On Friday, the public was given the go-ahead to unprecedented access to sworn affirmations in the legal dispute between developer Michael MacLean and the Bermuda Government. As Simon Jones explains, lawyer Tim Marshall encountered a few hurdles along the way.

Tim Marshall, the lawyer for The Royal Gazette, overcame a string of challenges on his way to securing Friday’s Supreme Court judgment from Chief Justice Ian Kawaley.

Throughout last week, the media was restricted to reporting the limited references to affirmations during court proceedings over the controversial case between developer Michael MacLean and the Bermuda Government. One of those affidavits, by Mr MacLean, had suggested he was asked to pay money to Craig Cannonier, the former Premier, Michael Fahy, the Minister of Home Affairs, Mark Pettingill, the former Attorney-General, and Steven DeCosta, a businessman, in return for their support of his waterfront development plans.

Initially, Mr Marshall asked the parties involved in the case, as well as the Supreme Court Registrar, for copies of their affirmations.

However the request for the full documents that had been referred to in open court was denied by the parties involved in the case as well as the Supreme Court.

Mr Marshall therefore made a series of oral submissions to the court and furnished Mr Justice Kawaley with arguments and precedent cases to back up his submission that the documents should be made public.

He called on the Supreme Court to release all of the full affirmations relating to allegations of ministerial corruption levelled at Mr Cannonier, Mr Fahy and Mr Pettingill by waterfront developer Mr Mac- Lean.

Mr Marshall said that documents filed in connection with the civil case between Mr MacLean and the Government should be made available, partly because of intense public interest.

Speaking last Tuesday, he argued that in the spirit and intent of a constitutional order, the documents should be made available to the public through “a sensible interpretation of existing legislation”. He also cited the intense public interest surrounding the case. Mr Marshall’s justification for disclosure of the documents was made on the basis that a hearing had taken place in public and that they had already been put into the public domain.

His argument centred on the wording of the constitutional statute that such court documents should not be made public “pending” a court case; Mr Marshall argued that once a court case has begun in public court, it is no longer “pending” but rather “unfolding”.

He said: “While the orthodox view might be that ‘pending’ refers to waiting for the decision of the court — we take the view that is not what that word means and that particular meaning can’t stand in the face of the constitution. We say that ‘pending’ should mean that if it is not yet before the court in the form of a hearing, but once you are in the hearing realm, then this prohibition does not catch.

“That has got to be the right interpretation that gives true effect and respect to the overriding law of the constitution.

“The real benefit is completely defeated if you say you can attend proceedings but, sorry, you can’t see the documents that the court and parties have seen and digested but you can try to put together through the snippets that are being referred to … that is fundamentally wrong.”

Gregory Howard, on behalf of the Attorney-General’s office, suggested Mr Marshall’s stance paved the way for a “creative interpretation of the law”, arguing it would set a dangerous precedent. He also argued that law reform was the way forward.

Mr Howard said: “There is a law reform initiative related to public access to court documents and the Attorney-General supports that in principle. There are certain matters left to be determined before implementing that initiative.

“Our position is that the law reform initiative should be given the opportunity to reach its conclusion and the court shouldn’t have its hand forced in the middle of that proceeding to doing law reform on the fly. That is our position in a nutshell.”

On Friday afternoon, in a landmark decision, Mr Justice Kawaley announced he would allow access to redacted copies of the documents, quoting John Barritt, the good governance champion: “Cats are out of the bag and the public will want to know exactly what went down. This is their government that is being talked about and called into question.”

The Royal Gazette has not yet received the affirmations, due to continued legal wrangling, but they will be published in full when they arrive.