The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A JUDGE has refused an attorney’s application to appeal an order for extension of time for $263,000 in legal costs to be paid that stemmed from a recusal application where he accused the said Supreme Court judge of bias.

Justice Rhonda Bain had been asked by environmental group Save The Bays (STB) to give Keod Smith additional time to pay the costs awarded to them in December 2014 when the judge had found the lawyer guilty of contempt for the “scandalising” affidavits he had filed which undermined the integrity of the judge and the judicial system.

Mr Smith had been given a 10-week deadline that ended on February 1, 2015. The ruling on costs was never appealed.

On April 20, 2016, the registrar confirmed the costs at $263,500 from the day the order was made by Justice Bain and a certificate of taxation verified the same and authorised an extension.

However, Mr Smith subsequently sought an injunction against the effect of the order citing prejudice.

He filed an affidavit arguing that he should not be made to pay funds to a nominal plaintiff whose company had no known assets and would not be in a position to refund costs paid to them if the court later ruled he was not a proper party to the proceedings.

He also alleged he would suffer damage to his professional reputation.

Justice Bain, in a ruling handed down November 9, 2016, stressed that Mr Smith had not appealed the order for costs and had, in fact, participated in the taxing of the costs, and “is not able at this stage to object to the order for costs.”

The court ruled that Mr Smith would pay the costs on/or before December 12, 2016.

A week after the November 9 decision, Mr Smith sought leave from Justice Bain to appeal the order to the Court of Appeal in a notice of motion filed November 16, 2016.

His grounds for leave to appeal were that Justice Bain was wrong, in law, to exercise her discretion to extend the time for the appellant to comply with the order when there was no evidence or reason provided to the court by the respondent, STB, for failure to present a bill of costs to Mr Smith for payment within the stipulated period.

He also proposed to argue at the appellate court that Justice Bain failed to give sufficient consideration to the allegation that STB was a nominal plaintiff and the damage he would suffer for having to make the payments within the specified period.

In a ruling dated January 12, Justice Bain said: “It is important to note that ruling number 11 did not make any order for costs - it simply extended the date for costs to be paid.

“The ruling with respect to costs was made in December 2014 by ruling number two and that ruling was not appealed,” the judge stressed.

The court determined that Mr Smith did not have an arguable ground of appeal and was refused leave to appeal. His application for a stay of the order was also refused.

“The applicant shall have its costs of this application to be taxed if not agreed,” the 14-page ruling concluded.

Justice Bain is presiding over the judicial review filed by the Coalition to Protect Clifton Bay which is challenging an application by Peter Nygard to further develop his premises in Lyford Cay and gain a lease for Crown land reclaimed from the sea.

Fred Smith, lead counsel for the environmental group, alleges that over the last 30 years, Nygard Cay has nearly doubled in size as a result of construction work undertaken without the appropriate permits and in a manner that had caused significant damage to the surrounding environment of Clifton Bay.

In January 2014, Keod Smith filed a series of affidavits claiming that Justice Bain should recuse herself from a judicial review proceeding as she had allegedly made a series of decisions based on her affiliation with the Free National Movement.

Ten months later, Keod Smith withdrew the application for the recusal, notwithstanding a section of an affidavit filed in January entitled “Justice Bain, who is she?”

He alleged the judge once worked under former Prime Minister Hubert Ingraham, that she was appointed to a high-ranking position in the Attorney General’s Office because of her ties to the FNM and that her two sons were fathered by a person he claimed is a close friend and advisor to Mr Ingraham.

Keod Smith also claimed that Justice Bain had made several rulings in favour of Fred Smith, who in the past had been affiliated with the FNM, which “can only be explained as coming about as a result of her bias.”

Justice Bain, in December 2014, found Keod Smith guilty of contempt for the affidavits.

At a contempt hearing a month later, Elliot Lockhart, QC, appeared for Keod Smith, a former Progressive Liberal Party MP, and expressed his reservations about the proceedings and argued that the court had already arrived at a decision without first considering any evidence to refute the pair of contempt.

The judge ruled, after a hearing in March 2015, that the court would proceed with notice against the attorney to show cause why he should not be committed to prison.

However, the judge stayed contempt proceedings pending the outcome of Keod Smith’s application before the Court of Appeal.

In January 2016, Mr Lockhart was unable to convince appellate court judges that his client’s appeal was not premature and Mr Smith’s appeal was dismissed.

Attorney Norwood Rolle appeared for Keod Smith in the leave to appeal the extension application.