Preserve Marriage backers could pay costs
The anonymous financial backers of Preserve Marriage could have to stump up for some of the legal costs of the case which led to the legalisation of same-sex marriage.
At a June 1 hearing in the Supreme Court, lawyer Grant Spurling, for successful plaintiffs Winston Godwin and Greg DeRoche, told Puisne Judge Charles-Etta Simmons that his clients would pursue costs from the Government, Preserve Marriage and Preserve Marriage’s donors.
Delroy Duncan, for Preserve Marriage, said the issue of those third-party funders was critical and more time was needed to enable them to gain legal representation, as was their right.
“The third-party funders are separate and apart from the limited liability company, Preserve Marriage,” the lawyer said.
He said Mr Spurling was seeking names, addresses and other contact details for Preserve Marriage’s donors but he did not represent those people and could not provide them.
“This is, in Bermuda terms, a very serious development,” added Mr Duncan. “You have a limited liability company which was a charity that people gave to, some under a cloak of confidentiality, some expressly saying ‘we do not want our names exposed’.
“Some of those funders include churches and members of the community. Those people are entitled to be told before a hearing ‘this is what you potentially face’ and get legal representation.”
He described the funders as “a lot of people throughout this community” and who would need to be marshalled and made aware of their liability.
Mr Spurling responded: “The third-party funders can’t be taken to be unaware of costs.”
He said if money from the donors was used to fund the litigation, they had to realise they could be liable for costs. Preserve Marriage’s intervention in the matter extended the proceedings greatly, he argued, when the plaintiffs’ aim was for the issue to be dealt with as swiftly as possible.
Mr Spurling said Preserve Marriage should not be allowed to “effectively, conduct litigation behind a thin corporate veil”.
“We are not talking about piercing the veil of a limited liability company,” he said. “We are talking about very specific cost orders against third-party donors.”
The lawyer noted that his clients had their human rights breached when the Registrar-General refused to post their marriage banns and could not now be left with the “very heavy burden of legal costs”.
Mrs Justice Simmons said there could be “great difficulty” in ensuring the third-party donors were heard in court and asked Mr Spurling if he’d be willing, for practical reasons, not to pursue those donors. He said a final determination on that could be made later, since the hearing was to be adjourned anyway.
Shakira Dill-Francois, representing the Government, said Mr Spurling would need to spell out whether any of the legal work done on behalf of the plaintiffs was provided free of charge.
“Our position is, we are not liable to pay for that,” she said.
Mr Spurling said: “The pro bono elements are not included on the applicants’ bill.”
Ms Dill-Francois also suggested it made no sense for the Human Rights Commission, another intervener in the case, to seek costs from the Government, since it was funded from the Consolidated Fund, ie the public purse.
But Rod Attride-Stirling, for the HRC, replied that though its funding was from the Consolidated Fund, it was from a different budget than the one used to fund Government’s legal costs.
“We say this is a case where costs should be awarded against the respondents,” he said. “The HRC does not have an unlimited budget. It has a small budget.”
Mr Attride-Stirling said not awarding costs to the HRC from Government would be “punishing” it for getting involved in a case involving human rights.
The costs issue was adjourned, as was a final determination on the exact wording of the judge’s order on the legality of same-sex marriage.
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