The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Two Bahamian web shop operators must now "roll the dice" on whether to proceed with their legal action against the Prime Minister after he re-opened the industry less than 24 hours after its filing.

Wayne Munroe QC, the attorney for Paradise Games and TIG Investments, trading as The Island Game, told Tribune Business that he was now awaiting instructions from his clients on how to proceed after Dr Hubert Minnis announced that the domestic gaming sector can re-open its locations with effect from this coming Tuesday.

The duo had previously asked him to file litigation challenging the legal validity of both the government's Emergency Powers regulations and the way they were allegedly used to single out the gaming industry as the only one unable to offer curb side service to clients, thereby forcing all operators to close their stores for another two weeks.

Mr Munroe said his clients will now have to weigh the prospects of their action's success, and the potential damages they could earn, against the possibility of failure as well as the costs associated with that. He added that much would likely depend on their calculation of lost profits/earnings, which he estimated would likely take five to eight days to compile.

His comments came after the prime minister announced that gaming houses can again re-open as part of "phase three" in his recovery plan, saying: "Gaming Houses will be allowed to open with physical distancing and sanitisation protocols, effective this coming Tuesday."

Dr Minnis' move came less than 24 hours after Mr Munroe filed the Notice of Motion initiating legal action against the prime minister, in his role as the "Competent Authority", and Carl Bethel QC, the attorney general, on behalf of The Island Game and Paradise Games.

As promised, the action's first bid is to seek a Supreme Court declaration that the Emergency Powers regulations are "ultra vires" or illegal because the Act supporting does not say they can be made for public health emergencies.

Should that not prove successful, the two web shops are then arguing that it was "not reasonably justifiable in the circumstances" for the regulations to be used to single out the sector and prevent it from offering curb side service.

Besides damages for breaches of his clients' constitutional rights, Mr Munroe's filing also seeks a Supreme Court Order requiring the Prime Minister to disclose "the medical evidence and advice" that justified the Emergency Powers Order's imposition.

Speaking to his clients' options yesterday, the well-known QC said: "I can say that already they'd exercised a degree of patience in terms of when instructing me to file because I'd provided them the opinion that the regulations were ultra vires in March.

"They wanted to bear it, bear it, bear it, but whether they want me to go ahead I have to speak to them." Mr Munroe said much would hinge on the level of damages the two web shops believe they have suffered, and the prospects of succeeding with their claim.

He added that should they win on the argument that the Emergency Powers regulations were unlawful, then damages dating back to mid-March could be claimed. And, if that failed but they won on the singling out of the sector, damages could apply for the past two weeks.

"They have to look and assess what that is as a figure," Mr Munroe said. "They will have to assess when I tell them their chances of success, and whether they will risk the legal fee they pay to me because I don't work for free.

"Litigation is a gamble. You have to look at what the pot is, pay to roll the dice and make a business decision on it." He added, though, that the web shop industry was unlikely to bring all its pre-COVID-19 workforce back immediately as the continuing night-time restrictions and weekend lockdowns would reduce both the number of shifts and amount of working hours.

"They will lose quite a number of shifts, and will not be able to bring a full staff back on full pay," Mr Munroe said. "Again the poor man suffers."