By NEIL HARTNELL
Tribune Business Editor
An outspoken QC yesterday said a recent Court of Appeal ruling has “sounded the death knell” for public interest legal challenges to major Family Island developments.
Fred Smith QC, the Callenders & Co attorney and partner, argued that the decision to uphold a $250,000 “security for costs” payment in the fight over the Abaco Club’s proposed Little Harbour marina threatens to undermine the ability of Out Island communities to “stand up for their rights”.
While he and his client, Responsible Development for Abaco (RDA), determine whether to appeal the latest verdict, Mr Smith accused the government of “doing a disservice to your own people by depriving them of their day in court” through teaming with developers to create “procedural” hurdles to Judicial Review challenges.
Sir Michael Barnett, who wrote the unanimous verdict backed by his two fellow Court of Appeal judges, conceded that there was “a public interest element in it”. Yet he found that was unable to “immunise” RDA’s action from providing “security for costs” as this would mean its litigation would be risk-free.
“The applicant [RDA] is a non-profit company which relies upon donations from third persons,” Sir Michael wrote. “The only asset the applicant has revealed that it has is an untaxed claim for costs in excess of $1m.
“Presumably that receivable, when crystallised after taxation, will be matched by a payable to the applicant’s lawyers. Taxed costs represent costs that the applicant has incurred. The evidence shows that the applicant relies upon “Go Fund Me” to finance its operations.
“In my judgment that is credible testimony which a court may rely upon to find that the applicant’s assets ‘may be insufficient’ to satisfy a claim as to costs. In the circumstances, the jurisdiction exists to make an order requiring the applicant to provide security for costs.”
However, the Court of Appeal’s verdict did not sit well with Mr Smith, who blasted: “Successful security for costs motions by the Government and developers are sounding the death knell for public interest and environmental litigation in The Bahamas.
“It creates a huge financial challenge for grassroots organisations to fight and stand up for their rights, or to demand - particularly in the Family Islands - that developers and the Government respect the locals.
“In The Bahamas, where we have no civil legal aid, grassroots organisations and non-governmental organisations frequently must rely on the support and financial assistance of Family Island communities.
“This mischief in the courts allows the Government and developers to stymie grassroots organisations with security for costs demands which really prevent ordinary people, who come together, from protecting their local interests.”
RDA was ordered by Supreme Court Justice, Petra Hanna-Weekes, to pay the Abaco Club $150,000, and the Government a further $100,000, as “security for costs” in a November 2017 ruling
Developers and the Government will likely argue that they are justified in demanding “security for costs” payments given the legal expenses they incur in combating Judicial Review challenges, many of which they view as frivolous and having no chance of success.
For developers, in particular, requiring environmentalists and other activists to make such payments into escrow is also a means by which they can secure compensation for costs and time-related delays that are incurred if they have to cease construction activity.
However, Mr Smith and other activists view “security for costs” demands as a tactic designed to knock Judicial Review actions out at an early stage and create obstacles to their progress by imposing onerous financial demands on poorly-resourced communities and activist groups.
Describing Little Harbour as “a gem” and “pristine”, and “the only carbon-free community in The Bahamas”, Mr Smith said the Court of Appeal’s verdict threatens to leave it and other Family Island locations “vulnerable” to “arbitrary” government decision-making and developer actions that occur without locals being consulted or given prior warning.
RDA is opposing The Abaco Club’s plans to construct a 44-slip marina, along with a supplies shop, private restaurant, 6,000 square foot covered car park, generator, desalination plant and waste treatment facility.
The proposed development will measure 320 feet across the outside piers, 210 feet between the two parallel main piers, and will extend 270 feet into Little Harbour, with the intent for it to accommodate boats up to 60 feet.
However, RDA fears that if the project goes ahead it will completely change the environment and character of Little Harbour, a 50-home community that runs entirely off solar power.
Besides its environmental concerns, RDA is claiming that the relevant government agencies did not hold proper consultation with the Little Harbour community before issuing the grants, permits and approvals required by the Abaco Club for the project’s construction.
The group is also alleging that the Government agencies have withheld information, thereby depriving it of its statutory rights and/or legitimate expectations to contribute to any consultation process.
RDA previously received Supreme Court permission to proceed with its Judicial Review challenge to the marina plans, but Mr Smith yesterday said the “security for costs” demand meant his client was trapped “in a pincer movement” by the Government and Abaco Club.
“I am very disappointed that the Court of Appeal did not seed through this ruse by the Government and the developer to effectively deprive RDA of its day in court,” he charged. “This is not a complicated case.
“This is a very sad day indeed for public interest litigation when the Supreme Court and the Court of Appeal allow the Government and the developers to ambush communities in the Family Islands with security for cost matters.
“I would like to send a message to the Government: You do a disservice to your own people when you allow lawyers to mount procedural challenges like security for costs to deprive your own citizens of their day in court.”
Mr Smith and RDA had railed against the lateness of both the Abaco Club’s intervention in the case, with its own “security for costs” demand made just one day before the matter was heard by the Supreme Court,.
This, though, was rejected by Sir Michael and the Court of Appeal on the basis that RDA had suffered “no prejudice” or extra costs as a result. “Despite the urging of counsel [Mr Smith] for the appellant, I cannot say that there is a high probability of success for this judicial review application,” Sir Michael added.
Still, Mr Smith argued yesterday: “I understand security for costs may be awarded but, as we argued in this case, the courts should not allow developers to intervene unnecessarily and nor should they order security for costs in such vast amounts related to these issues that NGOs are shut out from having their day in court.”