The way is now clear for attorney-at-law David Comissiong to try to convince the High Court that developer Mark Maloney should not be permitted to start building the planned Hyatt Centric Resort Hotel on Bay Street, The City at this stage.
Counsel for the Government of Barbados Donna Brathwaite, Q.C. and Barry Gale, Q.C. representing Maloney’s company, Visions Development Inc, told the Court of Appeal this morning that their clients were no longer interested in appealing against Comissiong’s March 2017 application to have the February 2017 permission quashed.
Permission to build the US$100 million five-storey hotel had been granted by former Prime Minister and Minister for Town and Country Planning Freundel Stuart.
Now that the appeals have been discontinued, Comissiong can now return to the High Court, as he later told reporters, and argue his substantive case that Maloney’s company should not be granted permission to build the Hyatt until and unless the legal procedural requirement to conduct an Environmental Impact Assessment (EIA) is completed.
Before the three-member appellate judges led by Chief Justice Sir Marston Gibson could entertain Comissiong’s appeal, Brathwaite, Gale; Comissiong’s attorney Robert Bobby Clarke and the former Prime Minister’s lawyer, Hal Gollop, Q.C., were called upon to address the court.
Brathwaite said she had been instructed to inform the court that the Government was no longer interested in pursuing the appeal. However, she gave no other reason for the decision.
Brathwaite, the Deputy Solicitor General, assured the judges that she would be formally filing a notice of discontinuance with the court in due course and also would serve papers on the parties involved in the case.
Stating that his client was also withdrawing its appeal, Gale revealed that Visions Development Inc. had already filed its notice of discontinuance on June 13, this year.
In offering the reasons, all the senior counsel would tell the Justices was that because of “developments which had taken place and publicly reported,” his client’s appeal had now become moot or academic.
“It is not to be interpreted that there was no merit in the appeal,” he added.
He said he had already served the relevant papers on the parties concerned.
Acknowledging that the appeal case had therefore come to an end, Comissiong’s attorney said the only issue of note for his client was the awarding of costs for two counsel.
However, after some discussion between the judges and the various lawyers in the case, the court denied Clarke’s request for costs, explaining that there was no event to which costs could be attached noting that his case was not heard.
The court also heard that Gollop had been removed as the attorney for the Government and replaced by Brathwaite.
But while the court said it was not getting involved in the circumstances surrounding the decision, in that it was a matter between attorney and client, there was some debate over the fact that notice was only received yesterday informing of the change in lawyer for the Government.
The court also acknowledged the new counsel for the Government and the discontinuation of the appeal by Maloney and the State.
At the start of the proceedings though, Queen’s Counsel Gollop, in an emotional submission, expressed disappointment at the manner in which he was treated by the authorities as the person who had originally filed the application for appeal on behalf of former Prime Minister Stuart.
In fact, Gollop wanted Stuart to continue to be party to the case and not in his personal capacity.
The idea was however shot down by the judges who insisted that there was a new Prime Minister and Minister of Town and Country Planning and therefore Stuart no longer had any standing in this matter.
Gollop therefore asked that he appear amicus curiae: a friend of the court. He was allowed to be heard.
He was upset at receiving a copy of an email only yesterday, which was sent to the Registrar of the Supreme Court informing him he was no longer representing the Government. He argued that as an officer of the court and a senior counsel a level of decorum ought to be shown in matters of this kind.
It was at that stage Gollop told the court he would enter an appearance as the lawyer on record who was representing the former Prime Minister.
Later the court also expressed concern about how such issues would impact the good name of the legal profession.
The Chief Justice said he looked forward to the day when the Government was sued, only the Attorney General would be named as the defendant and not any other public functionaries such as the Prime Minister.
He said that by doing this, it would avoid confusion.
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