Hodge Malek QC and James Potts successful in Bahamas Legal Professional Privilege Dispute

On 1 May 2019, Mr Justice Ian Winder in the Supreme Court Commercial Division in The Bahamas handed down judgment ordering two legal opinions to remain sealed in the court record.

The background to the dispute is the insolvency of the US$3.5 billion Baha Mar resort in Nassau, The Bahamas. The dispute has given rise to a US$2+ billion fraud and breach of contract claim in New York brought by BML Properties Ltd (the former direct parent company of Baha Mar Ltd, the development entity for the resort), against the construction firm CCA Construction America Inc. and its affiliates.

CCA sought the unsealing of two legal opinions which had been filed by the joint receiver managers of Baha Mar Ltd for the purposes of their application, at a private hearing, for the Bahamian Court’s approval of the sale of most of the resort’s secured assets. The legal opinions concerned potential claims by Baha Mar Ltd against CCA and certain of its affiliates.

Winder J held that the opinions were covered by legal professional privilege which had not been waived by the joint receiver managers deploying them at a private hearing. Alternatively, any waiver of privilege was only a limited waiver for the purposes of the approval application, not a general waiver.

Mr Justice Winder’s judgment can be found here.

Hodge Malek QC and James Potts acted for the successful party, BML Properties Limited, instructed by Harry B. Sands, Lobosky & Co.


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