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Bimini Blue Coalition Limited v. Christie Et Al

In the context of the judicial review actions taken by a coalition of residents and visitors challenging the construction of a cruise ship terminal and dock and the creation of man-made island offshore using material dredged from the sea in North Bimini in the Bahamas, security costs were ordered in the amount of $600,000.00 Bahamian dollars. An appeal against the quantum ordered by the learned trial judge was filed claiming it was arbitrary, oppressive, excessive and irrational. The coalition also claimed that the amounts awarded were not in accordance with the scale of fees generally awarded in the Supreme Court, were not supported by any evidence nor calculated on a party to party basis. It was further alleged that the learned trial judge had failed to give adequate weight to the point that the substantial amount of the orders was highly likely to have the effect of preventing the appellant’s judicial review application from proceeding, thereby preventing the ventilation of their concerns and setting a precedent for access to the Courts to be denied in future cases brought in the public interest.

Destacados

[24] While I am of the opinion that this matter concerns the proper administration of public and environmental law, and that the issues of interpretation, which are raised, are important; the question of how these matters affect whether or not an order for security of costs should be granted is no longer open for discussion. As already stated, this is an appeal against the quantum awarded by the learned trial judge and not an appeal of the learned trial judge's decision to order security for costs. While the appellant's case may very well fit into the definition of public interest litigation; to order security for costs in a nominal amount, as the appellant argues the public interest element of the case warrants, would make a mockery of the decision of the learned trial judge to so order and would, through the back door, render nugatory the decision to grant the same.
[28] Estimating the quantum to be awarded for security for costs is not an exact science. Having regard to the difference between the figures asked of the trial and the figures presented in the estimated Bills of Costs filed in this Court, the appellant's observations on the draft Bills, the general principles detailed in Keary Developments, the nature of the appellant's case and the conduct of the case by the appellants thus far, I estimate that the appropriate award is a global quantum of $315,000.00; being made up of $100,000.00 for the government's costs and $215,000 for the developers' costs.
[13] And so, on that authority, to be considered for relief from granting security for costs the issue raised must be a point of law of public importance, and the effect of making the order would be to prevent the point of law in question being decided. Neither of those apply in this case. While this case, like most environmental matters raised by judicial review, may be of public importance and has an element of public interest, it does not raise any points of law of general public importance. That can be clearly seen from the summary of the issues in paragraph 2 above, and the declaration in paragraph 3 sought against the Developers. The issues raised are issues of construction of statutes based on the facts of this case, and there is no claim that any statutes are ambiguous and need special interpretation to guide the public generally in the future.

[14] Furthermore, there is no evidence that even if there was a point of law of general public importance, that making the order for security for costs or in this case not making the quantum negligible, would prevent it from being heard. Although not authority for this Court, in both of the environmental cases submitted by Mr. Wilson in reply namely, Pointes Protection Association v. Sault Ste, Marie Region Conservation Authority 2013 ONSCV 5323 in the Divisional Court of the Ontario Supreme Court, and Illawarra Residents For Responsible Mining Inc. v. Gujarat NRE Coking Coal Limited [2012] N.S.W.L.E.C. 259, security for costs was ordered. Nothing turns on their outcome in our context because in the latter case Court Rules expressly provided that the Court could refuse granting security for costs if it was satisfied that the action was brought in the public interest. Our Rules have no such provision. Even in those cases, however, security for costs was granted because they were not determined to be public interest cases. In the former case security of $65,000.00 requested was reduced to $20,000.00, and in the latter $75,000.00 requested was reduced to $40,000.00 taking into account , inter alia, the means of the plaintiff.

Decisión

The appeal was allowed and the quantum ordered by the learned trial judge set aside, ordering a global sum of $315,000.00 Bahamian dollars as security for costs. Although concluding that none of the criteria for granting relief from security costs applied (the issue raised must be a point of law of public importance and the effect of making the order would be to prevent the point of law in question from being decided) and that access to justice had not been denied, the Court found that there was a difference between the figures asked of the trial and the figures presented in the estimated bills of costs filed in the Court. 

País

Fecha de la sentencia

17/07/2014

Órgano resolutor

Court of Appeal of the Bahamas

Derecho