The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge has been praised for preventing Judicial Reviews becoming “pay to play” litigation, after she dismissed the Government’s ‘security for costs’ demand over the challenge to the Hawksbill Creek Agreement (HCA) review.

Fred Smith QC, the Callenders & Co partner, said Justice Petra Hanna-Weekes branded as “misconceived” and “inappropriate” the demand that he and fellow attorney, Carey Leonard, each pay $100,000 to cover the Christie administration’s alleged legal costs in defending their action.

He added that while Justice Hanna-Weekes granted the Attorney General’s Office leave to appeal the ‘security for costs’ decision, she also refused its request that the main Judicial Review action be stayed until this was heard.

Mr Smith said the ‘stay’ application would have been tantamount to “another huge security for costs” demand had it been granted, alleging that the request exposed the Government’s intent to “delay and obstruct” their action.

Justice Hanna-Weekes, though, heard Messrs Smith and Leonard’s application for an injunction preventing the Government making any short-term decisions on the HCA and Freeport’s wider future.

She is due to rule on the injunction application on September 18, with the trial on the main Judicial Review action set for one week later - September 25.

A jubilant Mr Smith told Tribune Business: “The application for security for costs was dismissed, and the court said it was misconceived and misdirected, ordering the Attorney General’s Office to pay our costs.

“I am very pleased that the judge ruled against the Attorney General. It is a very clear sign that the Supreme Court is not going to promote and encourage a ‘pay to play’ ethos.

“These are people’s rights that are at stake, and the court properly recognised the application is misconceived and misdirected.”

The Attorney General’s Office had previously accused Mr Smith of an “aversion” to paying ‘security for costs’ when it came to Judicial Review actions, but the prominent QC said his main concern was not this case nor his and Mr Leonard’s ability to pay the $100,000.

Rather, he had feared that a Supreme Court ruling in favour of the Government’s application would have set a “dangerous” precedent whereby all future Judicial Review litigants would have to lodge a bond covering the administration’s legal costs.

This, Mr Smith said, could potentially stifle Judicial Review cases at birth, preventing persons with legitimate public issues - but little wherewithal - from challenging Government actions in the courts.

“I’m very pleased that the judge upheld the current rights of access to the courts, and has not allowed financial hurdles to be placed in our path,” Mr Smith told Tribune Business.

“It sends a very, very dangerous and very, very discouraging message to others who have legitimate issues for public interest cases, but may not have the finances or wherewithal to pay to play.”

The Callenders & Co duo are seeking a temporary Order preventing the Prime Minister and his government from acting on the recommendations made over Freeport’s expiring tax incentives until the full case is heard.

They also want an Order ‘staying’ the “decision-making process regarding potential changes to the provisions of the Hawksbill Creek Agreement and the economic and fiscal governance of Freeport” stemming from the report produced by the Government-appointed committee led by Dr Marcus Bethel.

These two issues will be ruled on by Justice Hanna-Weekes this Friday, and Mr Smith argued that the Attorney General’s failed bid to ‘stay’ proceedings “shows the clear intent of the Government to delay, protract and obstruct the early determination of these cases.

“Judicial Review is supposed to be a quick public law determination, so that the public and the Government know where they stand, respectively, on the issue and the promotion of good governance, as things are not left in limbo for ever,” Mr Smith added.

“The issues we have brought before the courts relate to fundamental public policy decisions that have to be made for, and which will affect, Freeport for at least the next 40 years.

“The right to be consulted, the right to transparency and accountability in governance, the right of licensees to be part of any changes to the Hawksbill Creek Agreement, the foundation of Freeport’s construct.”

The Government’s failure to publish the report on Freeport’s future by McKinsey, the international consulting firm, is central to the Judicial Review action launched by the Callenders & Co duo.

They are alleging that the consultation process, on which the report by Dr Bethel’s committee is based, was “fundamentally flawed and a sham” because key documents - especially the McKinsey report - were not released to those it interviewed.

The McKinsey report is seen as especially important because previous statements by Prime Minister Perry Christie suggest it influenced the Hawksbill Creek Agreement Review Committee’s terms of reference, while also playing a vital role in determining the Government’s thinking on Freeport’s short and long-term future.

Messrs Smith and Leonard are ultimately seeking Supreme Court Orders that prevent any decisions being made on the basis of the committee’s report; that require the McKinsey report to be made publicly available; and require that a new consultation process be undertaken with Freeport stakeholders.

Mr Smith said the Attorney General’s Office argued in court on Friday that ‘security for costs’ should be awarded because their application was “frivolous, vexatious and had no chance of success”.

It also suggested that a ruling in favour of the Callenders & Co duo would be akin to the Supreme Court suggesting it had no faith in the Government’s ability to make the right decision on Freeport’s future. The Attorney General’s Office also attempted to give a guarantee that no decision would be forthcoming in the short-term.

Mr Smith added that the Government’s attorney, Gary Francis, also claimed that the HCA was an agreement between just government and the Grand Bahama Port Authority (GBPA) - and did not include licensees such as Messrs Smith and Leonard as a party to it.

“Although we are not parties to the original agreement, we are third party beneficiaries with veto rights,” Mr Smith retorted, referring to the Hawksbill Creek Agreement clause that requires 80 per cent of GBPA licensees to approve any changes to it.

“It is a tripartite agreement, not bilateral,” he added. “All we are asking for is sight of the McKinsey report so that we can make an informed contribution to the Government’s assessment.

“We’re not saying: ‘Do it our way’. We’re not spoilt children. We recognise it’s a collaborative effort. The Government is arguing: ‘Mr Leonard and Mr Smith want it their way and no other way’. That’s incorrect.”

Mr Smith added that the Judicial Review action was “moving ahead rapidly”, and that there was nothing complicated about the issue raised as the Government seemed to suggest.

“It’s monumentally simple,” he said. “Once you embark on a consultation exercise, it has to be done properly.”

Messrs Smith and Leonard were represented at Friday’s hearing by Dawson Malone and Pearline Ingraham.