Court of Appeal releases Pettingill judgment
The Court of Appeal has released its reasons for a decision to uphold an order that barred two lawyers from representing the patients of Ewart Brown.
Sir Christopher Clarke, the President of the Court of Appeal, said in a written judgment: “It was, in our judgment, open to the judge to find that, both Mark Pettingill and Victoria Greening had received privileged and confidential information in connection with the criminal investigation, as she defined it.”
Mr Pettingill and Ms Greening of Chancery Legal represented 150 clients whose health records were among those seized during police raids on Ewart Brown’s two medical clinics, Bermuda Healthcare Services in Paget and Brown-Darrell Clinic in Smith’s.
The 2017 raids were part of an investigation by police into allegations that the clinics ordered unnecessary diagnostic imaging scans to boost profits.
Dr Brown and BHCS’s medical director, Mahesh Reddy, have denied any wrongdoing in relation to the alleged overuse of medical scans of patients and have not been charged with any offences.
The patients had been allowed to become involved in the legal battle between Dr Reddy and the Bermuda Police Service as interveners.
But Mark Diel, the lawyer for the Bermuda Police Service, argued in April that Mr Pettingill, a former attorney-general, and Ms Greening, a former Crown counsel, had conflicts of interest because of their earlier work.
Assistant Justice Kiernan Bell ruled a month later that both lawyers had a conflict of interest and barred them from representing the patients, but Mr Mr Pettingill and Ms Greening launched an appeal.
The Court of Appeal dismissed the appeal on June 21, but the written judgment was not published online until Tuesday.
Sir Christopher said: “Looking at the matter in more general terms, there would seem to be an inherent conflict when Chancery Legal are intent on showing that the actions of the police in seeking, obtaining and executing the warrants were unlawful and a disgrace, in circumstances where Mr Pettingill/Ms Greening, as the judge has found, received information in their professional capacity from the BPS about the progress of that investigation.”
The judge said Mr Pettingill did not dispute that he had been briefed on the investigation into Dr Brown.
He quoted a statement by Mr Pettingill when he said: “I have no idea what information I could possibly have, that would give the intervener any advantage to their files being unlawfully seized by the BPS in 2017 and as relates to strategy other that my assessment that a certain contingent of the BPS was obsessed with endeavouring to find any evidence they could against Dr Brown.”
Sir Christopher added: “This assessment is likely to have been derived, at least in part, from what he learnt in the communications between the BPS and him.
“It would seem, of itself, to be of assistance to the patients and to the disadvantage of BPS.”
He later added that Mr Pettingill said he had inquired about the ongoing investigation as Attorney-General because he was concerned about its cost.
Sir Christopher said: “If, as the judge has found, he was given information relating to the criminal investigation there would appear to be a potential conflict in two directions.
“Insofar as any information indicated that no crime had been committed, that would be averse to the BPS.
“Insofar as it suggested that there may have been but it was difficult to prove, that would be averse to Dr Brown and the patients whose camp he had joined.”
The judge said Ms Greening could not dispute that she was present at a meeting where confidential information about the investigation was disclosed.
Sir Christopher said: “The fact that she was present at that meeting in late 2014 is difficult to square with her suggestion that the possibility of her joining the specialist team was mooted shortly after the beginning of her employment in April 2014 but never taken forward.
“In addition, her observation about the incompetence of the investigation is difficult to square with the proposition that she played no effective part in relation to it.”
The judge concluded that Ms Justice Bell was entitled to reach the conclusion that there was a conflict of interest as the court should act “unless it is satisfied that there is no risk of disclosure”.
Sir Christopher added: “The burden of proof on the BPS is not a heavy one. The burden on Chancery Legal is a heavy one.
“The judge was entitled to take the view that BPS had discharged the former and that Chancery Legal had not discharged the latter.”
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