The three-day courtroom battle in Cayman’s High Court between David on one side and two Goliaths on the other side ended last Wednesday (11) whilst God went back to Heaven to render his judgment.

This is the picture that came to my mind when Justice Alex Henderson heard the case brought to his court by four local ladies, Alice Mae Coe, Annie Multon, Ezmie Smith and Betty Ebanks, concerning the closure of part of the West Bay Road. Their argument is the road had been used for more than 100 years therefore it was an infringement of their human rights to have it closed and it was unlawful. They were suing Cayman’s governor, the minister in charge of roads, the attorney general, and the National Roads Authority (NRA).

Arguing for the ladies was local defence attorney Anthony Akiwumi. Representing the government and the NRA was Queen’s Counsel (QC) Richard Keen. Representing Dart Realty Cayman Limited, who had asked to be included in the joined in the defence of the suit, was Peter Henry Goldsmith, Baron Goldsmith, PC, QC – the former attorney general of England and Wales

The closure of the piece of the West Bay Road was to facilitate the development of a beachfront resort by Dart Realty Cayman so they had a huge interest in the result of the judgment.

Akiwumi had argued government’s closure of the piece of road was unlawful by the way they had gone about it and it wasn’t transparent as it had been executed behind closed doors. He also said the process was not compatible with Cayman’s Constitution or the Bill of Rights. He claimed even though the closure of the road under the roads law gave possession to Dart it should not have taken away the people’s right to use it.

The lawyer also argued that the date that started the whole road closure process (the trigger point) was not the original signing of the ForCayman Investment alliance agreement in December 2011 but the order to gazette the closure of the road. He said the 4 ladies had filed their lawsuit as soon as they were aware government was going to discuss the order in Cabinet. It was that order they could now oppose in a court of law.

Akiwumi also said the West Bay Road was an historical route from West Bay to George Town for over a century. It was now impossible, he said, for tourists to see the Seven Mile Beach now this piece of road had been closed.

Richard Keen argued the process of closing the road had been transparent, the closure of the road had been carried out correctly, it was a political decision and executed lawfully. He said the trigger point for any action was not the gazetting of the road but when the agreement was signed in December 2011, therefore making the suit out of time.

Baron Goldsmith argued the right of way people had to the road, and in turn beach access, were general broad public rights. Everyone shared those rights, he said, and therefore bringing the action under the Bill of Rights was wrong because that was meant to deal with infringements of private rights. The closure was lawful, he said, and therefore, as part of the gazetted closure, all public rights of way ceased.

If there were any questions at all about the closure, Baron Goldsmith pointed out, the present suit itself was the wrong kind of action because the women should have applied for judicial review within three months of the signing of the NRA agreement in December 2011 in accordance with the court rules. Even though, he said, the changes in the constitution appeared to increase that timeframe to twelve months, either way the outcome was the women were out of time and therefore their claims were “misconceived”.

There were very good reasons, he claimed, in law for placing timelines on such cases, as illustrated by the massive financial investment and the work already undertaken by his client, Dart Realty.

Baron Goldsmith said the argument that the details of this agreement were made behind closed doors and therefore the full deal was not revealed until after the closure were not true. He said the women were well aware of the intended road closure from the start, they had been part of the public opposition to it and had gone on television voicing their objections.

The suit, he said, was a “manifest abuse of process” as the women had attempted to circumvent a judicial review, which would have been the correct route.

No matter how it was argued, he forcibly claimed, the women were now out of time and their claims were “misconceived”.

Baron Goldsmith then pointed out that the country’s political leaders had given due consideration for all of the facts and socio-economic as well as environmental issues. He spoke about the many speeches that had been delivered by former premier, McKeeva Bush, in support of the Dart deal. The Baron pointed to the efforts his client, Dart is making to maintain pedestrian access to the beaches in the area and the provision of the public park.

In Akiwuni’s closing response to the defendants’ arguments, he maintained his clients were not out of time, as the clock in this action could not start any sooner than when government actually made the order to close the road. Prior to that point, the situation was fluid, he said. There were no certainties, despite government’s claims about what it intended to do.

He also claimed that it did not bode well for the future of Cayman’s Bill of Rights if the arguments put forward by Richard Keen were allowed to stand.

He said the case had been brought before the courts by his clients properly, the new constitution elevated rights beyond those of wider public rights therefore a judicial review was not the appropriate legal mechanism for the case.

The case concluded on Wednesday lunchtime and Justice Henderson said he would take time to consider the submissions and written evidence before delivering his judgment.

The date has not yet been disclosed.