Dart named to road suit defense

The Grand Court has approved Dart Realty’s application to join four Cayman Islands government agencies in defending against efforts to overturn the transfer of crown land and a section of the West Bay Road to the company. 

Justice Alexander Henderson ruled in a hearing on Friday that Dart Realty Cayman Ltd. could join the governor, the attorney general, the minister for works and the National Roads Authority as a defendant, arguing against a petition by four West Bay plaintiffs challenging administration transfer of several parcels of land, including 4,290 feet of West Bay Road in Grand Cayman, to the private developers. 

The action, filed Feb. 25 by longtime West Bay residents Alice Mae Coe, Annie Multon, Ezmie Smith and Betty Ebanks, claims land swaps between government and Dart violated due process, were “unconstitutional,” “irrational” and “ultra vires,” or outside the law. 

“In my view, it is inequitable to proceed without DRCL,” Mr. Justice Henderson announced at the end of the two-hour hearing. “My order is that they be joined as a party to the action.” 

The justice set aside three days for the case, starting Dec. 11. 

The decision came after prolonged arguments by Mac Imrie of Maples and Calder for Dart Realty, claiming that the developer had already invested US$48 million to build the Esterley Tibbetts Highway extension from Governor’s Way to Yacht Drive; to demolish, then redesign, the old Marriott Courtyard hotel; and to create a series of parks, playgrounds and public recreation areas in the vicinity. 

In exchange for creating the infrastructure, he said, government would cede several parcels to Dart. “It’s all consistent with the road closure,” he said, referring to the December 2011 National Roads Authority “mini-agreement” to proceed with the West Bay Road projects ahead of the larger framework envisioned by the ForCayman Investment Alliance. The alliance is a $1.2 billion, 30-year government and Dart partnership for a series of construction and community projects across Grand Cayman. 

Mr. Imrie told the court that the petition named the company 46 times, yet did not include it among the defendants. 

“Any alteration [in the agreement] will affect DRCL’s rights,” he said, “and DRCL wants to oppose those arguments” regarding rights of way and beach access on at least two, and possibly five, parcels of land, and also claims that the “NRA agreement is flawed” and should be nullified. 

“This is the nuclear option,” Mr. Imrie said. “They want the contract declared void, that any disposition of crown lands to DRCL is void. We say it is obvious that any decision regarding the creation of access points will affect DRCL. We say DRCL should join [the defense] and the court should so order so DRCL can defend its rights.” 

He said Dart could not expect government to defend the developer’s rights, and that arguments by the named defendants were not necessarily the same as those DRCL might wish to advance. 

“Our presence is necessary to make sure all the questions are adjudicated,” he said. “DRCL can’t support [its case] from the witness box. It should be permitted to plead, to make submissions and to call witnesses.” 

Signaling caution, Justice Henderson said he was “not prepared to let the government drop out and have it become a fight between Dart and the plaintiff,” nor did he wish to allow DRCL to widen the action, introducing new issues. 

He worried whether Dart might “take third-party proceedings against government” at some point, should the company and administration disagree.  

Mr. Imrie said it was “not our intention” to turn on government, and that arbitration clauses in the NRA agreement addressed internal disputes. 

 

Plaintiffs’ case 

Speaking for the plaintiffs, attorney Irvin Banks said government had failed in its role to defend the people and cultural heritage of the Cayman Islands. 

“It wrongly denied them,” he said. “We have no interest in legal proceedings against DRCL because this action is squarely against the defendants. 

“There is no reason to believe that the attorney general will not fight this action vigorously. The implication here is that the attorney general is unable to defend this, and the core of the argument is that DRCL wants to join this months after” the filing. 

Were Dart to join the action, Mr. Banks feared delays in discovery and trial proceedings, document exchanges and escalating costs. 

“The applicant says joining the application is overwhelmingly in its favor, but this is not a case about that. It is time for the constitutional issues to be adjudicated by the court,” Mr. Banks said. 

In his conclusion, Justice Henderson said, “It is just and convenient to add the applicant to the action,” especially as “it seems to be beyond dispute when the plaintiffs seek to void the contract.” 

Speaking later, Mr. Banks said the decision “was inevitable.” 

“Case law favors the applicant, especially if he can show that his legal rights are affected,” he said. “Our only point was the huge delay and the enormity of this. It was only an interlocutory order,” an intermediate decision between the start and end of a court action. 

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