CHIEF Justice Ivor Archie and another appellate court judge have dismissed an appeal by a shipping company and its owner who sought to have dismissed the claim against them for compensation arising out of the controversial procurement of the inter-island ferry, the Superfast Galicia.
Intercontinental Shipping Ltd and its owner John Powell appealed a decision of the judge hearing the State’s claim against them and maritime attorney Nyree Alfonso, who is accused of breaching fiduciary as attorney for the Port Authority as she was associated with ISL and assisted in its successful tender, in exchange for financial gain.
In November 2019, Justice Joan Charles dismissed ISL and Powell’s application to have the claim against them struck out on the ground that there was no cause of action pleaded against them and an ancillary claim against an alleged recipient of a breach of fiduciary duty was subject to a statutory limitation period of four years.
Lead attorney for ISL and Powell, Fyard Hosein, SC, argued that the claim was statute-barred.
Hosein argued that the limitation period had kicked in and the case against the two should also be thrown out because there was no cause of action against them.
However, Archie and Justice of Appeal Charmaine Pemberton said it was not clear at what stage the limitation period began since the contract for the procurement of the vessel was in April 2014, and the State’s claim against Alfonso, ISL and Powell was filed in 2018.
In response, Hosein said even if the limitation period was not an issue, the court should still strike out the claim since it has since morphed into an ancillary claim which did not exist in law for which there was no limitation period.
The judges dismissed the appeal, pointing out that the issues raised in the procedural appeal were also raised by the judge who held that the case should go to trial.
In her ruling, Charles acknowledged that the claim, filed by the Attorney General and the PATT, involved novel points of law which must be determined on actual findings of fact.
She held she had to determine whether ISL was the duly appointed agent of Alfonso, as alleged, who had a fiduciary duty to the authority.
Charles said she also had to determine whether ISL and Powell could be made liable as agents in the breach of fiduciary duty or whether ISL’s liability was limited to that of dishonest assistance in a breach of trust or knowing receipt of funds.
“These findings are fact/evidence-driven, and cannot be determined on the pleadings,” she said in her decision.
In its lawsuit, the Government is seeking to recoup the profits, which it claims Alfonso, ISL and Powell made on the three-year lease for the Galicia, which totalled $143 million.
The claim was filed against the three shortly after the Galicia’s contract was cancelled in April 2017.
Representing the AG and the PATT are Dr Claude Denbow, Donna Denbow and Shiva Maharaj.
The State’s claim goes to trial before Charles, for six days, starting March 24.