Are CourtPay fees legal?

Law Association president Douglas Mendes SC
Law Association president Douglas Mendes SC

CONCERNS are being raised about the legality of the collection of non-refundable “transaction fees” by the Judiciary for its CourtPay system, in the absence of legislation to allow it.

The concern was first raised by Law Association (LATT) president Douglas Mendes, SC, in a letter to Attorney General Faris Al-Rawi, calling on him to allow the association to comment on the Payments into Court Bill.

The bill seeks to make provision for payments to be made electronically into a custodial bank account of the Judiciary, and to provide for the collection of any convenience fee, transaction fee or any other fee.

In his letter to Al-Rawi, Mendes said the bill, if passed in its current form, had the potential for abuse, and marginalises the established statutory role and function of the Registrar of the Supreme Court since it allowed for the Court Executive Administration to select a deputy as a co-signatory on the Judiciary’s custodial bank accounts.

He also said the bill seeks to introduce powers to deal with public money, without the oversight of the Exchequer and Audit Act, and without anyone being appointed accounting officers.

“Furthermore, the mere fact that the Auditor General is to be given responsibility to audit the custodial bank accounts is of little comfort and offers little oversight since it is reported that the Judiciary has not submitted financial reports to the Auditor General since 2014.”

On the issue of the payment of a transaction fee, Mendes said, “There is no jurisdiction to order a person paying maintenance to pay a transaction fee, and there have been no amendments to the relevant legislation governing the payment of maintenance to render such a fee legal.

“It matters not if the fee is nominal, it must nevertheless be lawful.”

Attorney General Faris al-Rawi

In his brief response to the concerns raised by the LATT, Al-Rawi said, “We do not share some of the criticism of the association’s in relation to the Payments into Court Bill 2018 but shall reserve our responses until after receipt of your written comments on the captioned bills.”

He gave LATT until Friday last to send its comments on the legislation.

Al-Rawi, speaking on the Payment into Courts Bill on a morning programme on Friday, said he was told that the Judiciary had a procurement process for the CourtPay system.

“They will have to explain that. It has nothing to do with the Government.”

Al-Rawi said there were several categories of fees linked to credit card, LINX and direct debit payments. He explained that the people accepting to pay by this electronic method volunteer to do so after which the payment methods are explained to them and entered into the court order made by the judge.

He also said the Judiciary had thousands of bank accounts, pursuant to it being allowed by the Treasury to hold these accounts, for the payments to be made into court. This would be applicable to the CourtPay system.

“If you pay into the court, it goes into a bank account held by the Judiciary. “If you don’t collect the money from the court, the law says the Judiciary is to send the money to the post office and you go to the post office to collect the money.”

Al-Rawi said all Government was asking for in the Payment into Courts Bill was for electronic payments to go into effect beyond what is currently lawful.

Questions were sent to the Judiciary on Thursday seeking clarification on the concerns raised. In a response on Friday, Kieron Blackman, communications officer for the Judiciary, said, “The person who can answer those questions is currently out of the jurisdiction. I’m not aware when she is due to return. Unless she provides a response via e-mail. I will be unable to provide an official response.”

A May 18 practice direction issued by Chief Justice Ivor Archie on the CourtPay System advises that the payor of maintenance payments is to be charged a non-refundable transaction fee for each transaction submitted.

“The requirement to pay this transaction fee should form part of the maintenance order,” Archie advised. The schedule of fees for each transaction mode was set out in the Archie practice direction.

The fees range from 75 cents to $6 per transaction, depending on how the payor chose to make the payment. The CourtPay system allows for payments to be made by Linx at National Lotteries Control Board (NLCB) operated kiosks, in cash, or with credit cards or online.

Archie’s practice direction is considered subsidiary legislation, but there is no primary legislation in place to allow for electronic maintenance payments.

In April, after the CourtPay system was launched, the National Information and Communication Technology Ltd said parents no longer have to wait in line or take time off from their jobs to make the payments.

Sunday Newsday understands before CourtPay was launched in March, there were meetings with Central Bank and the Treasury with all the contractors on the system. The NLCB, which is registered with the Central Bank for bill collections, is collecting the money on behalf of the Judiciary. There were other companies and banks which bid for the CourtPay tender.

Single Fathers Association concerns

Sharing LATT’s concerns was Rhondall Feeles, president of the Single Fathers Association (SFATT).

Feeles, whose association recommended the introduction of an electronic payment system for maintenance at a joint select committee of Parliament in January, said, “It is important that we do not break the law to correct the law.”

While he agreed that the CourtPay system will save many fathers, who are ordered to pay maintenance, transportation money, he asked whether the payment of the transaction fees could not have been facilitated by someone other than the payor.

“What are we paying taxes for? It isn’t only about saving transportation money. I understand the Law Association’s perspective on the legality of the fees.”

He said the SFATT’s greater concern, however, was whether the CourtPay system will address administrative issues related to the payment of maintenance.

Feeles said fathers encountered many problems when they went to court to pay maintenance such as their cards could not be found or the cashier not being there, leading to arrest warrants being issued for non-payment.

He wants assurances that the CourtPay system will stop the issuance of warrants if payments are not registered on time.

“We’re talking about an electronic system. If the system goes down, will warrants be issued? What is the fail-safe if a father does not receive his salary on time? What is going to happen? Will the payments reach the courts in time? Under this new CourtPay system will warrants be issued automatically? We want to know that we are not going to face greater problems?”

Feeles said, at present, there was the attachment of earnings where maintenance payments are taken directly from a payor’s salary.

But, he said, there are problems when employers send these payments late or the transaction is not processed immediately.

“Is CourtPay going to address these things?” He also expressed hope that CourtPay will provide an opportunity for transparency.

“The Judiciary is never willing to do that... show financial accountability.”

SFATT intends to launch its own app which will facilitate the payment of maintenance using the WiPay software.

What is WiPay?

Who are the people behind the CourtPay software technology?

The CourtPay service, was launched in March by the Judiciary, WiPay and ttconnect.

A release said for users who did not have internet access, the service will also be available soon at any of ttconnect’s seven service centres in Princes Town, Chaguanas, Tobago, Sangre Grande, Arima, Curepe and St James.

The payments at the ttconnect offices can only be done via credit or top-up cards, the release said, adding that hopefully in the future all court fees could be paid using this system.

One of WiPay’s directors, Aldwyn Wayne, said WiPay is a software development company, with software deployments for multiple clients across the region.

“WiPay operates as a FinTech, leveraging blockchain technology to bring financial inclusion to unbanked persons (ie persons without bank accounts) in a unique way.”

He said WiPay could not comment on CourtPay’s fee structure, adding WiPay was not accountable for the money collected.

“WiPay is a software development company, not a financial institution.”

WiPay (Trinidad and Tobago) Ltd, formerly WiPay Financial Services Ltd–which was incorporated on October 4, 2016– was awarded the contract by the Judiciary to develop the CourtPay software.

The company’s directors are: Aldwyn Wayne Jr and Snr, attorney Michael Quamina, business consultant Kwesi Prescod and businessman Gerald Hadeed, chairman of WiPay TT, according to documents filed in the Companies Registry.

A second company, WiPay Payment Solutions Limited, incorporated in May 2018–which lists Aldwyn Wayne, businessman Richard Oliver, former PNM minster Conrad Enill and businessman Andre Aleong as directors–has nothing to do with CourtPay, Sunday Newsday was told.

According to Wayne, WiPay was selected after a competitive tender process.

The original story said payments could be made via an electronic wallet through WiPay. This is incorrect as payments are not made through WiPay. The error is regretted.

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