Attorney-General’s concern over lawsuit files

  • Senator Kathy Lynn Simmons, the Attorney-General (Photograph by Akil Simmons)

New Attorney-General Kathy Lynn Simmons told a press conference yesterday that two “very sensitive” civil lawsuits launched by her predecessor had cost taxpayers more than $2 million and had been handled in an “unprecedented and concerning” way.

However, Shadow Attorney-General Trevor Moniz last night countered her assertions, saying Ms Simmons could have sought guidance from legal advisers — and that a dozen cases under investigation had generated extensive files that had been kept at outside legal offices.

Mr Moniz added: “I understand that she faces a steep learning curve given that she is new to dealing with cases of political corruption, which is why I made my earlier public offer to assist her. This offer remains open.”

Ms Simmons had stated that she had yet to see litigation files for either case, as none had been found within the Attorney-General’s Chambers.

“I can’t speak to whether they were removed,” she said, in response to a question about whether she was alleging unethical activity. “They just currently do not exist.”

The cases were brought by the Bermuda Government against the Lahey Clinic in Massachusetts and former trustees of Port Royal Golf Course, including cabinet minister Zane DeSilva.

The first matter alleged corruption and bribery against Lahey and involving former premier Ewart Brown, while the second accused Mr DeSilva and two others of “self-dealing” in relation to multimillion dollar renovations at the publicly owned golf course.

Ms Simmons said: “I have inherited from my predecessor Trevor Moniz some very sensitive matters with ramifications for the integrity of the office of Attorney-General and the administration of justice as a whole.

“The nature of how these matters were being handled by the former Attorney-General is unprecedented and concerning as there are no litigation files within the Attorney-General’s Chambers with respect to these matters.

“As a consequence of this highly irregular circumstance, as Attorney-General, I am in the process of obtaining these files in order to review the lawsuits that have been brought in the name of the Attorney-General against Lahey Clinic and with regard to the trustees of the Port Royal Golf Course.”

The senator, asked if the files were missing, replied: “I am not saying the files have gone missing. I am saying that in the transition process there have been no litigation files retained in Chambers.”

She said she had instructed lawyers in the Attorney-General’s chambers to “obtain complete files from overseas counsel retained by the former Attorney-General regarding both matters”.

“We’ve been fortunate, in that overseas counsel have been co-operating and they will provide to us the information that they have,” said Ms Simmons. “They have tons and tons of files and we are in the process of having them sent to us so we can review them and chart the way forward with regard to these matters.”

The Lahey case was filed in Massachusetts in February and a Boston legal firm, Cooley LLC, was hired by Government to handle the proceedings, with a PR firm in the city also appointed.

The Port Royal matter was filed in the Supreme Court of Bermuda in March.

Asked whether the Port Royal case involved overseas lawyers, Ms Simmons said: “The Attorney-General had retained the services of overseas counsel to oversee these matters, in relation to the Lahey matter in particular. The Port Royal matter is one that I am not prepared to discuss at this time, in terms of particulars of counsel.”

She said in the “ordinary course of legal practice” there would be a master file held in chambers on any matter undertaken by counsel in those chambers.

But she said there were “no litigation files” in the Attorney-General’s Chambers on either of these cases and Mr Moniz appeared to have provided instructions to overseas counsel “to the exclusion of other counsel in the Attorney-General’s Chambers, including the Solicitor-General”.

She said Mr Moniz was the “primary person” dealing with the lawsuits before the General Election, assisted by his “political consultant Richard Ambrosio, a junior barrister”.

“There were no instructions given by any counsel in the Attorney-General’s Chambers with regard to any of these matters,” she said.

Ms Simmons, a former permanent secretary at the Ministry of Justice, said once she obtained files on both lawsuits and conducted an “objective assessment”, she would advise the Government on how to proceed.

The two lawsuits, she added, had cost the Bermuda Government “over $2 million” in legal fees so far, though she was unable to say how much of that had been spent on each case.

Asked if those payments were approved by Cabinet, she responded: “I can’t speak to the Cabinet decisions of the previous administration. Any payments coming from our budget would have to be approved by the accounting officers but I can say that it’s more than likely that Cabinet did approve the expenditure.”

Mr Moniz told Parliament in March that Cabinet approved the Lahey legal proceedings in April 2016.

Mr Ambrosio declined to comment — but last night Mr Moniz said: “Contrary to the AG’s statement, there is nothing unusual about engaging external counsel to deal with certain matters and who hold files on behalf of the Government, especially in cases dealing with political corruption.

“In respect of Lahey, as the matter is being dealt with in the US courts, the litigation file is being held by Cooley’s office in Boston as they are the Attorneys of record on the matter.

“In respect of the Port Royal matter, during my time as AG, the litigation file was maintained by the Deputy Solicitor-General.

“I was working on 12 separate matters being investigated — of which, Lahey and Port Royal were only two.

“Any costs incurred related to all 12 cases. Furthermore, given that there are large amounts of evidence involved in these investigations, all other files have so far been kept by Cooley’s office in London.

“It was simply not practical for piles upon piles of paper to be printed and stored locally.”

Meanwhile in a statement last night, Dr Brown said the lawsuit against Lahey was “ill-conceived” and set to cost the public millions, accusing Mr Moniz of having “some personal animus” against him.

“He will stop at nothing in his dogged pursuit of this vendetta against me. He has no credibility and is obviously handicapped by his ignorance of medical diagnostics,” he said.

“If he is convinced that his allegations are accurate, let him come out from the protection of Parliament and the cover of the Lahey lawsuit and make the outrageous accusations about me personally in the public arena.

“For him to decline this challenge offers support for the belief that he is a coward, pure and simple.”

Mr Moniz issued the following response to Dr Brown today: “Dr Brown seems to have an overactive imagination if he believes that I spend any time focusing on him. To reiterate — I have never issued proceedings against him.

“I believe Dr Brown is getting confused between civil matters I have brought against other parties and an active criminal investigation against him. The criminal investigation is being conducted by the Bermuda Police Service and [the] Director of Public Prosecutions, Larry Mussenden, who is a former PLP senator, I would note. Any questions on this matter should be directed to them.”