The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Opponents of Bimini’s controversial cruise ship terminal still have “a very hard nut to crack”, even though the Court of Appeal slashed the sum they must pay to cover the Government’s and developer’s legal costs by more than 50 per cent.

Fred Smith QC, the attorney for the Bimini Blue Coalition, yesterday told Tribune Business that even though the sum demanded from his clients had been reduced from $650,000 to $315,000, the ruling still showed ‘public interest’ litigation could be “obstructed”.

As a result, the Callenders & Co partner urged the Government to pass legislation protecting “legitimate non-governmental organisations (NGOs)” from having to face security for costs demands.

Describing this tactic as more appropriate for court battles involving hard-nosed, wealthy corporate litigants, Mr Smith said such legislation would allow cases raising public interest issues to be heard and “benefit the entire Bahamas”.

The three Court of Appeal judges - president Anita Allen and Justices Neville Adderley and Abdullah Conteh - unanimously agreed that the combined $650,000 security for costs payment ordered by Justice Longley in the Supreme Court had been too high.

Justice Allen’s ruling noted that John Wilson, Resorts World Bimini’s attorney, had admitted that his client’s $675,000 legal costs estimate was “at the high end of the scale”.

Ultimately, all three agreed that the total payment the Bimini Blue Coalition should make is $315,000, split into $100,000 to the Government and $215,000 to Resorts World Bimini.

The environmental activist group now has 30 days - until August 17 - to pay that sum, otherwise its substantive Judicial Review challenges to the controversial cruise ship dock and terminal will be dismissed.

Tribune Business understands that the Bimini Blue Coalition may attempt to appeal the Court of Appeal’s verdict to the Privy Council, and Mr Smith confirmed his clients were “considering the ramifications of this judgment”.

Still, hailing the verdict and 51.5 per cent reduction in the security for costs sum as a victory, Mr Smith told Tribune Business: “We are very pleased that we were successful in the appeal in reducing it from $650,000 to less than half of that.

“However, $315,000 remains a very hard nut for an environmental NGO to crack....... It obviously remains a very potent signal to NGOs that their right to a fair hearing and access to the courts can be obstructed by the Government and developers seeking to prevent trials by use of security for costs applications.”

The Government and developers have used the same tactical playbook in all other ‘public interest’ Judicial Review cases that Mr Smith has brought on behalf of environmental organisations, including those involving the Baker’s Bay project and the Wilson City power plant.

The ‘security for costs’ demand is designed to derail such Judicial Reviews at an early stage, in the expectation that NGOs will lack the ‘deep pockets’ to pay the required sums.

“It may well be time, and I call on the Government, to perhaps pass legislation that protects legitimate NGOs from having to pay security for costs when they are promoting legitimate public interest litigation,” Mr Smith told Tribune Business.

“It redounds to the benefit of the entire Bahamas when matters of public interest are adjudicated on and ventilated in the courts.”

He added: “Security for costs relates more to commercial litigation in Bimini Blue Coalition’s view.

“Bimini Blue Coalition is not pursuing anything for the benefit of a particular individual, but is merely seeking to ensure due process, the rule of law and for rights in the Family Islands, especially those of Biminites, to be respected.”

In her ruling, Justice Allen dismissed the Coalition’s contention that the $250,000 costs award to the Government was “irrational and excessive” because the Attorney General Office’s was not a private practice, instead being funded by the taxpayer.

And she also rejected the argument that costs should not be awarded to Resorts World Bimini because the Coalition now deemed it “no longer necessary parties to the proceedings”.

“The outcome of the Judicial Review proceedings directly affect the developer,” Justice Allen said.

“The appellant seeks numerous declarations that, at the end of the day, will directly affect the developers’ proprietary and pecuniary interest.

“The appellant willingly brought the developers to the table. They cannot, now that they are faced with securing the developers’ costs, unilaterally decide that their presence at the litigation table is no longer needed.”

Justice Allen said the Government was concerned with defending the integrity of its decision-making process with respect to major developments, while Resorts World Bimini was seeking to protect its multi-million dollar investment.

And she noted that the case was about how much should be paid as security for costs, not whether they should be awarded at all.

Justice Allen found that the Coalition had produced no evidence to show the ‘security for costs’ claim would “stifle” its action, or that it was unable to raise the necessary funds from others.

While agreeing that the issues raised by its case were important, involving key aspects of public administration and environmental law, Justice Allen ruled: “While the appellant’s case may very well fit into the definition of public interest litigation, to order security for costs in a nominal amount, as the appellant argues the public interest element of the case warrants, would make a mockery of the decision of the learned trial judge to so order and would, through the back door, render nugatory the decision to grant the same.”

The key question, Justice Allen said, was whether Justice Longley’s $650,000 ‘security for costs’ order was fair and reasonable.

The Government and Resorts World Bimini had initially demanded a collective $1.25 million, broken down into $500,000/$700,000 with the developer getting more.

At the Court of Appeal stage, both had filed estimated Bills of Costs, with the Government pegging its legal fees at $2667,000, while those for Resorts World were estimated at $675,000.

Mr Smith, though, gained an admission from Mr Wilson that Resorts World’s estimates were tilted towards the top end.

Justice Allen said there was a $308,000 difference between the Government/developer initial $1.25 million demand, and the $942,000 in their collective Bills of Costs.

Justice Longley had given them 50 per cent of their original demand, and Justice Allen, in reducing this to a total $315,000, admitted determining ‘security for costs’ was “not an exact science”.

Meanwhile, Justice Adderley said the Judicial Review was likely to last for longer than initially indicated by the Coalition, and there was “force” to Resorts World’s argument that it was raising new issues not aired before at the Supreme Court level.

Dismissing claims that the $650,000 order was unconstitutional, because the Coalition had “accessed” the courts, Justice Adderley said: “A balance must be struck between the quantum being oppressive so as to stifle the appellant’s claims, and not allowing the impecunious appellant to put unfair pressure on the developers, a prosperous company.”

He added that some of Mr Smith’s complaints that the Government’s and Resorts World’s Bill of Costs included “overcharging, duplications of charges, duplication of brief fees, and projected fees” were “prima facie justified, at least at this stage”.

Agreeing that the ‘security for costs’ be reduced to $315,000. Justice Adderley said “this works out to approximately 50 per cent of the solicitor/own clients’ costs in the projected draft Bill, reduced by one-third”.