Responsible Development for Abaco (RDA) Ltd v The Right Honourable Perry Christie and others (Bahamas)

Security for costs in public interest judicial review claims is permissible if it is just, proportionate and does not unfairly stifle a properly arguable claim. An impecunious corporate claimant must show, on the balance of probabilities and with full candour, that it cannot raise security from its supporters or other closely associated persons. Public interest does not automatically exempt a claimant from security or ordinary costs consequences. A claimant may seek a protective costs order under the court’s general costs jurisdiction. A developer joined to a judicial review claim is not ordinarily entitled to a second set of costs. Security for a developer’s costs should be ordered only where a costs award in its favour is sufficiently likely because it has a separate issue or an interest requiring separate representation.

Responsible Development for Abaco (RDA) Ltd brought judicial review proceedings in The Bahamas challenging alleged failures by government respondents to disclose information and conduct proper consultation before decisions concerning permits for a proposed marina development. The developers were joined as respondents.

The first-instance judge ordered security for costs totalling $250,000: $100,000 for the government respondents and $150,000 for the developers. The Court of Appeal dismissed RDA’s appeal, exercising the discretion afresh as to entitlement to security but reviewing the quantum order for error. The Privy Council considered whether the orders stifled RDA’s arguable claim, whether the public interest nature of the proceedings altered the result, and whether the developers were entitled to security under the Bolton principles.

The Privy Council advised that the appeal should be dismissed in relation to the security ordered for the government respondents and allowed in relation to the developers. The order for $150,000 security for the developers’ costs was set aside, and there should be no order for security in their favour.

1. Access to justice and stifling. An order for security for costs is lawful only where it is just and compatible with the constitutional right of access to the courts. It may be made where the claimant would probably be liable for costs if unsuccessful and the order does not unfairly stifle a properly arguable claim. The burden rests on an impecunious corporate claimant to show, on the balance of probabilities and with full candour, that it cannot raise the necessary funds from its own resources, directors, shareholders, supporters or other closely associated persons. RDA failed to discharge that burden.
2. Public interest. Public interest is relevant to the exercise of the costs discretion, but it does not immunise a claimant from security or costs. The general public interest in lawful public administration must be balanced against the public interest in preserving public resources and any private interest of the claimant. The courts in The Bahamas have jurisdiction under their general costs powers to make a protective costs order. The Corner House guidelines are relevant, but RDA had not sought such an order and could not satisfy the requirements on its evidence.
3. Developers’ costs. Under the Bolton principles, a developer will not normally obtain a second set of costs unless it shows a separate issue not covered by the public authority or an interest requiring separate representation. At the interlocutory stage, the court must be confident that a costs order in the developer’s favour is likely if the claim fails. The developers identified no relevant separate interest. Their possible adverse impact, reputational complaints and possible differences in approach were insufficient.
4. Quantum and reasons. Although quantum was not separately challenged before the Board, the Board observed that the judge’s reasoning on the government respondents’ draft bill of costs was inadequate because she did not address the principal criticisms or explain why one side prevailed.

1. Privy Council: The appeal was partly allowed. Security for the Government respondents was upheld; security for the Developers was set aside.
2. Court of Appeal of the Commonwealth of The Bahamas: On 14 August 2019 the court dismissed RDA’s appeal. It reconsidered entitlement to security afresh but reviewed the quantum decision for error.
3. Supreme Court of The Bahamas: On 22 November 2017 the judge ordered security for costs of $250,000, comprising $100,000 for the Government respondents and $150,000 for the Developers.