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.