonder whether it may be perhaps more convenient and more appropriate for Mr Brodie to direct the Tribunal to the document to read, so that we do not get in a situation of self-fulfilling prophesy where it becomes inevitable that Mr Sanderson will have to be given the opportunity to answer the allegations that Mr Brodie has read out.

THE CHAIRMAN: Yes.

MR BRODIE: I have been asked to make submissions and I am making submissions.

THE CHAIRMAN: You can make the submission by inviting the Tribunal to read particular passages with which you are concerned without reading them aloud. That is all that is being suggested. If it becomes necessary, we will sit in private. At the moment you are trying for my benefit to indicate the document that you want our attention drawn to.

MR BRODIE: Yes. I can make it quite shortly in a way, because I can show you our written submissions. If your lordship would go, for example, to 5.1 in bundle C, page 15, your lordship sees what we say there and we refer at 5.2, for example ... First of all, we refer in 5.1 to the matter that I have just mentioned which, in fact, at the end of 5.1 ended up with the question of Madam Justice Levers’ medical position. At 5.2 it refers to the file note of 5th May mentioned under question 5(b) in the letter of Mr Justice Quin of 23rd March which is the one to which I was just attempting to draw your lordship’s attention to. You will see what is said at 5.3, questions 1 and 2. As you have seen in the correspondence, there are references to the question of Canadian judges coming here and various criticisms being made of that kind of thing. It is endemic, I am afraid, in this particular case. You cannot escape from it, it is there. Therefore, since it is an issue which is there, and since Madam Justice Levers has asked herself the question, why are these allegations being made, why are they being made by Canadian court reporters, we already know there was one Canadian court reporter who was very friendly with Justice Sanderson, obviously one may draw inferences that are unsound or inferences which are sound. To approach this Tribunal trying to shut one’s eyes to this particular aspect of the matter, in my respectful submission, is not possible. Well, it is possible, but it seems to me that those are difficulties that have to be faced. For example, is it going to be suggested that Madam Justice Levers is prejudiced against the gentleman in question? Is that going to be part of this case or not? These are the difficulties that present themselves as a matter of background material. If I may so, as your lordships will appreciate, it is a difficult one, I am not suggesting for one moment that it is an easy issue, because it is not, but the fact is that in the context of the story which your lordships have to consider and the kind of, if I may say, parochial issues that are underlying this particular matter, it may be difficult to avoid facing up to these particular matters. For example, one difficulty that arises is that it is alleged that Madam Justice Levers was spreading rumours. Well, she denies that, but then the question is rumours about what? You cannot talk about rumours without identifying what the rumours are supposed to be. That is quite different from alleging the rumour is correct and, certainly, Madam Justice Levers made it perfectly clear that she makes no allegations against the Chief Justice, as far as the rumours are concerned, or Justice Sanderson, but the rumours are there. What she is saying is that it is not me, they were current anyway.

I only raise these matters with your lordships because it puts Madam Justice Levers into something of a difficulty if the allegation against her is “You are spreading rumours”, if, in fact, it is not possible to consider what those rumours actually are. Those are the difficulties that arise in this kind of case.

THE CHAIRMAN: Yes, thank you.

MR BRODIE: As I understand it, the objection, as we have been told, is not to Mr Sanderson giving evidence but giving evidence as to the issues in 3 and 5 in the response document produced by my learned friend. Has your lordship see that?

THE CHAIRMAN: Yes.

MR BRODIE: number 3 is, “by reference to paragraph 5.3 of the opening submissions, Dale Sanderson QC’s response to the complaints of conduct set out therein” and number 5 is to do with firearms. As I understand it, there is no objection to the other three. I do not know whether your lordships want to consider this matter and ask me to address you again tomorrow morning when you haws had a look at these documents or how you wish to proceed.

THE CHAIRMAN: Yes. We will hear Mr Otty and then we will decide what we will do. Thank you, Mr Brodie.

MR OTTY: Sir, going back to the document that my learned friend was just referring to, namely the statement of the five issues which you would wish to question Mr Sanderson on, it is quite right to say that particular objection was taken to issues 3 and 5 by Campbells and, in relation to those matters, the position remains, I would respectfully submit, accurately is summarised as follows. Madam Justice Levers has made it clear that she makes no allegations of misconduct against the other members of the judiciary, including Mr Justice Sanderson, and she has limited herself to seeking to establish provenance and currency of rumours. Investigation of provenance and currency of rumours, we would respectfully submit, does not require the presence of Mr Sanderson. That submission is relevant to both items 3 and 5. For item 5 the practical difficulty I have identified remains, namely how to deal with the Operation Tempura documentation. Unless a compelling case was made that it were necessary for these matters to be put to Mr Sanderson for the Tribunal to discharge its functions, I would respectfully submit that it is not necessary and those issues, on any view, be excluded.
The question then remains what about the other issues of questioning identified at 1, 2 and 4. Those all go on analysis to the case floated in the opening submissions for the first time of some concerted action on behalf of the four individuals identified in (iv). We have had, as the Tribunal knows, the first three of those individuals give evidence to the Tribunal and no case of concerted action involves these four individuals has been put to those three. Again, therefore, it would seem unnecessary to hear from Mr Sanderson in relation to those matters.

I should say, to be clear, that I accept what Mr Brodie says in one respect, that the position of Mr Sanderson and the allegations made in Mr Brodie’s opening submissions are not entirely irrelevant to the issues before the Tribunal. That is, however, in only this narrow respect, I would submit. The Tribunal has heard a number of witnesses give evidence of Madam Justice Levers asserting that Mr Justice Sanderson was behind the initial complaints made against her and forwarded to her by the Chief Justice in May 2007. It may be relevant to assess the credibility of those witnesses against the background of what Madam Justice Levers has said in her opening submissions and the suspicions she has about Mr Sanderson. But for that purpose we will have Madam Justice Levers to give evidence, we will also have the Chief Justice present to give evidence, who can speak to the other documents that my learned friend has referred to and I would respectfully submit that no clear case has been made for Mr Sanderson now to be required to give evidence and, for those reasons, I would submit that either the Tribunal concludes that it does not need to hear him give evidence or on any view that it excludes issues 3 and 5 from those set out in Mr Brodie’s note.

Sir, I have just been passed a note to say that Campbells also seek permission to very briefly address the Tribunal on this matter, they, of course, have taken direct instructions from Mr Sanderson and I have not.

THE CHAIRMAN: Thank you, Mr Brodie. (Tribunal conferred) very well, we will hear from Campbells.

MS HOUGHTON: My lord, my name is Kirsten Houghton and I represent Justice Sanderson, Dale Sanderson QC, Mr McCann, my partner, is present in the room this afternoon.

THE CHAIRMAN: So be it. Will you roll your voice along the stalls for us, please?

MS HOUGHTON: Yes, my lord. My lord, I want to make a short point about item 3 because Mr Otty has addressed the Tribunal in relation to the other issues. My lord, if I understood Mr Brodie correctly, what is proposed is to question Justice Sanderson in relation to a wide number of issues about his conduct. My lord, this inquiry is well known not to be about Justice Sanderson and his conduct is not relevant and, in fairness to Justice Sanderson, if there was to be questioning along those lines, it is likely that many, many other witnesses would have to be called in addition. Nobody has proposed that Justice Quin, for example, should give evidence and he would certainly be a relevant witness in the interests of fairness.

My lord, in the light of the concession made at the beginning of the Tribunal that it was not going to be contended that any allegations were well founded, it would be in my respectful submission at this stage wrong, on the grounds of fairness, lateness and late notice, and, in fact, lack of particularity in the document produced, to require Justice Sanderson to answer these questions. Those are my submissions.

THE CHAIRMAN: Thank you. The Tribunal will retire for a short time and we will indicate at the end of it whether we will give our ruling tonight or tomorrow.

(Short adjournment)

(An indication was made that the Tribunal would give its ruling tomorrow morning)

(Adjourned till tomorrow morning at 9.30)