2013 Case of Note: The Bermuda Ombudsman v Corporation of Hamilton et al
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The recent Supreme Court decision of The Bermuda Ombudsman v Corporation of Hamilton et al (420 KB PDF)  SC (Bda) 72 Civ. which was handed down on 7 October 2013, sheds light on the authority that is vested in the office of the Ombudsman (the “Ombudsman”) and the weight that a summons issued by the Ombudsman has.
The Ombudsman is a statutory body whose powers devolve from the Ombudsman Act 2004 (the “Act”). The Ombudsman’s main jurisdictional function is to investigate maladministration on behalf of a public authority (section 5 of the Act).
The application, which was made by the Ombudsman and was considered by the Honourable Chief Justice Dr. Ian Kawaley, was to determine whether the Mayor and Deputy Mayor (the “Respondents/or COH”) had committed contempt (under section 25 of the Act) by failing to appear before the Ombudsman when summonsed to be interviewed during an investigation.
Although the Ombudsman did not agree that the Respondents were entitled to legal representation at the interview stage. The Respondents’ lawyers argued that the Respondents were entitled to have legal representation present at the interviews with the Ombudsman. The Court did not accept the arguments of the Respondents’ counsel and found in the present case that there was no legal basis that required that legal counsel be involved in the interview phase of the investigation.
The Court ultimately concluded that the summonses issued to the Respondents by the Ombudsman were equivalent to a summons or order issued by the Court. The summonses in this particular matter were signed by the Ombudsman and were not issued administratively by the Ombudsman’s office.
As such, the Respondents were found to have committed a “technical contempt” by failing to appear before the Ombudsman when requested.
Interestingly enough, this does not appear to be the end of the Ombudsman and COH’s legal chronicles. A month after this judgment was delivered, the COH launched a legal claim (by way of judicial review) to challenge the Ombudsman’s reasoning behind her investigation (which was launched on an “own motion”. The COH is now challenging the merits of the same investigation that they failed to attend before the Ombudsman and be interviewed for.
Needless to say, the decision by our Courts in any further cases in this matter may have far-reaching effects. It is safe to say that Ombudsmen the world-over will be watching to see how our Courts handle the challenge to the office of the Ombudsman and what implications it may have on the future existence of the office of the Ombudsman in our jurisdiction.