ATTORNEY and former Progressive Liberal Parliament member of parliament Keod Smith could face a fine or even time in prison after a Supreme Court judge was urged to consider finding him in contempt for questioning her impartiality on the basis of political affiliation.
Mr Smith, the former attorney for controversial fashion designer Peter Nygard, filed a series of affidavits earlier this year claiming Justice Rhonda Bain should recuse herself from a judicial review proceeding as she had made a series of decisions based on her affiliation with the Free National Movement party.
In a section of an affidavit filed in January, entitled “Justice Bain, who is she?” Mr Smith argued the judge once worked under former Prime Minister Hubert Ingraham, that she was appointed to a high-ranking position in the Attorney General’s Office because of her ties to the FNM and that her two sons were fathered by what he claims is a close friend and advisor of Mr Ingraham.
Mr Smith claimed the fact that Justice Bain made several rulings in favour of Fred Smith, QC, who in the past was affiliated with the FNM, “can only be explained as coming about as a result of her bias”.
In response, Fred Smith called the accusations “scandalous”, “disgraceful and deserving of condemnation”. He urged the court to find Justice Bain’s accuser in contempt, arguing that allowing such a brazen and unwarranted personal attack on a Supreme Court judge to stand threatens to undermine the integrity of the judicial system.
The proceedings concern a judicial review application filed by the Coalition to Protect Clifton Bay, which is challenging an application by Mr Nygard to further develop his imposing Mayan-themed development in Lyford Cay and gain a lease for Crown land reclaimed from the sea without official approval.
The coalition claims that over the last 30 years, Nygard Cay has nearly doubled in size as a result of construction works undertaken without the appropriate permits and in a manner that caused significant damage to the surrounding environment of Clifton Bay.
In another affidavit, Keod Smith said he is concerned that Justice Bain is being used as a “tool” of Nygard’s neighbour Louis Bacon, whom he claimed has influence over the FNM, to “subject me to odium at the sharp end of the abuse of the court’s processes”.
Last week, in the wake of two injunctions stopping the government from considering Nygard’s application, Keod Smith applied to withdraw the applications for the recusal of Justice Bain. Fred Smith said that while the coalition has no objection to the withdrawal, there should be consequences for the attempt to take back the unproven and inflammatory comments about a judge without apology or explanation.
Describing the accusations against Justice Bain as “unethical, unreasonable and deserving of condemnation,” the QC charged that Smith should be “ordered to say why he shouldn’t be committed for contempt”. He also asked the court to order Keod Smith to pay the full legal costs associated with the several hearings, over many months, that arose from his recusal application.
The QC pointed out that the judicial review case against Nygard’s development has yet to be heard, 18 months after it was filed, largely because of the delays caused by Keod Smith’s affidavits.
He explained that the recusal application prompted the coalition to respond with its own affidavits, which Keod Smith in turn applied to strike out, leading to further protracted legal arguments – until “out of the blue” the withdrawal application was filed without apology or explanation.
“The coalition was subjected to unnecessary costs in fighting this. The egregious nature of the allegations meant we had to come to the aid of the court at great costs,” he said.
The QC warned that if an order is not made “to condemn him for his outrageous behaviour, there will be nothing to stop him from doing it again”. He said Keod Smith should be made to “show cause why he should not be held in contempt”, so he cannot hold the court “hostage” in this way again.
Noting that Justice Bain’s accuser had been held in contempt and fined $10,000 on a previous occasion, Fred Smith added: “Obviously, he didn’t learn his lesson the first time”. The QC explained that he holds no personal grudge against Keod Smith, despite several high profile altercations in the past, but that the matter was raised out of concern that if such “egregiously contemptuous” accusations can be made without penalty, it will be “open season” on the judiciary.
The QC added that the coalition was not making an application to have Keod Smith committed to prison, but rather asking “if the court of its own volition should go in this way”. Justice Bain adjourned the matter to December 10 after Keod Smith’s attorney asked for time to respond.
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