A noted Freeport Queen's Counsel yesterday bemoaned the Supreme Court's decision to adjourn an injunction hearing for the government's Hawksbill Creek Agreement (HCA) consultations to allow the government's security of costs hearing to occur, arguing that the government had effectively cast a "shroud of oppression" over those considering taking public interest litigation against the government. Fred Smith, Q.C. and managing partner at Callenders & Co. Grand Bahama, stated that the government's move for a hefty $100,000 security of costs is "discriminatory" after the Supreme Court delayed a hearing on the injunction until it has settled the matter of security costs.
On Friday, Supreme Court Justice Petra Hanna-Weekes opted to hear the security of costs application first over the originally scheduled injunction hearing and gave Smith and co-applicant Carey Leonard the opportunity to prepare an affidavit and file submissions in opposition to the security of costs.
Smith said that the filing for security of costs sent a "clear message" to any parties considering public interest litigation that the government would seek to financially "penalize" them before appearing in court.
"To throw a shroud of oppression over public interest litigation like this is purely and simply political victimization and unconstitutional... This is a transparent attempt to derail legitimate proceedings about Freeport's future," he said.
The security of cost application will be heard today while the initially scheduled injunction hearing will be heard on Friday. However, Smith feared that potential appeals and requests for stays of action could artificially drag out the matter.
The government filed a summons on September 2 asking that the Supreme Court require Smith and Callenders Senior Associate Carey Leonard to each provide at least $100,000 in security for legal costs for the government respondents, including Prime Minister Perry Christie.
Smith and Leonard applied for an injunction of HCA consultations, particularly those conducted by the Hawksbill Creek Agreement Review Committee (HCARC), in large part due to their belief that the consultation process was flawed and did not adequately take into account the positions of Freeport's licensees.
Chief among these complaints is the government's refusal to release the findings of a government-commissioned report conducted by international consultancy McKinsey & Co. With that report now before Cabinet, Smith and Leonard have called on the government to divulge its findings to the public before proceeding with any planned economic reforms for Freeport.
Smith also sharply criticized an affidavit filed on September 2 by Olivia Blatch, counsel and attorney within the Office of the Attorney General, alleging that Smith has an "aversion" to any government request for security of costs in judicial review proceedings, charging that security of costs had never been awarded against a Bahamian resident and was typically only available against non-residents or limited liability companies.
"In 40 years of practice the government has never sought security of costs against me personally in any action that I have ever brought."
"This latest attempt to stifle my attempts to protect my legitimate rights, my property rights as a licensee of Freeport, and my rights as a citizen of Grand Bahama to have a say in what goes on in my community is unconstitutional," Smith asserted.
The injunction is part of Smith and Leonard's attack on the HCA consultative process. On September 25 the Supreme Court will hear Smith and Leonard's application for judicial review seeking to dismiss the findings of the HCARC.
Click here to read more at The Nassau Guardian
