Responsible Development for Abaco (RDA) Ltd. v. the Rt. Hon. Perry Christie et al.

This case addresses the issue of high security for costs orders—financial backing to sums that the losing party in a case must pay to cover the legal costs of the successful party—in a legal challenge to a development project in The Bahamas that plaintiffs argue would harm the environment and the public interest. Because plaintiffs that represent impacted communities often don’t have the resources of large developers or corporations, costs orders alongside other financial burdens placed on them, including bonds for injunctions, precautionary measures, and other procedural costs, serve as barriers to pursuing public interest litigation. These financial barriers run contrary to norms surrounding access to justice within human rights law. 

Economic and commercial pressure from development companies, tourism revenue, and residential and commercial property demands are just some factors placing significant pressure on open space and areas of natural beauty in the Caribbean. Climate change, increased hurricane activity, and rising sea levels further threaten natural areas and make it critical that local communities in the Caribbean have access to the courts to enforce rights of consultation, public information, and other substantive interests to be able to protect such areas.

Facts

Responsible Development for Abaco (RDA) Ltd. is a public interest environmental organization incorporated in 2009, established to ensure that developments in Abaco, in the northern Bahamas, are sustainable, environmentally sound, ecologically responsible, and take into account the legitimate interests of Abaco’s residents, homeowners, and visitors.  

In 2016, it brought forward a legal challenge against the government for granting permits for a proposed development of marina facilities for the Abaco Club resort at Winding Bay on the Bahamian Island of Abaco. The project would have severe impacts on a coastal ecosystem that plays a critical role in protecting and sustaining Bahamian communities. Coastal developments almost always necessitate the permanent destruction of these key coastal habitats, and irreversibly decrease their resilience to withstand and recover from harm. 

The developer later applied to join the case as a respondent alongside the government and requested a separate order for an additional security for costs, raising the financial barrier for plaintiffs to litigate the case. During proceedings, the government and developers succeeded in having the Bahamian court of appeal grant an order of security in favor of both in the sum of $250,000.

This appeal before the Privy Council challenges the court of appeal’s approach to security for costs, an order it routinely makes in public interest environmental cases such as Abaco.

Legal Background

As a member state of the United Nations and the Organization of American States, and a signatory to multiple international human rights treaties, The Bahamas is bound to uphold the right to access justice, and its practices and policies are subject to the oversight of various human rights bodies.

However, the existing case law in The Bahamas still provides little to no room for proper exceptions to security for cost orders in public interest cases, going against growing global trends towards reducing financial barriers for public interest litigants. In the absence of a principle that bars security cost orders in public law cases, particularly those involving environmental or planning permission issues, the judiciary in The Bahamas has taken too narrow of an approach when characterizing cases as “public interest” litigation when such cases are of general public importance and the public interest requires that those issues be resolved.

Proceedings

The substantive proceedings concern a judicial review filed in 2016 to challenge the Bahamian government’s lack of public information about the licensing process; failure to carry out proper consultations before granting development permits, effectively depriving local communities of their rights and legitimate expectation to contribute to the lawfully required consultation processes; and lack of an up-to-date environmental impact assessment.

Open Society Justice Initiative Involvement

The Justice Initiative and Environmental Law Alliance Worldwide (ELAW) submitted an amicus brief providing the court with legal analysis, bringing a broader insight into the right to access justice and the need to remove financial barriers. The brief is informed by comparative domestic law in the Caribbean and other Commonwealth countries. 

Arguments

Most Caribbean countries apply the “loser pays” principle. Yet decisions by courts in the Caribbean and Commonwealth jurisdictions, including Kenya, Canada, South Africa, Australia, and the United Kingdom, have acknowledged that requiring security for costs or requiring bonds for preliminary injunctions impose significant obstacles to judicial access, and offer some cost order protection in matters of public interest.  

In some jurisdictions, cost orders may only be applied on constitutional or judicial review applications if the applicant has acted unreasonably. Courts have offered costs exceptions for policy reasons to enforce constitutional rights, to avoid these becoming a deterrent of binging legal action chilling the enforcement of rights, to allow courts to resolve matters of consequence to the community, and to contribute to a proper understanding of the law. 

In deciding about security for costs, courts have weighed the interests at stake, as well as whether the plaintiffs are public interest litigants, considering the justness of an order around the surrounding circumstances of the case, putting the interest of justice at the forefront.

Courts in the Commonwealth have stated that applicants of limited means should not be denied a remedy and there should be free access to the courts when genuine questions arise as to the lawfulness of government actions.  

In cases brought in good faith to protect matters of the environment, courts have considered these actions to fall under the umbrella of public interest. And in cases related to the enforcement of fundamental rights and freedoms, that includes those of the collective, free and unfettered access to the courts must be guaranteed.

Refusals to award costs against public interest litigants who have lost, even in jurisdictions in which the loser traditionally pays, further signal an effort to reduce economic burdens for these litigants. In doing so, courts have noted the importance of avoiding chilling effects on public interest litigation and preserving access to justice and to the courts.  

Policy reasons underpinning the refusal of the courts to make an order for the payment of costs against a litigant in public interest litigation should also underpin, or at least be relevant, to the decision of the courts when considering whether to make an order for security for costs.