The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An ex-Bimini Bay tenant has been left “very confused” by a verdict that permits the resort’s original developer to appeal the majority of a near-$10m damages award to the Privy Council.

Garrick Edwards, the Miami-based entertainment promoter who lost his bar and restaurant interests when they were abruptly demolished by Gerardo Capo’s RAV Bahamas in defiance of a Supreme Court-ordered stay, told Tribune Business he had believed the legal battle “over and done with” in his favour.

He now plans to “get to the bottom” of the Court of Appeal ruling that allows Mr Capo and his corporate entities one final legal bid to challenge 70 percent of the total $9.67m damages awarded to his company, Therapy Beach Incorporated, by retired Supreme Court justice, Cheryl Albury, as arbitrator in the two parties’ dispute.

Disclosing that he has little “confidence” in the Bahamian legal system, Mr Edwards said he has now hired a UK law firm - who he declined to name - to review the case.

The Therapy Beach principal spoke out after the Court of Appeal, in a unanimous decision delivered by acting appeal justice, Sir Michael Barnett, granted Mr Capo’s RAV Bahamas and Bimini Bay Resort Management entities leave to challenge the majority of the damages award before the highest court in the Bahamian legal system.

Mr Edwards said he was under the impression that only “two appeals” of an arbitration award can take place, and that these had already been exhausted. The first was RAV Bahamas’ appeal to the Supreme Court of the arbitrator’s decision to award Therapy Beach $6.8m, and the second Mr Edwards’ successful appeal of the Supreme Court verdict that went against him.

“In my view and opinion, from what I understand of arbitration in The Bahamas, even if you go down the road of appealing [the arbitrator’s verdict], there are only two appeals that can take place,” Mr Edwards argued. “The first appeal we had with the Supreme Court and, from that, the Court of Appeal. The Privy Council is not even allowed to get involved.”

This was the argument advanced by his attorneys, Krystal Rolle and Wallace Rolle, as to why the Court of Appeal should reject RAV Bahamas’ final shot at challenging the $6.8m awarded by ex-justice Albury as “general damages for consequential loss”.

They argued that the Court of Appeal is only able to grant permission for Privy Council appeals in cases that originate with the Supreme Court - meaning any appeals to the former have to be the first appeals.

Mr Edwards’ attorneys argued that the intended Privy Council appeals was “a second appeal” and thus “impermissible” under Bahamian law, making the Court of Appeal’s previous ruling “final” and preventing any further challenges to the $6.8m award.

But Sir Michael and his fellow judges, including Court of Appeal president, Sir Hartman Longley, and appeal justice Jon Isaacs, disagreed. In a unanimous verdict, they found that mounting a challenge on the basis that a “serious irregularity” has occurred - as Mr Capo’s attorneys did under the Arbitration Act’s section 89 - was not an appeal from a judicial body.

Sir Michael wrote that the Supreme Court was “exercising an original jurisdiction given to it by the Arbitration Act”, pointing out that the law distinguished between this and other sections in the same Act that dealt with hearings before tribunals. As a result, the “two appeals” referred to by Mr Edwards have not been exhausted.

“In our judgment, this court has the jurisdiction to grant leave to the respondent to appeal its decision to the Privy Council,” Sir Michael found. “In our judgment it is a matter worth further consideration whether the failure of the Supreme Court judge to make a specific finding that a serious irregularity has caused, or will cause, substantial injustice is fatal in circumstances where having regard to the nature of the irregularity may be inferred.”

But Mr Edwards told Tribune Business of the verdict: “I am very confused with all of this, thinking it was over and done with. How did this happen? We are in talks with a British law firm due to the fact my level of confidence in the Bahamian legal system doesn’t exist.”

The $6.8m “consequential damages” is the only aspect of the arbitration award being challenged by Mr Capo and RAV Bahamas. The $370,000 awarded for special damages, and $2.5m in exemplary damages, are not in dispute.

Sir Michael Barnett, when he was Chief Justice, heard the original dispute at the Supreme Court level when RAV Bahamas alleged that Therapy Beach’s December 31, 2011, lease was “null and void”, and that Mr Edwards had to vacate. He also granted the interim “stay” intended to preserve the “status quo” between the two sides that was ignored by the developer.

And Sir Michael was the only dissenting judge when the Court of Appeal last August ruled, in a majority 2-1 verdict, that the arbitrator should reconsider the $6.8m award because it was “manifestly unfair and ambiguous”.

He found that “the sum is so high that no arbitrator acting reasonably could properly have come” to such a conclusion, suggesting that ex-justice Albury must have included factors “she ought not to have taken into account” in calculating the award - especially given that the two sides had agreed Mr Edwards would lose a maximum $7,500 per month if the facilities were to close.

The Court of Appeal verdict came after Justice Ian Winder, finding in favour of Mr Capo, remitted 70 percent of the damages award back to retired justice Albury for “reconsideration” on the basis that a “serious irregularity” had occurred in determining the $6.8m.

But Therapy Beach persuaded Sir Hartman and appeal justice Isaacs to find that the Supreme Court had failed to show any irregularities resulted in “substantial injustice” to Mr Capo and RAV Bahamas - as required under the Arbitration Act.

Therapy Beach has previously alleged in court documents that Mr Capo and RAV Bahamas needed to bulldoze its restaurant and beach club facilities to consummate the deal with their new partner, the Genting-owned Resorts World Bimini.

It claimed that Resorts World had been promised it would have the exclusive rights to operate all food and beverage facilities at the property, and that its facilities stood in the way - meaning they had to go. Resorts World opened its own two days after Sakara’s destruction.

RAV Bahamas put together a high-powered legal team to secure its Privy Council appeal. Brian Moree QC, senior partner at McKinney, Bancroft & Hughes, joined Ferron Bethell of Harry B Sands & Lobosky to argue the case.