Rivers presses for challengers’ bankruptcy

| 16/02/2016 | 69 Comments
Cayman News Service

Tara Rivers, Minister of Education, Employment and Gender Affairs

(CNS): Education Minister Tara Rivers is attempting to clean-out a couple who challenged her election more than two and a half years after the Grand Court dismissed a petition questioning her qualification to run for office. A bankruptcy petition filed by her lawyers at the end of last month is looking for almost US$140,000 to cover the tab for her expensive legal defense against the petition, originally filed by John Hewitt, whose wife, Velma Powery-Hewitt, failed to win a seat in the district of West Bay in the 2013 general election.

Despite his original reservations about awarding costs to Rivers because of the public interest issues surrounding the 2013 case, last year Chief Justice Anthony Smellie, who had heard the petition, agreed she could claim US$138,666.79 from the Hewitts. The significant amount covers Rivers’ defence, in which she was represented by constitutional legal expert, Jeffrey Jowell QC, who was a consultant on the drafting of the Cayman Islands’ 2009 Constitution, and local attorney Paul Keeble, from Hampson & Co.

According to the petition, the Hewitts have not paid the bill and so Rivers is forcing the couple into bankruptcy after a notice was issued last summer when the challengers failed to stump up the substantial bill. A hearing, which could end in the couple being made destitute, is scheduled for April in a closed-door chambers hearing.

The result of the 2013 election petition caused considerable controversy for a number of reasons but was also defined as an important precedent-setting decision by the courts.

Rivers had received an overwhelming endorsement from the electorate, coming in second place in West Bay and breaking the long-held domination of the UDP, on whose ticket Hewitt ran. However, rumours that she had not given up her US citizenship and had an American passport turned out to be true and her absence from the island while working at a law firm in London during the seven years before the election also appeared to disqualify her from office.

Nevertheless, she successfully argued that she had a right to retain her US passport, which she had because she was born in America and had therefore never sworn any allegiance to that country. She also argued that, even while she was working in London, she was still a resident of Cayman because her position at the law firm was part of her professional development and the firm was akin to an educational institution, making her a student.

The decision by Chief Justice Smellie created waves, not least because the Elections Office, on advice from Attorney General Samuel Bulgin, had ruled that Richard Christian, who had planned to run for office in Bodden Town, could not do so because he held a US passport by birth, and one of Rivers’ C4C running mates, Sharon Roulstone, who made an unsuccessful bid for a George Town seat, gave up her US passport in order to qualify for the ballot sheet.

Another potential C4C candidate, Kent McTaggart, was also advised he could not run in Bodden Town because he had lived overseas during the seven years before election due to the medical needs of his child.

Therefore, the decision by the chief justice set an important precedent because it is common for Caymanians to live overseas for a period or hold dual citizenship for a host of reasons and it cleared the way for many more locals to qualify as candidates. However, the judge said at the time that, given the previous interpretations of the law, the challenge was far from frivolous or unreasonable and helped to clear up long-standing questions.

As he presented his decision, the chief justice pointed to the significance of the case and encouraged the parties not to press for costs because of the potential of deterrent to future well-meaning challenges on important constitutional questions about candidates and their qualifications.

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Category: Elections, Politics

Comments (69)

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  1. Anonymous says:

    Well at least now the Hewitts see what kind of people the UDP are … not a once speaking out to support or contribute to the bill. Sad but better to know the true position. I’m pretty certain they encouraged the legal challenge too!

  2. Anonymous says:

    David will never fight Goliath in cayman because of these silly court rules it was a good case for all the people and the loooosers should not be punished

    • Anonymous says:

      An armour clad infantryman would have almost no chance against a skilled sling shot if he approached him from any distance at all. In terms of likely outcome Goliath was the massive underdog. Imagine someone with a knife walking slowly up to someone with the crossbow from 300 yards away. Doesn’t change the fact that the costs orders in this case seriously undermine constitutional rights.

  3. Anonymous says:

    If you can run up a 140k bill, you will never understand how it is to live from 6$ an hour.

  4. Anonymous says:

    I love this Cayman Christian ting, you know, forgive and forget, turn the other cheek, love they neighbour. And I especially love the “I am going to destroy you” ting. Now they may have made an incorrect accusation, but it turns out she is not qualified to do the job. She has failed abysmally! They should sue her and prove their original claim!

  5. Maiden Plum Juice with Moringa says:

    I agree, she should be compensated by the Hewitts and in fact the UDP as it was them who pushed the case. SORE LOSERS……

    I am done with all political parties and all current politicians- unless there is an influx of new and acceptable set of persons seeking office in 2017, give me Curwell, Rudy, SOler, Lemerick to vote for in the next election.

  6. Anonymous says:

    Really the Gambler should pay this but at $650.00 an hour for his own stupid case I seriously doubt he has anything left to do so.

  7. Anonymous says:

    Isn’t it ironic that the Minister for Employment used an Englishman to represent her in Court presumably because she did not consider Caymanian labor good enough? Maybe it is an American thing.

    • Diogenes says:

      Or just perhaps because we don’t have any Caymanian QCs specialising in constitutional law?

      • Anonymous says:

        Hell yeah! If you guys actually understood the constitution we would all be in big trouble.

      • Anonymous says:

        It needed a magician to confuse the judge into believe working as a solicitor in a law firm for a salary was education.

    • Sarah says:

      Wonder if she ever gave up the USA passport……..would love to know

      • Anonymous says:

        If Rivers did not give up her US passport {and her US citizenship] she may well owe income tax on her salary and have a responsibility to file a return, declare her interest in corporate holdings and bank accounts here and generally comply with IRS regulations in regard to her being a “US person” for tax purposes. Failure to do so if it is required is a federal crime. So, we wonder if Rivers is in compliance. This would be something for the Hewitt’s to look into. Under the Tax Whistleblower Program, a person reporting non-compliance may be eligible to receive a monetary reward for providing information if that information results in the recovery of unpaid tax revenue by the IRS. Maybe someone can put a bug in the Hewitt’s ear, some extra $$ might come in handy to pay their outstanding bill with Rivers.

  8. Anonymous says:

    Those who encouraged the Hewitt’s and likely funded their initial costs should now assist with the payment. Some gambling money should be available. Maybe the Hewitt’s should tell us all who was really behind the law suit.

  9. Knot S Smart says:

    Well…
    The winner takes all…
    And the losers can try again next election…

  10. Stanislav Zholnin says:

    “Nevertheless, she successfully argued that she had a right to retain her US passport, which she had because she was born in America and had therefore never sworn any allegiance to that country.”

    That was the funniest thing I read today.

    • Anonymous says:

      She does not use the American entry line at Miami airport. Never. Because that is how she rolls. Not being American.

      • Diogenes says:

        Bet she doesn’t pay US taxes tho

        • Anonymous says:

          If you tip off the IRS you can get a cut. Useful for neighbors that annoy you if they go shopping in Tampa or Miami.

          • IRS says:

            Do either party fully declare and pay all their taxes??? We all know plenty of people that don’t… Here is an interesting link on the subject…

            https://www.irs.gov/uac/Whistleblower-Informant-Award/

            And here’s the form to make it easy… Lots of big names in Cayman should fear this form…

            https://www.irs.gov/pub/irs-pdf/f3949a.pdf

            Every person born in the US or born anywhere else to US parents (or born anywhere else to non-US parents but with US Grandparents) is considered American under US tax laws. They all have an obligation to file tax returns if earning more than a very small amount. But no taxes are due until earning over about $98,000.

            Regardless of the amount earned, the same people are required to file FBAR forms if they sign on or own a foreign bank accounts. The banks will only report the people if the accounts total over a certain limit, but the reporting is required, so why push it?

            The penalties and fines are devastating if the US gets you before you get to them…

            On the positive side, there are programs that facilitate coming clean. Most people can breeze through with little or no taxes owed… It is worth checking if you fall into any of the categories above. Be warned.

            Oh, one last note – if you bank at any of the following banks, the IRS has already served a John Doe Summons to seek out all US account holders so it is too late to use some of the amnesty options out there:

            Butterfield
            CIBC – First Caribbean
            and about 48 other worldwide banks (and growing…)

            A good lawyer and tax assistant will go a long way for those who have now seen the light… And if you now want to come clean, here is a link to help along the way…

            https://www.irs.gov/Individuals/International-Taxpayers/Offshore-Voluntary-Disclosure-Program-Frequently-Asked-Questions-and-Answers

            For those who still think they can keep ignoring the situation, I strongly recommend suspending all travel into or through the US, cause one day, the systems will all be linked and an IRS task force will be at every airport scanning the arrivals lists waiting to tap some poor unfortunate soul’s shoulder and change their lives forever…

            • Just Commentin' says:

              Yup! In addition to filing a tax return and paying any taxes due, Rivers and other Caymanians born in the USA, or anywhere with one US parent, or green card holders living in the USA or living here who have not relinquished their card, or those just plain born-here 100% blood Caymanians who spend over a certain time even just “visiting” the USA, must also file a Report of Foreign Bank and Financial Accounts (FBAR) detailing their ownership or direct involvement with a Cayman bank or other financial account. Lots of Caymanians are sticking their heads in the sand on this but the IRS is soon to get quite serious about extracting all the blood they can suck.

              Hey, fellow Caymanians, Google “US person for tax purposes” and see how the long arm of the IRS may be reaching out for you, or one of your friends or family, in the near future.

    • Anonymous says:

      Wow, that’s the funniest name I’ve seen this year.

      • Stanislav Zholnin says:

        You find name funny, hiding behind anonymity, which means yours is funnier.
        I find opinion of Cayman court funny – thinking that 90%+ of US Citizens do not have any allegiance to “that country”, meaning US. Must be news for US Citizens as well.

  11. Anonymous says:

    The losers might want to consider challenging the legality of the bar on any appeal against both the decision and the costs order. It could be a breach of their right to a fair trial and their political rights.

    • Diogenes says:

      I see. An appeal two and half years after the first instance decision was handed down, following a failed appeal already to the Court of Appeal, based on some purported breach of their rights to a criminal trial when its a civil matter – yep, that should work out really well.

    • Who knew says:

      I just think you are wrong here. No one’s right to a fair trial was impeded by the decision. And as for their political rights she should have raised the issue prior to elections where the Elections office could have vetted her and made a decision.

      Then if she chose to go against the elections office decision then it would be the elections office to challenge her right to run.

      When Mr. Hewitt chose to challenge her he should have been told by his lawyers what the results could be and what rights she had under the law.

      I find it so wrong to blame Tara for simply trying to recover out of pocket expenses she incurred in way of defending her right to run. If Tara had lost the decision Mr. Hewitt could have sought for his legal expenses to be picked up by Tara also.

      I just think you are truly wrong in this.

  12. Anonymous says:

    Aside from the questionable substantive decision, a troubling thing about this case was the entirely disproportionate costs awarded to Rivers. This award, out of all proportion to what was needed for the case, has the real affect of chilling the electorate exercising their legal rights to challenge steps in an election.

  13. Anonymous says:

    People should really be able to keep separate issues apart.

    Whether people feel that she is good in her ministry position or not has nothing to do with the fact that the people who have taken her to court and who the judge has ruled against owe money to Miss Rivers attorneys.

    Whether the ruling by the judge is viewed as correct or inconsistence with other decisions that have been made by other people in regards to be able for public election has again nothing to do with the fact that they attorney’s bill needs to be settled.

    And yes, as it has been pointed out on this blog, the only people who have won anything throughout this whole ordeal are the lawyers.

  14. Anonymous says:

    I am certain if Gordon and Velma had won they wouldn’t have requested costs, being such lovely people.

    This isn’t news, trying to lay a guilt trip on Tara Rivers in a public forum is unfair and uncalled for. The court made a decision regarding costs in Tara’s favor. End of story.

    • Anonymous says:

      Well said. CNS is wrong in stating Tara is forcing the Hewitts into bankruptcy, she is merely pursuing her rights following judgement .
      Might as well accuse the Judge of forcing them into bankruptcy.

    • Anonymous says:

      Just write the cheque.

  15. SSM345 says:

    Wowzers, does this whole debacle tell us why we have heard nor seen no results from Tara and her Ministry since she came to office? Seems pretty obvious where all if not most of her attention has been.

  16. Anonymous says:

    You lose, you pay. Those are the rules. Litigation comes with great risk. Why should Tara be out her hard earned money after winning, and rightfully so according to the court? Velma and Gordon took the risk and lost, that is sad for them, but not Tara’s fault or her problem.

    Let’s not forget who initiated this lawsuit to begin with.

    • Anonymous says:

      Hope they go knocking on the UDP’s door to pony up for the gamble they took for their hon wobble leader….just tell him you are collecting for the church.

  17. Anonympus says:

    I have absolutely no pity whatsoever for the Hewitts. I suggest they should go those who helped and encouraged them in their suit, to now help them pay their dues to Tara.

    You mess with fire and now you get burnt to a crisp.

  18. Anonymous says:

    You lose, you pay.

  19. Anonymous says:

    Da wa dey get !! Maybe whoever was ‘really’ behind them challenging her, would be so kind as to step forward and pay her for the expenses incurred? Too often people as spuriously run through the courts at great cost to themselves. Good to see justice served. You ever wonder who really paid for the surely exorbitant costs associated with those 3 West-Bayers who challenged Dart’s road closure? You really think it was them? I hear it was hundreds of thousands of dollars in fees they incurred. I know Dart didn’t have any trouble paying his bill all the way to the Privy Council. Shaking my head …

  20. Anonymous says:

    As pointed out in a Cayman Compass Editorial, compare this case to the case of the suit against Government and the Dart group re the closing of a portion of the West Bay road, which was partially funded by Legal Aid. – government paying for government to be sued AND in the end, the defendants were NOT awarded costs even tho they won the case (The Dart group and Government).

    Now, given the significance of the Hewitt vs Rivers case, as highlighted by the court, which case was more deserving of costs not being awarded. They both should pay their own legal costs. It was not a frivolous case, and Tara must’ve seen the necessity to have a heavyweight represent her. This is disgraceful.

    • Fred the Piemaker says:

      Its not disgraceful, its the law. Loser pays. The other case involved the winner being the government, who can take a view on the cost to the taxpayer versus the benefit of clarifying a constitutional point. In this case its a private individual defending an action brought by another individual, whose goal after all was not to clarify the law but to replace Tara and secure that coveted MLA seat.

    • Anonymous says:

      Typically, legally aided plaintiffs are shielded from having to pay costs. I understand that legal aid was not granted to the Hewitts. Thus, the case differs somewhat materially from the 4 Ladies’ case in relation to the West Bay Road closure.

  21. Anon says:

    Stop money grabbing and get on with your job! You should be focusing on this countrys apalling education and the not lining your own pockets. Can our elected officials just please please do what they are paid very handsomely for. Priorities all wrong!

    • Anonymous says:

      How is it money grabbing if that is to cover her attorney’s bill which remains unpaid? From what I read, she isn’t looking to stash the funds on her personal bank account!

  22. Anonymous says:

    How classless. And therefore not surprising given who the story is about. I feel so sorry for that couple because the legal decision was one of the worst to come out of the Courts for years and had there been a right to appeal I have no doubt that Ms Rivers would have lost.

    • Jotnar says:

      Seeing as you are so talented its a crying shame you are not sitting on the bench yourself.

      • Anonymous says:

        Well our favourite American non-American knows best with her degree from the University of Allen and Overy where she “studied” so hard. She “studied” so hard that the “University” even paid her a salary to turn up. Anyone in the real world would have thought she had a job at a law firm and had finished her “studies”.

    • Diogenes says:

      “Education Minister Tara Rivers is attempting to clean-out a couple who challenged her election…”

      If its a bankruptcy petition Rivers gets nothing directly from it, other than have an independent trustee distribute the Hewitt’s assets amongst all their creditors on an equal basis (rather than paying others but not her).

      • Anonymous says:

        Yes, she is going down the bankruptcy route as a selfless community minded act because Tara is a selfless community minded American.

    • Who knew says:

      Hold on here a cotton picking minute!! How can you call this classless? The lady spent USD 138k out of her pocket defending her rights against someone who challenged her and she is not allowed to get paid back? WOW People WOW..

      While I find it unfortunate and in some ways sad I believe it should be for the party to come up with the money. There are “others” who probably coerced her to do it and they should pony up the money now.

      Tara while it does “look” bad it is your right to be paid.

      • Diogenes says:

        Since you never get all the costs you spend awarded by the Court – typically 65 – 75% – she paid out a lot more than the $138K she is trying to recover.

  23. Anonymous says:

    Tara’s such a classy lady with this move

  24. Anonymous says:

    as usual the only winners in the end will be the lawyers….

  25. Anonymous says:

    cig(taxpayers) will end up paying……

  26. Anonymous says:

    I have little sympathy for the Hewitts. They must have been advised that, if they lost, they would almost certainly have to pay the costs of the other side. Why should Rivers pay it? They pursued a loophole despite the obvious fact that Rivers had received far more votes and deserved the seat. it was a spiteful law suit in the first place.

    • Anonymous says:

      It was hardly a “loophole”. 95% of the attorneys on the island will tell you the outcome of the ruling came as surprise. Working in a law firm as a qualified attorney is employment not education.

      • Anonymous says:

        I would be surprised if there was 5% how disagreed with the majority. She was never eligible in a million years and the absence of a right of appeal was a disgrace.

        • Diogenes says:

          A disgrace? Because you would rather wait for the outcome of a contested election to take years whilst it grinds through appeal through the Court of Appeal then the Privy Council? Probably why the law – incidentally one passed by our own legislative assembly – eliminates appeal.

      • Cronyism keeps breeding says:

        You are absolutely right! There is no justice for poor people. If you gave the dollars you can get off of any case. Tanx smellie, now there will be no more challenges to candidates. This can only perpetuate corruption.

      • Anonymous says:

        Seeking a job in a law firm a young Caymanian has little hope, in the face of imported young lawyers with real world experience.
        Tara was arguably furthering her education to level the playing field.

        • Who knew says:

          Actually in today’s marketplace many of these Law firms send their staff off to get experience overseas so yes I kind of agree it was like a school. On the job training is still training.

          • Anonymous says:

            By that reasoning any Caymanian working overseas, say in America as they were born there and have an American passport and so did college there, can count that time/nationality as ‘not counting’ when qualifying to run. Do you at least agree it puts what looks like fairly straightforward eligibility requirements on a slippery slope of someone deciding ‘how much you were learning’ and if you’re ‘really’ a national or not’?

            “Where have you been for the last 20 years Mr. Candidate?”
            “I finished college and stayed in Florida working, I mean getting on the job skill training, for the next 16 years. Now I’m home and ready to run.”

          • Anonymous says:

            Can we maybe agree that this case, and the good discussion that has followed it, have shown a couple of broad issues that the legislature, not the court (rightly narrowly focused on legal interpretation not policy), needs to clarify:

            1) The ‘educational institution’ candidacy exemption needs to be tightened up or ratified as intended to be this wide;
            2) The ‘second nationality’ candidacy exemption needs to be tightened up or ratified to be this wide;
            3) There needs to be a ‘cheaper’ way to challenge a candidate’s right to run, perhaps by judicially reviewing the Elections Office decision to certify them (the ‘WB Road route’). i.e., you’re challenging the Government for good governance reasons so they’re not expected to claim for damages afterwards especially as you can apparently get legal aid for a JR.(This also has the advantage of it being non-personal, and the obvious outcome would be a by-election w/ no question of the winner getting the seat.)

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