The Tribune

By YOURI KEMP

Tribune Business Reporter

ykemp@tribunemedia.net

A SUPREME Court judge yesterday said she will rule within 48 hours on whether environmental activists must lodge a $200,000 performance bond to cover an oil explorer’s costs.

Justice Petra Hanna- Adderley announced here position after attorneys for the Bahamas Petroleum Company (BPC) and its opponents, Save the Bays and Waterkeepers Bahamas, spent an afternoon battling to convince her of the merits of their respective cases.

Clare Montgomery QC, for BPC, branded the arguments put forth by the environmental groups Waterkeepers Bahamas as to why they should not pay security for costs as “bizarre”.

She said that regardless of whether the groups possess liquid or illiquid assets, the Supreme Court must whether they can pay the $200,000 now as mandated by the Companies Act’s section 285.

“It is looking at not merely the overall financial viability of the company concerned, but looking at the precise question as to whether or not there are liquid assets that will be available at a point when a costs order is made, Ms Montgomery argued.

“It is not sponsored by the rather bizarre suggestion that somehow the fifth and sixth respondents could bring garnishee proceedings in order to raise money to cover the order for costs that they would have got that would have gone unpaid by Save the Bays.”

Save the Bays has outstanding awards they have to collect from several other court cases, inclusive of their actions against Peter Nygard and the government, which they have pledged to put up as security for costs if needed.

Ruth Jordan, arguing on behalf of the Waterkeepers Bahamas, said: “Of course Waterkeepers Bahamas has the ability to pay.” She argued that the issue is not about ability to pay but BPC trying to put a “full stop” to her client’s ability to bring the Judicial Review challenge to BPC’s permits and approvals before the full merits are heard.

“The garnishing point is a ridiculous one. It’s very much a fallback, because what we’re saying is the assets are there. Now, if you want to talk about realisation of the assets, which we say isn’t in the wording....,” she added.

“But if you want to talk about realisation of assets this is probably more relevant when we look at the exercise of discretion. Of course it’s relevant that these are costs orders against very secure creditors.”

Fred Smith QC, also representing the activists, added: “There is a process for enforcement, and that’s attachment of the debt under Section 21 of the Crown Proceedings Act. But we would maintain our arguments on garnishee issues with respect to the judgment debt from Mr Nygard and Keod Smith. That is something that one or the other members of the team just brought to my attention.”