The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

COURT of Appeal judges will hear an appeal brought by a lawyer facing contempt of court after he accused a Supreme Court judge of bias.

Keod Smith and his lawyer, Elliot Lockhart, QC, appeared before Justices Anita Allen, Abdulai Conteh and Neville Adderley to be heard on the former’s extension of time application concerning subsequent decisions made by Justice Rhonda Bain last December and in March stemming from affidavits Mr Smith had filed.

The application, which went unopposed by Crown respondent Lauren Klein despite expressed reservations by Fred Smith, QC, was granted and Keod Smith was given seven days to file his appeal.

The extension also applied to Mr Smith’s former lawyer Derek Ryan, who was also informed by Justice Bain that he “cannot escape liability” for the “scandalising” affidavits filed by Keod Smith.

Justice Bain is presiding over the judicial review filed by the Coalition to Protect Clifton Bay, which is challenging an application by Peter Nygard to further develop his Mayan-themed development in Lyford Cay and gain a lease for Crown land reclaimed from the sea.

The Coalition claims that over the last 30 years, Nygard Cay has nearly doubled in size as a result of construction work undertaken without the appropriate permits and in a manner that had caused significant damage to the surrounding environment of Clifton Bay.

Fred Smith, counsel for the CPCB and Save The Bays (STB), sought to address the court yesterday after Mr Lockhart sought an adjournment of the appellate proceedings because of the late hour in which it was called.

The lawyer questioned the apparent coincidence that his name was left off the application as counsel for a party with interest in the matter.

“We wish to be heard on the application as the proceedings have an effect on my client,” Fred Smith said.

“Does this really concern your clients?” Justice Allen asked.

“I am a party to the application and I have a right to be present and to be heard on the matter,” Fred Smith replied.

Justice Allen disagreed, noting that the present application was the result of a decision of the Supreme Court judge.

In January 2014, Keod Smith filed a series of affidavits claiming that Justice 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.

Ten months later, Keod Smith attempted to withdraw the applications for the recusal, notwithstanding a section of an affidavit filed in January, entitled “Justice Bain, who is she?” He 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 a person he claimed is a close friend and advisor of Mr Ingraham.

Keod Smith also claimed that Justice Bain had made several rulings in favour of Fred Smith, who in the past had been affiliated with the FNM, and “can only be explained as coming about as a result of her bias”.

Justice Bain, in December, found Keod Smith guilty of contempt for the “scandalising” affidavits he had filed which undermined the integrity of the judge and the judicial system. His then lawyer, Derek Ryan, was also informed that he “cannot escape liability” for the affidavits.

At a contempt hearing a month later, Mr Lockhart appeared for Keod Smith and expressed his reservations about the proceedings and argued that the court had already arrived at a determination without first considering any evidence to refute the pair being guilty of contempt.

The judge ruled, after a hearing in March, that the court would proceed with notice against the attorney to show cause why he should not be committed to prison.

However, she stayed contempt proceedings pending the outcome of the former PLP MP’s application before the Court of Appeal.

During yesterday’s hearing, Fred Smith said that his client, along with the Attorney General’s Office, had been a party to the contempt proceedings in the court below given their respective interests in the judicial review matter.

The lawyer said that the issues raised may “prejudice my client.”

“This is an appeal against the decision of the learned judge to find him in contempt,” Justice Allen said, emphasising that the matter, as a result of the decision, was solely between counsel for the accused and the judge’s representative, Crown respondent Lauren Klein.

Fred Smith, however, admitted his reservations about Mr Klein arguing the appeal given that he is an adversary in the judicial review before the Supreme Court.

“I cannot rely on the AG’s office in this appeal,” Mr Smith said.

“No one is saying you cannot be present but not as a party,” Justice Allen said before addressing Mr Lockhart on the prematurity of the application.

Mr Lockhart referred the court to paragraph 64 of the judge’s decision which noted that “the court holds that Keod Smith should be cited for contempt for scandalising the court in the fifth, sixth and seventh affidavits. The court directs that a notice be issued to Keod Smith to show cause why he should not be committed to Her Majesty’s Prison for his contempt.”

“This, we say, diametrically opposes the guidelines set out to the Privy Council case of Maharaj,” Mr Lockhart said.

“Was there a hearing on contempt?” Justice Adderley asked. Mr Lockhart said there was a partial hearing.

Justice Conteh surmised that the lawyer was suggesting Justice Bain had “misfired.” Mr Lockhart said this was correct.

“Even if we agree with you, she has yet to complete the process. This is premature,” Justice Allen noted.

“The only question that remains is the committal to prison,” Mr Lockhart said, emphasising that a finding was made, but his client had not been heard.

When asked for his response, Mr Klein accepted the points raised by the court and that “at the very best, the learned judge’s ruling is antagonistic and conflicting.”

This, he said, “has given the impression that they may have not been fairly dealt with.”