Responsible Development for Abaco (RDA) Ltd v ex parte the Queen and the Right Honourable Perry G. Christie, (Prime Minister of The Commonwealth of The Bahamas) (Minister of Finance and Minister Responsible for Crown Lands) et Al
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, JA |
| Judgment Date | 14 August 2019 |
| Neutral Citation | BS 2019 CA 123 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCivApp No. 248 of 2017 |
| Date | 14 August 2019 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Jones, JA
The Honourable Sir Michael Barnett, JA
SCCivApp No. 248 of 2017
and
Prime Minister of The Commonwealth of The Bahamas (Minister of Finance and Minister Responsible for Crown Lands)
Deputy Prime Minister of The Commonwealth of The Bahamas (in his capacity as the Minister of Works and Urban Development and the Minister of Conservation)
Minister of Transport and Aviation
Minister of the Environment and Housing
Ministry of Works and Urban Development
(Acting) Director of Physical Planning
(Acting) Director of Department of Lands And Surveys
Port Administrator for Abaco
Mr. Frederick Smith, QC, with Ms. Akeira Martin, Counsel for Intended Appellant
Mr. Loren Klein, Counsel for First through Ninth Intended Respondents
Mr. Oscar Johnson, with Ms. Karen Brown and Ms. Theominique Nottage, Counsel for Tenth through Twelfth Respondents
Re E (a child)(AP) (Northern Ireland) [2008] UKHL 66 mentioned
Save Guana Cay Reef Association Limited v The Queen et al SCCiv App No 70 of 2006 considered
D.B.S. Builders And Developers Company Ltd. and Beauport Investment Company Limited SCCivApp No 39 of 2002 mentioned
Croft Leisure v Gravestock & Owen [1993] BCLC 1273 considered
Beauross Ltd v Kennedy (Unreported, High Court, Morris J, 18th October, 1995) considered
Hidden Ireland Heritage Holidays Limited v Indigo Services Ltd [2005] 2 IR 115 mentioned
R v Hackney London Borough Council ex pa We Love Hackney Ltd [2019] EWHC 1007 considered
Bimini Blue Coalition Limited and the Rt. Hon. Perry G. Christie et al SCCiv App No 35 of 2014 followed
Keary Development Ltd v Tarmack Construction Ltd [1995] 3 All E.R. 534 applied
Civil Appeal — Security for Costs — Application for Judicial Review — Section 285 of the Companies Act — Order 23 of the Rules of the Supreme Court —
This is an appeal by an applicant for judicial review against an order of the Supreme Court requiring the applicant to provide security for costs with respect to its application. The appellant has appealed on the ground inter alia that the learned judge erred in principle and in law in that she failed to consider the first and fundamental question, which was whether the appellant should be required to give security for costs at all.
Held: appeal dismissed; the appellant shall pay the respondents' costs to be taxed if not agreed.
There is no principle that in public law cases, and in particular cases involving environmental or planning permission issues, that an applicant for judicial review should not be required to give security for costs.
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.
The judge had discretion to require the appellant to provide security for costs and she exercised her discretion in the manner consistent with previous decisions of this Court requiring applicants for judicial review to provide security or cost.
Like many applications for judicial review it has a public interest element in it, but that in itself is insufficient to immunize the applicant from being required to provide security and effectively pursue this claim without any meaningful risk as to costs if it is unsuccessful in its claim. This is particularly so in circumstances where the applicant is itself not prepared to forego a claim to costs in the event it is successful.
Delay in applying for security for costs might, depending on the circumstances of the case, be a ground for refusing the application, where the applicant's delay had caused the other party to commit itself to a level of costs to which it would not otherwise have become committed, thus altering its position to its detriment.
Whilst it is arguable that the application for security for costs should have been made or at least foreshadowed prior to a few days before the commencement of the trial, the lateness of the application was not in my view sufficient to deny the respondent an otherwise meritorious application for security.
Judgment delivered by the Honourable Sir Michael Barnett, JA;
This is an appeal by an applicant for judicial review against an order of the court requiring the applicant to provide security for costs with respect to its application.
By an ex parte application filed on the 22 March, 2016 Responsible Development for Abaco (RDA) Ltd (hereinafter called “the applicant” or “the appellant”) sought leave to bring an application for judicial review.
The respondents to the application were various Ministers of the Crown.
The application challenged the following decisions:
“1. The Decision by each of the Respondents not to carry out any, or any proper or adequate consultation, in respect of decisions taken, or shortly to be taken, by each of them, relating to the grants, permits or approvals required by the owners of the Abaco Club as more fully set out herein (“the Required Permits”) in order that they may construct, inter alia, a dock, marina, shop, restaurant, car park and associated infrastructure in Little Harbour, Great Abaco (“the Development”)
2. Further or alternatively, the Decision by each of the Respondents to withhold information from the Applicant, inter alia by failing or refusing to respond to written requests for information, so as to deprive the Applicant of its statutory rights and/or legitimate expectation to contribute to any consultation process which may be undertaken in respect of the Required Permits.”
The reliefs sought by the applicant were:
“1. A Declaration that the Applicant has an entitlement, as a matter of statutory right and/or procedural fairness and/or legitimate expectation to be meaningfully included in the decision-making process relating to the Required Permits and the proposed Development in Little Harbour by the Abaco Club;
2. An Order of Prohibition against the 1st to 9th Respondents to enjoin them from granting any of the Required Permits without first conducting a process of proper public consultation prior to, and in respect of, each application for such Required Permit; such proper public consultation to include, as a minimum, providing the Applicant with adequate notice and copies of all relevant papers so as to ensure that the Applicant has an opportunity to make informed representations, at a formative stage of each decision-making process, which are properly taken into account by the relevant decision maker
3. To the extent that any decision has been taken to grant a Required Permit without proper and adequate public consultation having taken place, An Order of Certiorari quashing any such decision and revoking any such grant;
4. Further or other relief
5. Costs.”
The application was supported by an affidavit of David Pitcairn, the Vice President of the applicant. That affidavit was sworn in Atlanta Georgia in the USA on the 25 April, 2016.
The ex parte application and affidavit in support were served on the Office of the Attorney General on 4 May, 2016.
The application for leave was heard inter partes on 24 May, 2016 and Justice Hanna Weekes granted leave to the applicant to bring the application by Originating Notice of Motion. That leave was granted on the applicant's counsel's undertaking to “notify the Developer of these proceedings by serving the Originating Notice of Motion (and any supporting documents) on the Developers”.
The Developers are not defined in the order but paragraph 14 of the application states:
“14. The Abaco Club on Winding Bay, Great Abaco, is owned and/or operated by Southworth Development LLC (a company based in Massachusetts, USA) and/or related companies such as Abaco Club Investments LLC. The owner/developer is hereafter referred to as “the Abaco Club”.”
And later:
“21. The Abaco Club on Winding Bay, Great Abaco, is owned and/or operated by Southworth Development LLC (a company based in Massachusetts, USA). This information is on the website of the Abaco Club at http//theabacoclub.com/developer/[DP1/p20-21. In addition, the Environmental Impact Assessment (which I refer to further below and which is at Exhibit DP1/23–87) states that it was submitted on behalf of Abaco Club Investments LLC. Beyond this information I am not aware of the exact ownership structure of the Abaco Club, so I refer hereafter to the owner/developer as “the Abaco Club”. A key figure in the promotion of the Development by the Abaco Club is David Southworth.”
The Originating Notice of Motion was filed on the 2 June, 2016 (although the perfected order granting leave was not filed until 10 August, 2016).
A Notice of Trial was then filed on the 29 August, 2016 giving Notice that the trial date was fixed for the 28 November, 2016 and listed for three days.
I pause to note that the Developers were not served with any of the papers in this action until 25 August, 2016, four days before the notice of trial was filed. The...
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