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Lawyers Fight Over Documents Disclosure

By KHRISNA RUSSELL

Deputy Chief Reporter

krussell@tribunemedia.net

ATTORNEYS representing the government in a judicial review centred on shanty town demolition have insisted the state “has nothing to hide” while asking the court to deny a request for numerous documents to be submitted, including those that could expose sensitive Cabinet discussions.

Kayla Green Smith, on behalf of the crown, told the court this “global discovery” would amount to nothing more than a “fishing” expedition. It was also her position it could further prolong the matter, which has been ongoing since 2018.

Ms Green Smith made arguments yesterday before Supreme Court Justice Cheryl Grant-Thompson where lawyers representing Respect Our Homes Ltd, led by Martin Lundy, argued there should be full disclosure of notes memoranda, discussions papers, press releases, consultations and other documents that would form the basis of government’s apparent policy to eradicate shanty towns in the Bahamas.

ROHL insists this policy is “ultra vires” and is outside of the law.

The discovery would also include papers relating to the Shanty Town Action Task Force and those that give evidence relating to the government’s title or interest in the land where shanty towns have existed.

However, in submissions to the court, the government firstly maintained that in judicial review proceedings, a discovery is “very exceptional” and “limited”, stating outright that it was opposed to ROHL’s petition for such an exercise. ROHL represents 177 residents and/or occupants of shanty towns in the Bahamas.

The discovery issue was just one aspect of yesterday’s proceedings, which included a re-amendment application to amend the case after the government submitted a new affidavit.  

“We have nothing to hide,” Ms Green Smith said, adding that the necessary documents to determine the issues in these proceedings were put before the court.

“Discovery should not be used as a fishing exercise and we contend that this is exactly what the applicants are seeking to do, seeking to fish.”

It was her claim that ROHL needed this discovery to ground its case.

In addition, Ms Green Smith said ROHL was seeking to amend and shift as the matter went along, saying: “We don’t amend based on what the respondents submit to the court and then shift.

“…You either have a case or you don’t.”

In closing her arguments, Ms Green Smith said affidavits from Labour Minister Dion Foulkes, who heads the SATF, and another from a building inspector were comprehensive and provided all the details the court would need to resolve this issue.

In his reply, Mr Lundy said there had been no pre-action disclosure in this case and despite this, the crown was refusing ROHL’s application for full disclosure.

“In other words the respondents are refusing point blank to provide any disclosure except that which they have selectively exhibited to their evidence,” Mr Lundy said. “Again unusually for judicial review the respondents appear to dispute the fact that the policy exists or that the possession decision and the utilities decision have been taken.”

Mr Lundy said against that background, the court was invited to view with suspicion the respondents’ claims that the requests for disclosure are too widely framed or not relevant, which seem to be the two overriding themes of the respondents’ submissions.

On the crown’s point that ROHL was seeking to ground its case, Mr Lundy said his side was asking for disclosure so that the issues could be determined properly.

“In judicial review, discovery will be ordered where it is required in order that the justice of the case may be advanced. The applicants are not seeking disclosure to raise their case – they have already done that at permission stage and in any event the documents already relied upon by the applicants are sufficient for that purpose. The purpose of asking for disclosure is to enable the issues to be properly determined.

“It’s not that we need to ground or substantiate, we have already done that at this stage,” he continued.

The matter continues next month. 

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