The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A well-known QC’s “aversion” to covering the Government’s legal costs in Judicial Review cases has sparked a $100,000 demand, and allegations that it is attempting to “derail” litigation over the Hawksbill Creek Agreement.

The Attorney General’s Office is requesting that the Supreme Court order that Fred Smith and Carey Leonard, the Callenders & Co attorneys, pay this sum as ‘security for costs’ over their challenge to the report on Freeport’s future by the Government-appointed committee.

Olivia Blatch, a government attorney, alleged in a September 2, 2015, affidavit that previous Judicial Review cases suggested Mr Smith “has an aversion to any request by the Government for security of costs” and that he has “vigorously opposed such applications” in the past.

Implying that Mr Smith would take a similar stance over the Hawksbill Creek Agreement action, Ms Blatch added that the Government defendants “would be put to considerable cost and expense” to defend the Judicial Review action.

She claimed that the Government’s legal costs would likely “not be less than $100,000” at “a conservative estimate”, and said a formal letter requesting the security was sent to Messrs Smith and Leonard.

Mr Smith, though, denied this when contacted by Tribune Business yesterday and alleged that the Government had thus failed to follow proper legal procedure.

He explained that the proper process was to have done as Ms Blatch alleged - write to the other side to see if they were willing to pay security for costs, and only seek a Supreme Court Order if they refused.

The Callenders & Co duo are seeking a temporary Order preventing the Prime Minister and his government from acting on the recommendations made over Freeport’s expiring tax incentives until the full case is heard.

They also want an Order ‘staying’ the “decision-making process regarding potential changes to the provisions of the Hawksbill Creek Agreement and the economic and fiscal governance of Freeport” stemming from the report produced by the Government-appointed committee led by Dr Marcus Bethel.

The hearing on these injunctions was due to take place today, and Mr Smith accused the Government of seeking to “derail” the Judicial Review action by seeking a ‘security for costs’ Order instead of defending the case.

“[Today] was set for the injunction hearing, and instead of filing anything to defend the injunction they are attempting to derail that hearing,” Mr Smith argued.

Describing the Government’s application as “premature”, he added: “This is an obvious and transparent attempt to stifle public interest litigation in the Bahamas.

“It smacks of a government that is terrified of the merits and wants to avoid a judge at all costs, no pun intended.”

While the law provided for defendants in commercial cases to demand ‘security for costs’, especially if the plaintiff was a foreign company or individual, Mr Smith added: “This will be the first time in the history of Bahamian jurisprudence that a Bahamian individual, a Bahamian resident, is being asked to pay security for costs in public interest litigation.

“This is the tactic they [the Government] played in the Guana Cay series of cases; it’s the card they played in Bimini; and the one they played at Blackbeard’s Cay.

“As the public will see, all of the Guana Cay, Bimini and Blackbeard’s Cay cases were of merit, of substance and dealt with very important public interest matters,” he added.

“It is appalling that a Government would wish to keep secrets from the Bahamian public, such as the McKinsey report into the Hawksbill Creek Agreement, by preventing Mr Leonard and I having our day in court.

“It is puerile, it is unnecessary and it is prejudicial to the development of public interest litigation through civil society. What we are coming to in the Bahamas is a country where might and money are the only rights.”

Mr Smith said he and Mr Leonard would defend against the Government’s security for costs application, suggesting that its attempt to “squeeze” somebody like himself would put an end to Judicial Review cases in the Bahamas.

The Government’s failure to publish the report on Freeport’s future by McKinsey, the international consulting firm, is central to the Judicial Review action launched by the Callenders & Co duo.

attorney, Fred Smith, to challenge the consultation process and any recommendations on Freeport’s future that may flow from it.

They are alleging that the consultation process, on which the report by Dr Bethel’s committee is based, was “fundamentally flawed and a sham” because key documents - especially the McKinsey report - were not released to those it interviewed.

The McKinsey report is seen as especially important because previous statements by Prime Minister Perry Christie suggest it influenced the Hawksbill Creek Agreement Review Committee’s terms of reference, while also playing a vital role in influencing the Government’s thinking on Freeport’s short and long-term future.

Messrs Smith and Leonard are ultimately seeking Supreme Court Orders that prevent any decisions being made on the basis of the committee’s report; that require the McKinsey report to be made publicly available; and require that a new consultation process be undertaken with Freeport stakeholders.