Ill health and administrative bungling force removal of key players from petitions case

Last Friday, Grahame Bollers, lead counsel for the third respondents in the election petitions case, was the first to be removed from the case within the space of a week.

On November 30, Justice Esco Henry, who stepped down a mere four days later, determined it more ‘prudent’ that new counsel be acquired within two weeks to replace Bollers, who, along with attorney Carlos James, represented respondents Minister Montgomery Daniel and Minister Louis Straker.

This order was made rather than having the court await hearing definite word into the medical condition of the lead lawyer, whose condition remains uncertain, with some indication that it is deteriorating.

Justice Henry was pulled to court three days earlier than was originally planned, to consider a motion filed by James, to vacate the dates for the trial by reason of Bollers’ illness.

Previously, the trial was set to span the entirety of this week, to facilitate among other things, the examination of the bulk of witnesses on either side.

These witnesses will provide evidence in rebuttal or support of the allegations of petitioners, Lauron Baptiste and Benjamin Exeter, who say that there were serious irregularities on the day of the elections in 2015.

Attorney Kay Bacchus-Baptiste spoke for Exeter and Baptiste, objecting to a delay of the trial.

She noted, among other things, the three year gap since the petitions were first filed and the fact that the Court of Appeal had asked when the matter was resent to the High Court in 2017, for the matter to be dealt with speedily.

“It is not without empathy that we stand here to object to the adjournment…but there is no guarantee, when I look at the affidavit of Mr Bollers, there is no guarantee that if we were to adjourn this trial for one month, based on his medical document, that he attached to his affidavit, that the same things would not happen, because, I noticed that there were three medical certificates attached to his affidavit, all within the last four months,” Bacchus-Baptiste noted.

James in his submission before Bacchus-Baptiste had noted the documents filed, showing the symptoms of Bollers, as diagnosed by Dr Wayne Murray, and three medical certificates from the months July, August and November of this year.

Bacchus-Baptiste requested that the court make an order, if they should grant an adjournment, that the respondents obtain new counsel, and that this counsel be ready in time for a fixed date for trial.

Justice Henry seemed to focus on whether the respondents had at that point considered new counsel.

“Having regard to the urgency with which the court of appeal resent this matter, I am under orders to have this matter dealt with as expeditiously as possible,” Henry emphasized, noting that there was no final prognosis, but the presence of certificates showing that the counsel was “seriously ill.”

A further prognosis may not be forthcoming for some time, James explained.

In her final decision, Henry listed many considerations including the seriousness of the medical condition and the copious amount of material in the case.

“The court must ask itself whether it would be rational to require the third respondents to retain a lead counsel over the weekend to attend court on December 3, 2018, to represent the third respondents. The court must answer that question with a negative,” Henry stated.

On the flip side, she noted the fact that the court’s urgent attention is required, and with regard to the medical status of Bollers, she noted “in recent times he has been experiencing a repeat of issues which appeared to have raised their head in 2006. There is no evidence before this court as to a prognosis.”

“It does not seem prudent and just to me, to require that a further hearing be adjourned to allow learned counsel Mr Grahame Bollers to report back to the court regarding his prognosis. It seems to me that the appropriate course would be to require the third respondents to retain new legal counsel within the two-week period suggested by learned counsel Mr Carlos James,” Henry concluded.

She vacated the dates of December 3 to 7 that had been set.

However, after Justice Henry returned to her office, she was informed that she had other matters scheduled for the dates December 3 and 7, 12 in all.

Having heard this, she scheduled an open court hearing for Tuesday, the attorneys being alerted of such on Monday morning by the court staff.

During this hearing, she explained that the scheduling by the court office of other matters during that time, may have the appearance of her having foreknowledge of the application to vacate the trial date, and that the dates would be vacated.

With the view that justice must not only be done, but that the public should see justice being done, the Justice announced that she was recusing herself.

“We want the matter to be completed in an expeditious manner. We understand the delays, the circumstances which led to several delays in this matter, but we want the matter to be dealt with expeditiously so that we can proceed to a final outcome of the substantive matter which is before the court,” James stated, speaking to SEARCHLIGHT on Wednesday, following the Justice’s decision.

No word is yet given on who will replace her, but any of the Eastern Caribbean Supreme Court(ECSC) Justices may be appointed by the Chief Registrar of this court, who is located in St Lucia.