Human Rights Tribunal Chairman Paul King shot down a request for access to privileged documents on the third day of a racial discrimination hearing.

Lawyer Antony Cottle, representing complainant Harold Darrell, in his third day before the three-person Tribunal did not, as anticipated, call Mr. Darrell, a well-known Bermuda businessman, as the first witness. Instead he continued opening remarks, suggesting that institutional racism may have been behind 17 Bank of Bermuda directors? failure to respond to his client?s complaint that confidential financial details had been leaked by a bank employee.

Mr. Darrell launched his human rights complaint nearly five years ago, charging that the bank?s directors, who are both white and black, did not properly look into a leak of personal financial details because he and his witnesses are black. The breach is claimed to have scuppered a lucrative business deal that Mr. Darrell was about to finalise, because a cash flow crunch was made known to the party he was negotiating with.

Mr. Darrell is expected to take the stand today, after Mr. Cottle on Friday petitioned the Tribunal for a delay in witness testimony because legal rules would restrict him from discussing the case with Mr. Darrell once he took the stand. Mr. Cottle made the petition that Monday was a better day to begin testimony as it would allow him the week-end to work with Mr. Darrell.

He said he was still coming to grips with all details of the case after having only been appointed to defend Mr. Darrell within days of the Tribunal sitting last Wednesday. Mr. Cottle was officially named to lead Mr. Darrell?s case on September 16 after Mr. Darrell switched lawyers, with Julian Hall having been previously appointed to argue the matter.

While Mr. King on Friday gave leave to postpone Mr. Darrell?s and other witness? testimony until this week, he did not concede a request to have respondent legal files opened. Mr. Cottle maintains he should be allowed the access, arguing the bank?s legal team established a precedent by admitting a number of privileged documents as evidence. ?If we open this up we?ll be here for a month of Sundays, and I for one cannot do that,? Mr. King said, in denying the request.

Mr. Cottle claimed because the respondents waived the right to privilege on a few documents, including correspondence between in-house bank lawyers and directors advising them not to respond to correspondence in 2000 from Mr. Darrell, that amounted to a blanket waiver of privilege for all attorney-client documents related to the matter.

Jeffrey Elkinson, the lawyer for 16 of the directors alleged of racial discrimination, said the waiver only related to those documents that were needed to provide background necessary to points in witness statements.

If all files had been ordered opened, it would have effectively laid the way for the complainant to route through records for all 17 respondents dating back to 1996 when the alleged breach occurred, and vice versa, with it likely that both sides would have been accorded equal access to attorney files. The request to see privileged documents followed Mr. Cottle making a petition the previous day for a wide range of documents from the bank. Mr. King allowed that the bank should produce what credit guidelines it had in place during the disputed period, but denied other document requests because the bank had already submitted the items, or the documents were not relevant.

Senior legal counsel for the bank, Sonja Salmon, told the complainant was ?fishing? with its request for access to all attorney documents. And she charged that the legal tactics being taken by Mr. Darrell?s side were ?unfair?.

?Over three days, there have been attempts (by Mr. Cottle) to expand what this Tribunal is hearing? Ms Salmon said. ?We prepared for the complaint that has been filed,? she said, adding that it was not fair to the 17 respondents, who are under serious allegations, to stray from the issues raised in the submission made to the Tribunal on July 21.

As part of the opening remarks, Corey Butterfield, Mr. Darrell?s assistant, told the Tribunal that 2000 to 2002 statistics compiled by the Committee for Unification and Racial Equality (CURE), show that while blacks make up the majority of the Island?s population, more whites are promoted to senior management positions. He pointed to statistics for the banking, insurance and real estate sectors as having an acute shortage of black representation in the senior ranks, compared to other sectors.

?The employment practices of many Bermuda businesses can be said to be institutionally racist because of a lack of equal opportunity practices,? Mr. Butterfield said. Mr. Cottle told the Tribunal board that statistics on how blacks progress in the Bermuda workplace was necessary to have as context for questions that would come later in cross-examination of testimony from some bank directors.

All 17 past and present directors who are respondents in this matter have entered witness statements, and most are prepared to give testimony in the case that is set to continue through Friday. However, bank lawyers raised concerns that three days of opening remarks from Mr. Darrell?s side may have put the matter behind schedule, and jeopardise witness participation because of commitments outside the eight days allotted for the hearing.

The respondents are: former chief executive Henry B. Smith, who remains a bank director, Hon. Dr. Clarence James, Hon. Ann F. Cartwright Decouto, William de V. Frith, Eldon H. Trimingham, Geoffrey K. Elliott, David Hamshere, G. Ward Young, Paul Lesseur, John D. Campbell, Richard S. L. Pearman, Dennis G. Tucker, E. Eugene Bean, Joseph Johnson, Louise Jackson, Peter Cooper and David Gutteridge.

The directors testifying are due to take the stand midweek, following witnesses being called early in the week to defend Mr. Darrell?s racial discrimination allegations.

Mr. Darrell will be the first witness called, while Mr. Butterfield, who also acts as Mr. Darrell?s spokesman, said ten other witnesses have agreed to testify this week. They are Ulrick (Rick) Richardson, Michelle Khaldun, Sharon Kirby, Michael Smith, Dilton Robinson, Samuel Brangman, Larry Dennis, Roger Russell, Delroy Duncan and Neville Darrell.

Saul Froomkin, lawyer for former bank chief executive Henry Smith at the close of Friday?s hearing raised questions over whether all the complainant?s witnesses had agreed to give evidence. Mr. Froomkin said through information from his junior, Venous Telford, he understood that at least one person had not agreed to be a witness, despite Mr. Cottle saying that all witnesses had been confirmed by Mr. Darrell.

?Delroy Duncan was not contacted. No witness statement was okayed, and he was not contacted to give evidence,? Mr. Froomkin told the Tribunal, based on three telephone conversations between Mr. Duncan and Ms Telford that day and the night before.

?This is a very worrisome situation as far as I am concerned.? Mr. Duncan is currently off the Island for personal reasons but is expected to return this week. After the hearing on Friday, Corey Butterfield said he had personally spoken with Mr. Duncan in the UK and that he was willing to give evidence before the Tribunal.

?He has agreed that his statement can be used and he will appear,? said Mr. Butterfield. ?Mr. Duncan further told us that he was going to call Ms Telford and advise that his statement is staying in, and he will appear.? Mr. Froomkin, by telephone Friday evening, declined to say whether Ms Telford or himself had any further communication from Mr. Duncan related to the hearing. He said he could attest to what he said in court being true at that time he said it, and no more.