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Fitzgerald Appeal On Privilege Delayed Six Weeks

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE substantive hearing of Jerome Fitzgerald’s appeal against a Supreme Court judge’s landmark ruling on parliamentary privilege has been adjourned by six weeks for the new attorney general to be briefed and to determine the way forward with the Crown’s appeal.

Mr Fitzgerald, then education minister, and then Attorney General Allyson Maynard-Gibson, QC, had filed an appeal last September seeking to establish that Justice Indra Charles was “wrong,” and “erred in fact and in law” when she ruled that he infringed constitutional rights when he tabled the private emails of environmental action group Save The Bays in Parliament, and therefore could not be protected by parliamentary privilege.

Justice Charles also ordered Mr Fitzgerald to pay $150,000 in damages for the breach – a decision the former Marathon MP contended was made in error because he was “at all times acting in the public interest”.

According to the notice of appeal motion, the appellants maintained that Mr Fitzgerald’s statements in Parliament were protected from legal liability by way of constitutional provision, parliamentary privilege, and also legislatively under the Powers and Privileges Act.

Insisting that Mr Fitzgerald’s statements – whether inside or outside Parliament – did not infringe constitutional rights, the notice said that any potential legal liability would be a matter of private law.

However, neither Mr Fitzgerald nor Mrs Maynard-Gibson hold their former substantive posts.

Carl Bethel, QC, is the new attorney general, having been sworn in to the post on Friday.

In yesterday’s expected substantive appeal proceedings in the Court of Appeal, Crown counsel Loren Klein asked Justices Dame Anita Allen, Jon Isaacs and Stella Crane-Scott for a 30-day adjournment to allow Mr Bethel to be briefed on the conduct of the proceedings thus far and for instructions to be taken.

He recommended that the adjourned date be fixed for a status hearing.

Fred Smith, QC, had no objection to the request for the adjournment, but noted that there were significantly less appearances for the appellants than there were on previous occasions.

He also questioned whether the appearances would be for the state or for the individual appellants.

Mr Klein said that all of the previous counsel who appeared had appeared for the Crown appellants.

Wayne Munroe, QC, who was also present yesterday, said his presence there was concerning the interests of the speaker of the House of Assembly in which the issue of parliamentary privilege arose.

Mr Klein added that Mr Smith’s concern was a legitimate issue hence the need to adjourn the matter and seek instructions from the new attorney general on the way forward.

All parties agreed to June 26 for a status hearing.

In March 2016, Mr Fitzgerald accused STB of being a political organisation seeking to “overthrow” the Progressive Liberal Party government under the guise of an environmental group. In the House of Assembly, Mr Fitzgerald read private emails from STB members and others, which he said bolstered his claims.

Speaking outside Parliament, Mr Fitzgerald later warned members of the environmental group to “batten down” because a “category five” hurricane was on its way, as he threatened to table “every single” email and bank statement in his possession if needed to protect his integrity and parliamentary privilege.

Additionally, then Foreign Affairs Minister Fred Mitchell claimed in Parliament in March 2016 that some $8.25m has been filtered through various organisations connected with STB – locally and internationally - from 2013 to 2015.

Coalition to Protect Clifton Bay (Save the Bays) and Zachary Bacon, the brother of hedge fund billionaire Louis Bacon, a resident of Lyford Cay, brought action against Mr Fitzgerald, Mr Mitchell and the attorney general.

However, Justice Charles found that there was no case against Mr Mitchell concerning breach of the group’s constitutional rights.

In her August 2 ruling, Justice Charles permanently banned Mr Fitzgerald from disclosure and publication of any further material belonging to STB, and ordered him to delete all electronic and hard copy material within 14 days.

In the appeal notice, Mr Fitzgerald argues that Justice Charles was wrong to order an injunction over the matter because the existence of electronic records was never established, and the hard copies tabled in the House of Assembly were not within the custody or control of the Marathon MP, but in the safekeeping of then House Speaker Dr Kendal Major.

The notice asks that the respondents, Coalition to Protect Clifton and Zachary Bacon, be made to pay the costs for the appeal.

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