The Royal Gazette has sought to overturn an injunction blocking it from reporting on an affidavit from a lawyer about work he did in Bermuda for an American billionaire.

The affidavit, penned by Australian lawyer Evatt Tamine regarding his work with the late Robert Brockman, was sealed in Bermuda but later made available by a US court.

Heather Rogers, King’s Counsel, representing Bermuda Press (Holdings) Ltd, the parent company of The Royal Gazette, told the Court of Appeal this week that the document was publicly accessible and received by the newspaper through the open court proceedings in the United States.

She argued that in order for information to be considered confidential, it needed to be otherwise inaccessible.

While Ms Rogers said in some cases there may be a question of how accessible the information is, but the case before the court was not such a case because of the nature of the source.

“It’s a case where it's a public document put on the public docket and made publicly accessible through the website, which is a federal court website,” she said.

“It’s not a newspaper, it’s not a broadcaster, it’s an official court service which puts official information about court proceedings available to the public.”

Ms Rogers added: “It’s accessible in Bermuda. It’s accessible to all. It’s accessible in the UK and the US and around the world.”

She said the court needed to consider the utility or futility of restrictions given that the information is publicly available.

Ms Rogers asked the court: “If [Royal Gazette reporter] Sam Strangeways could get it, and anyone can get it, what is the utility here?”

She said the case was still a matter of public interest, noting that even after the death of Mr Brockman last August the matter was being discussed by the US authorities including the Senate Finance Committee.

Adam Speker, KC, for Mr Tamine, however argued that Puisne Judge Larry Mussenden was entitled to make the injunction based on the information before him and argued BPHL was attempting to relitigate the matter in the higher court.

He also challenged the news value of the affidavit, stating that while it was published by the US court in August 2021, it was not reported on for more than a month.

“It wasn’t in fact of any interest to anyone,” he said. “We are not hearing any arguments that it should be covered here because The New York Times picked it up.”

Mr Speker said The Royal Gazette was fully aware that the affidavit had been sealed by the Bermuda courts, as it had acknowledged that fact in its coverage of the document.

He added that while Ms Strangeways did contact Mr Tamine before publication, she did not tell him that they had access to the affidavit.

“They used it to publish a piece of intrusive journalism focusing on him and his wife with photographs taken outside of his home,” Mr Speker said.

While he said the documents had been published on a US court website, which required users to register to access records, he said it was not known how many people had downloaded it from that site.

Mr Speker added that Mr Justice Mussenden was right to uphold the injunction even after another media outlet published the full document, and a judgment by Chief Justice Narinder Hargun repeatedly referenced a separate unsealed affidavit by Mr Tamine which contained “overlapping” information.

The Royal Gazette’s stories detailed Mr Tamine’s employment over many years in Bermuda for Mr Brockman, a car dealership software mogul who is alleged to have hidden some $2 billion from the United States Internal Revenue Service over the course of 20 years.

Mr Brockman died at the age of 81 before his trial was scheduled to begin.

The case was the largest tax fraud prosecution ever brought against an individual in the US and Mr Tamine appeared before a Grand Jury as a key witness for the US Department of Justice.

The affidavit he filed in July 2020 related to civil proceedings in the Supreme Court of Bermuda concerning the A Eugene Brockman Charitable Trust, which was set up on the island in 1982 and was said to have assets of about $6 billion.

US prosecutors named the A Eugene Brockman Charitable Trust in the indictment against Mr Brockman, alleging that he used a web of offshore entities based here and in the Caribbean island of Nevis to hide investment income from the IRS.

The court file concerning the trust proceedings was sealed by Puisne Judge Shadé Subair Williams, but US prosecutors working on the Brockman case obtained a copy of Mr Tamine’s affidavit and filed it with the United States District Court for the Southern District of Texas, making it publicly available.

The American judge presiding over Mr Brockman’s criminal case denied a petition by Tangarra Consultants — Mr Tamine’s Bermudian-based consultancy firm — to seal the affidavit on September 23, 2021.

The Royal Gazette published a series of articles on September 16, 2021, which included information taken from the affidavit from the Texas court file.

Mr Tamine subsequently applied for and won an initial, temporary injunction in the Supreme Court against BPHL later that month.

BPHL was not represented at that emergency hearing, at which time Mr Justice Mussenden ordered the newspaper to remove any information from the affidavit or any link to the document from its website.

The Gazette complied but challenged that order over the course of two hearings in October 2021.

In January, Mr Justice Mussenden found in favour of Mr Tamine and ordered that the affidavit remain sealed, even though that sworn statement is available on an official US Government website and has been reported by another media outlet.

The appeal panel will give judgment at a later date.

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