Responsible Development for Abaco (RDA) Ltd v The Right Honourable Perry Christie and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales,Lord Hamblen |
| Judgment Date | 31 January 2023 |
| Neutral Citation | [2023] UKPC 2 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0061 of 2020 |
[2023] UKPC 2
Lord Sales
Lord Hamblen
Lord Leggatt
Lady Rose
Lord Richards
Privy Council Appeal No 0061 of 2020
Hilary Term
From the Court of Appeal of the Commonwealth of The Bahamas
Appellant
Richard Clayton KC
Frederick Smith KC
Ruth Jordan
Rowan Pennington-Benton
Thomas Elias
Roderick Dawson Malone
(Instructed by Sheridans)
Respondents (The Rt Hon Perry Christie and others)
Aidan Casey KC
(Instructed by Charles Russell Speechlys LLP (London))
Respondents ( Abaco Club Investments and others)
Peter Knox KC
Oscar Johnson KC
Robert Strang
Tara Archer-Glasgow
(Instructed by Sinclair Gibson LLP)
Interveners
Daniel Feetham KC
(instructed by Madison Legal Services)
Respondents:
(1) The Rt Hon Perry G Christie
(2) The Hon Philip E Brave Davis
(3) The Hon Glenys Hanna-Martin
(4) The Hon Kendred Dorsett
(5) The Town Planning Committee
(6) South Abaco District Council
(7) Charles Zonicle
(8) Richard Hardy
(9) Marques Williams
Respondents:
(10) Abaco Club Investments LLC
(11) The Abaco Sporting Club Ltd
(12) Winding Bay Development Ltd
Lord Sales AND
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 1 st to 9 th 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 10 th to 12 th 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”.
RDA was incorporated in 2009. It has an authorised share capital of 5000 shares of $1 each. To date, only two shares have been issued. These are held by a bookkeeper and a receptionist in the office of RDA's attorneys. RDA's entry in the register of companies in The Bahamas records that its directors are three businessmen, Clint Kemp (its president), David Pitcairn (its vice-president) and Matthew McCoy (its secretary).
Evidence filed by RDA in these proceedings explains that the issued shares are held on trust for approximately 75 persons who are either residents and/or landowners in The Bahamas, including Mr McCoy. It is not explained who these 75 persons are, what their interest in these proceedings might be, what financial resources are available to them, or what support they might be willing to provide for the proceedings to be maintained. All that is said in this regard in the affidavit of Mr Pitcairn filed in support of RDA's application for leave to seek judicial review is that he has a personal interest in this matter, as he is the owner of a residential property immediately adjacent to the plot of land on which the Abaco Club wishes to construct a car park as part of the development. Mr Pitcairn says that RDA is funded “by a large number of, generally anonymous, individuals who have donated sums (mostly under $500) in return for T-shirts and bumper stickers” and that a small amount ($1,700 from 16 donors) has been raised through a crowd-funding website.
As stated on RDA's website, it is run as a non-profitmaking organisation, open to all residents of Abaco and The Bahamas to support, and is to be named as plaintiff in any court actions, rather than any members, with the effect that “[t]here will be no liability to any of the members”. Accordingly, it appears that RDA has been established with the object of bringing claims to challenge unwelcome development proposals, such as that in the present case, while shielding its supporters and those with legal and beneficial title to its shares from the ordinary costs consequences which might otherwise follow from the bringing of an unsuccessful claim for judicial review.
The Abaco Club is a high-end resort with a golf course built in 2004 and owned by the Developers. The Club has no marina for its guests. The Developers wish to extend the facilities of the Club to include a 44-slip private dock at Little Harbour, together with a supplies shop, private restaurant, 6,000 square foot covered car park, generator, desalination plant and waste treatment facility.
Little Harbour is a small, shallow harbour approximately three miles from the Club. Its surrounding terrain is rugged and unspoilt. It has a solar-powered only residential community of 60 homes, private docks, moorings for guest boaters, a pub and an art gallery. Access to Little Harbour is through a narrow and shallow channel. If, as is proposed, a commercial marina for the accommodation of 44 boats up to 60ft is constructed in Little Harbour, RDA claims that regular dredging of the existing channel is likely to be required.
A local petition signed by many people explained their concerns:
“Little Harbour is a remote off the grid community on the island of Abaco in The Bahamas. Its strong community has worked hard to have as little impact on the environment as possible. All home owners use solar energy, collect rainwater, and are careful with the environment we cherish.
Just south of Little Harbour is the Abaco Club at Winding Bay, a high-end resort with a golf course on 540 acres. Southworth Development has recently purchased the resort, as well as a couple of private houses in Little Harbour. They plan to put in a 44-slip marina, snack bar, 6000 sq ft of covered parking, and a beer and bait shop on their Little Harbour property. The Abaco Club members come to The Bahamas for a scant couple of weeks a year, but want to damage our harbour forever.
The amenities they plan to build will only be available to Abaco Club members, and will not only destroy the character of the harbour, but will also heavily impact the endangered wildlife (green turtles, manatees, piping plovers). This harbour is also an essential anchorage for those sailing throughout The Bahamas and this overbuilding will severely limit the number of boats that can find safe haven in this small and treasured harbour.”
In or around December 2014, an Environmental Impact Assessment (“the EIA”) was prepared to evaluate the likely impacts of the development taking into account inter-related socio-economic, cultural and human-health impacts, both beneficial and adverse. The EIA was not made public at that time, despite, RDA claims, promises by the Developers to the contrary. The EIA was submitted to The Bahamas Environment Science and Technology Commission (“BEST”) on 30 January 2015.
On 1 February 2015, 63 residents of Little Harbour subscribed to a letter addressed to BEST asking it to place the EIA and dock plans on their website to enable the various stakeholders to have some input. Numerous further letters were also written during this period by concerned residents, including to The Tribune newspaper, to the Prime Minister and to the Developers.
In about mid-February 2015, representatives from the South Abaco District Council agreed to hold a town meeting to discuss the development. By a letter dated 30 April 2015, 44 Little Harbour residents put their names to a letter to the Chief Councillor, Jacquelyn Estevez, raising...
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