Decision on West Bay Road appeal due Nov. 21
The Cayman Islands government would have owed millions of dollars in compensation if it had broken an agreement to close part of West Bay Road any time after it was signed in December 2011, a court heard Wednesday.
Lawyers for the government said the National Roads Authority agreement signed in 2011 was binding and every action taken since then – including the gazetting of the road closure in 2013 – stemmed from that agreement.
Failure to follow through could have led to the government having to pay an indemnity fee or facing a breach of contract action from Dart Realty, according to submissions from the government’s lawyer, Richard Keen QC, in the Court of Appeal.
He said any legal protest, under the Constitution, to the decision to trade part of West Bay Road with the developer would have had to have been filed within a year of the signing of that agreement.
Mr. Keen asked the panel of judges to uphold an earlier decision in the Grand Court that four West Bay women, contesting the road closure, had filed their writ of summons too late for it to be considered on its merits.
Dart’s lawyers added that the company had spent some $88 million, as of the date of an affidavit from Chief Operating Officer Jackie Doak in July this year, based on the contract with government, including building a new public highway. Mac Imrie, for Dart, said the details of the agreement, including the plan to close part of West Bay Road, had been broadly known even before it was signed.
The four women argue that Caymanians have enjoyed a public right of way over the coastal road, with views of Seven Mile Beach, for two generations. They say government violated their constitutional rights by trading the road with a developer without engaging in public consultation.
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. Lawyers for the women have appealed that decision, contesting the judge’s view that the signing of the agreement in December 2011 should be considered the point at which the clock started ticking on the one-year time limit for legal challenges under the constitution.
During the hearing on Wednesday, Sir John Chadwick, president of the Court of Appeal, questioned what the lawsuit would achieve – even if it were successful. “A lot of effort is going into prosecuting these claims, presumably because the claimants want the road reopened. I haven’t quite understood how that would be achieved even if they are successful in everything they claim,” he said.
Lawyers for Dart and the government argue that it would be unfair to even consider the legal challenge to the road closure more than a year after the agreement was signed because the developer had spent vast sums of money and built a new public road on the basis that there was a signed contract.
Mr. Keen said, “There is nothing provisional about the NRA agreement. Government entered into a binding contract that carried with it legal obligations that they were bound to implement.”
He acknowledged there was an option to terminate the contract based on the findings of an independent value-for-money review, but he said this clause had expired with the completion of that review in May, 2012, and didn’t, in any case, detract from the binding nature of the December agreement.
“Up until May, 2012, any expenditure incurred by Dart was going to be the responsibility of government in the event that the agreement was terminated. After May, 2012, the government would have been in breach of its binding legal obligations (if it hadn’t closed the road).”
Lawyers for the protesters argue that the women could not have been expected to know a definitive decision had been taken to close the road until long after the agreement was signed “behind closed doors” in December 2011.
They argue the gazetting of the road closure in March 2013 should be seen as the date at which the decision was taken – meaning their case would have to be heard.
Mr. Keen said that date was simply a matter of timing – the road could not be closed until the new highway had been built. He said the decision was officially taken with the signing of the agreement and every other action stemmed from that.
Additionally, he said, a constitutional challenge was the wrong vehicle for the women’s legal argument, which he said should have been brought under judicial review, which has a three-month time limit. The appeals panel adjourned the case Wednesday evening and will give their decision on Nov. 21.