Remember when we said that the likely outcomes of the Barbuda airport squabble were good paydays for the lawyers and the contractor and a waste of a whole lot of time? Well, guess what? Those predictions are coming through in more accurate ways than we originally thought.
In case you are not keeping up, on September 11, the Eastern Caribbean Supreme Court handed down its decision regarding the injunction previously granted to John Mussington and Jacklyn Frank that called for the stoppage of all work on the Barbuda airport. (Hmmm … There seems to be something about the date September 11 and aviation.) In any case, the appeal made by the Development Control Authority (DCA), the Antigua and Barbuda Airport Authority and the Attorney General was successful against the previously victorious Mussington and Frank.
The Justices of the Appeal Court, Davidson Kelvin Baptiste, Mario Michel, and Paul Webster, ruled that “Paragraph 3 of the order of the learned judge dated 2nd August, 2018 granting the interim injunction is set aside.” They also made no order regarding costs but we know that they will be significant because the appellants were represented by a whopping 5 lawyers: Anthony Astaphan, SC, Dr. David Dorsett, Carla Brooks-Harris, Luann Decosta and Hugh Marshall, Jr. Dig deep taxpayers because if you think one lawyer is expensive, try five!
On the other side, representing the respondents, were Leslie Thomas, QC and Michelle Sterling. It was a 5-on-2 affair and it went the way most 5-on-2 games go. Not that the underdog, smaller side could not have prevailed but we would venture to say that most people saw this battle as a loss from the get go.
While you are adding up the costs, don’t forget the contractor, Bahamas Hot Mix, that has been sitting on its hands waiting to continue. Even though they likely shifted their resources to their other lucrative contract in Antigua (the road rehabilitation programme), they will likely enforce whatever penalty clauses their contract allows for the delay. A delay which could continue if, when the matter is heard again in the high court, Mussington and Frank are once again victorious.
In response to the ruling lifting the injunction, the group has indicated that it was mulling a further appeal, however, since the High Court of Antigua has already granted them permission to consider the case at a judicial review hearing on September 26, we are not sure that will happen (just our opinion). In response, Prime Minister Gaston Browne has made it clear that the current legal battle is nothing more than political mischief stating, “This is just the usual obstructionists who are hellbent on stymieing progress.”. He laid the blame on operatives of the Barbuda Peoples Movement whom he said were seeking to become, “king of the ashes” describing them with his favourite go-to put-down as “A bunch of selfish deracinates who have no sense of loyalty to the state.” The PM may want to check the existence and use of that word before he continues using it.
With all this stop and go, we are right back where we started. We have an airport under construction in Barbuda that was admittedly started without all proper procedures being followed and no clear road ahead. It is claimed that environmental and other damage has been done and some type of relief is being sought, we just are not quite sure of the end game. We say that because it seems to be a situation of making lemonade rather than complaining about the sour lemons. If the damage is done and cannot be rehabilitated then isn’t it better to make the best of a bad situation? This is not meant to condone any breach of laws or regulations but what is done is done. At this point, it would appear that the Barbudans best interests would be served by tying to get the best outcome from what they consider to be a bad situation, rather than simply stopping the airport, living with the damage, and likely making a bad situation worse.
Maybe if, as we have said before, both sides could see past today and look towards the future, they could come to some type of win-win resolution that would be cheaper and deliver the mutual goal of economic sustainability for Barbuda. It is maddening for us to sit on the sideline and watch lawyers’ pockets being filled, contractors’ pockets being filled and Barbudans’ pockets empty. Especially when both sides claim to want the same thing! But we are talking about Barbuda and often, things are not always what they seem.
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