The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An outspoken QC yesterday slammed a Court of Appeal verdict involving an Abaco marina development as “another nail in the coffin of public interest litigation”.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business the decision upholding the Supreme Court’s verdict that Responsible Development for Abaco (RDA) must pay $250,000 as security for costs to the government and Winding Bay-based Abaco Club was effectively denying his client their rights.

He argued that the imposition of such “financial roadblocks” meant “the door is being slammed shut” on the ability of Bahamian citizens, residents and non-profit organisations, many of whom lack substantial financial resources, to “have their grievances heard” and potentially redressed by the court system.

Mr Smith said his clients now planned to directly appeal Justice Petra Hanna-Weekes’ November 2017 “security for costs” order to the Privy Council after the Court of Appeal’s refused to grant permission for this to happen in yesterday’s verdict.

The judgment, written by appeal court president, Sir Michael Barnett, declined to grant “leave to appeal” to the UK-based Privy Council, the highest court in the Bahamian judicial system, on the basis that the case raised no issues of legal or general public importance.

But Mr Smith blasted: “This is yet another nail in the coffin of public interest litigation. It is shocking that even though the government did not oppose the application for leave, the Court of Appeal nevertheless refused permission when only the developer was objecting to going to the Privy Council.

“This is a case of supreme public importance to public interest litigation launched by grassroots non-profit organisations in The Bahamas, citizens and residents who are challenging a simple consultation process regarding the imposition by central government of development without proper consultation.”

RDA had previously launched Judicial Review proceedings opposing The Abaco Club’s plans to construct a 44-slip dock at Little Harbour, along with a supplies shop, private restaurant, 6,000 square foot covered car park, generator, desalination plant and waste treatment facility.

The proposed development will measure 320 feet across the outside piers, 210 feet between the two parallel main piers, and will extend 270 feet into Little Harbour, with the intent for it to accommodate boats up to 60 feet.

However, RDA fears if the project goes ahead it will completely change the environment and character of Little Harbour, a 50-home community that runs entirely off solar power.

Besides its environmental concerns, RDA is alleging that the government decided not to carry out any proper consultation with local residents and affected stakeholders before making decisions concerning the grants, permits and approvals required before the development can be constructed.

It is also claiming that the Government has withheld information so as to deprive the group of its statutory rights and/or legitimate expectations to contribute to any consultation process.

However, Justice Hanna-Weekes ruled that RDA must pay the Abaco Club $150,000, and the Government $100,000, to cover their legal costs in defending the action before it can proceed. This was yesterday upheld by the Court of Appeal.

While “security for costs” is often demanded in legal actions alleged to be frivolous, or have a small chance of success, the Government has increasingly employed this when facing Judicial Review challenges to permits and approvals granted to developers.

Some, including Mr Smith, view it as a tactic designed to knock-out such litigation at an early stage, and avoid a trial on the substantive issue, given expectations that those bringing Judicial Review actions lack the financial means to sustain them.

“The very idea that a procedural process demanding that residents of Abaco and Little Harbour put up $250,000 just to have access to their constitutional rights to challenge executive action is anathema to a fair trial,” Mr Smith blasted yesterday.

“It is appalling that the Supreme Court and Court of Appeal in several cases have effectively allowed the Government and developer to slam the door closed on their right to have their grievances heard by the courts.... This cannot be right, and RDA very much hopes the Privy Council will put it right.

“I call on the Government to pass legislation to remove this procedural obstacle of security for costs being used against non-profits seeking to have their rights determined by the courts,” he added.

“This is bolstering a financial obstacle to the determination of people’s rights. It means you can only pay to play in the Supreme Court. If people don’t have money, they don’t have the right. That’s what these judgments that have been coming out of the Supreme Court and Court of Appeal mean.

“This is anathema to the protection of local rights in the Family Islands, especially when the security for costs awards in The Bahamas are disproportionately excessive in relation to public interest litigation when compared to private law commercial litigation.”

Mr Smith accused the Abaco Club of complicating the case by successfully demanding that it be added as a “respondent”, even though RDA had not initially included it in a dispute it believed was between itself and the central government over the project’s approvals and lack of required public consultation.

He added: “On a personal note, I’ve been doing public interest litigation for over 43 years and this is very disappointing. People in these actions should not be denied their day in court by security for costs orders which are way out of line with private law litigation.

“If you put financial blocks in place, you are effectively denying them access to the courts, which means they don’t have any rights.”