NASSAU, BAHAMAS — A Supreme Court judge yesterday ruled that attorney Romona Farquharson’s lawsuit against Magistrate Carloyn Vogt-Evans, who found her guilty of contempt of court in March 2017 after a heated exchange, will proceed to trial.
The ruling handed down Wednesday dealt with the judge’s application to have Farquharson’s amended statement of claim and amended writ of summons struck out as an abuse of process for several reasons, including that the judge was protected by judicial immunity.
In her ruling, Supreme Court Justice G Diane Stewart said a case management conference will be scheduled.
Farquharson, who is named as the plaintiff, claims the actions of the judge were “abusive, malicious, wrongful and without reasonable or probable cause”.
She was imprisoned for several hours.
According to the attorney, her reputation in the legal profession suffered.
She has claimed damages for injury to reputation, breach of her constitutional rights, wrongful arrest and false detention, as well as aggravated and exemplary damages.
Following a verbal exchange in court on March 8, 2017, after the judge allegedly refused to allow certain documents into evidence, Vogt-Evans found Farquharson to be “belligerent, rude and derogatory”, according to court documents.
But Farquharson claimed the judge uttered words that were malicious and calculated to disparage and cause damage to her in her profession.
She claimed during the conduct of a case, the judge shouted on repeated occasions that she must “shut up and sit down” before ordering that she be held in contempt and taken through the prisoner’s dock as she was “no different from anybody else”.
In court documents, Farquharson said the words inferred that she was or behaved as a criminal before the judge.
Farquharson further claimed that she was paraded through the prisoner’s dock, where male detainees were being held, and taken to a cell block for three hours.
Vogt-Evans and the attorney general are named as the first and second respondents respectively.
The magistrate said it would be “patently wrong” to find the second defendant — the attorney general — liable in damages if there could be no action against the sitting judge whilst she acted in her judicial capacity and was therefore protected by the principles of judicial privilege or judicial immunity, a privilege that mitigates any claims of actions that amount to an alleged breach of Farquharson’s constitutional rights.
Stewart ruled that must be determined at trial.
Referring to the Magistrates Act, the court noted that an action in tort can be brought against a magistrate in his or her capacity as magistrate if he or she acts maliciously and without reasonable and probable cause.
The Supreme Court judge said the decision of the magistrate to refuse to allow a document into evidence during a criminal trial was agreed to be a judicial act, but she said it must be determined whether the judge exceeded her judicial powers.
“I cannot make such a finding on this application; that can only be determined at trial, after evidence has been tested and the law reviewed,” she ruled.
“Once that happens, this court can determine whether the first defendant is protected or not…”
The court noted that Farquharson was seeking constitutional redress for being imprisoned as a result of a “premature finding that she was held in contempt of court” when it is the practice of a court who considers a person guilty of this to allow them to be heard on why he or she should not be cited for contempt.
The ruling noted that to deprive someone of their right to liberty by imprisonment without a fair hearing is considered a breach of their constitutional rights, and the attorney general, as the legal representative of the state, is the proper party to defend such an action.
The judge claimed the appropriate legal recourse was via the Court of Appeal.
But the Supreme Court ruled that the action by Farquharson, who had already been “punished for the finding of contempt”, to forgo an appeal and instead initiate action for constitutional relief was not an abuse of the process of court.
The court found that despite an amended statement of claim not being properly pleaded, it was not “incurably bad that no cause of action could be gleaned”.
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