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Government’s same-sex marriage legal costs more than $400,000

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Jonathan Crow QC (File photograph)

The battle to ban same-sex marriage has cost taxpayers more than $400,000 in external legal fees, the Government has revealed.

The Ministry of Home Affairs told The Royal Gazette that $411,627 had been spent so far on outside lawyers and law firms.

That figure does not include the cost to the public purse of having government lawyers in the Attorney-General’s Chambers work extensively on the case.

It also doesn’t take into account any future costs that may have to be paid for the opposing side if the Government loses the long-running case.

A judgment has yet to be handed down after the Privy Council in London heard arguments last February about whether same-sex marriage in Bermuda should be banned.

But a home affairs ministry spokesman said that the “Government's costs to date relating to the appeal in the Attorney-General v Ferguson and others case total $411,627”.

The figures showed that Jonathan Crow QC, of 4 Stone Buildings chambers, London, was paid $99,281.

He was enlisted by the Government to make the case to the Privy Council that gay couples should not be allowed to marry.

Mr Crow was said by the Legal 500 ranking agency to be “probably the most persuasive advocate at the Bar”.

The Government added a junior barrister, Tom Cross from 11KBW chambers, to assist the top silk. He was paid $26,841.

James Guthrie QC (Photograph from 3 Hare Court website)

Accommodation and airfare expenses for James Guthrie QC, of 3 Hare Court chambers, in London, totalled $19,638.

The home affairs ministry spokesman added that other costs for Mr Guthrie’s work were paid through Charles Russell Speechlys, a global law firm which is headquartered in the UK capital.

Solicitors from the company were hired by the Government for the Privy Council case.

Figures released by the ministry showed that a total of $265,866 was paid to Charles Russell Speechlys.

The latest figures were revealed in response to questions from the Gazette.

They come after Gitanjali Gutierrez, the Information Commissioner, found that the Attorney-General’s Chambers was justified to deny access to records about costs linked to the legal battle against same-sex marriage.

Ms Gutierrez said the records requested by The Royal Gazette in February 2019 weren’t covered by the Public Access to Information Act as they related to the public authority’s statutory functions – an excluded category.

But she added that “nothing in the Pati Act prevents the Government or another public authority from proactively disclosing the costs of public litigation throughout appeals or at its conclusion as a matter of good governance”.

The Pati request asked the Attorney-General’s Chambers for the total amount spent by the Government, including what was paid to Mr Guthrie – who was hired for a 2018 appeal – his chambers and other legal services not provided by the firm.

The request was denied on the grounds that the records were exempt, in line with a clause in the Pati Act that says the legislation does not apply to “records obtained or created by” certain authorities, including the Attorney-General’s Chambers, “in the course of carrying out their functions”.

An internal review upheld the initial finding and the Gazetterequested an independent review by the Information Commissioner, whose decision will be published online on Wednesday.

Gitanjali Gutierrez, the Information Commissioner (File photograph)

In her decision, sent to the Gazette last week, Ms Gutierrez noted that records linked to the general administration of certain specified public authorities were within the scope of the Act.

But she highlighted an earlier civil court ruling where Puisne Judge Shade Subair Williams agreed that “records related to matters concerning the core business of the relevant public authority are not records relating to general administration”.

Ms Gutierrez disagreed with the Gazette, which argued that the requested records related to “costs borne by the public purse for the same-sex marriage legal case and, as such, should be considered as relating to the general administration” of the Attorney-General’s Chambers.

The home affairs ministry spokesman said last week that the Government was “not in a position to comment” on whether it would have to pay legal fees and costs for the respondents in the case, or how much that could be.

A Government spokeswoman in November 2018 said that Walter Roban, the Minister of Home Affairs, had committed to the public that he would provide a final figure for the cost to the Bermuda Government of the appeal case once the total was determined.

Timeline of same sex marriage in Bermuda (Infographic by Sharneil Paynter)

The Attorney-General was named in 2018 as a defendant in a civil case launched by Bermudian Rod Ferguson.

The Government had earlier unsuccessfully defended a discrimination case brought by Winston Godwin and Greg DeRoche in 2017, which first enabled gay marriages to go ahead.

Mr Ferguson’s lawsuit was joined with a case brought by OutBermuda and other litigants, represented by Rod Attride-Stirling, a Bermudian barrister.

The Government lost the Ferguson/OutBermuda case in June 2018, when the Chief Justice ruled that a section of the new Domestic Partnership Act banning same-sex marriage breached the Constitution.

It appealed and the case went to the Court of Appeal in November 2018.

The three-judge panel ruled that the section in the DPA was included for a religious purpose, which was barred under Bermuda’s secular Constitution.

The Court of Appeal dismissed the legal challenge and the Government sought permission to apply to the Privy Council – the highest court of appeal for Bermuda – in December 2018.

* To read the Information Commissioner’s decision in full, click on the PDF under “Related Media”.

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Published February 28, 2022 at 8:00 am (Updated October 17, 2022 at 3:32 pm)

Government’s same-sex marriage legal costs more than $400,000

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