No liability to pass on

THE two remaining former commissioners of the Las Alturas Commission of Enquiry have successfully challenged a judge’s order that substituted them as the estate of deceased commission chairman, retired judge Mustapha Ibrahim, in a lawsuit filed by Udecott chairman Noel Garcia.

Garcia had filed a judicial review claim against Ibrahim, and civil engineers Dr Myron Wing-Sang Chin and Anthony Farrell, challenging the adverse findings made against him in the commission’s final report. He was granted permission to advance his lawsuits against the commissioners.

Ibrahim died in London on June 9, 2017, and Garcia was granted permission to have the two surviving ex-commissioners substituted in his claim.

The three were appointed in January 2015 by former president Anthony Carmona to sit on the commission which investigated the failed Las Alturas towers at Lady Young Road, Morvant.

In a unanimous decision on Wednesday, Appeal Court judges Allan Mendonca and Judith Jones upheld Wing-Sang Chin and Farrell’s appeal and set aside the October 31, 2017, order appointing them representatives of Ibrahim’s estate in Garcia’s claim.

In his ruling, Mendonca said Garcia could have proceeded against the surviving commissioners without applying for the substitution and Garcia’s application was not necessary.

While the concept of substitution of parties was not unknown in judicial review claims, Mendonca said it did not appear the framers of the rules of court on substitution intended it to apply to judicial review proceedings.

“A claimant in such cases does not need to possess any interest that can be passed on to a new party and the same is true of a defendant,” he said.

He said a defendant in judicial-review cases is not required to have any interest that passes on death and nor does he normally have any liability that can be passed. Mendonca said he did not accept that Ibrahim had a personal interest that passed to his estate, adding that no one was holding his office, since the commission has already submitted its final report.

He said in judicial-review claims, proceedings are directed at the decision of the office-holder, and not the parties.

“There is no claim for damages, and in any event, as a commissioner the deceased would not have any personal liability that would pass on his death,” Mendonca said.

He also described the case as “unusual” as Garcia was seeking to substitute Ibrahim because, as chairman of the commission, he was named in the lawsuit in his personal capacity.

Mendonca pointed out that Garcia’s challenge was against the entire commission, and there was nothing to suggest that Wing-Sang Chin and Farrell would not be able to provide the relevant information to resolve the dispute.

He also said Garcia made the application for substitution on the false premise that because of Ibrahim’s death he could take no further steps in his claim. Mendonca said the application should not have been granted.

Wing-Sang Chin and Farrell were represented by Gerald Ramdeen. Colin Kangaloo appeared for Garcia and Fyard Hosein, SC, and Rishi Dass appeared for the Attorney General.