Serious questions remain over the handling of Bermuda’s lawsuit against Lahey clinic brought by the former Government but which was dismissed on Friday by a US judge.
Just hours after the order dismissing the case, parliament heard concrete evidence that a legal assistance treaty with the US had been jeopardized in pursuit of the civil case.
At least one former cabinet member – Patricia Gordon-Pamplin – indicated that the cabinet was not fully informed of the action.
“It did not come to cabinet,” Ms Gordon-Pamplin told parliamentarians.
And former Attorney General Trevor Moniz is yet to explain why the case files were removed from government offices before the general election.
Mr Moniz, who was ejected from the House of Assembly chamber during the motion to adjourn debate, did not return phone calls seeking comment.
US judge Indira Talwani ruled in favour of Lahey’s dismissal motion saying that Government had failed basic tests for the case to be heard under America’s anti-racketeering laws.
But, as the governing Progressive Labour Party berated the One Bermuda Alliance for what it said was a politically inspired campaign which wasted an estimated $4 million, former Attorney General Trevor Moniz has insisted that all was in order and the Lahey lawsuit was in the best interests of the country.
In a statement following the dismissal, Mr Moniz said he brought the case following an “exhaustive investigation.”
“Ultimately, the case was dismissed on a technical ground, namely that there is insufficient “domestic injury” in the US to bring a case before the American Courts. This is a fast-moving area of the law, with the US Supreme Court only deciding to narrow the relevant legal test in the summer of 2016 – well after the investigation into Lahey’s affairs began. A further appeal would be needed to clarify this point.”
However, Moniz brought the suit in February 2017, just five months before the general election which was to rout his party from power.
And a number of island lawyers have privately criticized the lawsuit as having little chance of success because of the issue of jurisdiction and what they said was a tenuous case.
Meanwhile, no explanation has been offered as to why the case files could not be found in the Attorney General’s chambers after the elections, or why junior lawyer Richard Ambrosio – a consultant – played a key role in the case, sidelining more experienced career lawyers at the AG’s chambers.
AG Kathy Simmons first brought the case of the missing files to the public’s attention at an August press conference last year, in which she described her predecessor’s handling of the files as “unprecedented and highly concerning”.
She told Think Media following that press conference that the former AG had represented to her that the Lahey case files were at the AG’s chambers.
Moniz is also under pressure to explain circumstances surrounding the investigation into Dr Brown’s affairs. Evidence from that probe ended up in the Lahey case files and included Dr Brown’s emails and personal banking information.
The Progressive Labour Party has long held that the former administration violated an agreement with the US on the use of evidence gathered in a criminal investigation.
During Friday’s motion to adjourn, Premier David Burt repeated claims last year that information requested from the US under the Mutual Legal Assistance Treaty was improperly used in the civil suit, risking Bermuda’s US relationship.
He presented House Speaker Dennis Lister with an email from the US Department of Justice expressing concern.
“Yes, our treaty relationship was in threat based on what I have in front of me,” Mr Lister said.
The Mutual Legal Assistance Treaty came into force in 2012, obliging both countries to assist each other in criminal investigations and prosecutions. Its terms prohibit using shared information in civil trials.
Last year Moniz would not respond when asked in the House of Assembly whether the US department of justice had communicated with the ministry of justice about a possible violation of the treaty, but he denied that there had been any violation of the MLAT.
Moniz was ejected from the chamber by the Speaker early on in the motion to adjourn debate in which Government MPs lambasted the Opposition for their actions on the Lahey case when in Government.
“The former Attorney General tried to destroy as much evidence as he could, People must be held accountable for their actions,” said Burt.
He added that the former AG had removed documents from the Attorney Generals’ chambers to his private office and shredded them.
The case inherited by the new Government claimed that the Boston hospital engaged in a 20-year racketeering scheme with former premier Ewart Brown that cost Bermuda millions. Dr Brown has consistently denied the allegations.
The judge, Indira Talwani, ruled that Bermuda’s allegations did not point to losses suffered in the US.
“I am not surprised that a bogus lawsuit brought by a racist AG was dismissed. It was a colossal waste of time and money,” said Dr Brown, reacting to the development.
Kathy Simmons said the dismissal was expected but she let the case go ahead to avoid any perception of improper political interference.
“The decision to proceed had to be based on sound legal principles, logical analysis and by an independent assessor, devoid of any political influences,” she told the media.
Ms Simmons added that the matter was now considered closed and no further action would be taken. But in response to questions on the irregular handling of the case by her predecessor, she said her office would be “taking the appropriate steps to determine what actually took place.”
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