The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A WELL-KNOWN QC has pledged to take “a different road to success” in a battle with Bahamas Customs, adding that the Privy Council’s refusal to grant his law firm leave to appeal is “not the end”.

Fred Smith promised to go through “a different procedural door” after the London-based court refused to grant him leave to apply for Judicial Review over Customs’ bid to make the annual renewal of Callenders’ ‘bonded’ goods permission in Freeport’s Port area contingent on filing a report on its ‘bonded’ goods purchases from the previous year.

In a brief reason for its decision, the Privy Council said: “Permission to appeal should be refused because the application does not raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at this time.”

In response, Mr Smith told Tribune Business: “Given that the Privy Council will not give us leave to appeal the refusal to give us Judicial Review, Callender’s will simply mount a declaratory action for the same relief.

“It’s just a different road to the same successful result which we will ultimately achieve. It’s just a different procedural door to go through, but ultimately my clients will hold Customs to account.

“Customs unlawfully took my client’s money, and my client will get it back one way or another.”

Mr Smith, adding that he respectfully disagreed with the Privy Council’s decision, said the London-based court did not have to experience “these repeated abuses by Customs” .

He added that distance also prevented it from “having an appreciation of the public interest involvement relating to all licensees, as few cases get to the Privy Council on this issue”.

The Privy Council verdict was a similar conclusion to that reached by the Court of Appeal in a split ‘2-1’ majority decision, which also upheld the Supreme Court’s decision to refuse Callender’s leave to apply for Judicial Review.

In their majority decision, Appeal Court president Anita Allen and Justice Neville Adderley found that because Customs ultimately rescinded its bid to link renewal of Callender’s ‘bonded’ letter to a report on its duty-free purchases from the previous year, “there was no longer a decision for which Judicial Review could be undertaken”.

They also found that no right of Callender’s was “being breached or threatened at that stage”, making its demand for Judicial Review a ‘hypothetical case’ that the courts will not touch.

And Callender’s challenge to Customs’ second decision, that it could apply to it for permission every time the law firm sought to purchase ‘bonded’ goods, was dismissed because such a practice had been in effect for more than a decade.

Describing Callender’s challenge on this count as “fatally out of time”, Justice Adderley wrote in his judgment that it “would be a waste of the court’s time to pursue it”.

“Having gone so long unchallenged, public policy requires the alternative procedure of obtaining individual approval from the Comptroller in the absence of an over-the-counter letter to be accepted in law as a valid decision, or at the very least the appellant is estopped from challenging it,” Justice Adderley wrote.

However, this was not the Court of Appeal’s unanimous view. In his dissenting judgment, Justice Conteh questioned whether Customs’ seeming pull back in its January 16, 2012, letter ‘effectively rescinds’ the issues at the heart of the Judicial Review action.

And he pointed out that it did not resolve the compensation/refund likely due to Callender’s after it was forced to pay duty on items used in its business for six weeks.

Justice Conteh said that while Customs may have reversed its position on granting Callender’s its ‘over-the-counter’ bonded goods letter, it was still insisting the law firm complete a report on its 2011 bonded goods purchases.

“The so-called recission of [Customs] position regarding the over-the-counter letter did not, it is clear, sweep away the important matters raised in [Callender’s] application as a whole,” Justice Conteh said.

Arguing that the Supreme Court had been mistaken to refuse leave to bring Judicial Review, Justice Conteh said the issues raised “cry out for determination” by the courts, given that they go to the heart of GBPA licensee rights and Customs’ powers in relation to Freeport.

Mr Smith said it was “regrettable” that Justice Conteh’s minority judgment was not aired at the Privy Council, and promised: “It’s not the end. We’re going to continue.”