Oct 2026
In two landmark judgments the Supreme Court of Bermuda has considered, for the first time, the constitutional protections available to a sitting judge facing serious criticism from an appellate court and the constitutional limits on the terms of a judge’s service. The proceedings were brought by a judge of the Supreme Court. She challenged the Court of Appeal’s criticism of her conduct, the referral of that criticism for disciplinary investigation, and the Chief Justice’s administration of her sick leave. Together the judgments affirm that the courts themselves are as amenable to constitutional scrutiny as any other public body and underscore the Chief Justice’s role in safeguarding judicial independence.
Conyers successfully represented the Chief Justice of Bermuda in both proceedings.
Background
The applicant was Mrs Justice Nicole Stoneham, a judge in the family division of the Supreme Court. In May 2023 the Court of Appeal for Bermuda ruled that the applicant appeared to have acted with bias in family proceedings and should have recused herself. The Court of Appeal’s judgment included certain highly critical remarks about Stoneham J.
In August 2023, the Chief Justice referred the matter to the Judicial and Legal Services Committee (the “JLSC”) pursuant to the Judicial Complaints protocol for Bermuda. In September 2023, a filtering sub-committee of the JLSC determined that there was a “case to answer”. In July 2024, the Governor appointed a tribunal to investigate the Chief Justice’s complaint and to consider whether Stoneham J should be removed as a judge under section 74 of the Constitution of Bermuda (the “Constitution”). The Governor also suspended the applicant from judicial service.
In its report of 15 April 2025, the tribunal concluded that, while the applicant made “errors of law and judgment”, she was not guilty of judicial misconduct in relation to the matters referred. The Governor lifted the applicant’s suspension and announced the tribunal’s findings to the Bermuda public.
The Constitutional Action
The applicant brought constitutional proceedings against the Attorney General, the Governor and the Chief Justice. She alleged that her constitutional rights were breached because she faced unwarranted allegations of serious misconduct, including corruption and abuse of judicial office, that were never properly put to her and that she had no fair chance to answer.
In Justice Nicole Stoneham v The Attorney General of Bermuda, et al [2026] SC (Bda) 111 Civ (16 October 2026), the Court (Southey AJ) dismissed the applicant’s claims in relation to the Chief Justice and the JLSC. The Court held that the Chief Justice had acted, appropriately, as a “conduit pipe” in passing the Court of Appeal’s concerns to the appropriate independent body for consideration and had not breached any of the applicant’s constitutional rights in so doing. The Court held that the conduct of the JLSC sub-committee was likewise constitutional. The sub-committee had merely decided that the complaint was not hopeless; it had not made any substantive findings of its own and its decision not to filter out the complaint had no major influence on subsequent events.
Notably, the Court reached a different decision in respect of the Court of Appeal. The relevant constitutional provision is section 1(a), which refers, among other things, to a general right to the “protection of the law”. The Court construed this provision as conferring an independently enforceable right to due process. In the case of Stoneham J, the Court held, the Court of Appeal’s remarks went beyond ordinary judicial criticism. They were “sufficiently serious” to require the applicant to be given an opportunity to make representations to the Court of Appeal. That Stoneham J was not afforded such an opportunity was, the Court held, unfair and a breach of her right to the protection of the law. The Court reserved to a future hearing the assessment of damages payable for that breach.
The Judicial Review
In separate proceedings, Stoneham J sought judicial review of the Chief Justice’s decisions concerning her sick leave. Under her terms of appointment, her leave entitlements were the same as those of public officers represented by the Bermuda Public Services Union, unless the Chief Justice directed otherwise. Those terms provided for 70 days of paid sick leave. Having noted that the applicant had taken 106 days of certified sick leave in 2025, the Chief Justice invited her to use her unused annual leave to cover the excess, failing which deductions would be made from her salary. No response was received, and the Chief Justice instructed that the deductions be made. The applicant argued that her terms of employment were unconstitutional: judges are not public officers and cannot be bound by terms negotiated between the Government and a public service union, and the constitutional procedure for removing a judge under section 74 left no room for a separate mechanism by which a judge could be denied remuneration.
In Justice Nicole Stoneham v The Chief Justice of Bermuda [2026] SC (Bda) 110 Civ (16 October 2026), the Court (Southey AJ) granted leave but refused the application. It held that there was no objection in principle to a judge’s paid sick leave being fixed by reference to another document, or to that leave being limited. A limit does not enable a judge to be penalised for unwelcome rulings, and section 100 of the Constitution in any event prevents judicial remuneration being reduced. The Chief Justice’s discretion to extend paid sick leave safeguarded, rather than undermined, judicial independence, since decisions that might affect independence should be taken by the judiciary. Nor did that discretion undermine the section 74 removal procedure. The Chief Justice’s decisions were lawful: he had indicated a provisional view, invited representations and, having received none, was entitled to maintain his decision.
Comment
These are two highly significant judgments for the constitutional law of Bermuda.
Findings that a constitutional right has been breached are rare in Bermuda. There have been perhaps a dozen such findings in the almost 60-year history of the Constitution. A finding that an appellate court breached the rights of a sitting judge is wholly extraordinary and represents the clearest possible affirmation that courts are, in the words of Southey AJ, “no less liable” to constitutional challenge than any other public body.
The Constitutional Action also appears to be the first express confirmation by the Bermuda courts that section 1(a) of the Constitution confers an independently enforceable right to the protection of the law, following the Privy Council’s recent obiter indication in Corporation of Hamilton v Attorney General of Bermuda.
The Judicial Review decision, meanwhile, offers rare guidance on how judicial independence applies to the practical terms of a judge’s service, in a jurisdiction where no statutory scheme for judicial remuneration has been enacted.
For the Chief Justice, both judgments represent a clear endorsement of his conduct. In the Constitutional Action, the Court held that he had acted properly in referring the Court of Appeal’s concerns to an independent body rather than investigating a fellow judge himself, an approach that may have assisted the applicant by giving any exoneration greater credibility. In the Judicial Review, the Court held that the Chief Justice’s discretion over judges’ sick pay safeguards, rather than threatens, judicial independence, and that he had exercised it lawfully in this case.
Ben Adamson of Conyers’ Bermuda office acted for the Chief Justice in both cases and was led by Sir James Eadie KC in the Constitutional Action.