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SSM legal costs request under review

Under review: Gitanjali Gutierrez, the Information Commissioner, will review the Pati request asked for the total amount spent by the Government on the Court of Appeal case (Photograph by Blaire Simmons)

A refusal by the Government to release information about the cost of its legal fight against same-sex marriage will be reviewed by the Information Commissioner’s Office.

The news came after The Royal Gazette made a public access to information request to the Attorney-General’s Chambers for records about the cost of last year’s Court of Appeal case.

The Attorney-General’s Chambers rejected the request on the grounds that the records were exempt under Pati legislation.

Marva O’Brien, the Permanent Secretary at the Ministry of Legal Affairs, upheld the refusal on July 3, after being ordered to issue a decision by Information Commissioner Gitanjali Gutierrez.

The Royal Gazette has appealed Ms O’Brien’s refusal to disclose the records to the commissioner.

The Pati request asked for the total amount spent by the Government on the Court of Appeal case.

It also asked for the amount paid direct to the Government’s lawyer, top London barrister James Guthrie QC, and the total amount paid to other staff of his 3 Hare Court chambers.

The request further asked for the amount paid for other legal advice, consultation, or other legal services not paid to Mr Guthrie or employees of 3 Hare Court.

It also asked for information related to any and all legal costs in the Court of Appeal case contributed by non-government organisations, including the names of the organisations who contributed and the total financial contributions of organisations to the Court of Appeal case.

Bermuda’s Supreme Court ruled in May 2017 that gay couples could marry, but six months later the Government passed the Domestic Partnership Act, outlawing same-sex weddings. A challenge was brought against the Act by Bermudian Rod Ferguson, and OutBermuda and others joined the legal action.

Ian Kawaley, the former chief justice, ruled in June last year that the parts of the legislation that restricted marriage to opposite-sex couples were unconstitutional.

He agreed to a request from the Government for his decision to be “stayed” pending an appeal, which meant gay couples could no longer marry.

The Court of Appeal upheld Mr Justice Kawaley’s ruling in November and lifted the ban on same-sex marriages.

The Government has been given permission to appeal that decision to the Privy Council in London.

The cost, so far, to taxpayers of the case brought by Mr Ferguson and OutBermuda is not known.

David Burt, the Premier, told MPs in December that it cost about $14,000 for legal advice on whether to take the fight against marriage equality to the Privy Council.

He added that Government’s Court of Appeal case against Mr Justice Kawaley’s Supreme Court decision cost about $52,000.

Walter Roban, the Minister of Home Affairs, earlier said the legal costs for the Court of Appeal case were estimated to be about $61,000.

Kim Wilson, the health minister, told the House of Assembly in March that the estimated government legal costs “to date” for the case brought by Mr Ferguson and gay rights group OutBermuda, and the appeal against its decision in favour of Mr Ferguson’s side was “likely between $120,000 and $150,000”.

Ms Wilson was speaking in a debate on the legal affairs budget. She said: “The cost to appeal to the Privy Council and the cost of responding to the appeal has not been finalised at the moment.”

Mr Ferguson’s lawyer, Mark Pettingill, and OutBermuda’s lawyer, Rod Attride-Stirling, are understood to be seeking legal costs of about $800,000 each.