If Minister of Home Affairs Randy Horton had replied to letters questioning a policy banning Bermudians selling homes to foreigners, the ?GoldenEye? case might not have ended up in court.

That observation was made yesterday by both defence lawyer Saul Froomkin and one of the judges hearing the high-profile case at the Court of Appeal.

Bermudian property developers Alan and Vera Rosa Marshall took the Government to court earlier this year over the policy change, which was made in 2005. They said it prevented them selling their $45 million Tucker?s Town mansion GoldenEye on which they had invested $37 million. They claimed no Bermudian would be able to afford the asking price for the home, which is on so-called Billionaires? Row and was rumoured to have once been sought by American TV star Oprah Winfrey.

Supreme Court Judge Geoffrey Bell ruled in March that the policy was ?unlawful? and ?an abuse of power,? but the Government brought the case before the Appeal Court in a bid to get this overturned.

The public gallery was packed with realtors and property owners ? including Mr. and Mrs. Marshall ? as Professor Jeffrey Jowell QC, for the Government, said the case raised ?fundamental questions? about the separation of powers between the executive and the judiciary.

He said the judgement was wrong in saying that it rested with the court to have the final say on what was appropriate Government policy in this case. ?It?s hard and it?s difficult, but it?s not for the court to interfere,? he said.

He also argued that despite the existence of the policy, the Minister still had discretion under the relevant law ? the Immigration and Protection Act 1956 ? to consider each individual case of this type on its merits.

He said a letter written to the Minister by the Marshalls days after the new policy was announced, inquiring about their position relating to GoldenEye and asking him to exercise his discretion, was premature as they were asking a hypothetical question at that stage. However, he observed ?All letters ought to be replied to as a matter of good management.?

Mr. Justice Charles Mantell ? hearing the appeal with Justices Edward Zacca and Austin Ward ? observed that if there had been a reply from the Minister saying the timing was not right but the application would be decided on its merits then ?all of this could have been avoided.?

On the same point, Saul Froomkin QC, for the Marshalls questioned why the Minister did not reply to say: ?Fine. I have residual discretion. If you find a suitable buyer I will look at them and let you know.? He said the policy stated in clear language that there was no discretion. And he quipped: ?My clients have had to pay some money ? not enough ? for me and we are here today, and the Minister says he?s got residual discretion. It?s hard to say why he didn?t tell us that. We wouldn?t be here and I?d be poorer. We ought not to be here.?

He also said the policy discriminated against Bermudians under the Constitution and pointed out that if GoldenEye was sold for $35 million it would net the Government more than $9 million in stamp duty and licence fees.

If the Appeal judges upheld Mr. Justice Bell?s ruling, he said: ?God willing, the respondents (the Marshalls) would be able to find a potential buyer and the buyer would be able to apply to the Minister for a licence. If it?s granted everyone will be happy. If it?s rejected for irrational reasons your lordships will have more work to do.?

The case is set to continue today.