Security for Costs Orders in the Bahamas as a Barrier to Access to Justice in Public Interest Litigation

Requests for protective orders, such as security for costs, in very large amounts can and are routinely used in public interest cases with the goal to discourage litigation. These dissuade small organizations, communities, and other actors that do not have those funds available and are unable to fundraise them from continuing cases or even bringing them forward in the first place.

This briefing paper was conducted as part of research for an appeal before the Judicial Committee of the Privy Council in the case of Responsible Development for Abaco (RDA) Ltd. v. the Rt. Hon. Perry Christie et al. concerning security for costs orders against plaintiffs challenging permits for the development of a marina on a small island in the Bahamas. It aims to provide an overview of the ways in which security for costs prevents plaintiffs with limited financial resources, particularly public interest litigants, from accessing the courts, infringing on their right to access justice. It argues that courts must remove security for costs as a financial barrier that prevents such cases from being heard, especially given regional and international standards toward waiving these financial burdens in public interest litigation cases.