Cruise Port Referendum Cayman member Shirley Roulstone has been shielded from paying legal costs should her action against the government over the vote on the port project fail in the court.

Chief Justice Anthony Smellie, on Monday, granted Roulstone’s application for a protective costs order, according to her attorney Kate McClymont.

The attorney said she believes this is the first time such an order has been made in the Cayman Islands. These orders are usually reserved for cases in the public interest.

The decision, she said, was communicated via a court administration email.

The email stated, “The Honourable Chief Justice has advised that he is granting the protective cost order. The reasons that will explain the terms of the order will be released shortly.”

McClymont, in a statement to the Cayman Compass on Monday, said, “Ms. Roulstone has brought this case, which involves a number of important constitutional issues, in the hope that it will facilitate a fair and effective referendum on an issue that will have a significant long-term environmental and economic impact on the Cayman Islands. She has taken that step because she believes it is in the best interests of the people of the Cayman Islands to have these issues considered by the Court. The protective costs order will allow her to continue to pursue that goal, without undue personal risk.”

Last November, Roulstone filed for judicial review of government’s actions in relation to the holding of the referendum on the $200 million cruise berthing and cargo project on 19 Dec, 2019.

Roulstone’s concerns mirror those raised by CPR – that the question is not neutral and that the cargo aspect of the project should not have been included, the timing of the referendum excludes 220 newly registered voters, no campaign finance rules or restrictions were set and allowances were made for the sale of alcohol on Referendum Day.

Embarking on such legal action can carry a hefty cost and as a means to offset that burden, Roulstone applied for the protective costs order to shield her from the potentially massive legal costs if her judicial review is unsuccessful.

The order is made by a court at the beginning of a proceeding, capping the parties’ potential liability to pay their opponent’s costs in the event they are unsuccessful. This means Roulstone would not be held personally responsible for those costs.
The chief justice did not release the reasons for his decision or the terms under which the application has been granted.

Roulstone’s application for leave for judicial review was successful, resulting in a delay for the port referendum. The National Trust had also filed similar action on the port vote.
The CPR member, through her legal action, wants the poll delayed until all relevant information, including an update to the environmental impact assessment, is available. She is also challenging the legality of the way government has set up the vote.

CPR has claimed that government is manipulating the referendum in favour of a ‘yes’ vote for the port.

The trial has been scheduled for 22-24 Jan.

The judge in that case, Justice Tim Owen QC, summarised the argument being presented by Roulstone’s lawyers, stating, “What is being said is that faced with a spanner in the works, government is rigging the referendum process and stacking the odds against those opposing the development.”

The Cayman Compass reached out to government for comment on Smellie’s ruling, an official said it is unlikely there will be an appeal of the decision.

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