The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists have accused the Government and the Abaco Club of “working in cahoots to oppress and stifle” their legal challenge to the latter’s proposed Little Harbour marina development.

Crispin Hall, an attorney with Responsible Development for Abaco’s (RDA) legal representatives, Callenders & Company, alleged in a December 14, 2016, affidavit that the developer and Christie administration were seeking to “break the back” of his client through separate ‘security for costs’ demands.

Mr Hall’s allegations came one day after the Abaco Club and its attorneys, Higgs & Johnson, filed legal papers seeking the Supreme Court’s permission to “intervene” in RDA’s Judicial Review challenge to the Government’s consultation/permitting processes for the Little Harbour project.

The Abaco Club’s move came on the same day that RDA’s lead attorney, Fred Smith QC, accused it and other developers of forcing Bahamian taxpayers to “foot” their legal bills by not defending their interests in such actions.

But the intervention, on behalf of Abaco Club subsidiaries, Abaco Club Investments, the Abaco Club Sporting Club and Winding Bay Development, is also seeking a Supreme Court Order that RDA pay $350,000 into an escrow account or ‘bond’ to cover their legal costs.

With the Government having made a similar $150,000 ‘security for costs’ demand, RDA now potentially has to raise $500,000 to cover its opponents’ legal costs should the Supreme Court rule against it in the New Year.

The Government and other developers have frequently used ‘security for costs’ demands as a tactic, and first obstacle, in a bid to block Judicial Review challenges to investment projects from moving forward.

They believe that non-governmental organisation (NGOs) environmental activists lack the necessary ‘deep pockets’ to cover such costs, and will have great difficulty in raising the necessary sums - thereby knocking out their actions at the first hurdle.

However, Mr Hall alleged in his affidavit that such a heavy-handed approach, while appropriate for commercial litigation, was inconsistent with the principles of Judicial Reviews, which were brought to try serious issues of general public importance.

He argued that one such issue to be determined in the Abaco Club case was whether the Conveyancing and Law of Property Act required the minister responsible for Crown Land (the Prime Minister) to hold a public consultation before selling or leasing it to foreign developers.

Arguing that previous rulings from judicial systems’ similar to the Bahamas had said as much, Mr Hall also alleged that the Government still owed RDA $1 million in legal costs that it had incurred in its ultimately successful battle over BEC’s Wilson City power plant.

The Callenders & Co attorney alleged that the “late” security for costs applications by both the Government and the developers were “not being mounted in good faith, but are intended to oppress and stifle RDA’s Judicial Review claim.

“It is clear that the respondents and the developers are working in cahoots with the view to oppress RDA and stifle RDA’s claim,” Mr Hall alleged.

He added that RDA had first written to Higgs & Johnson on June 9, 2016, in accordance with its Supreme Court undertaking, to see if they would accept service on the Abaco Club’s behalf so that it would know of the Judicial Review proceedings.

No response was received, and Mr Hall implied that the Attorney General’s Office used the issue of whether the Abaco Club had been served to delay agreeing trial dates for RDA’s Judicial Review.

“It is clear that both the respondents and the developers are using these late applications for security for costs to oppress RDA and stifle RDA’s claim,” Mr Hall further alleged.

“Given that the respondents and the developers are obviously in cahoots in the way they are conducting these proceedings, it is clear that by each seeking an order for security for costs in such substantial sums, they are hoping to break RDA’s back.

“That is exactly what happened in the Bimini Blue Judicial Review wherein the applicant was forced to abandon its meritorious Judicial Review challenge as a result of the substantial security costs orders obtained against it by the Government respondents and the developers.”

Mr Hall also alleged that it was “an abuse of process” for the Abaco Club and its subsidiaries to intervene so late, and “perverse” for them to demand ‘security for costs’, given that their application to become involved had yet to be heard.

RDA was also not seeking to join them in the proceedings, as Judicial Review rules allowed the developers to still be heard.

Mr Hall alleged that previous cases had shown there was a pattern of the Government trying “to frustrate public interest Judicial Review litigation” via ‘security for costs’ applications.

“Judicial Reviews are not to be conducted as hard-fought commercial litigation,” Mr Hall alleged.

“This pattern of behaviour by the Office of the Attorney General is completely inappropriate and a disservice to the public at large, as it seeks to stifle - as opposed to developing - the jurisprudence on proper governance which is in its nascent stages in this jurisdiction.”

Suggesting that RDA had “good prospects of success” in its contention that the Government and its agencies had failed to properly consult interested parties over the Little Harbour project, Mr Hall alleged that the case “raises issues of great public importance that transcend the interests of the parties”

In particular, he pointed to the Conveyancing and Law of Property Act’s section 54, which requires the minister for Crown Lands to make grants that are in “the beneficial interest” of the Bahamas.

“RDA avers that only by consultation could such beneficial interest be properly taken into account,” Mr Hall alleged.

“Given the rising number of commercial developments taking place on Crown Land, it is in the interests of the common good for the court to determine whether or not section 54 of the Conveyancing and Law of Property Act confers upon the minister responsible for Crown Lands a duty to consult.”

As for the Attorney General’s Office’s suggestion that RDA possesses insufficient assets to cover its legal costs, Mr Hall said the organisation was owed the $1 million awarded by the Court of Appeal to cover its own attorneys’ bills in the Wilson City case.

“The respondents are well aware that RDA has assets in the form of outstanding costs judgments (in the Supreme Court and the Court of Appeal) against some of the parties who are parties to these proceedings,” he added.

“By letter dated May 7, 2013, counsel for RDA wrote to, inter alia, Mr Klein of counsel for the respondents confirming that the costs awarded by the court in the Wilson City Judicial Review were in the sum of $1 million.”

Suggesting that the Government’s late application had deprived RDA of sufficient time to raise the necessary ‘security’, Mr Hall also alleged that the Government’s draft legal costs were “grossly excessive, exaggerated and, in some respects, manufactured”.

He then claimed that the Government and its agencies have failed to make “full and frank disclosure”, and were “not acting in accordance with the required principles of law which guide the approach of decision makers in conducting this type of litigation”.

The Abaco Club views the proposed 44-slip Little Harbour marina as a key ‘value-added’ amenity demanded by its homeowners, with its creation enhancing the Winding Bay-based development’s ability to attract new homeowners - all of which would generate more jobs and economic activity for Bahamians on the island.