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Same-sex marriage supporters may have to pay Privy Council costs

The Judicial Committee of the Privy Council building in London (File photograph)

Campaigners who fought a legal battle to retain the right for same-sex couples to marry could be asked to pay some of the Government’s costs after a Privy Council order.

It was ruled that the respondents – Roderick Ferguson and others – were responsible for expenses incurred by the appellant – the Attorney General for Bermuda – in relation to hearings before the island’s highest court of appeal.

A spokeswoman for the Judicial Committee of the Privy Council told The Royal Gazette that an order to parties said: “Each side should bear his/their own costs in the courts below; and the respondents should be liable to the appellant for his costs before the JCPC.”

This legal aspect of the battle for same-sex couples to be able to marry started in February 2018 after the Domestic Partnership Act received the Governor’s assent.

Mr Ferguson launched a legal action against a clause in the legislation that defined marriage as being between a man and a woman.

The case went through the Supreme Court and Court of Appeal – the “courts below” in the costs order – before it reached the Privy Council, where a panel was split four to one, with the majority finding that the law was not unconstitutional.

A Ministry of Home Affairs spokesman said in March that costs relating to the appeal at that time amounted to $411,627.55 in payments to outside lawyers and law firms.

He said last week that an additional $1,734.95 was paid to Jonathan Crow, QC, of 4 Stone Buildings, London, in April.

The spokesman added: “That additional payment is attributable to the Privy Council element. However, we are not able to provide a more complete picture of the apportionment at this time.”

Mr Crow, who was enlisted by the Government to make the case to the Privy Council that same-sex couples should not be allowed to marry, was earlier paid $99,281.83.

The Gazette asked if the Government had sought or will seek to recover the costs from the respondents, and if so, how much.

The spokesman said that “this matter is still being litigated”.

He added: “As such, no further information is available.”

Mr Ferguson was contacted for comment but no response was received by press time.

OutBermuda, an LGBTQ rights charity and the second respondent named in the case, declined to comment.

The Domestic Partnership Act was passed by legislators in December 2017.

It recognised same-sex marriages that had already taken place but prohibited more and introduced domestic partnerships for same and opposite-sex couples.

In February 2018, the Act received the Governor’s assent.

Mr Ferguson launched legal action against the DPA clause that defined marriage as between a man and a woman.

He was later joined in the lawsuit by OutBermuda and others.

The Act came into effect in June 2018 while campaigners waited on a Supreme Court ruling on their attempt to have part of the legislation struck out.

Former Chief Justice Ian Kawaley ruled later that month that the DPA was against the Constitution but stayed the effect of the decision to allow the Government time to launch an appeal. It meant same-sex marriage was no longer allowed.

In November 2018, the Court of Appeal dismissed the Government’s appeal against the Chief Justice’s ruling.

The appeal court found that the clause in the DPA that prohibited same-sex marriage was included for a religious purpose, which is not allowed under Bermuda’s secular constitution. Judges refused a stay, allowing same-sex marriages to proceed again.

Permission was sought by the Government in December 2018 to appeal the judgment at the Privy Council in London and leave was granted in May 2019.

Hearings took place in February 2021 and in March this year the Privy Council handed down its ruling.

Judges found that the legislation banning same-sex marriage was not unconstitutional.

Lord Hodge, Lady Arden, Lord Reed and Dame Victoria Sharp agreed on three grounds but Lord Sales dissented and would have dismissed the appeal, based on one of those points.