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Darrell’s bias case is dismissed by judge

Harold Darrell

A judge rejected Harold Darrell’s allegations that the chairman of a human rights tribunal was biased in hearing his complaints against the Bank of Bermuda.Businessman Mr Darrell claimed that lawyer Paul King failed to disclose his handling of tens of millions of dollars worth of mortgage work for the bank.However, his allegations that Mr King could be biased due to that commercial relationship were rejected by Puisne Judge Charles-Etta Simmons yesterday. She described them as “unsustainable and baseless”.Mr Darrell believes he has been the victim of a conspiracy between Government, civil servants and the bank to have his complaints of institutional racism against the bank derailed. He has been engaged in a series of complaints and legal actions over the past 16 years.His initial complaint against the bank alleged that in February 1996, it scuppered business deals worth a potential $3.2 million he was negotiating for his communications company, by improperly disclosing his confidential business and banking information to third parties.Mr Darrell, who is black, further alleged that the bank failed to properly address his claims due to his race and the bank’s institutional racism. A series of court battles ensued over the years that followed (see timeline).During the latest court proceedings, he sought to challenge the decision of a board of inquiry appointed under the Human Rights Act, which ruled against him in 2006 over his claim of racial discrimination. The board was chaired by Mr King.Mr Darrell argued through lawyer Jaymo Durham during a judicial review in January that the decision by the board to throw out his complaint of racial discrimination by the bank was unlawful. He asked the judge to quash the decision and order a new board of inquiry to be convened.Mrs Justice Simmons heard how, two months before the board of inquiry commenced its hearing in 2005, Mr Darrell was informed by Mr King in a letter that Mr King’s firm “is a customer of the Bank of Bermuda and does business with the Bank of Bermuda”.Mr Darrell did not raise an objection at the time. However, he said fresh information later came to light, and he alleged during January’s judicial review that Mr King’s disclosure did not go far enough, since his paid work for the bank was not disclosed at the inquiry.He also pointed out that the amount of work carried out by Mr King’s firm, King and Associates, increased after the board was convened and decreased after it ruled against him.Mr Darrell alleged there was a possibility of bias on the part of Mr King as the bank “was in a position to influence the amount of residential mortgage work undertaken by his firm and thereby influence his profit margin,” according to the judge.Lawyers for the HRC board, Lord David Pannick QC and Jai Pachai, refuted the allegations as unfounded, as did lawyers Lord Anthony Lester QC and Jeffrey Elkinson representing the bank and its directors.The judge considered witness statements from Bank of Bermuda staff members as to how the bank worked with law firms in Bermuda. The bank insisted it had no special commercial relationship with Mr King, as his law firm was one among many chosen by mortgage customers, not by the bank.Independent evidence was also given by Susan Thompson, who is in charge of sales at Coldwell Banker Bermuda Realty. Her evidence showed that mortgage conveyancing work increased generally from 2004 to 2008.Rejecting Mr Darrell’s allegations against Mr King yesterday, the judge said there was no evidence that Mr King risked impartiality in hearing the case.She accused Mr Darrell of relying on “conjecture” and said: “There is no evidence capable of suggesting that Mr King had hope of advantage in securing commercial mortgage work from the bank by making a favourable decision for the bank.”She also wrote: “It is clear that [Mr Darrell’s] complaint that the bank sought to influence Mr King by increasing residential mortgage work is unsustainable, baseless, and ... an unfortunate indictment on the reputation of the bank.”She said allegations in the case placed an “unfortunate imputation on the character of Mr King” who “did not attempt to hide the nature of his relationship with the bank; it was a relationship in common with all conveyance lawyers”.The judge ordered Mr Darrell to pay the costs of the other parties involved in the case, which also included Solicitor General Melvin Douglas, who represented the Ministry of Culture and Social Rehabilitation, which is responsible for the Human Rights Act. The Ministry was included by Mr Darrell as a respondent in his judicial review.Mr Darrell was not present at the hearing. Speaking afterwards, his lawyer Mr Durham said: “He has the opportunity to appeal the matter and we are currently investigating what his grounds of appeal are. He certainly has not exhausted all of his options.”Asked how much the long-running court battle has cost Mr Darrell who was represented by an overseas QC specialising in human rights until just before the start of the judicial review — Mr Durham replied: “There are quite substantial costs throughout the course of these proceedings.” He indicated that Mr Darrell may also appeal the costs ruling made against him.Asked for his response to the ruling, Mr King said: “I have a sense of vindication and I am appreciative of the ruling, and really cannot add to what is a very thorough and comprehensive judgement.”

Timeline of events

Harold Darrell’s first formal complaint was made to the Bank of Bermuda in 1997. He alleged that in February 1996, it scuppered business deals worth a potential $3.2 million he was negotiating for his communications company, by improperly disclosing his confidential business and banking information to third parties.

Mr Darrell, who is black, further alleged that the bank failed to properly address his claims due to his race and the bank’s institutional racism.

He continued to make complaints over the following years. However, he claimed the bank failed to investigate those properly, then eventually came to the conclusion he had been wronged by two members of senior management, only to ignore that finding.

Mr Darrell filed a complaint with the Human Rights Commission in October 2000, alleging racial discrimination against the CEO and directors of the bank.

The case became embroiled in legal arguments and it was not until September 2005 that a board of inquiry set up by then-Human Affairs Minister Randy Horton began to look into the issue.

The board ruled in October 2006 that Mr Darrell’s complaint failed because he made it against the CEO of the bank and the board of directors as individuals, when it should have been made against the bank itself. The ruling went against the Human Rights Commission’s recommendation and Mr Darrell’s wishes.

He tried to challenge the board’s decision via a Supreme Court appeal and then via a judicial review, but various judges ruled against him, saying he’d taken too long to file his applications.

However, the Court of Appeal ruled in 2010 that Mr Darrell was entitled to have a judicial review. That review went ahead in January 2012, presided over by Puisne Judge Charles Etta Simmons.

During the review, Mr Darrell made allegations via his lawyer Jaymo Durham that chairman of board of inquiry, Paul King, was biased due to his working relationship with the Bank of Bermuda.

Mrs Justice Simmons rejected Mr Darrell’s allegations yesterday, and against his bid to have a fresh board of inquiry (see main story).