HAMILTON, Bermuda, A Guyanese police officer who sought judicial review of a decision not to promote him has been left with legal costs from the case.
David Bhagwan had called for a review of Bermuda Police Service promotion procedures after failing to pass the sergeant-to-inspector interview panel in 2018.
His claim was dismissed by Chief Justice Narinder Hargun last year and the Court of Appeal this year, but he was subsequently one of seven sergeants promoted to the rank of inspector in August.
Phil Perinchief, counsel for Bhagwan, argued in the Court of Appeal that no order for costs should be made because of the “immense public importance” of the case.
However, the Court of Appeal said it was not persuaded such a move would be justified.
In a written judgment, Jamaican-born Justice Anthony Smellie said: “While the appellant time and again in his arguments sought to invoke, in support of his challenge to the promotion process, the general public interest and the broader interests of members of the force in the proper regulation of its promotion process, in reality, he was challenging the outcome of his bid for promotion.
“He was nothing more than a personal cause. This remains clear, notwithstanding that this court was told in e-mail correspondence that the Bermuda Police Association had agreed, to a limited extent, to underwrite the appellant’s attorney’s fees.
“And while the appellant’s challenges to the promotion process necessitated an examination by the court of the complexities of the process, these were not found to be wanting in any significant way.
“Rather, the process was found to be fair and transparent….”
However, the court rejected an application by the respondents for wasted and indemnity costs and found it unfair to leave Bhagwan with the legal expenses for his defense against that claim.
In this circumstance, the court ruled that Bhagwan should pay the respondents for the costs of the appeal.
However, the respondents were ordered to bear the costs for their application for fees and the charges of the appellant’s resistance to the application.
Bhagwan had alleged bias by the interview panel and asked for a declaration that the promotions panel and the Commissioner of Police had acted beyond their authority.
He was told in September 2018 that he had fallen short of the 60 percent pass grade in the examination for promotion – but that assessors were impressed with his performance and track record.
Bhagwan complained that the process had been flawed and that Assistant Commissioner of Police Martin Weekes should have recused himself based on an appearance of bias against him and Caribbean police officers.
Mr. Justice Hargun disagreed with Bhagwan’s argument that the panel failed to remind him he was entitled to an observer from the Bermuda Police Association during the promotion process – partly because Bhagwan had been part of the working group drew up the new policy.
The Chief Justice also highlighted that the appearance of personal bias dated to a 2007 incident which Bhagwan had not flagged up until 11 years later.
Mr. Justice Hargun added that Bhagwan was given time but had not objected to Weekes’ membership of the promotions panel.
He rejected the appearance of bias on the part of Weekes and wrote that a fair-minded observer would not conclude that there was a “real possibility” of anti-Caribbean bias.
Mr. Justice Hargun accepted Weekes’ evidence that “all candidates were given the same opportunities to answer questions, including follow-up and probing questions from the panel.”
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