A group of women contesting the closure of part of West Bay Road have urged the Court of Appeal to overturn a judge’s decision that their legal challenge was made too late to be considered on its merits.
At the opening of the appeal on Wednesday morning, Anthony Akiwumi, who represents the women, said Justice Alexander Henderson was wrong to rule that their initial court action had not been brought within the 12-month time frame allowed for constitutional challenges.
He asked the court to order a new hearing to adjudicate the women’s claims that the deal to close the road, easing the way for Dart Realty to build a new hotel on Seven Mile Beach, was a violation of their rights and freedoms, guaranteed under the constitution.
They argue that the people of the Cayman Islands have enjoyed a common law right of way over the coastal road, with views of Seven Mile Beach, for 50 years.
In February, Justice Alexander Henderson, ruled that their case could not be considered by the Grand Court because it had not been filed in time.
Much of Wednesday’s hearing focused on whether the judge had been correct to rule that the clock started ticking, in terms of the 12-month time limit, on Dec. 15, 2011, with the signing of the National Roads Authority agreement, the first official commitment between government and the developer to close the road.
The women’s case was not filed until March 2013 – some 14 months later and after Dart had already begun work on the hotel.
Mr. Akiwumi said it was inappropriate to use December 2011 as a start date because it was a private agreement and there was no public knowledge of the detail of what it contained.
He said the fact that there had been press releases and media briefs did not “in any way” satisfy the responsibility that lay with the government to communicate their decision and engage in public consultation with those affected.
He said it was difficult to pinpoint the precise date at which his clients had been fully and finally aware that the decision had been taken, arguing that they had tried on several occasions to get information from government and had been rebuffed.
“It is not so much that they were drip-fed information, they were brushed off, and that’s putting it mildly,” he said. “It is a little difficult in our submission for a conclusion to be reached, in the court below, that the requisite date of knowledge is the date of the signing of an agreement behind closed doors.”
He accepted that the women were aware shortly after the signing of the agreement in December 2011 that closing the road was part of the deal. But he said the agreement was contingent on an independent value-for-money review and the women were not aware of the details or the definitive nature of the decision until much later.
He said there was no objection to the simple signing of an agreement between government and a third party, but he insisted government was obligated to communicate the details of that decision, which it failed to do.
“It is a little unfair to say to these ladies that you knew of the agreement, you asked for the details over and over, you didn’t get the details and now you are time barred,” Mr. Akiwumi said.
He acknowledged that he could not technically rely on the date the road was gazetted in March 2013 as the date of the decision and therefore the date the time limit should have begun because the women’s court action was filed before that date. But he cited a press release of Feb. 14 the same year as the catalyst for the action, saying that was the point at which it became clear to the women that the gazetting was imminent and the road closure would go ahead, despite their protests and a change of government.