The Judicial Committee of the Privy Council has today delivered its reasons in Bimini Blue Coalition Limited v The Prime Minister of the Bahamas and others  UKPC 23. At the conclusion of an urgent hearing on 16 June, the Judicial Committee had dismissed the Appellant’s appeal from the decision of the Court of Appeal of the Bahamas upholding a decision to set aside an urgent injunction previously issued by the Privy Council. The unanimous judgment of the Board (Lords Neuberger, Mance, Clarke, Toulson and Hodge) was delivered by Lord Toulson, who emphasised that a party seeking a second appeal against a decision to grant, refuse or discharge an interlocutory injunction faces a high hurdle and that leave to appeal would only be granted in exceptional circumstances.
The appeal concerned the discharge of an injunction enjoining works in support of the construction of a cruise ship terminal and 1,000 ft dock extending off the island of North Bimini in the Bahamas and the creation of a 4.5 acre man-made island offshore, using material dredged from the sea.
During the course of a procedural hearing before the Court of Appeal of the Bahamas in relation to stayed judicial review proceedings, the developers of the project had undertaken not to commence this work until they had obtained any permits required under Bahaman law. The developers and the Appellant disagreed as to whether a permit obtained by the developers for this purpose was granted by the appropriate body or was otherwise valid. Following an urgent hearing before the Judicial Committee in late May, a temporary injunction was granted, with permission to apply to the Supreme Court of the Bahamas to set it aside, for the purpose of preserving the position until the matter could be considered by the domestic courts of the Bahamas with the benefit of evidence from the parties.
The injunction was subsequently discharged by the Supreme Court of the Bahamas following a four day hearing in a decision upheld by the Court of Appeal of the Bahamas on 11 June 2014. The matter then came before the Privy Council for a second time on 16 June.
Agreeing that the injunction had been properly discharged, the Privy Council accepted the developers’ arguments that the only jurisdictional foundation for the grant of the interim injunction was by way of enforcement of the undertaking which the developers had given to the Court of Appeal. The developers were entitled to rely on a permit which had been issued by the proper statutory officer in order to carry on with their operation without breaching the undertaking which they had given to the Court of Appeal. This did not require consideration of whether a permit, lawful on its face, might be invalidated by the court by reason of some public law illegality affecting its issue. If that were to happen, it would not make conduct by the developers under the authority of a permit, which was prima facie valid, become retrospectively unlawful.
The judgment is here.
Richard Gordon QC and Malcolm Birdling acted for the Developers (the Fourth to Seventh Respondents) instructed by Cleary Gottlieb Steen & Hamilton LLP.