Allan Doughty

Senior Counsel | Bermuda, Bermuda
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Profile

Allan, a Bermudian national, is Senior Counsel with the Dispute Resolution Team at Kennedys' Bermuda office.
A regarded member of the Bermuda Bar, Allan brings extensive experience across a broad legal practice. He has been involved in some of Bermuda’s leading cases on anti-discrimination law, medical law, and constitutional matters.

Allan has appeared at all levels of the Bermuda courts, including as instructing counsel before the Privy Council in London, and has represented clients before various boards of inquiry and tribunals. His practice also reflects a special interest in police law, disciplinary proceedings involving professionals, mental health law, and privacy issues and public access to information.

Before being called to the Bermuda Bar, Allan qualified in Nova Scotia, Canada and was admitted to the bar of that province in 2002. He has practiced as a barrister in both jurisdictions.

Allan currently sits as the chairman for a prominent Bermuda charity known as S.C.A.R.S.. He also sits as a board member for Amber’s Wings, a new charity in Bermuda, and he often volunteers his time at a free legal advice clinic.

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Qualifications and admissions

  • Qualified in Nova Scotia Canada in 2002.
  • Qualified in Bermuda in 2004.

Work highlights

  • In the matter of v. Clarke [2003] NSPC 12 (CanLii), Allan successfully argued that the Canadian federal offence, prohibiting the simple possession of cannabis, should be declared as being unconstitutional and no force and effect within the province of Nova Scotia. In making the application, Allan submitted that the constitutionality of the offence was already under appeal in the province of Ontario. The court accordingly accepted that it was an abuse of process for the Federal Crown, to relitigate the issue, at first instance, in Nova Scotia.
  • In Williams v. The Bermuda Hospitals Board [2016] UKPC 4, the Privy Council, when considering one of Allan’s appeals, restored the “but for” test as the standard for determining causation, in Bermuda, and disapproved the “de minimus” test, prescribed by the UK Court of Appeal for determining causation, in clinical negligence cases, in Bailey v . Ministry of Defence [2008] EWCA 833.  This ruling has resulted in an odd dichotomy in that the courts of England and Wales have all but ignored Williams and continue to apply the “de minimus” test prescribed by the UK Court of Appeal in Bailey.
  • In the decision of Hofer v. The Bermuda Hospitals Board [2015] SC (Bda) 55 Civ (10 August 2015), Allan succeeded in arguing that a case which previously survived a strike out application, should be struck out for amounting to an abuse of process. This was the first time that the Supreme Court of Bermuda held that a widespread failure to follow the rules and orders of the court, amounted to an abuse of process that was sufficient to justify the striking out of a claim.
  • In the case of Kimathi v. The Attorney General et al. [2017] SC (Bda) 30 Civ (28 April 2017), Allan successfully defended the Executive Officer to Bermuda’s Human Rights Commission in a hybrid judicial review / constitutional application. The applicant had sought a declaration that a complaint of “hate speech”, laid against him pursuant to Bermuda’s Human Rights Act (anti-discrimination legislation) violated his constitutionally guaranteed right to freedom of expression.  In rejecting that application, the court held that the provision in question was necessary for the protection of an identifiable group and was therefore a reasonably justifiable in a democratic society.
  • In Robinson v. The Bermuda Civil Aviation Authority & Ano [2023] SC (Bda) 73 Civ. (6  October 2023), Allan succeeded in striking out a civil claim brought against the Bermuda Civil Aviation Authority,  which claimed breach of statutory duty.   The decision highlights Allan’s tactical skill in that he correctly anticipated that plaintiff’s counsel would seek leave to issue judicial review proceedings, during the course of the hearing of the strike out application.  Allan accordingly sent correspondence to his opponent, in advance of the hearing, which addressed the issues that otherwise might have been the subject of a leave application. Allan then ensured that the letters were placed before the court, as exhibits to an affidavit.  When the opposing counsel, belatedly applied for leave, during the hearing of the strike out application, the judge refused the application, per the correspondence before him in evidence.

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