The (late) 
West Bay Road challenge

In regard to the closure of West Bay Road, we may finally have some closure.

The Cayman Islands Court of Appeal dismissed the latest legal challenge from the group of residents protesting the land-swap deal between the government and the Dart Group, which took control of a portion of the road corridor in exchange for completing the extension of the Esterley Tibbetts Highway into West Bay and in order to facilitate the construction of its new Kimpton Hotel project.

While we agree fully with the Court of Appeal’s decision to uphold a judge’s earlier determination that the four West Bay women waited far too long before filing their challenge to the road closure, we do not agree with the Court of Appeal’s issuing of a “protective costs order” in August that shields the women from paying for the costs of their opponents’ successful defense.

Let us qualify what we mean. In a strictly legal sense, we have no doubt that the Court of Appeal acted correctly, according to law, when it ruled that co-defendant Dart Realty could not make a claim for costs, following the announcement from Cayman’s attorney general (the other co-defendant) that the government did not intend to seek reimbursement from the women if their appeal was dismissed.

However, we believe that our government, including the judicial system, should, generally, serve to encourage behavior that is desirable, and discourage behavior that is undesirable — such as frivolous lawsuits that have been faultily filed.

While we take no issue with the court’s judgment, we do find fault with the government’s cavalier attitude toward recouping legal fees drawn from the public treasury, especially considering that the earlier stages of the women’s court challenge had been funded through legal aid, i.e., the taxpayers’ money. In other words, government was partially funding a lawsuit against itself.

Even when it’s a case of David vs. Goliath, that doesn’t mean David — if he’s found to be in the wrong — shouldn’t be held responsible for damage caused by indiscriminately flinging stones.

Now that court proceedings are concluded (barring, we dread, the women taking their quixotic challenge to the U.K. Privy Council), we must ask, what goal exactly were these ladies hoping to accomplish? Repave and reopen the old road so they can continue to view the sea without the inconvenience of parking their cars? Roll back Dart’s renovation and reinvigoration of Public Beach? Return ownership of the new Esterley Tibbetts Highway from government to Dart? Shut down the Kimpton construction site?

Fortunately, as has been demonstrated time and time again over the years, Cayman has in Dart not only a world-class developer, but also a conscientious business entity and committed partner with the community.

Notwithstanding the opinions of the four West Bay women, we believe the thousands of residents who daily drive up and down the new highway are appreciative — and, yes, thankful — for the generosity of the Dart organization.

There is not a country in the Caribbean — or perhaps anywhere — that would not welcome such benefactors to their shores.

As far as we’re concerned, the government is free to close as many roads as it likes, as long as Dart keeps opening windows of economic opportunity in these islands. 

1 COMMENT

  1. This is something I completely agree with the editorial board on. While I’m sure a lot of people may support the courts action in ruling the the defendants could not seek damages for the cost of defending themselves they need to look at the bigger picture and they would feel differently if it was them that had to bankrupt themselves to defend against a frivolous lawsuit, there are plenty of people who lost everything just because someone was trying to sue them, imagine is someone walking down your sidewalk and trips on the curb, they file a lawsuit against you that takes up all of your savings to defend yourself against, don’t you think that you should have the right to recoup your loses. In addition these lawsuit are one of the reasons why insurance is so expensive these days. The possibility of having to pay for the cost of lawsuits yourself would minimize frivolous lawsuits.

    In this case I doubt very seriously that Dart or the CIG would have went after the ladies for damages, and even if they did what could they have possibly recovered, it would probably cost them more then they could recover anyway. But I do still think it should be their right.

    People are suing for everything and anything these days and for the most part they have nothing to lost because they don’t have to pay anything whether they win or lose, while the defendants can lose the shirt on their back. Maybe I’ll take a walk through some Maiden Plum bushes and sue the land owners for not removing them or preventing me from walking on their land, what would I have to lose it won’t cost me anything, attorneys only collect if you win.

    Here’s a few examples for you, imagine if it were you getting sued in these cases.

    http://www.cracked.com/article_20605_5-victims-horrible-crimes-who-got-sued-by-criminal.html

    http://forums.anandtech.com/archive/index.php/t-72049.html

    http://www.businessinsurance.org/10-ridiculously-frivolous-lawsuits-against-big-businesses/

  2. Let me play devils advocate here.

    For the layman with little experience of legal matters (and costs) to even contemplate such action would be incredibly daunting, and kudos to those Ladies for even trying. I am sure there were likely other legal challenges that were stifled by the sheer magnitude of the challenge and as a result their validity was never scrutinized.

    I don’t remember the exact time-line but I do recall that the original plan was not to level the hotel and build a new one from scratch, but to renovate the existing one on the same footprint. In that light the road would have remained to be the access both to the Hotel, and also the Public Beach, presumably closed to through traffic by blocking off one end or the other. Even the beach bars down there needed access and it was understood that Dart Group had a financial interest in those businesses so would surely not restrict the access for patrons of those establishments?

    The public perception back when the agreement was originally signed, was just that the road was to be closed as a thoroughfare rather than being erased completely. There was certainly a great deal of public surprise when the road was seen to be torn up and the compass ran that as front page news!

    There was never any question that this was some frivolous suit or ‘get rich quick scheme’ but was more in the public interest, and in that context I would have liked to have seen the points discussed on merit rather than dismissed due to chronology.

  3. It does seem to me that too many people are bewitched by the notion that the Island got a fine road for free.
    They didnt, they gave away a lot for this, I believe they gave too much, so as usual, my question is why?
    Why did the politician concerned give so much, and why behind doors.
    Call me suspicious if you will, but there have been so many incidents that I have had to ask why, that I AM suspicious!

  4. It seems that a lot of people have forgotten or do not know the details of the West Bay Road land swap deal when it comes to what Cayman got in return as well as what benefits Cayman would have received if the For Cayman Investment Alliance was not quashed. Maybe the Compass staff can clarify this for everyone and put all the assumptions and Campaign misinformation to rest.

    I would suggest reading the articles below for detailed information instead of listening to the rumor mill and the ramblings of people that have been misled by politicians that will do and say anything to get into office even if it means making promises that know they can’t keep of bold face lying.

    Here’s a link to the PWC Review.

    http://www.gov.ky/pls/portal/docs/PAGE/MPCHOME/PUBLICATIONS/NRA-AGREEMENT-REVIEW/13-05-10%20NRA%20AGREEMENT%20-%20DRAFT%20VFM%20REPORT%20MAY%202013.PDF

    Details on the Offer from Dart regarding the Dump.

    http://www.compasscayman.com/caycompass/2011/06/16/Dart,-government-sign-mega-deal/

    Read here for details on what the whole For Cayman Investment Alliance was offering.

    http://www.compasscayman.com/chamber/2012/01/23/ForCayman-Investment-Alliance–A-true-partnership/

    http://archive.cnsbusiness.com/sites/default/files/Dart%20Realty%20%28Cayman%29%20Ltd%20FORCayman%20Report%20-%20Executive%20Summary.pdf