Bakers Bay Permits
May 18, 2007
Mr. Michael Barnett
Graham Thompson & Co.
Re: Save Guana Cay Reef Association – Your undertaking to immediately provide copies of Permits; discovery generally
I refer to our attendance before the Court of Appeal yesterday at which time you represented to the Court of Appeal that your clients had received all lawfully required permits for the conduct of all of their activities at all material times on the Crown, Treasury and private lands.
You undertook to provide copies of any and all permits, licenses, approvals, concessions, leases, easements or other papers or documents which in any way authorized or purported to permit activities being conducted by your clients on their private property and the Crown and Treasury lands at Guana Cay (hereinafter called “the Permits”).
Please be kind enough to pdf the same to me by return in compliance with your undertaking.
In addition, may I remind you of the references in Lord Walker’s speech in the Belize Alliance v DOE (No.2)  E3LRC (The Belize Case) which I read to the Court, in relation to the approach which should be adopted in discovery in judicial review matters and also the approach to the conduct of such matters. In a nutshell, judicial review ought not to be conducted like hard-fought commercial litigation and there is a duty to disclose all relevant papers. Your clients have not conducted themselves accordingly thus far in this litigation. My clients urge your clients to accept the approach recommended by the Privy Council.
I set out the excerpts for your ease of reference.
From page 116 Lord Walker quotes Sir John Donaldson MR to the effect that once judicial review has been issued “it becomes the duty of the Respondent to make full and fair disclosure”.
Sir John Donaldson MR continued in relation to the wide remedy of judicial review that
“This development has created a new relationship between the Courts and those who derive their authority from the public law, one of partnership based on a common aim, namely, the maintenance of the highest standards of public administration.”
Further, although it is agreed by all that it is not for the Respondents to make out their case for the applicants of judicial review, Sir John Donaldson MR said
“But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hands”
Lord Walker continued at paragraph 86
“Similar observations have been made in many later cases, including several decisions of the House of Lords. It is now clear that proceedings for judicial review should not be conducted in the same manner as hard-fought commercial litigation. A respondent authority owes a duty to the court to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings.”
In addition, upon review of the Belize case, you will note that Lord Walker considered that there was an obligation not only on the Government agency respondents to make full disclosure but also on the developer respondent who was an independent commercial concern, Lord Walker remarking “that there is a very close identity of interest between these parties” as appears by the manner in which the defences by the Government Respondents and your clients have been conducted in this case. Lord Walker went on to hold that in his opinion, the Developer Respondent in the Belize case was also “under a duty to make candid disclosure to the Court”.
I refer to paragraph 127 of Lord Walker’s judgment in which he made it plain that “The Rule of Law must not be sacrificed to foreign investment, however desirable, indeed recent history shows that in many parts of the world respect for the Rule of Law is an incentive and disrespect for the Rule of Law can be a severe deterrent to foreign investment”.
Although Lord Walker was in the 3 – 2 minority in the Belize case, the majority did not differ with Lords Walker and Steyn on the issue of the obligations of all of the Respondents to make full and frank discovery.
May I also remind you that the President of the Court of Appeal yesterday made it plain that my clients’ appeal last year of Justice Carroll’s interlocutory refusal to grant discovery, was not dealt with on the merits by the Court of Appeal as to whether or not discovery should or should not be provided. The President made it plain that my clients’ appeal on that interlocutory issue was premature and dismissed as being without merit on the procedural basis.
I understand your clients’ position to be that none of the papers which we have previously repeatedly requested by letters, emails, discovery applications and verbally, to be relevant.
Of course, I have throughout disagreed.
I trust that having now had the benefit of hearing the views of the Justices of Appeal, and the views of the Privy Council, regarding the need for discovery of what they and my clients consider to be relevant, you will now cause your clients to provide the following (which is not an exhaustive list and may be supplemented and/or further requests may be made upon review of what is provided).
The Permits, in accordance with your undertaking
A full and complete copy of the Heads of Agreement and any and all other documents, agreements or papers which may be collateral, supplemental, additional or riders thereto.
Copies of any and all correspondence between your clients and the Attorney General and any and all Central Government agencies and departments;
(a) prior to the execution of the Heads of Agreement; and
(b) subsequent thereto.
A full and complete copy of the Environmental Impact Assessment and any subsequent addendums, changes, additions or revisions thereof.
A full and complete copy of the original Environmental Management Plan and any addendums, changes, additions or renewals thereof.
Full and complete copies of any applications and correspondence with the Hope Town District Council in relation to any matters at Guana Cay.
Full and complete copies of any and all copies of any and all applications and or correspondence with the Senior Administrator for Local Government at the Hope Town District Council, or otherwise.
My clients are very concerned, as was the Court of Appeal, in determining on what lawful basis on your clients are currently occupying and despoiling the Crown and Treasury Lands. Please therefore provide copies of any and all papers and correspondence which exist as between your clients and any and all Government agencies with respect thereto.
Any other relevant papers or documents.
As you correctly indicated yesterday, it is my clients’ intention to challenge any Permits which your clients may have received either as a result of and flowing from the Heads of Agreement and/or which they may have independently applied for well-knowing, at all material times, of
(c) my clients’ legitimate expectation to be consulted; and,
(d) insistence on being consulted; and,
(e) being entitled to be notified of any applications and the contents thereof; and,
(f) being given an opportunity to sensibly consider the same; and,
(g) being given a reasonable and sensible opportunity of making a contribution to the decision-making process so that any and all relevant decision-making authorities may have had an opportunity to consider and have the benefit of their views prior to making a decision on any application.
My clients are prepared to pay reasonable copying expenses for the requested items and attend upon your Chambers for delivery thereof. My clients regard these requests as urgent, and if not complied with in a timely fashion, will move the Court for their production.
CALLENDERS & CO.
Frederick R. M. Smith
c.c. The Rt. Hon. Mr. Hubert A. Ingraham. Prime Minister of the Commonwealth of The Bahamas & The Hon. Mr. Sidney Collie,
Ministers Responsible for Crown and Treasury Lands
Sen. The Hon. Mrs. Claire Hepburn, Attorney General
Mr. Wendell Major, Secretary to the National Economic Council
Treasurer of The Bahamas