The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A LAWYER was ordered to apologise in writing to Chief Justice Sir Michael Barnett and Justice Rhonda Bain for writing a letter to the Chief Justice suggesting that Justice Bain showed bias in her judicial review of a case between the Coalition to Protect Clifton Bay and the government, Canadian multi-millionaire Peter Nygard and Koed Smith.

In yesterday’s proceedings before Justice Bain, lawyer Koed Smith, who contended that his letter to the Chief Justice on October 28 was not intended to insult or be rude to the presiding court, was informed by the judge that she will hear the case because there was no application by any of the counsel to ask that she be recused. The hearing is scheduled for April, 2014.

Before the order was made at the beginning of the proceedings, Mr Koed Smith informed the court that not only was he now before the Chief Justice in a chamber hearing, but that his prospective attorney, Raynard Rigby, was unable to be present for the hearing.

He also said that court staff had not informed him of the basis for calling the sudden hearing. He asked that the matter be adjourned so that he could properly prepare for the proceedings.

“I don’t feel I should be arguing for myself,” he said.

William Orlando, who appeared for Mr Nygard, also informed the court that he had only received notice of the matter on Saturday and had not had time to present any documents to the court.

Fred Smith. QC, lead counsel for the Coalition, then addressed the court on the accusations by Mr Koed Smith in his letter to the Chief Justice in which he suggested that the court was biased.

The QC referred to the Coalition’s affidavit, which Koed Smith suggested on page 43 showed the judge was biased because she did not hear his application to strike out the injunction set in June, which had asked for damages.

Koed Smith’s letter, which contained the accusations, was dated October 28. Four days later, November 1, the letter was e-mailed to Sir Michael Barnett’s court clerk. It asked for the case to be heard before another judge. It also asked for the matter to be struck out because it was prejudicial to him and would also suggest bias on the part of the court.

Mr Fred Smith, counsel for the Coalition, said that the accusations made to the Chief Justice were very serious. He asked that either Koed Smith, who had made the accusations, apologise to the court or make an application for the court’s recusal, which “we will strongly resist.”

The Queen’s Counsel saw Koed Smith’s letter simply as his reaction to not getting “a date that he wants.”

In response Koed Smith, claimed that because of his present circumstances, he should not have to be called on to answer the issue. He said that his suggestions and submissions in direct communication with the Chief Justice were not in and of “itself contemptuous of court.”

He said the submissions of Mr Fred Smith were without foundation and his reading of the letter, which was on record, should have been properly done with an application to the court.

The Judge acknowledged both submissions. She then asked Koed Smith to respond to the issue of the date for the substantive hearing. Koed Smith defended his reasoning that any judge could deal with the matter before then without either parties suffering prejudice.

Justice Bain, on that note, said that “this court will hear the matter.”

“There is no application before this court to recuse itself,” Judge Bain added.

Mr Smith, QC, then reiterated the seriousness of the accusations. When the judge asked Koed Smith to respond, he said, “there was no intention in any form by this counsel to offend the court.”

He requested that because the court had ruled that it would still hear the matter, the complaint previously read into the record should be struck out and the request be granted.

In June of this year, Judge Bain ruled that construction work be halted in the Clifton Bay area by Peter Nygard and Koed Smith, “acting directly or through (their) employees or agents,” with a further order that any dealings between the government, Mr Nygard and Keod Smith regarding Clifton Bay be made public.

This included copies of any applications or grants of permits, approvals, or leases made by Mr Nygard and Mr Smith in the Clifton Bay area.

The court ordered that failure to obey these instructions would result in the respondents possibly being “held to be in contempt of Court and liable to imprisonment at Her Majesty’s Prison, or a fine or the sequestration of your assets.”

The Queen and Prime Minister Perry Christie are the first respondents in the matter, followed by Deputy Prime Minister Philip “Brave” Davis as the second and Transport and Aviation Minister Glenys Hanna-Martin as the third.

The Town Planning Committee is listed as the fourth, Mr Nygard as the fifth, and Mr Smith as the sixth. The Coalition is the applicant.

Lauren Klein and Darren Henfield of the Attorney General’s Office represent the first four respondents while Nygard and Smith are in the process of retaining counsel for the judicial review hearing and others stemming from the matter.

Fred Smith, QC, with Dawson Malone, Ramould Ferreira and Martin Lundy represent the Coalition.

Yesterday, Smith, QC, consented to an undertaking that penal notice against the first to four respondents not be enforced until their application before the judge to strike out the disclosure order is heard.

That hearing is scheduled for January 16 and 17, 2014.

However, on December 12 and 13 next month, Mr Koed Smith and Mr Nygard will make applications for the injunction to be struck out.