High court tosses HCARC injunction application

Sun, Sep 27th 2015, 10:39 PM

The Supreme Court has tossed out an application for an injunction against the government's consultation process behind its planned economic reforms to Freeport while the judicial review action brought against the government has been postponed until next week.

Speaking with Guardian Business following the ruling on Friday, Fred Smith, Q.C., stated that he and fellow attorney and Freeport licensee Carey Leonard were "disappointed" with Justice Petra Hanna-Weekes' decision to reject the pair's injunction application and were mulling filing an appeal ahead of the resumed trial of Smith and Leonard's judicial review application.

The application stems from the Christie administration's consultations with Freeport stakeholders over potential amendments to the tax concessions and other incentives enjoyed by Freeport under the Hawksbill Creek Agreement (HCA). At the center of the legal dispute is a confidential report issued by consultancy McKinsey and Co., which is held as a driving instrument in the Christie administration's plans for economic reforms to the area.

"Regrettably the court ruled against us and refused to grant the injunction restraining the government or committee until the trial from making decisions based on the report resulting from what we said was a flawed process.

"Mr. Leonard and I are obviously disappointed. We think that in all public law cases, if leave has been granted to challenge an activity by the government or a proposed activity or something that has consequences... out of respect for the court, one would have thought the government would in any event not do what is being challenged until the court made a determination," Smith said, noting that he and Leonard were ordered to pay costs in the injunction application.

The trial is adjourned until October 5, when Justice Hanna-Weekes will determine whether to recuse herself from the matter, given her past affiliation with Graham Thompson, the firm representing the Grand Bahama Port Authority (GBPA) in the judicial review action. However, Justice Hanna-Weekes granted leave to the GBPA to join the motion after the GBPA applied to intervene in the matter on the eve of the trial. Between now and the October 5 hearing, Smith stated that he and Leonard intend to respond to an affidavit by Dr. Doswell Coakley, secretary of the Hawksbill Creek Agreement Review Committee (HCARC), the first bit of government-submitted evidence in the action.

GBPA General Counsel Karla McIntosh outlined the GBPA's application to join the motion in an affidavit filed last week, stating that it was a matter of "substantial importance" that the GBPA have access to the McKinsey Report after GBPA Vice Chairman Sarah St George repeatedly asked the HCARC to produce the report with no success. At the time, Smith applauded the GBPA for 'throwing their weight' behind Smith and Leonard's judicial review action against the government. Following the injunction application decision, Smith said that he had already filed notice to the GBPA to produce the letters mentioned in McIntosh's affidavit and said that he and Leonard will be making further application for discovery as to any decisions the government respondents took regarding the McKinsey Report.

"I understand that it was a matter of debate between the committee and the licensees, therefore that is relevant to their thinking as to why they won't produce the report," he said.

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