Court of Appeal rejects Royal Gazette bid to quash gag
The Royal Gazette lost its most recent bid to be allowed to report on a sworn statement concerning the largest alleged individual tax evasion in American history.
The newspaper’s parent company, Bermuda Press Holdings Ltd, asked the Court of Appeal to discharge a judge’s decision to grant a temporary injunction to Australian attorney Evatt Tamine, on the grounds that the gag infringed its right to freedom of expression and the public’s right to receive information.
But appeal court president Sir Christopher Clarke rejected that argument, finding that the Gazette was not “in any way prejudiced” by the ban on reporting the contents of the affidavit, which was sealed by the Bermuda courts but remained available on the US Department of Justice’s Pacer website.
He and his two fellow panel members, Sir Anthony Smellie and Dame Elizabeth Gloster, dismissed the appeal and awarded costs to Mr Tamine.
BPHL’s chief executive Jonathan Howes characterised the case last year as a fight for press freedom. He said the company was willing to take it all the way to Bermuda’s highest court of appeal, the Privy Council in London, despite having already spent close to half a million dollars on legal fees at that point.
Sir Christopher noted that much of the information in Mr Tamine’s affidavit was available in a Supreme Court judgment issued in 2022 and the Gazette was at liberty to report anything in that ruling.
He wrote that the injunction should stand and the newspaper, and others, could rely on the Supreme Court judgment for information.
Sir Christopher added: “ … I cannot see that the Gazette is in any way prejudiced by this course.”
Mr Howes said last July that an important principle was at stake — the media’s right to publish information already in the public domain — and “letting such a precedent stand would have a chilling effect on press freedom and the public’s right to know in Bermuda”.
Mr Tamine obtained the injunction after the Gazette published articles in September 2021 about the work he did for many years in Bermuda for Robert Brockman, a car dealership software mogul.
Mr Brockman was charged with hiding some $2 billion in investment income from the United States Internal Revenue Service, using a web of offshore entities based here and in Nevis, but died in August 2022 before his trial.
Prosecutors said the case, in which Mr Tamine appeared before a Grand Jury as a key witness for the US Department of Justice, was the largest tax fraud prosecution against a person in that country.
Much of the content in the Gazette articles was taken from an affidavit sworn by Mr Tamine in July 2020 and filed in relation to civil proceedings in the Supreme Court 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.
The court file in the trust proceedings was sealed by Puisne Judge Shade Subair Williams under a confidentiality order.
According to the December 2023 Court of Appeal ruling, Mr Tamine’s affidavit was shared with a lawyer working on the Brockman indictment in the DoJ’s tax division “in circumstances where the transferor [a lawyer for the then-trustee of the Brockman Trust] had failed to appreciate the existence of the confidentiality order”.
The Gazette obtained the affidavit from the docket for the Brockman case on Pacer, a public-access website for US federal court documents, but Mr Tamine’s lawyer argued it should never have been there in the first place.
Adam Speker, KC, said the affidavit remained a confidential document, which was filed in sealed proceedings held behind closed doors in Bermuda, with no intention of it ever becoming public.
Heather Rogers, KC, for BPHL, argued the affidavit lost its “quality of confidence” by virtue of being on the public record, on a court website, accessible by anyone, including journalists.
Ms Rogers, who has since died, said the gag was not justified in democratic society and the Gazette’s right to impart information to the public and the public’s right to receive that information was hampered.
Sir Christopher disagreed, and concluded: “Those who provide confidential information in relation to business matters in respect of which they have a reasonable expectation of privacy in proceedings which are sealed (which sealing gives rise to such an expectation) and to be held in camera are entitled to have the confidentiality of that information protected.
“The court which makes the sealing order and orders the proceedings to be in camera is entitled to have its authority in making the order maintained. Neither of these are requirements which are not reasonably justifiable.
“Nor, as it seems to me, was the public interest in the Brockman case of such a character as to justify refusing the confidentiality relief sought.”
The judge said the Gazette could have applied to Mrs Justice Subair Williams to vary her confidentiality order, but failed to do so.
He found no error on the part of Puisne Judge Larry Mussenden in imposing the interim injunction and no reason for the Court of Appeal to quash it.
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