The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An ex-Supreme Court judge and top QC are battling over who is entitled to receive $114,793 in costs awarded with Western Air’s successful $1.5m claim against the Airport Authority.

Ruth Bowe-Darville, who retired as a justice last year, is locked in an acrimonious fight with Harvey Tynes, one of The Bahamas’ longest-serving QCs, with the dispute forcing the Supreme Court to order that the costs sum be paid “into court” until it can determine who should be compensated.

Their battle has its roots in Western Air’s legal victory over the Government-owned Airport Authority in a case that went all the way to the London-based Privy Council, the highest court in the Bahamian judicial system.

That court, in a November 9, 2020, verdict, affirmed previous rulings that the Airport Authority’s “negligence” resulted in the 2007 theft of a Western Air plane from Lynden Pindling International Airport (LPIA). It found there was “ample material” to prove multiple security deficiencies at LPIA when the aircraft was stolen.

Apart from a perimeter fence that was “not wholly secure”, thus allowing intruders easy access to the airport and parked aircraft, the Privy Council also found that LPIA security made no effort to prevent the plane’s take-off despite the potential theft being detected and reported to two supervisors.

Justice Ian Winder, in ordering that the disputed costs be paid “into court”, in a February 4, 2022, ruling noted that the Airport Authority had paid Western Air some $1.528m in damages on December 3, 2021, to cover the judgment award against it.

However, the Airport Authority, which is responsible for LPIA’s security, was forced to approach Justice Winder “for directions as to the proper payment of the costs” associated with the award “due to the competing demands” of Tynes and Tynes and Justice Bowe-Darville’s Commonwealth Law Advocates law firm.

The former Supreme Court judge and her company acted for Western Air when the Supreme Court heard its claim against the Airport Authority, and she subsequently obtained a Certificate of Taxation confirming costs of $112,777.

Mr Tynes and his law firm, though, took over and acted for Western Air when the case went to the Court of Appeal, even though Commonwealth Law Advocates was still “the attorney of record” for the Bahamian-owned airline. Justice Winder said the “notice of change of attorney” was only filed in July 2021, some eight months after the final Privy Council ruling.

“When the defendant [the Airport Authority] was preparing to pay the judgment sum and the costs of the action, formal demands for the payment of costs were received from Tynes and from Commonwealth Law Advocates, both firms claiming to be entitled to be paid costs arising from the Supreme Court action,” Justice Winder wrote.

Justice Bowe-Darville, he added, and her law firm had taken the position that “they are entitled to the costs that are a result of the ‘fruits of its exertions’ as [an attorney] as against its costs incurred in recovering those fruits”.

And the former Supreme Court judge, in a January 4, 2022, affidavit asserted that “it will be ten years and more since the [Supreme Court] judgment and the award of costs therein” if she has to initiate fresh legal proceedings to recover the $114,793 allegedly due to her firm.

The timelines contained in Justice Bowe-Darville’s affidavit show she made inquiries with the Airport Authority’s attorneys, Cash Fountain, while still serving as a judge to discover when costs would be paid almost immediately after the Privy Council ruling in November 2020.

Cash Fountain added that it was awaiting instructions from the Airport Authority before it could proceed. Justice Bowe-Darville alleged that she was subsequently asked to present her taxed bill of costs, together with interest, so there could be “a whole settlement”.

She asserted that she was told by Cash Fountain on November 30, 2020, that the Airport Authority “was in a position to settle all costs” but it had to seek Cabinet approval for the “payout”. With interest added in, Justice Bowe-Darville said the costs payable to her firm totalled $176,919, although Western Air has paid some $62,126, leaving a net balance of $114,793.

When Mr Tynes’ competing claim to the taxed Supreme Court costs became known, she sought to address the matter with Rex Rolle, Western Air’s principal. However, he told Justice Bowe-Darville that “he wished no publicity on the matter and no more litigation”, and Mr Tynes was not budging from his position.

Given that the Airport Authority had been placed “on notice” by Commonwealth Law Advocates, via a December 6, 2021, letter that it “has a claim for outstanding fees”, Justice Winder ruled that the situation “triggers need for the court to intervene to protect Commonwealth’s claim on funds due to be recovered by Western..

“In the circumstances of this case, where the defendant [Airport Authority] seeks directions as to who should be paid the costs, equitable consideration suggests that the appropriate direction should be that the defendant pay the costs into court to abide allocation by the court,” he added.

In the meantime, the dispute’s complexity has deepened. Just two days after Commonwealth Law Advocates’ letter to the Airport Authority, Western Air initiated a December 8, 2021, legal action against the latter’s attorneys, Cash Fountain, “in support of their demand for the payment of the taxed costs”.