Election challengers pay court costs

A group of seven individuals who
unsuccessfully challenged the election of two Bodden Town MLAs and were ordered
to pay US$70,000 in legal fees incurred by now Health Minister Mark Scotland
and MLA Dwayne Seymour, said they have made the payment to avoid bankruptcy
proceedings being brought against them.

Mr. Scotland and Mr. Seymour were
elected in the Cayman Islands General Election held on 20 May, 2009, and Mr.
Scotland was subsequently chosen as minister of health.

Both men said they had to seek
financing to pay attorneys’ fees for their defence, and explained that they did
not believe it was heavy handed (as the challengers described it) to seek
remuneration by serving bankruptcy notices.

At the time the bankruptcy notices
were received by the group, which includes former MLA candidate Sandra Catron
and artist Gordon Solomon, they issued a statement that said:

“We have been somewhat astonished
to receive bankruptcy notices in relation to the costs of Cause 288 of 2009. It
seems that because we sought to uphold the constitution, our two Bodden Town
representatives have sought to have us declared bankrupt if we do not
immediately pay their costs which were awarded in March of this year.

“We were advised by senior counsel
that it was possible to seek to have the constitution upheld by way of an
Originating Summons and that it was also possible to do so by way of an
election petition under the Elections Law. We chose the former approach because
it was less of a partisan approach to the issue. The majority of us have no
party affiliation whatsoever. The irony is that if we had taken a partisan
approach and preceded by way of an election petition the circumstances of our
two representatives would likely be very different now.

“We respect the view of the court
and the rule of law so their costs will be paid. There was no need to take a
heavy handed approach of threatening your own constituents with personal
bankruptcy but we have come to expect no more.”

Ms. Catron ran as an independent in
the 2009 election in the same district as Mr. Seymour and Mr. Scotland.

When contacted by telephone, Mr.
Solomon said the money was paid, but he would not reveal where the funds came
from. “I am not going to get into that,” he said.

Mr. Solomon did say, however, that
all the literature regarding this challenge did not say individuals would have
to pay exorbitant amounts of money for standing up, or else no one would do so.

“Nowhere are you made to understand
that you could end up having to pay in this regard,” he said.

The challenge to Mr. Scotland and
Mr. Seymour’s elections was thrown out of court when Chief Justice Anthony
Smellie ruled that the challenge was brought too late and that the filing was
not in the prescribed form of an election petition.

The Chief Justice said an election
petition was required to challenge the outcome.

Also, under the Elections Law, the
challenge should have been made 21 days after Mr. Scotland and Mr. Seymour were
officially announced winners in the Bodden Town election. The challenge was
made 26 days later.

“If the time limits imposed by the
Elections Law can be bypassed, then there would be no time limits at all. That
cannot be a proper interpretation of the constitutional intent,” he said.

The challengers claimed the two
candidates were disqualified because they had not met the deadline for filing
notice of their contracts with Government. Neither their attorneys nor the
court addressed the allegation.

While the challenge made by voters
in the district was dismissed, it was possible for Attorney General Sam Bulgin
to take action, which he did not do.

Speaking for the two MLAs at the
time, attorneys Ramon Alberga QC and Steve McField applauded what they called a
landmark judgment. Immediately following the proceedings, Mr. Alberga asked
that costs be awarded on the standard basis. Their team was led by Lord Pannick
and included attorneys Michael Alberga and Christopher McDuff.

The total US$70,041.76 paid to
cover the legal fees brings to an end a chapter that put Cayman’s Constitution
and Elections Laws under scrutiny amid concerns about the possibility of an
expensive byelection being called that might have rendered the same results.

A call for comment from the MLAs
was not returned.

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