The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Cabinet Minister has hit back at a fellow attorney’s investor warning that complex commercial disputes may take two-four years to come to trial in the Bahamas, describing this as “pure speculation”.

Damian Gomez, who is now representing Canadian fashion mogul Peter Nygard locally, refuted suggestions by Robert Adams, the Graham Thompson & Co attorney and partner, that the “significant backlog” in the Bahamian commercial/civil judicial system meant such delays were inevitable.

In a May 26, 2016, affidavit filed with the New York State Supreme Court on Mr Nygard’s behalf, Mr Gomez extolled the virtues of both the Bahamian court system and its judges.

The former minister of state for legal affairs added that the Bahamas was “well-equipped” to handle complex commercial litigation, due to its status as a major international financial centre(IFC).

And he described the Bahamian judiciary as “exceedingly accomplished”, with this nation able to “attract the best and brightest” legal minds.

Mr Gomez also took issue with the second ‘specialist witness’ hired by his client’s Lyford Cay neighbour and arch enemy, Louis Bacon, describing some of the assertions by former Supreme Court Justice, Hugh Small, as “odd”.

His affidavit was responding largely to claims by Mr Adams that Mr Bacon, if his $50 million New York defamation action was dismissed and forced to come to the Bahamas, would not likely receive a trial date until the 2016 first quarter.

Mr Adams, in a story first reported by Tribune Business, had alleged that his client’s case would not likely proceed to trial until the 2018 first quarter. He added that “substantial delays” in processing cases to trial were “regrettably not uncommon” in the Bahamian judicial system.

Mr Gomez, though, hit back by arguing: “In my opinion, Mr Adams’ opinions are based on pure speculation.

“The date by which a case goes to trial is dependent on a variety of factors, including how proactive the attorneys are in moving a case along; the proclivity of the judge; the number of documents produced; the number of witnesses involved; and whether there is a foreign discovery.”

As a result, the former Cabinet minister, boasting more than 27 years’ experience as a litigator in the Bahamian courts, added: “The actual time by which a case goes to trial cannot be determined at outset.

“For example, in my experience I have gone to trial in a complex matter in as little as 24 months.”

That is not far from the ‘most optimistic’ scenario laid out by Mr Adams in his affidavit, and Mr Gomez pointed to the Supreme Court’s own Rules to show how the Bahamas had moved to “streamline and simplify civil procedure to expedite trials, and the resolution of disputes, as efficiently and effectively as possible”.

“I also note that the Bahamas is a world-class financial centre, and accordingly the Bahamian courts are well-equipped to handle, and have handled, complex matters,” Mr Gomez said.

“Furthermore, in my experience, the judges in the Bahamas are exceedingly accomplished jurists and attract the best and brightest.”

Using Justice Small as an example, Mr Gomez said the Bahamas attracted judges from the Caribbean, UK, Australia and New Zealand.

“Thus, in my opinion, the judges are capable of handling complex and large cases expeditiously,” he added.

Mr Nygard and his US attorneys are arguing that the New York defamation action against him should be dismissed, on the grounds that the Bahamas is the proper venue to hear such a complaint.

They allege that the events complained of all took place in the Bahamas, with the “vast majority” of witnesses and documentary evidence all located in this nation.

Mr Gomez’s affidavit is thus designed to buttress these arguments, and also refute claims by Mr Bacon that New York is the proper forum/jurisdiction for hearing his defamation complaint.

The former Cabinet minister’s rebuttal also counters the potentially chilling message that was sent to international investors eyeing the Bahamas by Mr Adams’ affidavit.

The Graham Thompson & Co partner, who represents Mr Bacon’s interests locally, had claimed that given the numerous preliminary actions that will likely spin off from his legal battle with Mr Nygard, it was “highly likely” any trial in the Bahamas would be delayed for a further year or two beyond 2018.

That would put any trial date back to 2020 or beyond, some four years after any action would have been refiled in the Bahamas.

The swift, impartial resolution of commercial disputes is among the key attributes they will look for when assessing where to invest their capital, and a possible two to four-year wait for trial of complex matters is not what they are looking for.

With the Bahamas facing ever-increasing competition for foreign direct investment (FDI) dollars, resolving the backlog/delays in the civil and commercial courts is another aspect critical to improving the ‘ease of doing business’ in this nation.

Mr Gomez, meanwhile, also took issue with the “key procedural obstacles, requirements and limitations” identified by Justice Small with respect to the Bahamian legal system.

The former minister said it was possible to obtain pre-trial oral deposition testimony from persons living outside the Bahamas, vis mechanisms such as Letters Rogatory.

Mr Gomez alleged that Justice Small “fails to identify other forms of discovery that are available to a Bahamian litigant”, and disagreed with his assertion that defamation claimants could not obtain punitive damages.

“Justice Small’s statement that ‘compensatory damages awards for defamation claims have been historically low in the Bahamas’ is odd,” Mr Gomez alleged.

“There is no limit on the amount a claimant can recover as compensatory damages. It solely depends on what the claimant can prove at trial.”