By NEIL HARTNELL
Tribune Business Editor
The Blackbeard’s Cay developer has been accused of “perverse conduct”, and exploiting the Bahamian legal system to prevent enforcement of a near three year-old ruling to shut down its $12 million project.
Brian Moree QC, senior partner at McKinney, Bancroft & Hughes, argued that Blue Illusions Ltd was pursuing a Privy Council appeal over the ownership of the project’s dolphins simply to delay their return to his Honduran client.
Mr Moree, who represents the dolphins’ supplier, Instituto De Ciencias Marinas (IMS), alleged that previously-emphatic Supreme Court and Court of Appeal rulings meant that the developer and its principal, Samir Andrawos, had little prospect of success with the highest court in the Bahamian judicial system.
And he added that the Privy Council appeal, together with four other Supreme Court actions launched by Blue Illusions following the initial dolphin verdict, were “obfuscation” attempts designed to prevent Blackbeard’s Cay’s closure - as ordered in July 2014.
However, the Court of Appeal ruled against Mr Moree and granted Blue Illusions leave to appeal the dolphins’ ownership to the Privy Council, finding he had not shown that the developer’s conduct was completely “oppressive, perverse, or frivolous and vexatious”.
However, the appellate court’s April 3, 2017, ruling is another reminder of Blue Illusions failure to accept the ‘rule of law’, and the Government’s failure to enforce it, in relation to the July 2014 ruling that quashed all Blackbeard’s Cay’s licenses and permits. The project has remained open ever since in defiance of that judgment.
Mr Moree argued that holding this verdict “in abeyance” was the true motivation for Blue Illusions’ latest dolphin ownership appeal, and suggested that the developer was using the courts and legal process merely to delay the inevitable.
“Counsel for the intended respondent [Mr Moree] asserts that given the strength of the evidence as to the ownership of the dolphins against the [Blue Illusions], the only reasonable inference that can be drawn from its intention to proceed with this appeal is for the collateral purpose only of further delaying and deferring the export of the dolphins, in order that the appellant may continue to work the dolphins and to profit from them,” Dame Anita Allen, the Court of Appeal’s president, wrote in her verdict.
“In this regard, [Mr Moree] posits that this appeal is yet another attempt, following the four actions brought by the intended appellant after the decision of Justice Evans, to perpetuate the dispute, recognising that as long as these actions, or an appeal were extant, the order quashing the licenses to operate the facility made by Senior Justice Stephen Isaacs would be in abeyance, and [Blue Illusions] would be able to continue to operate the facility.”
Senior Justice Stephen Isaacs’ ruling, in favour of environmental group, reEarth, quashed all Blackbeard’s Cay’s approvals because the Government had failed to follow its own statutory permitting processes.
That sparked the ownership dispute over the project’s dolphins, with IMS requesting that the mammals be repatriated to Honduras - a move that was blocked by Blue Illusions’ competing claim.
reEarth subsequently obtained a ‘penal notice’ to go with its July 2014 ruling, requiring the relevant government agencies to close Blackbeard’s Cay down.
The Government, though, has steadfastly refused to act and, just to make sure it does not, Blue Illusions and its attorneys subsequently initiated numerous court battles in a bid to prevent enforcement.
Four such actions were initiated in the Supreme Court in 2016, with three commenced by entities under Mr Andrawos’s control, and another initiated by the brother of his business partner, Virginia Iglesias.
Mr Moree referred to these four actions before the Court of Appeal, branding them as “obfuscation” and “perverse conduct” because they had been “either struck out, discontinued or stayed”.
Describing them, Mr Moree said they included actions designed “to re-litigate the reEarth case”, and another against his client “for fees for the veterinary services performed by the brother of Mr Andrawos’ partner”.
A third case, against IMS and the Attorney General, alleged “inducement to breach the operating, management, and facility management agreements” for Blackbeard’s Cay.
Mr Moree also complained that while the case before the Court of Appeal was argued on two points, Blue Illusions’ Privy Council appeal raised 14 grounds, “six of which were not argued in the Court of Appeal”.
However, Gail Lockhart-Charles, acting for Blue Illusions, argued that the Court of Appeal had no right to refuse leave to appeal under section 23 of the Court of Appeal act.
Agreeing with Blue Illusions’ position, Dame Anita ruled: “I have considered the conduct complained about by [Mr Moree] and the interjections by [Mrs Lockhart-Charles], and while I may hold a particular view about the appeal’s chances of success, I am yet not satisfied that [IMS] has demonstrated that in all the circumstances the conduct of the appellant in bringing this appeal is oppressive, perverse, or frivolous and vexatious, requiring the exercise of this Court’s inherent jurisdiction to prevent abuse of its process and injustice.”
With the dolphins a major attraction for the cruise passengers and other visitors to Blackbeard’s Cay, their potential loss threatens to deal the business a severe blow - hence Blue Illusions determination to prevent their return to Honduras.