HAROLD Darrell's ongoing Human Rights case against the Bank of Bermuda centres on who is the respondent to the complaint - the bank itself as a corporate entity, the individual directors - or both.

According to Mr. Darrell, the bank's lawyers insisted that the bank was not an affected party - despite arguing earlier that it was.

According to a June 2001 ruling by Justice Vincent Meerabux the bank "is not a person directly affected under Rule 6(1) of the Rules and not be served".

However, three months later the bank's lawyers successfully had that ruling overturned.

In a submission to the Supreme Court on September 19, 2001, attorney Jeffrey Elkinson listed a stack of evidence which, he claimed, showed that the Bank of Bermuda Limited was the respondent rather than the Board of Directors.

His 12-page submission concludes: "It is submitted that the examination of these papers discloses strong reasons to re-open the Judgement of 27 June 2001, both in the interests of justice and fairness and it is proper that the Bank of Bermuda Limited be the Intervener in these proceedings as the party against which a Human Rights Complaint was made and the decision of the Commission is now the subject of judicial review." Justice Meerabux agreed. On the same day that Mr. Elkinson made his submission, Justice Meerabux concluded: "The uncontroverted evidence before the Court is that the Bank is a party affected. The issue is not about redefining the person against whom the complaint was made. I rule that I can re-open the matter. The party affected I rule is the Bank and that an inaccurate Statement was made before the Court on 27 June 2001. In the circumstances an in the interest of justice, I order that the matter be reopened. I grant the application of the intervener and I order costs be awarded to intervener."

Mr. Elkinson's company, Conyers, Dill and Pearman, subsequently sent Mr. Darrell's lawyers a bill for more than $15,000.

Despite winning that argument, when a Board of Inquiry did finally sit in September 2005 to hear the complaint, Mr. Elkinson insisted that the bank was not a respondent.

Mr. Elkinson was backed up by veteran attorney Saul Froomkin, who was representing the bank's then-CEO Henry Smith at the hearing.

Court records show that both lawyers were adamant that the bank was not answerable to the complaint.

In one exchange with Mr. Darrell's attorney Anthony Cottle over the disclosure of documents, Mr. Elkinson said: "It is an outrageous suggestion that here hasn't been disclosure when it's before him and he can see it. I'm not quite sure what this application is directed to, but we will say very clearly Mr. Chairman, the order is complied with.

"It's the directors, they don't have custody care or control of any documents and therefore they didn't have to disclose anything. The documents which have been disclosed are the bank's documents who are not a party."

Mr. Cottle replied that "my learned friends are misleading the Board".

But Mr. Froomkin hit back, saying: "It's clear from everything that the bank is not a party. All one has to do is look at the complaint itself and I can read it to you - Chief Executive Officer is one respondent, and Board of Directors, Bank of Bermuda Limited, 6 Front Street. The bank has been said throughout, certainly in documents that I've seen, that the bank is not a party."

This week former Human Rights Commission officer David Wilson explained that the September 2001 ruling still stood when the tribunal met in September 2005.

He questioned why Mr. Elkinson told the tribunal judges that the bank was not a respondent, even though he was aware that Justice Meerabux had ruled that it was.

"As far as I can see, Jeffrey Elkinson has shot himself in the foot by his own letters - and if you don't believe his arguments they're supported by my own affidavits which say that the case was always against the bank," Mr. Wilson said.

However, yesterday Mr. Elkinson denied that he had ever contradicted himself. He pointed out that the September 19 ruling by Justice Meerabux related specifically to a civil action that Mr. Darrell was pursuing - not the Human Rights Commission complaint.

He said that that decision - which he supported - was subsequently overlooked by the Minister of Human Affairs when he set out the terms of reference for the HRC tribunal and listed individuals directors as respondents to the complaint.

The bank tried to have the terms of reference changed - as it had successfully done in the civil action - making the bank the respondent. But the Court of Appeal rejected that request in 2004, saying that the Minister's terms of reference should stand.