By: Hanzel F. Manners
There has been much heated discussion in the local press/media about the meaning of the recent decision of the Eastern Caribbean Appeals Court to amend its Order for Mr. Joseph Parry, former Premier, and Mr. Hensley Daniel, former Deputy Premier and former elected representative for the constituency St. Johns, to pay costs in the matter of the Nevis Electoral Case, and subsequent appeal. I reproduce here the relevant section of the amended Order:
“Paragraph 92 of the judgment in High Court Civil Appeal Nos. 3, 4, and 5 is amended to delete the order as to cost against Joseph Parry and Hensley Daniel and therefore reads as follows—.”
Both Mr. Parry and Mr. Daniel, and of course their political supporters, claim that it means that they have been exonerated from any guilt, while their opponents and others claim something completely different. Many, including some in the legal fraternity have jumped to the defence of the Court, but in my opinion, the Court itself has been the source of all the confusion, because of its failure (or refusal) to speak clearly on this important matter. To fill the vacuum, many have had their say, but so far it has been mostly mumbo jumbo, double-speak and spin.
All this has left me completely confused, and without the advantage of a legal education, I can only look at it from the standpoint of a common layman.
And here is how I see it. I apologise up front for any minor technical errors. My objective is not to be overly fussy about such matters, but to set out my thoughts in very simple language, so that everybody can understand my assessment of the situation. It is confusing enough already, and I don’t want to add to the confusion.
The Appeals Court ordered in its earlier judgment, ruled that costs in the case should be borne by Mr. Leroy Benjamin, former Supervisor of Elections, Mrs. Bernadette Lawrence, former Registration Officer for the constituency of St. Johns, Mr. Parry and Mr. Daniel. Mr. Parry and Mr. Daniel appealed this Order, on the grounds that there was no proper legal basis on which they should be asked pay costs. The Court of Appeal, represented on the bench by the same three judges who issued the earlier Order, met in Nevis in October 2013, and amended its earlier Order to the effect that Mr. Parry and Mr. Daniel should not be liable for costs after all. (See quote from the Draft Order in Paragraph 1, above.) We may disagree on the reasons for this action, (and there have been all kinds of confusing explanations offered), but to a layman, that is a reversal by the Court of Appeal of an earlier Order.
I suspect that the public is just as puzzled as I am to see the Court of Appeal reverse its own Order, especially when that Order was made, not by a single judge, but by a panel of three. I can well understand a ruling being overturned by a higher court because of differences of legal opinion, or different interpretation of law. But having a panel of judges reverse its own Order, without a proper explanation for its action, leaves me with an uncomfortable feeling. To me the amended Order can mean only one thing-an acknowledgment by the Court that there was no basis for the Order for Mr. Parry and Mr. Daniel to pay costs in the first place.
Let’s look at some of the explanations I’ve heard for this change in the Order. One of the more frequently stated ones is that the Appeals Court did not change its finding that Mr. Parry and Mr. Daniel were guilty of bad faith and misconduct, as it had found in its earlier judgment. It simply amended its Order that they should pay. Before we get further confused, let’s get the facts straight here. The Appeals Court did say in Section 92 of its original judgment that it found the Judge in the Court below wrong not to have found Mr. Parry and Mr. Daniel guilty of this very charge, and as a result of this finding, decided that they should bear part of the costs.
I find it disturbing, for the Court of Appeal to reverse its Order without explanation, and simply leave the door ajar for the many conflicting interpretations of its action. In my opinion, the Court had a duty to be clear and unequivocal on the matter, bearing in mind the serious repercussions for the two gentlemen of the lingering taint of such a finding. I can think of only two possible interpretations for the Court’s decision to amend its Order.
The first one is this. Mr. Parry and Mr. Daniel are still guilty, but were let off the hook by the Court — in which case they would be two very lucky people to have been given such special treatment. But to me that is not the way the Court works. The Court is not known for showing favours to people, especially guilty people. The Court does not allow people to go scot free if they are guilty. Indeed if Mr. Parry and Mr. Daniel were allowed to ‘get away,’ both Mr. Benjamin and Mrs. Lawrence would be justified in crying “Foul! How come we weren’t treated so favourably?”
The only other sensible conclusion is that the earlier ruling that they were guilty of bad faith and misconduct — and should therefore pay — was simply wrong.
To a layman, the only sensible conclusion has to be that the reversal of the Order to pay, was based on a reversal of any finding of guilt.
Now to the issue of benefit. Mr. Brantley, on his talk show, has argued that the Order for Mr. Daniel to pay costs was justified because he benefitted from the actions of Mr. Benjamin and Mrs. Lawrence in the preparation of the electoral lists (the benefitting from stolen goods analogy), while at the same time conceding by way of submissions made to the Court on his behalf, that the same Order was not justified because no evidence was presented to the Court against him (Mr. Daniel). Of course, benefitting from a crime, without evidence of involvement in the committal of that crime, cannot amount to guilt. Imagine getting a lift in a stolen car, and ending up in jail simply for benefitting from the ride.
Now I come to an argument that sounds so idiotic that I don’t believe that I am hearing it: that the Court amended its Order simply because Mr. Benjamin and Mrs. Lawrence agreed to pay everything. In other words,
Mr. Parry and Mr. Daniel remain guilty, and thus still have a liability attached to them, but Mr. Benjamin and Mrs. Lawrence undertook to pay their share of the costs– to pay on their behalf. It’s a nice thought, but it doesn’t make any sense whatsoever.
I refer again the extract from the Draft Order in Paragraph 1 of this article. I interpret ‘amended to delete’ to mean that the Appeal judgment must be read as if the ruling that they should pay costs was never there. Thus, according to the Court, there was never any liability for them to pay. Mr. Benjamin and Mrs. Lawrence could not, therefore, be undertaking to pay a liability that is deemed never to have existed.
So much for that thought. But there is an even bigger flaw in this proposition–the thought that the Court would allow two people to absorb the costs of others, simply by having them declare their willingness to do so. It’s a crazy thought, especially since Mr. Benjamin and Mrs. Lawrence were not represented in Court. No lawyer at their side. I understand that they were asked if they had taken legal advice, and that they replied in the affirmative, but I don’t accept that as the equivalent of being represented in Court when you are taking on an additional liability of approx. $1 million. I don’t believe that the Court would have allowed this, simply because it would simply amount, not only to an abuse of process, but to the abuse of two individuals.
In my opinion, the appeal by Mr. Parry and Mr. Daniel was not only about the liability to pay, which could have cost them about $500,000 each. It was about getting rid of the Order, and the resultant liability to pay. In short, to clear their names of the finding of bad faith and misconduct. To a layman, it would appear that in reversing the Order to pay, that is exactly what the Court did. Cleared their names as far as this case is concerned. It is difficult to understand why the Court didn’t simply say so.
Now to my final point. It is a well known tendency among the legal fraternity, whenever any member of the Bar, any legal institution, or any legal issue is under the microscope, to ‘circle the wagon’ to protect their own. That attitude does not always serve the public well. We should all value, respect, and protect our Court. But protestations about the integrity and sanctity of this institution will continue to ring hollow, unless the Court takes steps to clarify this situation, or some member of the Bar steps forward to give an honest, objective explanation of what this amended Court Order really means.
The public deserves no less.