Bimini Blue Coalition Limited v The Prime Minister of The Bahamas and others

On an application to discharge an interim injunction granted to preserve a court undertaking, the question is whether the respondent can presently rely on a permit which is regular on its face and issued by the proper authority. The court need not finally determine the permit’s public-law validity or require proof on the balance of probabilities at the interlocutory stage. A permit that is prima facie valid may support reliance by its holder unless and until it is set aside or revoked. The court must keep that issue distinct from any wider application for interim relief pending judicial review. It must also assess possible irremediable harm, financial prejudice, compliance with permit conditions and any cross-undertaking in damages. Appellate intervention in an interlocutory injunction decision requires a clear error of law or perversity, especially where two lower courts have made concurrent findings.

The appellant, a company formed mainly by residents of North Bimini, brought judicial review proceedings concerning the construction of a cruise ship terminal, dock and man-made island. The development involved dredging and was opposed on environmental grounds. The proceedings were stayed after an order for security for costs.

The developers later undertook to notify the appellant and provide approvals before commencing dredging. After the appellant challenged the approvals, the Privy Council granted a short interim injunction. The developers obtained a permit under the Conservation and Protection of the Physical Landscape of The Bahamas Act and applied to discharge the injunction. Longley SJ discharged it. The Court of Appeal, by a majority, upheld that decision. The central issues were the standard applicable to the discharge application, whether the developers could rely on the permit, and whether the judge’s assessment of compliance and the balance of convenience was legally erroneous or perverse.

1. Appeal dismissed. The Board held that the application to discharge the injunction was to be approached as an ordinary interlocutory injunction application. Its earlier oral judgment did not impose a legal burden on the developers to prove, on the balance of probabilities, that the permit was valid. The short injunction had preserved the position until evidence could be considered by the Supreme Court, which had primary responsibility for interim injunctions.
2. The injunction rested on enforcement of the developers’ undertaking to the Court of Appeal. That issue had to be kept distinct from any wider application for interim relief pending judicial review, which had previously been refused and was not under appeal.
3. The judge was entitled to distinguish between reliance on a permit that was prima facie valid and the separate question whether public-law illegality might later lead a court to invalidate it. Conduct undertaken under a permit which was prima facie valid would not thereby become retrospectively unlawful. The developers were therefore entitled, on the evidence, to rely on the permit without breaching their undertaking.
4. The judge was also entitled to conclude that the developers were at least arguably complying with the permit conditions. He could take account of evidence from the environmental agency BEST, the continuing regulatory role of the Director of Physical Planning, the developers’ daily losses and the absence of a cross-undertaking in damages. His decision was neither legally erroneous nor perverse. The Court of Appeal was right to uphold it.

• Privy Council: appeal dismissed; the Board advised that the decision under appeal be upheld.
• Court of Appeal of the Commonwealth of The Bahamas: by a majority, upheld Longley SJ’s decision to discharge the interim injunction.
• Longley SJ: on 30 May 2014, discharged the interim injunction after finding that the developers could rely on the permit on a prima facie basis and that the balance of convenience favoured discharge.