Rivers election challenge: Hewitt ordered to pay costs

Chief Justice Anthony Smellie has ordered West Bay’s Gordon Hewitt to reimburse MLA Tara Rivers for her costs incurred during his losing June 2013 challenge to her election. 

Chief Justice Smellie delivered the decision on Friday, March 13, although publication came only March 19. The 13-page document calls the costs in the July 17, 18 and 19 Grand Court action “quite significant,” citing Ms. Rivers’s claim that “it would be neither fair nor appropriate that she should be required to bear them herself …” 

The decision specifies neither the amount nor a time frame for payment.  

Ms. Rivers employed as her defense attorney QC and constitutional scholar Jeffrey Jowell, a leading authority on U.K. public-sector law. In the 12 months between July 2007 and June 2008, the Cayman Islands government paid Mr. Jowell $424,000 to advise on local constitutional development. 

Hampson and Company attorney Paul Keeble instructed Mr. Jowell in Ms. Rivers’s defense. 

“I also note my acceptance that it was necessary for [Ms. Rivers] to have engaged both leading and junior counsel, as well as the expert, Prof. Cole, who testified on United States law,” the Chief Justice wrote. 

David Cole, professor of law at Washington, D.C.’s Georgetown University, gave evidence on loyalty oaths and acquisition of a U.S. passport. 

On Friday, Ms. Rivers, herself a lawyer, declined to detail either her costs or the timing of her application to Mr. Smellie for reimbursement. “I really don’t want to comment,” she told the Cayman Compass. 

Mr. Hewitt filed his June 12 challenge to Ms. Rivers’s election in the May 22, 2013, polls on behalf of his wife and United Democratic Party candidate Velma Powery-Hewitt, who finished fifth in the district’s four-way race. 

Mr. Hewitt’s suit alleged Ms. Rivers was not qualified to be an MLA because she held a foreign passport and had violated constitutionally mandated residency requirements both to stand for election and hold political office. 

The three-day trial in front of Chief Justice Smellie heard prolonged testimony from a series of overseas experts, ultimately adjourning in mid-July. Mr. Smellie’s verdict came on Aug. 9, 2013. 

In his decision this month to award costs, the chief justice rejected arguments by Mr. Hewitt’s attorney Steve McField that the court was no longer qualified to make decisions in a case closed nearly 18 months ago. 

“Mr. McField submits that I have no jurisdiction to award costs …” the chief justice wrote. “This, he says, came about at the moment that I delivered judgment on 9 August 2013 without making an express order for the costs of the petition. 

“But the answer to the objection raised by Mr. McField must therefore lie in the fact that upon delivering judgment on 9 August 2013, I reserved the question of costs. No final order as to costs was ‘passed and entered,’” he said, meaning the issue remained open. 

On Friday, Mr. McField declined to comment on the decision, saying only that actual costs had still to be ascertained, and “we don’t know when that will be,” saying they would wait for an invoice.  

He also declined comment on whether Mr. Gordon alone would be obligated to pay the bill. Equally, Mrs. Powery-Hewitt declined comment, referring questions to Mr. McField. 

Mrs. Powery-Hewitt was a UDP candidate in the 2013 balloting, while Ms. Rivers ran as an independent, endorsed by the Coalition for Cayman group. Her election broke a years-long UDP stranglehold on West Bay politics. 

Widespread suspicions that the UDP – in December 2013 renamed the Cayman Islands Democratic Party – had funded Mr. Hewitt’s suit were rejected by party leader and then-Premier McKeeva Bush. 

Speaking from overseas on Friday, Mr. Bush reiterated the argument: “I don’t know anything about this, and I have said that the UDP had nothing to do with the case.” 

The Cayman Islands Democratic Party chairwoman Tessa Bodden echoed Mr. Bush, saying, “I don’t want to comment on the case, but the party was not directly involved. I stand by Mr. Bush. That was the position when it happened and that is still the position now.” 

The chief justice did not impose punitive costs on Mr. Hewitt, saying his suit had been “in the public interest” and was not “improperly, negligently or unreasonably” brought. 

Similarly, he wrote, government would absorb defense costs incurred by the two other defendants, both public officers, named in Mr. Hewitt’s suit – the returning officer for the West Bay balloting, Delano Solomon, and Attorney General Sam Bulgin. 

“Costs,” Chief Justice Smellie said, “are … awarded to the successful First Respondent [Ms. Rivers] … on a standard basis …” 

The decision specifies neither the amount nor a time frame for payment.  

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  1. The cost will be over $500 000 for Mrs. Rivers expenses. It is good that they are keeping Mr. Hewitt responsible for the costs, hopefully more people will think twice of bringing about frivolous suits.

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  2. So it took 18 months after the decision in the case for the judge to come to the conclusion that the successful party deserved to be reimbursed for her costs. How many months will it take from here on to decide the amount? What kind of justice system is this where it takes forever to decide a simple issue? When you go to a lawyer for any service you get an invoice the very next day. This case was over 18 months ago and yet the judge has not been provided with the costs.

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  3. As it should be, people would be hesitant to file these frivolous suits if there was a chance that they could be responsible for the cost of the defending party. A lot of people are quick to sue because they feel they have nothing to lose.

    I also feel that people who have been completed exonerated of crimes that they were falsely accused of should be entitled to damages, especially when there was no real evidence of a crime. Just being accused can destroy your life and bankrupt you financially just trying to defend yourself. Prosecutors need to be held just as responsible for falsely charging people as they are for finding the guilt party. Unfortunately people in these position are judged by the amount of people they put behind bars and lose no point for charges that make no sense or shouldn”t even have gone to court. Their primary goal is supposed to be finding the truth about crimes, but it seems most of the time they are just interested in collars.

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