November 26th, 2012 -- The matter concerning the question of costs ordered against Parry and Daniel in the Mark Brantley Election Petition came up for hearing before the Court of Appeal on Monday morning. Attorneys for all sides prepared written submissions and appeared before the panel of Court of Appeal Justices including the learned Chief Justice, to make oral arguments.
At the commencement of the hearing, the learned Chief Justice raised the question as to whether the matter ought to be heard before the original composition of the Court that made the decision on August 27, 2012.
Anthony Astaphan, Senior Counsel for the Supervisor of Elections et al, was in light of the ill health of Dr. Henry Browne QC, appearing for Messrs Parry and Daniel, told the Chief Justice that he did not think that the original composition of the Court was necessary in order to re-open and revisit the application because he felt the issues were fairly straight forward.
Mark Brantley's attorney however, disagreed with Astaphan and requested that the original composition of the Court hear the application. His view was that the Court may have to consider an alternative basis for an order of costs. It is the alternative bases for costs which will now have to be decided by the Court of Appeal in accordance with the directions issued by the learned Chief Justice on Monday morning.
Mr. Astaphan then stood up and indicated that he was not prepared to push the point and that if the Court was minded for the matter to be referred to the original composition of the Court, he would have no difficulty with that.
In the course of submissions to the Court of Appeal it became very clear that Mr. Brantley and his attorneys had accepted the complaint by Mr. Parry and Daniel that the order of costs against them on the alleged grounds of misfeasance and bad faith in relation to the compilation of the list was wrong.
The discussions which suggested that Mr. Brantley had conceded was confirmed when a copy of his written submissions were obtained and read. Paragraph 8 of those submissions stated, "It is conceded that, to the extent that this Court based its decision to order Messrs Parry and Daniel to pay costs incurred in the High Court on a finding that they were guilty of bad faith and misconduct in the preparation of the list, this must have been a case where Homer nodded. There was in fact no allegation in the petition that they were guilty of bad faith or misconduct in the preparation of the list.
There was as well no such finding by this Honourable Court against them. In having their names inadvertently associated with the egregious conduct of the Appellants Benjamin and Lawrence, therefore,it could be said that they were subjected to an unfair procedure in that they had no notice of an allegation of bad faith and misconduct against them and accordingly no opportunity to answer it. The Respondent (Mark Brantley) accordingly concedes that this is an exceptional case where this court would be justified in exercising its jurisdiction to vary its perfected order as to costs in the court below."
Mr. Joseph Parry and Mr. Hensley Daniel are delighted that finally Mr. Brantley was obliged to recognize that there was in fact no basis at all for the finding of costs on the basis of bad faith and misfeasance.
Mr. Parry went on to say that in his view it was absolutely shameful for Mr. Brantley to have played politics publicly with the findings which he has now had to concede had no basis in fact or law. According to Mr. Parry, "this is the sort of shameless and baseless politics you have come to expect from the CCM."
Mr. Parry went on to confirm that Mr. Astaphan and his legal team have firm instructions to resist any basis for an order of cost against him and for any reason whatsoever.
Mr. Parry and Deniel's legal team has acknowledged that Mark Brantley has in fact conceded that the findings of bad faith and misfeasance made by the Court of Appeal in relation to costs made against Parry and Daniel, was wrong.
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