Rowan Pennington-Benton Instructed by Sheridans for the Appellant
Peter Knox KC and Robert Strang Instructed by Sinclair Gibson LLP for the Respondents (Abaco Club Investments and others)
Daniel Feetham KC (instructed by Madison Legal Services) for the Interveners
LORD SALES AND LORD HAMBLEN:
Introduction
This appeal concerns the proper approach to applications for security for costs by defendants to public interest environmental judicial review claims, including by developers joined as additional defendants.
The judicial review claim relates to the proposed development of marina facilities in Little Harbour on the island of Abaco in The Bahamas (“the development”).
The claimant and appellant (“RDA”) is a Bahamian registered company incorporated in 2009 with the objective of ensuring that developments in Abaco are sustainable, environmentally sound, ecologically responsible, and take account of the legitimate interests of Abaco’s residents, homeowners and visitors.
The 1st to 9th respondents are various executive or ministerial persons concerned with the grant of the permissions and approvals (“the permits”) required to proceed with the development (“the Government respondents”).
The 10th to 12th respondents are the owners of the Abaco Club resort at Winding Bay, Abaco, who wish to develop the marina at Little Harbour (“the Developers”).
RDA’s judicial review claim challenges the Government respondents’ alleged decision to withhold information and alleged failure to carry out a proper consultation before taking decisions relating to the permits, which it is said deprived locally and directly affected persons of their statutory rights and/or defeated their legitimate expectations to contribute to lawfully required consultation processes.
On 22 November 2017, Hanna-Adderley J (“the judge”) ruled that security for costs be provided in the total sum of $250,000 ($100,000 for the Government respondents and $150,000 for the Developers). On 14 August 2019, the Court of Appeal gave judgment dismissing the appeal. On 29 September 2021, the Privy Council granted special leave to appeal.
The principal grounds of RDA’s appeal are that the Court of Appeal erred in principle in making the order for security for costs (i) by requiring security for costs in the sum of $250,000 to be provided within 30 days, which could not realistically be achieved, thereby stifling RDA’s claim, (ii) by failing to recognise that the judicial review challenge is a public interest claim, and (iii) by holding that the Developers, as interested parties and co-respondents, were entitled to security for costs although the interests of the Developers and the Government respondents are identical.
On 17 October 2022 the Privy Council granted the application of the Open Society Justice Initiative and the Environmental Law Alliance Worldwide to intervene by way of written submissions only. They are both US-based, international, non-profit organisations advocating on various issues including human rights and environmental justice. Those submissions were put forward “to offer broader insight into the right to access justice and the need to remove financial barriers to public interest litigants”. Various decisions from Caribbean and Commonwealth countries were cited which were said to show “a growing trend towards reducing financial barriers for public interest litigants”.
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