You are a Supreme Court judge in Bermuda, a founding member of 33 Chancery Lane and in your early career worked as an employed barrister in offshore law firms. To what do you credit your success?
Always alert to the existence of interesting and slightly unusual opportunities, I have been willing and able to take advantage of them. For example, working at the Bar as junior counsel on a capital appeal from the Cayman Islands (which in those days had the death penalty) early in my career led to an invitation from the instructing attorneys to cover for a member of their firm while she was on maternity leave, which in turn led to an offer to work for them in Cayman full time, which I accepted with alacrity. That is how I first came to work offshore. Whatever the task, I have always applied myself to it diligently and to the best of my ability. I am determined and not easily discouraged.
You have the unusual blend of being a financial crime expert coupled with offshore commercial litigation experience. From your various viewpoints, how have you seen the delivery of legal services evolve over recent years?
Technology has played an increasingly important role. It has the potential to streamline litigation and save costs, such as through the HMCTS Reform Programme and the proposed Online Court. Paradoxically, it can lead to increased expense. The existence of emails and other electronic communications means that disclosure and inspection of documents tends to be much more costly and time-consuming than it used to be: sometimes disproportionately so.
How has your rather unique career path assisted you in the current appointment?
All offshore jurisdictions are different, but they have certain features in common and their courts tend to undertake broadly similar types of work. Thus the seven and a half years that I spent doing mainly commercial litigation with Quin and Hampson (now Mourant Ozannes) in Cayman and Carey Langlois (now Carey Olsen) in Guernsey were good preparation for sitting as a puisne judge in Bermuda: the high value multi-jurisdictional cases, sometimes involving hundreds of millions of dollars, which I try in the Commercial Court, and the smaller civil disputes typical of island life are both analogous to the cases which I used to litigate offshore. The in-depth experience of financial crime which I gained at 33 Chancery Lane comes in handy as I am the designated judge for dealing with production orders in criminal cases and requests for mutual legal assistance under tax information exchange agreements.
What has been your most interesting case whilst in Bermuda and what challenges have you faced sitting as a judge?
I am going to cheat and give you two cases. The first case is Re Trustee L. The settlor’s disgruntled heir had brought proceedings challenging the validity of a non-charitable purpose trust holding very substantial assets. The trustees made a Beddoe application seeking directions authorising them to defend the trust. As the first judge in any jurisdiction to consider an application for Beddoe relief by the trustees of a non-charitable purpose trust I had to formulate the applicable test. Drawing on authorities from England, Gibraltar and Australia, I found that the trustees had to satisfy me: (i) that there was no-one with a real interest in defending the trust; and (ii) that there were sufficient prospects of success to warrant the trustees in doing so. The trustees satisfied the test, and I granted them an indemnity from the trust fund to defend the claim.
The second case is A and B v Director of Child and Family Services. In Bermuda, the Human Rights Act 1981 allows the court to declare inoperative any provision of law that conflicts with the Act. I used it to strike down a provision in the Adoption Act 2006 which required that adoptive couples be married as this discriminated directly against unmarried couples and, without justification, indirectly against same-sex couples. My decision allowed the same-sex applicant couple to apply to adopt the child whom they were bringing up. The decision was the first in Bermuda to declare a legislative provision inoperative. It was in other respects quite orthodox in that it followed a decision of the House of Lords, whose decisions carry strong persuasive authority in Bermuda. Indeed the only case from any jurisdiction cited to me in support of the proposition that the prohibition against unmarried couples adopting was not discriminatory was, ironically, a decision of the European Court of Human Rights.
I have found the transition to sitting as a judge to be a smooth one. As an advocate I found that I had, without realising, absorbed a lot of practical information about how to run a court. The challenge is to leave the unsuccessful party feeling that they have had a fair hearing. Treating both parties courteously, giving them a reasonable opportunity to put their respective cases, and providing them with a reasoned judgment explaining my decision as clearly and simply as circumstances permit goes some way towards achieving this objective.
What is the best advice you’ve been given in your career?
Not so much advice as an approach to judging. I am fortunate to share a corridor with Dr Ian Kawaley, the Chief Justice of Bermuda, with whom I have spent many hours discussing law and football, although not always in that order. He told me that he tries to be a judge whom he would have liked to appear before as an advocate. That struck me as a sound maxim which I have endeavoured to follow.
How do you like to spend your time away from court?
With my wife and nine-year-old daughter.
Mr Justice Hellman was interviewed by Guy Hewetson and Tony Stephenson of Hewetson Shah LLP