A fresh row in the battle of the burgers could land Minister of Transport Wayne Furbert in court, it was revealed yesterday.

For lawyers for Grape Bay Ltd -- which includes a Government backbencher and an ex-Premier among the directors -- did not rule out suing the Minister after failing to have an appeal by Attorney General Elliott Mottley against a legal decision in their favour booted out of court.

Lawyer Mark Diel, who acts for Grape Bay, which wants to bring McDonald's burgers to Bermuda, last month won the first two rounds of the court battle.

The Supreme Court ruled an Act of Parliament banning restaurants with a foreign flavour was unconstitutional and later rejected Mr. Mottley's plea for a stay of execution until his appeal was heard.

But yesterday Mr. Diel's bid to have Mr. Mottley's appeal kicked out was rejected by a three-man Court of Appeal headed by president Sir James Astwood.

Mr. Diel said Government had refused to bring an Airport lease already granted to Grape Bay to the House of Assembly for approval -- and added he assumed that was because of the on-going legal battle.

But Grape Bay director Maxwell Burgess, also a United Bermuda Party backbencher, said taking the Minister to court to force him to bring the lease to the House was a possibility.

He added: "It's premature to say at this time -- but clearly it's an option before us.'' Mr. Diel added: "We don't know why the Minister of Transport has refused so far to lay the Airport lease. There is no basis for it as the Attorney General applied for and was refused a stay of execution.

"The Minister hasn't given any reasons because we've asked him and the Attorney General hasn't given any assistance.

"We can only suppose it's because the appeal is currently before the courts -- but that is not a valid reason.

"The Minister is in breach of his duty, in our view. This lease has now been delayed for a year.

"We could issue proceedings -- Government was the one which granted this lease. But I have had no instructions at this stage.'' Mr. Furbert declined to comment on the possibility of legal action against the Ministry.

But he said: "There is going to be an appeal by the Attorney General so, as far as I am concerned, unless we hear otherwise -- other legal reasons -- it's still a matter for the courts.'' The effect of yesterday's decision will delay the granting of the lease at least until the Court of Appeal sits again in March -- assuming the Attorney General's legal challenge fails.

But the case could take even longer as it is likely to go to Bermuda's final resort in civil cases, the Privy Council in London, no matter who wins the next round.

The news came as Mr. Diel and Mr. Mottley once again faced each other across a court room in the marathon legal battle.

Mr. Diel wanted to argue that the appeal against the decision by Mr. Justice Meerabux that the Prohibited Restaurants Act was illegal was "frivolous, vexatious, contained no reasonable grounds of appeal, was vague and general and is an abuse of the processes of the court as a result.'' But Sir James told him: "We have had your affadavits and a copy of the judgement but our consensus, looking at your strike out application, is that this is not a matter to be dealt with this way.

"These grounds of appeal may not be drafted in the best terms possible neither is that judgement drafted in the best terms possible.'' But Sir James insisted: "This notice of motion should be dismissed and this appeal should go forward as normal. We would be practically hearing the appeal if we allowed this.'' And when Mr. Diel tried to argue further, Sir James snapped: "We are not having any more argument. We are dismissing this motion.

"We have come to the conclusion this is an appeal of great public importance.

This thing is going to have to be argued.'' But the Court of Appeal pointed out the same arguments could be made at the full appeal hearing.

Earlier, Mr. Mottley asked for the matter to be adjourned -- and added the appeal proceedings would be handled by top constitutional lawyer Dr. Lloyd Barnett QC from Jamaica.

Mr. Mottley added that he had been off the Island on Government business and had only just returned to his Chambers. He added the short notice of the proceedings meant that it had been impossible to get Dr. Barnett to the Island for yesterday's hearing.

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