The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Attorneys for the environmental activists challenging the $8 million Blackbeard’s Cay project have slammed as “oppressive” the Government’s bid to strike out their action, noting that its $500,000 ‘security’ demand is “more than twice” its estimated legal costs.

Documents obtained by Tribune Business show that the Attorney General’s Office, on the Government’s behalf, has advanced twin moves to block the ReEarth group’s Judicial Review action .

On one hand, it is requesting that the Supreme Court order ReEarth to put up $500,000 as ‘security for costs’, which would be used to cover the Government’s (Attorney General’s) legal costs in the event that their Judicial Review challenge is unsuccessful.

The Government, as it has in response to virtually all other Judicial Review challenges to approved investment projects, is clearly hoping to ‘knock out’ the Blackbeard’s Cay action at the first attempt.

It is likely counting on the fact that ReEarth, as a non-profit organisation, has limited financial resources and would be unable to meet the $500,000 ‘security for costs’ demand if granted by the Supreme Court.

Supreme Court judge Stephen Isaacs will hear arguments from both sides on the ‘security for costs’ issue today, but the Government’s approach has already attracted the ire of ReEarth’s lead counsel, Fred Smith QC.

Describing the $500,000 security request as an “arbitrary demand to strike out public interest litigation”, Mr Smith told Tribune Business: “It is the modus operandi of both FNM and PLP governments to attempt to derail legitimate Judicial Review cases with strike out applications, setting aside leave, resisting discovery and security for costs.”

He argued that this stood in stark contrast to how governments elsewhere approached Judicial Review cases, providing all necessary documents and information to “help public law jurisprudence”.

“Both the FNM and PLP’s position is a fortress mentality, which is to pour boiling oil from the ramparts on any application to the Supreme Court for Judicial Review,” Mr Smith added.

He said the experience with all public interest Judicial Review actions, ranging from Baker’s Bay to Wilson City, Bimini Bay and now Blackbeard’s Cay, was for the Government to “derail them on technicalities”.

This, Mr Smith added, and the use of “stifling tactics” served to prevent Judicial Review actions from being heard on their merits until it was too late, and the development or action complained of was essentially completed.

This, Mr Smith argued, had the effect of “depriving the Supreme Court of opportunities to provide effective remedies.

“I ask my government why the Attorney General’s Office is the chief protector of foreign developer, as opposed to upholding the law and protecting local rights,” he added.

“I cry shame on my governments, both FNM and PLP, and hope some time soon there will be a dawn of a new day in environmental Judicial Review cases.”

The Government’s second track on the Blackbeard’s Cay case, as outlined in filings on February 24, 2014, is to seek to overturn the wide-ranging discovery Order that ReEarth obtained from Justice Isaacs three weeks prior, when only it was present at the hearing.

Marvin Hanna, an attorney for the Attorney General’s Office, alleged that the discovery Order ought not to have been granted then, as the Government’s absence meant it was “unjust, premature and unnecessary”.

In response, Martin Lundy, an attorney with ReEarth’s legal representative, Callender’s & Co, argued that the ‘security for costs’ demand should be rejected because it was “oppressive”.

“The respondents [the Government] have filed an application seeking security for costs in the sum of $500,000, which is oppressive for the following reasons,” Mr Lundy alleged.

“The respondents estimate the sum of approximately $231,600 for the entire Judicial Review, yet they have requested more than twice that figure by way of security, more than $500,000.... ”

Mr Lundy argued that the attorneys assigned to the case both worked for the Attorney General’s Office and drew salaries, and did not charge at a $500 per hour rate.

And he alleged that in the draft Bill of Costs submitted by the Attorney General’s Office, “some entries are extraordinarily unreasonable”.

As examples, Mr Lundy pointed to the $500 charged for spending an hour drafting a Memorandum and Notice of Appearance, and the $1,000 incurred in the two hours putting together ‘security for costs’ summonses.

Arguing that the Blackbeard’s Cay Judicial Review was in “the public interest”, especially given the permits and approvals issue for the dolphin encounter, Mr Lundy said no other group could take ReEarth’s place in initiating such litigation.

“If an Order is made, the applicant [ReEarth] will be unable to fundraise to provide security in the sum claimed or even in the sum of the estimated Bill of Costs in order to allow the action to go ahead with the required urgency,” Mr Lundy claimed.

“The Order sought will stifle these proceedings and prevent the serious issues from being investigated, and will prevent the marine mammal protection legislation and planning legislation from being enforced.....

“The sum requested as security exceeds by more than 100 per cent the amount of the draft Bill of Costs, which is itself unreasonable. The Order would stifle the action and prevent serious environmental and public interest issues from being investigated.”

Mr Lundy said the Government defendants, Prime Minister Perry Christie, agriculture and fisheries minister, V Alfred Gray, and Michael Braynen, director of fisheries, had more than adequate opportunity to address ReEarth’s concerns before the Judicial Review action was filed, but none had done so.