The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

KEOD Smith has been given an additional week to find counsel to represent him in committal proceedings arising from legal cost hearings that stemmed from a recusal application in which the attorney accused a Supreme Court judge of bias.

At a hearing last Wednesday, Justice Rhonda Bain had refused Smith’s request for a stay but said she would give him until yesterday to instruct counsel concerning his alleged refusal to take an oath before the registrar concerning his financial means to pay the $263,000 awarded to the environmental group Save The Bays (STB) in December, 2014.

At the time, 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.

When the matter was called yesterday, it became apparent that Smith had been unsuccessful in retaining counsel and indicated to the judge that although it was his preference that he be represented in proceedings in which a custodial sentence was being sought, he was prepared to represent himself in the matter as the court indicated that there would be no further delays.

However, after a 30-minute recess, Justice Bain noted that having considered all of the circumstances in the matter and that two days may not have been sufficient, she would give him an adjournment until April 3.

Smith, who appeared shocked, said he had not asked for the adjournment though he did not refuse it. The judge pointed out that he had when he insisted his preference for having legal representation.

Fred Smith, QC, lead counsel for STB, sought to clarify that the applicants were seeking a custodial sentence. He also said they ultimately desired for the examination under oath before the registrar to take place as it should have and asked the judge if she would consider making an order in this regard.

Keod Smith was asked by the judge if this was something he was prepared to do and he said that he would use the one week given by the court to try and retain counsel who would then have that conversation on his behalf if need be.

With this answer, the judge adjourned the proceedings to April 3 at 10am.

Following the order to pay costs in 2014, the former Mount Moriah MP had been given a 10-week deadline that expired 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. A certificate of taxation verified that and the judge authorised an extension.

However, 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 the former politician 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 Smith would pay the costs on or before December 12, 2016.

A week after the November 9 decision, 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 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.

However, in a ruling dated January 12, 2017, the judge refused an attorney’s application to appeal an order for extension of time for $263,000 in legal costs to be paid.

The ruling has subsequently been affirmed by the Court of Appeal.