The fight over the legal representation of the patients of Ewart Brown returned to the Court of Appeal yesterday.
Mark Pettingill, who represents patients whose medical records were seized by police, called on the court to quash a ruling that he and Victoria Greening, both of Chancery Legal, had a conflict of interest in the case.
He told the court: “It’s not in the interest of justice to let a perceived ‘obvious’ conflict of interest to ripen and then take issue two years later after significant litigation and expense.”
But Mark Diel, for the Bermuda Police Service, argued that the Court of Appeal should uphold the decision of the Supreme Court because Mr Pettingill and Ms Greening had both received confidential information about the case in their previous posts.
Mr Diel added: “The fact that they don’t remember it is neither here nor there.”
The Supreme Court heard in affidavits that Mr Pettingill had been briefed about investigations into Dr Brown while he was the Attorney-General.
Ms Greening was said to have been given information about the case while she worked at the Department of Public Prosecutions.
Assistant Justice Kiernan Bell ruled in May that both lawyers had a conflict of interest and could not represent the patients, but they launched an appeal against the decision.
Mr Pettingill told the appeal court he received no information during his time as Attorney-General that would give him any advantage in the case.
He also told the court that even if there had been a conflict, the police service had waived it because they had not raised it for more than two years.
Mr Pettingill highlighted a February 2017 letter Chancery Legal sent to the police about the seizure of the medical records on behalf of a patient.
He said: “The purpose of that was laying down the gauntlet by way of a challenge.
“We were challenging their legal ability to take our clients’ property and they responded to that challenge.”
Mr Pettingill said he did receive some information about investigations into Dr Brown, a former Premier of Bermuda, but he did not receive details about allegations of over-scanning at his clinics.
He added that he resigned as Attorney-General in April 2014, about three years before the police raided the clinics.
Mr Pettingill said: “I unequivocally have no knowledge into any investigation into these claims. Most certainly I didn’t know any details of it.”
However, Mr Diel told the court: “The defence of ‘I have no recollection of it’ is not a defence. It doesn’t get you out of the problem of the conflict.”
He told the court that Ms Greening accepted she had a meeting while at the DPP with members of the investigation team and that Mr Pettingill had been briefed about matters related to the investigation of Dr Brown.
Mr Diel said when Chancery Legal became involved in the case as interveners, the focus was on the rights of the patients to privacy.
He said: “Our position at that time has been given that we were talking about patient confidentiality — the issue of conflict of interest didn’t arise.
“At that stage all the parties were working to try to guarantee patient confidentiality.
“What they knew about the investigation was not relevant. Then circumstances changed.”
Mr Diel said the patients had since expressed an intention to take over the judicial review, which caused the conflict of interest to arise.
He said: “It’s knowing the other side’s hand in a game of poker.
“We have counsel that were working with police and know we have the same counsel working for the interveners who want to take over the judicial review and work in direct opposition to the police in this matter.”
The hearing continues.
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