The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bacardi plant’s former owner yesterday failed in its second bid to ‘strike out’ evidence that chemicals associated with its rum production potentially had “far-reaching health implications” for residents of the adjacent Venice Bay community.

The Court of Appeal rejected Bacardi & Company’s argument that an affidavit sworn by Derek Ryan, a senior laboratory technologist at the Department of Environmental Health Services (DEHS), was “scandalous, irrelevant or otherwise oppressive”.

The world-renowned rum producer had argued that Mr Ryan’s affidavit, which was central to the legal action brought against it by Venice Bay’s developer, Roosevelt Whyms, contained information revealing its “secret/confidential” manufacturing processes.

Bacardi said disclosure was prohibited by the Environmental Health Services Act’s section 30. This prevents DEHS employees from revealing information “without the express consent” of the person who has supplied it, unless ordered to disclose it by a Bahamian court.

But the Appeal Court, in a 2-1 majority decision, found that while there was a “procedural irregularity”, this did not warrant striking out evidence that was vital to the Venice Bay developer’s case.

Its ruling is the latest step in a 10-year legal battle, which began when Mr Whyms and his wife initiated a legal action against Bacardi for alleged “nuisance as a result of the alleged discharge of ‘noxious and offensive particulates, fumes, vapours and smoke’” from its 62-acre premises.

The Venice Bay developer’s claims prompted the DEHS, in the shape of Mr Ryan to conduct an investigation into the pollution allegations. He subsequently produced a report, details of which were disclosed in an affidavit filed with the Supreme Court.

It is this affidavit, which supports the Whyms’ contention that Bacardi had a case to answer, that the rum manufacturer has been trying - unsuccessfully- to ‘strike out’.

Bacardi and its attorneys, Higgs & Johnson, had suggested back in 2006 that the lawsuit was “all about money”, and the company’s failure to respond to Mr Whyms’ solicitations to buy the Venice Bay property. The report by Mr Ryan, though, indicates otherwise.

The fact that the substantive issues have yet to be determined, more than a decade after the action was filed, again hints at the delays legal matters experience in moving through the Bahamian court system.

The Court of Appeal’s ruling comes more than three years after the initial Supreme Court ruling, that also rejected the ‘strike out’ bid, and over two years after Bacardi was given leave to appeal.

Some observers will see this as especially disappointing, given that this case raises serious issues of importance to all Bahamians, namely environmental regulation and alleged pollution, and the potential impact this has on local communities.

However, some of the concerns may no longer apply, given that Bacardi exited the Bahamas in 2013 by selling the southern New Providence property to The Source River investor group, headed by former Cabinet minister, Tennyson Wells.

The site’s usage switched from rum to bottled water production, with the new owners also leasing out its 380,000 square feet of warehouse and office space to other commercial tenants. Those leaseholders now include the Bahamas’ Bureau of Standards.

However, Mr Ryan’s report suggests that the dispute has become no less important with the passage of time, given that it said the health impacts “may not be obvious for some years”.

Justice Stephen Isaacs, in his original July 2013 judgment, said the affidavit and exhibits showed Mr Ryan had conducted an analysis of chemical compounds at the Bacardi plant and surrounding area, including Venice Bay.

“The compounds detected were said to be ‘contributing to the discomfort experienced by residents in the nearby area. Additionally, the health implications may be far reaching and the manifestation of the same may not be obvious for many years to come’,” said Justice Stephen Isaacs, quoting directly from the report.

“I fail to see how any of the report can be described as containing confidential or commercial information.”

Bacardi, though, argued that the DEHS was prevented by the Environmental Health Services Act from disclosing the report’s details, even though it had been commissioned and paid for by Mr Whyms.

The Venice Bay developer argued that the report “contains direct evidence concerning the presence of harmful chemical deposits” on his land and the surrounding area, meaning it backed his case.

Weighing up both sides’ arguments, Justice Stephen Isaacs concluded: “No confidential or private information, or secret processes belonging to the defendant [Bacardi], is contained in the Ryan report.....

“The defendant’s application strikes at the heart of the plaintiffs’ case, for without the Ryan report the case falls apart. The report has no element of moral blameworthiness; there appears no desire by the plaintiffs to harass the defendant or to put it to unnecessary trouble or expense, so it does not amount to oppressive or vexatious material.”

Court of Appeal president, Dame Anita Allen, writing the majority verdict, agreed that Mr Ryan’s report could only be disclosed with Bacardi’s consent, a Supreme Court Order, or to another DEHS employee in the performance of their duties.

“That is not, however, the issue in this case,” Dame Anita said. “The issues are whether the affidavit is scandalous, irrelevant or otherwise oppressive because the consent of the appellant [Bacardi], or a court order allowing disclosure, was not obtained prior to the filing of the affidavit.”

While Mr Whyms and Venice Bay had failed to comply with either of these legal requirements, Dame Anita said this was not sufficient for the court to rule in Bacardi’s favour, especially given the content of Mr Ryan’s report.

“It seems to us that it would be wrong to strike out, on the basis of a procedural irregularity, an affidavit which contains a report which is pertinent and material to the disposition of the issues in dispute in this case,” Dame Anita said, especially given that Bacardi would have had to disclose the report during discovery proceedings.

The dissenting judgment came from Appeal Justice Roy Jones, who found that the Venice Bay developer’s failure to follow the law, and obtain either Bacardi’s consent or a court Order before filing the affidavit, was tantamount to ‘oppressive’ conduct.

“I am also of the view that the learned judge failed to have sufficient regard to the statutory requirement of non-disclosure, together with the respondents’ ‘oppressive’ conduct when balancing the competing public interest and policy issues in this case,”

Justice Jones ruled.