The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE Court of Appeal has ruled there were no prospects of success for an attorney's application to appeal an order for extension of time for $263,000 in legal costs to be paid that stemmed from a recusal application where he accused a Supreme Court judge of bias.

Justice Rhonda Bain had been asked by environmental group Save The Bays (STB) to give Keod Smith additional time to pay the costs awarded to the group in December 2014 when the judge had found the lawyer guilty of contempt for the "scandalising" affidavits he had filed which undermined the integrity of the judge and the judicial system.

Mr Smith had been given a ten-week deadline that ended on February 1, 2015. The ruling on costs was never appealed.

On April 20, 2016, the registrar confirmed the costs at $263,500 from the day the order was made by Justice Bain and a certificate of taxation verified the same and authorised an extension.

However, Mr Smith subsequently sought an injunction against the effect of the order citing prejudice.

He filed an affidavit arguing that he should not be made to pay funds to a nominal plaintiff whose company had no known assets and would not be in a position to refund costs paid to them if the court later ruled he was not a proper party to the proceedings.

He also alleged he would suffer damage to his professional reputation.

Justice Bain, in a ruling handed down November 9, 2016, stressed that Mr Smith had not appealed the order for costs and had, in fact, participated in the taxing of the costs, and "is not able at this stage to object to the order for costs."

The court ruled that Mr Smith would pay the costs on/or before December 12, 2016.

A week after the November 9 decision, Mr Smith sought leave from Justice Bain to appeal the order to the Court of Appeal in a notice of motion filed November 16, 2016.

In January of this year, Justice Bain rejected his request which prompted Mr Smith to apply to the appellate court.

In March, appellate Justices Dame Anita Allen, Jon Isaacs and Stella Crane-Scott unanimously agreed to reject the application and indicated that written reasons would follow at a later date. In an 11-page judgment handed down last week, the judges explained their reasons for doing so.

"The applicant seeks leave to challenge ruling no 11 which only goes to, inter alia, extending the time for the applicant to pay costs," the court said.

"Thus, all other issues or matters raised in the grounds of appeal not arising out of that ruling may be discounted and ignored for the purposes of this application in as much as they are not relevant to the decision we have to make.

"Unfortunately, the applicant did not appeal ruling no 11 within the appropriate time. Further he participated, without objection, in the taxation of the costs. By doing so, he may be said to have accepted his liability to pay the respondent's costs. It was not now competent for him to raise in his grounds of appeal, issues which he did not argue before the learned judge and to seek to canvass matters which, in any event, are not of any consequence to the ruling appealed against.

"The test on a leave application is whether the proposed appeal has realistic prospects of success or whether it raises an issue that should in the public interest be examined by the court or whether the law requires clarifying.

"We were satisfied that there was no prospect of success disclosed in any of the grounds raised by the applicant," the Court of Appeal noted.

"This was not an instance of a weak case being advanced by an appellant, this case is stillborn. It was for these reasons that we dismissed the applicant's application for leave to appeal out of time. Ineluctably, the application for a stay was denied inasmuch as the dismissal of the leave application removed the basis for a stay."

The full ruling is now available on the appellate court's website.