By NEIL HARTNELL

Tribune Business

Editor

nhartnell@tribunemedia.net

An outspoken QC yesterday said the Blackbeard’s Cay developer’s “real fight” was with the Government and not his environmental activist clients, as he pledged to enforce a court Order requiring the $12 million project to be closed.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business that Blue Illusions Ltd and its attorneys would have “a difficult” time convincing the Supreme Court that to enforce Justice Stephen Isaacs’ Order would breach the investor’s constitutional rights.

Wayne Munroe QC, attorney for Blue Illusions and its principal, St Maarten-based businessman, Samir Andrawos, told this newspaper on Wednesday that the Order requiring government ministers and agencies to shut the Blackbeard’s Cay facility could not be enforced because his client was not a party to the original action.

That was brought by reEarth, the environmental activist group, which successfully challenged the dolphin import and planning-related approvals and permits granted to Blackbeard’s Cay by the Government.

Mr Munroe, though, said it would be “manifestly unfair” and “not cricket” to try and enforce Justice Isaacs’ Order when reEarth itself had “deleted and dismissed” the developer as a party to its action.

Mr Smith, though, rejected this argument, countering that Blue Illusions’ attorneys had been present at every court hearing involving reEarth’s battle with the Government.

He added that Mr Munroe’s predecessors as Blue Illusions’ counsel had repeatedly rejected his, and even the court’s, requests that their client be joined as a party.

And the Callenders & Co attorney reiterated that Justice Isaacs’ ruling, and subsequent enforcement Order, should be viewed by developers and Bahamian attorneys as “a clarion call” to follow the legal processes established by Parliament for obtaining all necessary permits and approvals.

“Blue Illusions’ recourse is against the Government; it is not against reEarth, who merely insisted on the laws passed by the Government in Parliament being followed,” Mr Smith told Tribune Business in response to Mr Munroe’s arguments.

“Indeed, if his client has spent $12 million at the facility and is in jeopardy of losing that as a result of the court’s judgment, then as he points out he will sue the Government.

“The Government is caught between a rock and a hard place. So often they get away with unregulated development and no one holds them accountable, but it’s a new day,” he added.

“The courts will hold them accountable, and through Justice Isaacs;’ judgment, they have upheld the rule of law. This is a new day dawning in the Bahamas”

Mr Munroe on Wednesday suggested that suing the Government for loss of damages stemming from breach of contract (the Heads of Agreement), should it try to enforce the Order against his client, would be his second course of action,

Mr Smith, though, said the Blackbeard’s Cay developer and its earlier attorneys should have been “under no illusions” about the necessary procedural steps they had to follow in obtaining the necessary permits and approvals.

He added that reEarth’s case had again highlighted the “runaway train” of unregulated development in the Bahamas, referring to previous cases he had fought such as the Bahamas Electricity Corporation’s (BEC) Wilson City power plant.

Mr Smith said Mr Munroe’s “breach of constitutional rights” line would “be a difficult argument” to succeed on, reiterating that reEarth had no fight with his client.

“We are going to enforce the orders as against the Government authorities, and the fight will be between the Government and Mr Munroe’s client, not with us,” he added.

Mr Smith said there was “no constitutional right” to be a party to a court action, and pointed out that Blue Illusions’ previous legal representatives - George Mackey and Desmond Bannister - had attended every Supreme Court and Court of Appeal hearing without asking for their client to become a party to the action.

“One of the judges even commented, and was taken aback, by the failure of Blue Illusions, who obviously will be affected by the judgment, to apply to be joined,” Mr Smith said.

“Originally we had included them, and then we decided that the clearest way to deal with this was just go against the Government, so we removed Blue Illusions. We never shut Blue Illusions out. Anyone in Judicial review actions who is affected or interested has a right to be heard.”

Mr Smith added that Justice Isaacs’ ruling “should be respected as a flagship judgment, showing other investors how safe it is to invest in the Bahamas because laws are respected”.