Attorney General v Bilika Harry Simamba - Judgment of Restraint Order Application

¶ _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 1 of 26 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 2 CAUSE NO. G0017 OF 2021 3 4 BETWEEN: 5 THE ATTORNEY GENERAL 6 7 APPLICANT 8 AND: 9 BILIKA HARRY SIMAMBA 10 11 RESPONDENT 12 13 14 Appearances: Mr. Tom Lowe Q.C. instructed by Ms. Reshma 15 Sharma, Solicitor General and Ms. Heather 16 Walker for the Applicant 17 18 Before: The Hon. Justice St. John-Stevens (Actg.) 19 20 Hearing: 4th May 2021 21 22 Draft Judgment Circulated: 28th July 2021 23 24 Applicant’s response1 to Draft: 3rd August 2021 25 26 Respondent’s response2 to Draft: 16th August 2021 27 28 29 HEADNOTE 30 Civil Law – Application for Restraint Order against the Respondent – To be 31 Restrained from issuing any claims or actions, proceedings or making 32 applications in any court, for the period of 2 years - Ambit of the restraint: Any 33 claims, actions, proceedings or applications involving, or relating to, or 34 touching upon those matters raised in (specifically named) proceedings in the 35 Grand Court and the Cayman Islands Court of Appeal (CICA). 36 37 38 JUDGMENT ON RESTRAINT ORDER APPLICATION 39 40 1 This was a 5-page document which addressed in detail forty (40) paragraphs of the Draft Judgment. 2 This was a 1¼ page letter which was provided in response to the Judge’s request via email of the 16th August 2021 for the Respondent’s response to both this Judgment and the “Strike Out” Judgment. By way of detail, this letter makes reference to two (2) paragraphs of this Judgment. _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 2 of 26 Application for Restraint Order 1 2

¶ [1] The Court has before it an Originating Summons (dated 1st February 2021) supported 3 by an affidavit of Heather Walker3. 4 5

¶ [2] The Applicant seeks an order that the Respondent be restrained from issuing any 6 claims or actions, proceedings or making applications in any court, without first 7 obtaining the permission of a Judge of the Grand Court, and that such an order to 8 last for the period of 2 years from the granting of the said order - the ambit of the 9 restraint being, any claims, actions, proceedings or application involving, or relating 10 to, or touching upon those matters raised in proceedings in the Grand Court and the 11 Cayman Islands Court of Appeal (CICA) within any of the following four causes, 12 namely: 13 14 a. Simamba v the Health Services Authority of the Cayman Islands Cause No. 15 G0032 of 2014; 16 17 b. Simamba v The Health Services Authority/Simamba v The Attorney General and 18 Governor of the Cayman Islands CICA Cause No G0036 of 2019 19 20 c. Simamba v The Attorney General and Governor of the Cayman Islands Cause 21 No G0093 of 2020; 22 23 d. Simamba v The Honourable Justice Ian Kawaley and Anor Cause No. G0161 of 24

¶ [2020] 25 26 27 3 (First Affidavit; dated 5 Feb. 2021) _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 3 of 26 Materials before the Court 1 2

¶ [3] The materials in this case are incorporated within two electronic bundles: 3 i. Firstly: “G93 and G161 of 2020 and G 17 of 2021 - Electronic Hearing 4 Bundle.”- 885 pages; and 5 ii. Secondly: “Cause No. G17 of 2021 - Electronic Authorities Bundle” - 6 150 pages. 7 iii. References to these bundles in this judgment will be [EHB; 8 tab/page/para] & [EAB; tab/page/para] respectively. 9 10 Parties to, and Consideration of, this Application 11 12

¶ [4] This Application is materially connected to G0093 of 2020 and G0161 of 2020. 13 14

¶ [5] The 1st Defendant in Cause G0093 of 2020 being the Applicant in this application; 15 the Plaintiff in G 0093 & 161 of 2020 being the Respondent in this application. 16 17

¶ [6] There was a directions hearing held on the 22nd February 2021. This was in relation 18 to summonses issued on 1st and 2nd February 2021 - (amended 15th February 2021)4, 19 seeking an Order that the Statements of Claim in both G0093 of 2020 and G0161 of 20 2020 be struck out. 21 22

¶ [7] During the course of the directions hearing on the 22nd February 2021 the Court 23 canvassed with the parties the possibility and desirability of consolidating the two 24 Causes, G0093 of 2020 and G0161 of 2020. Each was in agreement to that course. 25 It was further determined, upon the agreement of the parties, that the application to 26 strike out would be heard first; following which, as part of a composite hearing, this 27 4 [EHB; tabs11, 12 & 14] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 4 of 26 application for a Restraint Order - G0017 of 2021 - would be heard5. Consequently 1 judgment on the applications to strike out and Restraint Order would be given 2 together. 3 4

¶ [8] The four identified proceedings in relation to which a Restraint Order is sought, 5 enjoy a commonality. From the first proceedings Cause No.G0032 of 2014| flowed 6 the second, third and fourth; the second, being the Appellate Court’s consideration 7 of the first, and the third and fourth seeking, in the main, to engage the court in the 8 reconsideration of the first Cause and also reconsideration of the Appellate court’s 9 determination of the second. 10 11

¶ [9] This Court has ruled upon the applications to strike out; this Court ordered that each 12 be struck out pursuant to Grand Court Rules (GCR) O.18 r.19(1). 13 14

¶ [10] The Court, having considered the oral submissions at the directions hearing and the 15 written material, made further case management directions consequent upon the 16 fixing of the hearing to be on the 4th May 2021. That date was the first identified date 17 convenient to the parties and the Court to hear both the application to strike out and 18 the restraint application and which allowed sufficient time for the parties to provide 19 written submissions. 20 21

¶ [11] The Court made further case management directions of its own motion - mindful of 22 dealing with The Overriding Objective , as set out in the preamble to the GCR, to 23 deal with cases justly and at proportionate cost, which includes, so far as is 24 practicable, allotting to each case an appropriate share of the court's resources. 25 26 5 (See Order; [EHB; tab16]) _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 5 of 26

¶ [12] In the result this Court directed that, having received helpful written submissions 1 and attendant material, the Court would permit sixty minutes to each party to make 2 oral submissions upon the consolidated application to strike out, and a like period in 3 relation to the application for a Restraint Order. The Court also stated that it would 4 not be assisted by, nor indeed permit, simple repetition of written submissions6. Mr. 5 Simamba, in an email, expressed some disquiet as to not being permitted to repeat 6 his written submissions orally. The Court observes the need to engage the word 7 “simple”. Of course the parties were permitted to, and did, repeat written 8 submissions - augmenting them with oral submissions. 9 10 The Oral Hearing - 4th May 2021 11 12

¶ [13] Prior to the hearing, the Court had indicated that it would permit Mr. Simamba (The 13 Plaintiff/Respondent) to appear remotely via “Zoom”, as he did at the hearing on the 14 22nd February. Upon Mr. Simamba’s invitation, the Court indicated the hearing 15 would be open to the public. In the interests of ensuring both access to justice and 16 open justice the Court further indicated it would permit attendance by the parties via 17 video link (Zoom) and permit interested observers the ability to login. 18 19

¶ [14] During the hearing Mr. Simamba invited the Court to allow him to have a little more 20 than an hour to present his oral submissions in relation to the strike out application, 21 while at the same time indicating that he would take less than an hour in relation to 22 his oral submissions in response to the application for a Restraint Order. The Court 23 of course acceded to that request. The Court was satisfied that Mr. Simamba, by a 24 combination of his written skeleton arguments and the oral submissions, has had a 25 6 Note of directions at [EHB; tab18] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 6 of 26 fair opportunity to present his case. There was no indication to the contrary from 1 him. 2 3

¶ [15] It should be noted that in such a hearing a judge may ask questions by way of 4 clarification or to invite elaboration. It is not incumbent on a judge to indicate to 5 either advocate if a submission does or does not find favour. Particularly so in a 6 situation when the court has afforded the parties time to reduce their positions to 7 written submissions - it is an adversarial process. 8 9 This Judgment 10 11

¶ [16] The purpose of this judgment is to set out the Court’s reasons for its decision, and 12 what conclusions have been reached on the principal controversial issues. That does 13 not include every issue but only those that are determinative in some measure of the 14 application. 15 16

¶ [17] Not all issues will be referred to in this judgment, nor to each authority will mention 17 be made - all of which have been subject to careful consideration by this court. Any 18 such omission is not indicative that it has not been considered. At the case 19 management of the hearing it was ensured that each party had time to reduce their 20 submissions to writing, and parties were invited to concentrate on the principal 21 controversial determinative issues. 22 23

¶ [18] The Court has read and considered all the written material, augmented by oral 24 submissions, submitted by the parties. 25 26

¶ [19] This is not a treatise nor discursive on matters which maybe pertinent, or are on the 27 very margins of determinative relevance. This Judgment focuses on those matters 28 _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 7 of 26 that materially affect the outcome, and on matters that are, or possibly, dispositive 1 of this application. 2 3

¶ [20] The Court reminds itself of the authoritative guidance, such as in South Bucks 4 District Council and Another v Porter (No.2)7: 5 6 “The reasons for a decision must be intelligible and they must be adequate. They 7 must enable the reader to understand why the matter was decided as it was and 8 what conclusions were reached on the “principal important controversial 9 issues”. 10 11 12

¶ [21] This court is mindful of the Plaintiff’s criticism of the questioned judgment of 13 Kawaley J within the Statement of Claim. Paragraph 628 reads: 14 “I was taken aback by the shear brevity of a ruling on such a complex case is. It 15 was a 29-page ruling in a case which, in my view, on the basis of certain 16 comparisons dealt with below, should have been well over 100 pages, perhaps 17 close to 200 pages. The decision was disproportionate to the issues that had 18 been placed before the court.” 19 20

¶ [22] This court rejects the bald assertions that the sufficiency of a ruling can be measured 21 by the number of pages. 22 23 Relevant Proceedings brought by the Respondent 24 25

¶ [23] In 2014 the Respondent in this cause filed a claim in the Grand Court - Simamba v 26 the Health Services Authority of the Cayman Islands Cause No. G 0032 of 2014. 27 This was initiated by Writ dated 6th March 2014 - the substance being a personal 28 injury claim. The Plaintiff in this cause alleged that he suffered loss and damage as 29 a result of medical negligence by the CI Health Services Authority (HSA). 30 31 7 [2004] WLR 1953 [36] 8 [EHB;tab.9/p.115] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 8 of 26

¶ [24] Mangatal J and Kawaley J each presided over hearings in the life of this cause. On 1 the 17th June 2019 Kawaley J delivered his ruling in this cause, indicating that the 2 Respondent’s (Mr. Simamba’s) claim was bound to fail in the absence of medical 3 evidence. However it must be noted that the cause was not struck out, but the judge 4 made an immediate case management hearing order requiring the Applicant to file 5 the specified expert evidence. The Respondent/Plaintiff having requested a further 6 opportunity to serve expert evidence, the Learned Judge, in the exercise of his 7 discretion, permitted the same; directing that medical and dental evidence be served 8 by 31st October 2019 - reserving the costs of the application. The period of time 9 granted for service of this expert evidence was, upon the application of the 10 Respondent, extended until the 31st March 20209. 11 12

¶ [25] The sole basis that the action was ultimately struck out was as a consequence of the 13 Plaintiff’s failure (the Respondent in this matter) to adduce expert evidence - despite 14 being given time, and an extension of time, so to serve, and being fully aware that 15 his case would be struck out if he failed so to do. 16 17

¶ [26] The Respondent sought to re-litigate that decision in the Constitutional Petition 18 (Cause No. 93 of 2020) and the Personal Action (G161 of 2020). Both of these causes 19 were struck out - each sharing a commonality of subject matter and grievance. 20 21 The Two Applications before CICA relating to the original Medical/Dental Negligence 22 action. 23 24

¶ [27] On the 12th November of 2019 the Plaintiff filed with the CICA an “Application for 25 leave to file Constitution Motion (pursuant to section 26 of the Constitution)”10. This 26 9 [EHB;Tab.28/p.432-3] 10 [EHB; Tab29] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 9 of 26 application - Simamba v The Health Services Authority/Simamba v The Attorney 1 General and Governor of the Cayman Islands CICA Cause No 36 of 2019 - was 2 adjudicated upon, and refused. The Certificate of Order and Reasons for Decision of 3 Justice of Appeal Beatson is dated 5 August 202011. 4 5

¶ [28] However before this matter was determined, the Plaintiff filed with this Court, on 6 the 12th June 2020 what he described as an ‘Application for Leave to File a 7 Constitutional Petition, pursuant to section 26 of the Constitution’12. 8 9

¶ [29] On the 19th June 2020 The Plaintiff filed with the CICA an “Application for Leave 10 to Appeal out of Time”; the Respondent being the Cayman Islands Health Services 11 Authority (HSA). This application sought leave to appeal the decision of Mr. Justice 12 Kawaley in the medical/dental negligence case G0032 of 2014. The CICA rejected13 13 the application - the application for leave, dated 19th June 2020, being over a year 14 after the order was made. Within this Certificate of Order and Reasons, which must 15 be read in conjunction with the parallel document relating to an application for leave 16 to file a Constitutional Motion, Justice of Appeal Beatson considers factors repeated 17 in the causes before this Court. 18 19

¶ [30] In relation to both applications within CICA Cause No 36 of 2019 and Cause No 20 G0093 of 2020, both the Attorney General and His Excellency the Governor of the 21 Cayman Islands were defendants. A careful consideration of the substance of the 22 grounds for each cause revealed that they are without material distinction. Indeed 23 the affidavit in support of each was the same14. It is acknowledged however that the 24 11 [EHB;tab30.p454] 12 [EHB; tab7]. 13 [EHB; tab32 ] 14 [EHB;tab,24 ] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 10 of 26 Plaintiff’s judicial criticism has broadened to include Mangatal J, and her decisions, 1 and delay. 2 3

¶ [31] The Plaintiff appears to accept that the cause of action to be considered by the CICA 4 was in all intents and purposes the same as that averred in Cause No G0093 of 2020. 5 Such can be gleaned from the Plaintiff’s Skeleton Argument in this matter15. 6 7

¶ [32] On 28th October 2020 Cause G161 of 2020 began its life – with the Plaintiff joining 8 the Honourable Justice Ian Kawaley and his assistant, Miss Bridget Myers, as 9 Defendants in a personal action - Simamba v The Honourable Justice Ian Kawaley 10 and Bridget Myers Cause No. G 0161 of 202016. 11 12

¶ [33] This personal action was filed when the Plaintiff’s Constitutional Petition (G0093 of 13 2020) was still pending before the Grand Court. In the Personal Action the Plaintiff 14 recycled the complaints which had been the subject of his Constitutional Motion and 15 which had already been dismissed by Beatson JA. 16 17

¶ [34] In each of the two causes the Applicant/Plaintiff merely repeated and recast the 18 complaints which had been the subject of his unsuccessful constitutional motion, and 19 the application to appeal out of time - CICA Cause No 36 of 2019, dismissed by 20 Beatson JA. 21 22

¶ [35] Each of these four causes enjoy a commonality. From the first proceedings (Cause 23 No. G0032 of 2014|) - flowed the second, third and fourth. The second, being the 24 appellate court’s consideration of the first, and the third and fourth seeking, in the 25 main, to engage the court in the reconsideration of first and the determination by the 26 Appellate Court to reject the second. 27 15 [EHB; Tab4/p.42./para 8] 16 [EHB;tab9 ] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 11 of 26 The Application to Strike Out re Causes - G161 of 2020 and Causes G0093 of 2020 and 161 1 of 2020 2 3

¶ [36] This Court acceded to the application to strike out each Statement of Claim in these 4 causes. Pursuant to GCR O.18 r.19(1)(a)&(d) it found in relation to both The 5 Constitutional Petition (Cause Nos. G93 of 2020) and the Personal Action (G161 of 6 2020) that both disclosed no reasonable cause of action and/or amounted to an abuse 7 of the process of the court. 8 9

¶ [37] A number of the grounds did not disclose a reasonable cause of action as they were 10 not justiciable. Examples being that judicial review of a Grand Court decision is 11 impermissible; the Grand Court being a Superior Court of Record pursuant to s.94(1) 12 of Schedule 2 to the Cayman Islands Constitution Order, 2009 which provides as 13 follows:17 14 15 Constitution and jurisdiction of the Grand Court 16 17 “94. (1) There shall be a Grand Court for the Cayman Islands which 18 shall be a superior Court of Record 19 20

¶ [38] In consequence, the Grand Court, could not be subject to the control of any other 21 court other than its Appellate court - such a principle being enunciated in Suratt v 22 AG of Trinidad and Tobago18. 23 24

¶ [39] The Respondent did seek leave to appeal the same issues - both in relation to a 25 constitutional motion and the striking out of the original negligence suit19. 26 17 [EAB;tab.3A/p.69] 18 [2008] 1 AC 655 [EAB to the Strike Out applications in G 93/20 and G161/20] 19 (to wit: Simamba v the Health Services Authority of the Cayman Islands Cause No. G 0032 of 2014; Simamba v The Health Services Authority/Simamba v The Attorney General and Governor of the Cayman Islands CICA Cause No 36 of 2019) _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 12 of 26

¶ [40] Judicial immunity was also engaged. In some instances the grounds of complaint 1 were unarguable. 2 3

¶ [41] Matters which were determined as an abuse of process were the fact that the grounds 4 advanced in each cause were in all intents and purposes those which were advanced 5 in the medical negligence cause (which was struck out) which were again repeated 6 before the CICA. It is an abuse of process of the court for a litigant to keep returning 7 to the same court when not in agreement with decisions. 8 9

¶ [42] The Court in approaching its decision in the application to strike out considered, not 10 simply the sufficiency of each ground, but also considered the totality of them all – 11 in the course of considering a prima facie case that there had not been a fair trial. 12 13

¶ [43] It was plain and obvious that each action was certain to fail and any defect could not 14 be remedied by amendment, considering only the allegations in the proceedings. 15 16

¶ [44] The Court did not make any final determination as to whether either one or both 17 cause(s) amounted to being “scandalous frivolous or vexatious”20. 18 19 Power to make a Restraint Order 20 21

¶ [45] Power to prohibit institution of action without leave is vested in the Court pursuant 22 to statute and/or under the Court’s inherent jurisdiction. 23 24

¶ [46] Statutory Power: Section 2 of the Vexatious Actions Act (1998 Revision)21 provides, 25 inter alia; 26 27 20 (O.18 r.19(1)(b) 21 {Was referred as the Vexatious Actions Law (1998 Revision) - prior the change of nomenclature of Cayman Islands Legislative Assembly to the Cayman Island Parliament; Constitution (Amendment) Order 2020 - effective from. 3rd December 2020} _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 13 of 26 “2. If, on an application made by the Clerk of the Court under this section, 1 the Chief Justice of the Grand Court is satisfied that any person has 2 habitually, persistently and without any reasonable ground instituted 3 vexatious legal proceedings, whether in the Grand Court or in any 4 inferior court,………..” 5 6

¶ [47] It appears from the words of this Act, adopting the plain meaning construct, that such 7 power vests only in the Chief Justice. 8 9

¶ [48] In the UK s.42 of the UK Supreme Court Act 1981 creates a statutory restriction of 10 vexatious legal proceedings: 11 12 “42. Restriction of vexatious legal proceedings. 13 14 (1) If, on an application made by the Attorney General under this 15 section, the High Court is satisfied that any person has 16 habitually and persistently and without any reasonable 17 ground— 18 19 (a) instituted vexatious civil proceedings, whether in the 20 High Court or the family court or any inferior court, 21 and whether against the same person or against 22 different persons; or 23 (b) made vexatious applications in any civil proceedings, 24 whether in the High Court or the family court or any 25 inferior court, and whether instituted by him or 26 another, or 27 (c) instituted vexatious prosecutions (whether against the 28 same person or different persons), 29 the court may, after hearing that person or giving him an 30 opportunity of being heard, make a civil proceedings order, a 31 criminal proceedings order or an all proceedings order.” 32 33

¶ [48] This statutory jurisdiction emanated from the common law restraint known as the 34 Grepe v Loam22 jurisdiction. In the case of Ebert v Venvil23, the English Court of 35 Appeal held that this jurisdiction survived the introduction of a statutory remedy: 36 37 38 39 22 [1887] 37 Ch. D. 168 23 [1999] EWCA Civ 3043 [EAB; tab 1/p.5] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 14 of 26 “It is accepted that the existence of the statutory power has not supplanted the 1 power of the court to make a limited Grepe v Loam order. They serve to 2 emphasise the importance of the Grepe v Loam orders only being made when a 3 clear case for making the orders has been established. This is one of the 4 situations where it is accepted that notwithstanding the intervention of 5 Parliament an inherent jurisdiction remains alongside the statutory 6 jurisdiction.”24 7 8 9

¶ [49] The English Court of Appeal considered the inter-relationship between civil restraint 10 orders under the inherent jurisdiction and the statutory jurisdiction in Bhamjee v 11 Forsdick (Practice Note)25. It also recognised – endorsing the approach Neuberger 12 J in Ebert - that a court could make extended restraint orders (or extended Grepe v 13 Loam orders) to prevent the litigant, not only from prosecuting an existing action, 14 but also from taking any steps, including commencing related actions. 15 16

¶ [50] Is not a matter of dispute between the parties that the Grand Court still has an 17 inherent power, emanating from common law to grant a Restraint Order - such power 18 surviving the enactment of the Vexatious Actions Act (1998 Revision). 19 20

¶ [51] The basis for making a civil restraint order has been settled and flows from a number 21 of authorities, two of which are Philcox v Wilson26 and Nowak v the Nursing and 22 Midwifery Council27. 23 24

¶ [52] It is gleaned from these authorities, and again this is not in dispute, that the Court 25 must apply a three stage test: 26 27 28 29 30 24 At 493E per Lord Woolf M.R. 25 [2004] 1 WLR 88 [EAB; tab 2/p.19] 26 [2018] EWHC 3138 at [21] [EAB; G17/21 tab 3/p.37] 27 [2013] EWHC 1932 [EAB; tab 5/p.67] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 15 of 26 “The Threshold Test 1 2 i. whether the litigant has persistently issued claims or made applications 3 which are totally without merit; 4 5 The Discretion Test 6 ii. whether an objective assessment of the risk which the litigant poses 7 demonstrates that he will, if unrestrained, issue further claims or make 8 further applications which are an abuse of the court's process; and 9 10 The Proportionality Test 11 12 iii. what order, if any, it is just and proportionate to make to address 13 the risk identified.” 14 15 The Threshold Test 16 17

¶ [53] In AG v Barker28 (a case on the statutory provision where the conduct must also be 18 “habitual”), Lord Bingham at 764 described conduct justifying restraint as follows: 19 20 "From extensive experience of dealing with applications under section 42[(1)(a) 21 of the Supreme Court Act] the court has been become familiar with the hallmark 22 of persistent and habitual litigious activity. The hallmark usually is that the 23 plaintiff sues the same party repeatedly in reliance on essentially the same cause 24 of action, perhaps with minor variations after it has been ruled upon, thereby 25 imposing on defendants the burden of resisting claim after claim; that the 26 claimant relies on essentially the same cause of action perhaps with minor 27 variations after it has been ruled upon in actions against successive parties who 28 if they were to be sued at all should have been joined in the same action; that 29 the claimant automatically challenges every adverse decision on appeal; and 30 that the claimant refuses to take any notice of or give any effect to orders of the 31 court. The essential vice of habitual and persistent litigation is keeping on and 32 on litigating when earlier litigation has been unsuccessful and when on any 33 rational and objective assessment the time has come to stop.” 34 35 36

¶ [54] Lord Bingham also accepted that the words 'habitually and persistently' connoted 37 “an element of repetition” which did not need to be over a prolonged period. There 38 must be an element of persistence or, as described in Bhamjee v Forsdick (Practice 39 Note)29 of “persistent vexatiousness”. Within this authority the court observed the 40 28 [2000] 1 FLR 759 29 [2004] WLR at 42H, _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 16 of 26 “very serious contemporary problems” created by vexatious litigants, and 1 observed30: 2 “3. … The problem created by these hopeless applications is not only a 3 serious financial one…..It is also that the court is having to divert 4 skilled attention that ought to be paid to cases of real merit which 5 warrant early hearings to cases which have no merit at all. A further 6 problem is created by the fact that these litigants are often without the 7 means to pay any costs orders made against them…….. 8 9

¶ [4] … In most cases, particularly after an unsuccessful appeal has been 10 handled in the same way that will be the end of the matter so far as the 11 courts are concerned, even if the litigant’s sense of unfair treatment will 12 often linger on. But in a tiny minority of cases he will not take ‘no’ for 13 an answer. He may start collateral litigation about the same subject 14 matter. He may sue the judge. He may sue the lawyers on the other side. 15 He may bombard the court in the same case with further applications 16 and appeals.”{This Court’s emphasis} 17 18 19

¶ [55] The underlined portion above is particularly apposite in the application before this 20 Court. 21 22

¶ [56] The Applicants contend that for the purposes of this application, the relevant 23 threshold has been met. The persistent institution of meritless proceedings is 24 evidenced by: 25 26 i. the number of applications filed since the Personal Injury Claim; 27 28 ii. the fact that the grounds of complaint/challenge are substantially the 29 same in each application; 30 31 iii. the Court of Appeal’s decisions on the Leave Application and s.26 Bill 32 of Rights Claim where the grounds of complaint were found to be 33 unarguable and lacking in merit; 34 35 30 p.91 _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 17 of 26 iv. the fact that notwithstanding the Court of Appeal’s decisions, the 1 Respondent persisted in instituting further proceedings in Cause No. 161 2 of 2020, this time against Kawaley J and Ms. Myers, in which the same 3 grounds of complaint were repeated extensively; 4 5 v. there is no question that Kawaley J has immunity from suit for acts 6 undertaken in the exercise of his judicial office31. Accordingly, the 7 action cannot be sustained; 8 9 vi. the Respondent’s pleaded case in Cause No. 161 of 2020 goes a step 10 further in asserting “Prejudice suffered from the Court of Appeal’s 11 Certificate of Order and Reasons by Justice Beatson”32. In essence, the 12 Respondent is inviting the Grand Court to overturn the findings of the 13 Court of Appeal when it has no jurisdiction to do so. This is consistent 14 with the Respondent’s habit of using the Grand Court as an avenue for 15 appeal from its own decisions33; and 16 17 vii. Further, the Respondent continues to raise in his proceedings other 18 matters which fall outside the Court’s jurisdiction such as the breach of 19 Judicial Codes of Conduct and the removal of judges from office. 20 21

¶ [57] The CICA, in its rulings on the Leave Application and s.26 Bill of Rights Claim, 22 effectively certified the Respondent’s grounds of complaint as totally without merit. 23 The views of that Court, or its ‘certification’, ought to be conclusive and subsequent 24 courts should not permit argument as to whether an application or claim was in fact 25 31 (see Sirros v Moore [1975] 1 QB 118 at 135[D]-[G]) 32 (see HW-15 at [81]-[87]) {EHB; tab 34/p.533-536/para. 81-87] 33 (see HW-12, Cause No. 93 of 2020) [EHB; tab 31] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 18 of 26 totally without merit 34 . Not to understand the Appellate Court’s decision as 1 “conclusive” and to permit further argument on the same submissions, would not be 2 an efficient use of this Court’s time and resources. 3 4

¶ [58] The Respondent, Mr. Simamba, in opposing this application, submitted that the 5 grounds raised before the court relating to his Medical/Dental action were legitimate 6 grounds of complaint which when looked at individually and/or together raised a 7 prima case that he had been deprived of a fair trial. The Respondent submitted 8 further that he had demonstrated intellectual dishonesty and bias in the judges, and 9 there had been a conspiracy precluding his fair hearing both in the Grand Court and 10 the CICA. In consequence he describes that it would be the “height of absurdity” 11 and “a gross abuse of authority” to suggest that his grounds were unarguable. 12 13

¶ [59] In my judgement, the repeated attempts to litigate the same issues, in the form and 14 manner he has, fall squarely within the description of Lord Bingham in AG v 15 Barker35 of conduct justifying restraint as follows: 16 17 “The hallmark usually is that the plaintiff sues the same party repeatedly in 18 reliance on essentially the same cause of action, perhaps with minor variations 19 after it has been ruled upon, thereby imposing on defendants the burden of 20 resisting claim after claim; that the claimant relies on essentially the same cause 21 of action perhaps with minor variations after it has been ruled upon in actions 22 against successive parties who if they were to be sued at all should have been 23 joined in the same action; that the claimant automatically challenges every 24 adverse decision on appeal; and that the claimant refuses to take any notice of 25 or give any effect to orders of the court. The essential vice of habitual and 26 persistent litigation is keeping on and on litigating when earlier litigation has 27 been unsuccessful and when on any rational and objective assessment the time 28 has come to stop.” 29 30 34 (see Nowak at [67]) 35 [2000] 1 FLR 759 _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 19 of 26

¶ [60] The Respondent has pursued litigation and complaints ancillary to primary issues, 1 of which, of themselves, this court can take account when considering the threshold 2 test and proportionality in making any order. 3 4 5

¶ [61] Not only were the series of actions attempting to re-litigate issues which were 6 unarguable, the Respondent sought a criminal avenue, that is, writing to the Director 7 of Public Prosecutions on the 21st September 202036. He sought to explore the 8 possibility of prosecuting Kawaley J. In that letter he misreported that His 9 Excellency The Governor and the Attorney General had described Kawaley J’s 10 actions as serious, when in fact their response, which he in fact set out in his letter, 11 describes them as “significant allegations". I reference the letter in response from 12 HE The Governor letter37 - which clarifies this position and makes it clear it was not 13 making admission to the matters. 14 15

¶ [62] The Respondent states within that letter that Kawaley J lied in his judgment in this 16 matter, relating to being allowed to be heard at a hearing; that the Judge lied and 17 falsified a record, and then stated a falsehood in his ruling; that the Judge lied in his 18 explanation why he had not considered 52 cases, and 7 clear arguments. 19 20

¶ [63] This Court observes that Kawaley J in his ruling specifically made no determination 21 on the matter of immunity to which those authorities related - granting liberty to 22 apply to further argue the matter. 23 24 25 26 36 [EHB;tab.33 ] 37 [EHB; tab.37/p.564] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 20 of 26

¶ [64] In relation to the Respondent’s further submission that the Judge’s actions amounted 1 to obstructing, preventing, perverting or defeating the course of justice - a criminal 2 offence: This Court finds such allegation completely without foundation, and 3 deliberately inflammatory. 4 5

¶ [65] The Respondent was later afforded a hearing on the 3rd June 2019 and thereafter 6 given time and additional time to file his expert evidence - ultimately given to the 7 31st March 2020. The lack of expert evidence was the only basis upon which his 8 action was struck out. The Respondent did not appeal against this decision until he 9 was out of time. He pleaded that Kawaley J falsified a record, the effect of which 10 was he did not have a fair hearing before the CICA. 11 12

¶ [66] As this Court determined, and the CICA: Such accusations where wholly 13 unmeritorious without foundation and unarguable. 14 15

¶ [67] Once unsuccessful in the first cause and in his application to the CICA, he turned his 16 frustration to others, including Kawaley J’s personal assistant - joining her as a 17 defendant in action G0161 of 2020 as well as HE The Governor in G0093 0f 2020. 18 19

¶ [68] As the Court held in striking out the action against Kawaley J’s personal assistant: 20 21 “The Court does however observe that there is absolutely no basis whatsoever 22 to call into question the good standing of Bridget Myers. She has without 23 question acted and behaved at all times honestly and conscientiously, fulfilling 24 her duties with professionalism, integrity and care. No action of hers could 25 possibly bring, the public service or the government into disrepute. She at all 26 times, as a public servant, obeyed the law and complied with all lawful and 27 reasonable directions, and at no time acted maliciously and in bad faith.” 28 29 30

¶ [69] In relation to HE The Governor – the Second Defendant in Cause G0093 0f 2020: 31 The Respondent’s complaints included that the 2nd Defendant failed to make a 32 decision and/or give reasons for the decision not to constitute a tribunal to investigate 33 _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 21 of 26 Justice Kawaley. As the Court held in striking out this action against the 2nd 1 Defendant, written reasons were given for HE The Governor’s refusal to refer the 2 matter of Kawaley J’s conduct to the Judicial and Legal Services Commission. In 3 any event, the proper avenue for challenging HE The Governor’s decision was by 4 way of judicial review for which the Plaintiff is now out of time. 5 6

¶ [70] Once again I note that the CICA considered this ground when considering the 7 application for leave to file a Constitutional Motion. Beatson JA refused the 8 application and gave reasons in relation to this matter38. 9 10

¶ [71] In the immediately preceding paragraphs I purposed not to set out all the 11 Respondent’s complaints made in the preceding causes, or the reasons why they 12 were rejected and his causes struck out. Those paragraphs demonstrate, by way of 13 example, why, in my judgement the threshold test has been emphatically met; the 14 Respondent has persistently issued claims and made applications which are totally 15 without merit. 16 17 The Discretion Test 18 19

¶ [72] This Court must make an objective assessment of whether the risk which the litigant 20 poses demonstrates that he will, if unrestrained, issue further claims or make further 21 applications which are an abuse of the court's process. 22 23

¶ [73] The chronology of the causes flowing from the striking out of the medical/dental 24 action based on unsustainable grounds in and of itself demonstrates there is a future 25 risk. Whilst of course acknowledging this is past action, it provides evidence of a 26 course of conduct. This Court notes that despite courts, including the CICA, 27 38 [EHB;tab.30/p.457/para.8 ] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 22 of 26 adjudicating on the Respondent’s complaints, he would, put simply, not take “no” 1 for answer. 2 3

¶ [74] The Court asks the question of itself: “Will the striking out of the two recent Causes 4 deter the Respondent from instituting further proceedings?” The answer to that 5 question in my judgement is a resounding “No”. 6 7

¶ [75] I must also make objective assessment of any material that supports or undermines 8 the contention that he will continue instituting further proceedings. This involves, 9 inter alia, the consideration of emails emanating from the Respondent - both in terms 10 of frequency but also in terms of the tone and tenor – and, additionally any other 11 declaration of intent from the Respondent, not simply limited to emails but to any 12 other material. 13 14

¶ [76] Despite the determination of his two applications by the CICA (Constitutional 15 Motion and Leave to Appeal), on the 5th August 2020, the Respondent continued 16 raising complaints that had been dismissed, namely; 17 18 i. 4th September 2020 - an open letter to the Cayman media houses: This 19 rehearsed totally unfounded allegations such as those against The Chief 20 Justice, Kawaley J, Mangatal J and Court staff39. 21 22 ii. 21st September 2020 - letter to the DPP re Possible Criminal Charges 23 against Kawaley J40. 24 25 39 [EHB; tab.35/p.546] 40 [EHB; tab.33/p.492] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 23 of 26 iii. 26th November 2020 - letter to HE The Governor - concluding “I await 1 your response. Meanwhile I will continue my civil and criminal 2 proceedings as well as the exposure of this misconduct”41. 3 4 iv. 26th December 2020 - Letter to Kawaley J; in offensive terms repeated 5 his complaints (over 5 pages) then states: 6 7 “Let me make it clear to you that in 2021 I will use all lawful 8 means possible to ensure that you are removed from office … 9 You are a lying, shameless, rogue Judge, a cheap crook, a man 10 of straw, who is unfit to hold office in the Cayman Islands or 11 elsewhere. Therefore, I will continue, as I have done to this 12 point, to publicly expose you on various media….” 13 14 and the communication concludes with the words 15 “We are about to get very well acquainted”42 16 17 v. 20th March 2021 - Letter to Kawaley J; rehearsing the same matters and 18 including the paragraph below and referring to the causes struck out by 19 this Court43 20 21 “Also, this case is now in the public domain. One or two 22 publications have reported it. It is now on the judicial website, 23 after I overcame an attempt to keep it from there. There are also 24 new complaints I have now filed with a number of public 25 authorities which are directly and indirectly related to this 26 41 [EHB; tab.37/p.562] 42 [EHB; tab.36/p.552-556] 43 [EHB;tab.62p.880] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 24 of 26 matter and denial of the default judgment. Even if, for the sake 1 of argument, it was to be struck out (which I cannot conceive of 2 considering the hard evidence) that will not be the end of it. I 3 am still hoping to practice law in the Cayman Islands and would 4 like to avoid an acrimonious end to the matter. However, if you 5 still want to fight, that is fine with me.” {The Court’s emphasis} 6 7

¶ [77] This historical pattern when considered in relation to any possible future declarations 8 of intent from the Respondent, when objectively assessed, leaves the Court in no 9 doubt that if unrestrained, the Respondent will issue further claims or make further 10 applications which are an abuse of the court's process. 11 12 Proportionality Test 13 14

¶ [78] In any jurisdiction there are fundamental rights to have access to the courts and have 15 a fair and open hearing. Such being recognised, and enshrined in the Constitution of 16 the Cayman Islands44. 17 18

¶ [79] Whilst it is acknowledged that a Restraint Order is an impairment of the right to 19 access to the courts, the impairment in extent and duration is minimal and 20 proportionate. The integrity of the court systems, including the abuse of its process 21 and recognising, as in the GCR, the pressure to deal with all matters in just 22 expeditious and economical way, must be protected for the good of all. If an 23 individual abuses the court system by way of, for example, launching wholly 24 unmeritorious civil or criminal actions, this itself calls into question the real 25 possibility of the infringement of each individual’s right to private and family life. 26 27 44 Sched.2 part 1- Section 7). [EAB for the Strike Out Applications in Causes G93/20 and G 161/20; tab3A/p30] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 25 of 26

¶ [80] The Court is left in no doubt that acceding to the application for a Civil Restraint 1 Order is a necessary and proportionate response to protect the integrity and standing 2 of the courts. This Court must consider what order, if any, is just and proportionate 3 to make to address the risk identified. It has to be noted that the restrictive terms of 4 the order does not extend to all access to the courts and is limited in time. In R 5 (Mahajan) v Dept for Constitutional Affairs45 Lord Justice Brooke sates: 6 7 “So far as Article 6 is concerned, there is now plenty of case law, both in this 8 court and the Court of Human Rights at Strasbourg, which makes it quite clear 9 that, so long as the right of access to the court is not extinguished, a court is 10 entitled to regulate its affairs so as to protect its process and the interests of 11 other parties against whom vexatious litigation is persistently brought. In my 12 judgment, Mr. Mahajan's High Court proceedings against court staff are totally 13 misconceived” 14 15

¶ [81] It is of note that this case involved aspects which perhaps resonate with some aspects 16 of the instant case. Paragraph 34 reads: 17 18 “34. ... This complaint arises ultimately out of Mr Mahajan's litigation 19 against the eight defendants. These proceedings constitute complaints 20 about various orders made by courts on Mr Mahajan's subsidiary 21 applications following the striking out of his claim alleging fraud and 22 conspiracy. In essence he was complaining that his human rights had 23 been breached by the actions of 13 different persons. The claim referred 24 to all the occasions on which judges had made orders adverse to him 25 from 15th May 2003 onwards; the conduct of court staff at the Civil 26 Appeals Office in conducting the handling of Mr Mahajan's constant 27 applications in the way they did;….” 28 29 30

¶ [82] This Court herein Orders: 31 32 a. That Bilika Harry Simamba be restrained from issuing any claims or actions or 33 proceedings or making applications (whether personally or through any servant 34 or agent) in any court concerning any matter involving or relating to or touching 35 45 [2004] EWCA 946 at [41] – [EAB tab 8/p.138] _________________________________________________________________________________________________________ Judgment on Application for a Restraint Order: G0017/2021 The Honourable Attorney General v Bilika Simamba. Coram: St. John-Stevens J Actg. Date: 28th October 2021. Page 26 of 26 upon those raised in the following Grand Court and Court of Appeal (CICA) 1 causes, namely; 2 3 i. Simamba v the Health Services Authority of the Cayman Islands Cause 4 No. G0032 of 2014; 5 6 ii. Simamba v The Health Services Authority/Simamba v The Attorney 7 General and Governor of the Cayman Islands CICA Cause No 36 of 8 2019; 9 iii. Simamba v The Attorney General and Governor of the Cayman Islands 10 Cause No G0093 of 2020; and 11 12 iv. Simamba v The Honourable Justice Ian Kawaley and Anor Cause No. 13 G0161 of 2020, 14 15 without first obtaining the permission of a Judge of the Grand Court – 16 with such restraint remaining in effect for a period of 2 years from the 17 date of this order, unless extended by the Grand Court. 18 19 b. That the Respondent, Mr. Bilika Simamba should pay the Applicant’s costs of 20 this application to be taxed if not agreed. 21 22 Dated this the 28th day of October 2021 23 24 Justice St. John-Stevens 25 Acting Judge of the Grand Court 26 27 28 29