The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A JUDGE yesterday dismissed Prime Minister Perry Christie’s “no merit” recusal application which argued that she, while awaiting an approval of her application to extend her tenure as a Supreme Court judge, cannot be perceived to be impartial in hearing an ongoing judicial review into allegations that Lyford Cay resident Peter Nygard illegally increased the size of his property.

Attorneys for the Prime Minister filed a motion in the Supreme Court on January 26 asking that Justice Rhonda Bain recuse herself from the judicial review - or any other cases in which he is a party - on the basis that she is set to attain the legal age for retirement in April.

She has an application for extension that would have to be authorised by the Governor General on the advice of the Prime Minister in consultation with the leader of the Official Opposition.

The motion was filed by Mr Christie’s lawyers in his capacity as minister responsible for Crown land and was argued last Monday.

In a 40-page ruling handed down yesterday, Justice Bain reminded the Prime Minister of the independence of the judiciary from the executive, stressing that cases are distributed by the Chief Justice - a role that cannot be “usurped by the Prime Minister”.

The judge also said the Prime Minister should have immediately filed a motion seeking her recusal if he had concerns, instead of choosing to “sit back and do nothing for upwards of seven months” while other Nygard matters were ongoing in court.

“The application for extension of tenure by Bain J (Justice Bain) was made on June 6, 2016. The application for recusal of Bain J by the first respondent (Mr Christie), by reason of Bain J’s application for extension, was not made until January 26, 2017, upwards of seven months after the application for extension was made,” the judge noted.

“The Prime Minister in his capacity as minister responsible for Crown lands through his counsel continued to participate in these proceedings after the application for extension was made in June 2016. Since the application for an extension was made the court continued hearing the matters and has delivered eight rulings,” the judge’s ruling added.

Justice Bain also said that since applying for an extension of her tenure, “the court commenced the hearing of the Keod Smith and Derek Ryan contempt application on December 8, 2016” and Mr Nygard’s “first committal matter on October 3, 2016.”

Mr Nygard’s first committal matter is scheduled for continuation yesterday and today.

“Counsel for the applicant pointed out that the Prime Minister, through his counsel, has participated in every step of these proceedings. Counsel for the applicant submitted that the Prime Minister should have waived any objection to these matters being continued by Bain J after he received the application for extension by (Justice Bain).”

“The court is of the opinion that if the Prime Minister was of the opinion that a request for extension of tenure by Bain J would have been perceived by a fair minded and informed observer as being bias against or for the Prime Minister, the Prime Minister should have made the application for Bain J to recuse herself immediately on the receipt of the application from Bain J for an extension of tenure,” Justice Bain’s ruling noted.

“The Prime Minister may not sit back and do nothing for upwards of seven months and during the hearing of the Nygard first committal application make application for Bain J to recuse herself from further proceedings in JR1, JR2, JR3, JR4 and the Neighbours action. The Prime Minister is deemed to be aware of the status of the two outstanding applications that are presently being heard by Bain J - the Keod Smith and Derek Ryan contempt application which is part heard and adjourned to March 1, 2, 3 and the Nygard first committal application which was adjourned to February 6 and 7 (2017).”

Given the above, Justice Bain said the Prime Minister - first respondent - may not now bring an application for her to recuse herself from further proceedings.

The judge added: “In this matter, I have carefully considered the application by the first respondent for me to recuse myself from further proceedings in these matters. A recusal by the court should not be taken lightly and should not be made just because there has been criticism of the court.”

“No merit”

Justice Bain, yesterday, ruled that the Prime Minister’s recusal application “has no merit.”

“The only reason given for the application for recusal is that the salary of a sitting judge is higher than the salary of a retired judge. This is an undisputed fact and is not a valid reason for recusal. There is no evidence of real bias and the first respondent has failed to prove that there is apparent bias,” Justice Bain stressed.

The judge added that she would continue to receive benefits regardless of the outcome of the extension application and stressed that “these benefits are linked in no way to the disposition of the extant cases.”

“Counsel for the first respondent has not proved that taking all the circumstances into consideration, a fair-minded and informed observer would conclude that there is a real possibility or a real danger that Bain J would be biased in this matter and would not be able to decide the matters on the merits after hearing all the issues involved in the case.

“Additionally, the court finds that the judiciary is independent of the executive. The Prime Minister may not request a judge to recuse herself from a matter for no valid reason. The distribution of cases is the responsibility of the Chief Justice and is not a power that may be usurped by the Prime Minister,” Justice Bain ruled.

Wayne Munroe, QC, Clinton Clarke and Tommel Roker appeared for the Prime Minister in the recusal application and the ruling that was returned yesterday.

Fred Smith, QC, Romauld Ferreira, Dawson Malone and Crispin Hall appeared for the Coalition to Protect Clifton Bay. John Minns and Roberts Adams are legal counsel for the Neighbours Action.

Elliot Lockhart, QC, Damian Gomez, QC, and Gia Moxey appeared for Mr Nygard as an interested party to the recusal application.

The Coalition to Protect Clifton Bay, now called Save the Bays, has waged a long running court battle with Mr Nygard over the construction/development activities at his Lyford Cay home, which stem from allegations that the activities have led to substantial growth of the property.

The group claims that the Lyford Cay resident has almost doubled the size of his property, from 3.25 acres to 6.1 acres, since he acquired it in 1984, by allegedly reclaiming Crown land from the sea. The advocacy group has alleged that Mr Nygard achieved this without the necessary permits and approvals, claims that have been denied by the fashion designer.

In 2015, Justice Bain was asked to recuse herself from committal proceedings involving Mr Nygard through a notice of motion filed in the Supreme Court by his former lawyer, Keod Smith, on the grounds of bias. However, Justice Bain later ruled that Mr Nygard had not proved there was evidence of bias or apparent bias towards him and found the accusations to be “scandalous”.

The Court of Appeal had affirmed Justice Bain’s rejection of the application in an appeal of the decision by the Lyford Cay resident.