THE judge hearing Udecott’s chairman Noel Garcia's lawsuit against the former commissioners who chaired the Las Alturas Commission of Enquiry will give his decision on September 28. On Tuesday, Justice Kevin Ramcharan heard submissions in the matter using video technology, and, for the first time, a British Queen’s Counsel presented his arguments virtually from London.
TT's borders remain closed, except for cases exempted by the National Security Minister and there is a mandatory 14-day state quarantine for those who were allowed in. Virtual hearings began in March when public health regulations led to stay-at-home orders being issued to prevent the spread of the coronavirus.
Although there has been a phased reopening of the country, the Judiciary has continued with virtual hearings for all the courts; an already planned initiative brought forward by the covid19 pandemic. Garcia had received permission to file a claim against the former chairman of the inquiry, retired judge Mustapha Ibrahim, Dr Myron Chin and Anthony Farrell, challenging the adverse findings made against him in the commission’s final report.
He was found liable for the construction of the two multi-story apartment buildings which were constructed on shifting sand. Ibrahim died in London on June 9, 2017, but the lawsuit against the other two proceeded.
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. Garcia's attorney, Colin Kangaloo, said the commissioners breached the rules of natural justice in the way they treated his client and, because of this, the findings of the commission as it relates to the former HDC managing director, should be thrown at the wayside.
He said it was an unfair process and should be struck down."They are saying he breached his fiduciary duty as managing director. That is civil misconduct in relation to the office he held.
We never knew they were coming to say that about Mr Garcia," Kangaloo submitted, adding that his client had a legitimate expectation to know what the commission was coming with.He also accused the commissioners of breaching their duties and said they went outside the terms of reference when they found Garcia was liable for the losses incurred on the project, and should be held accountable.
In countering the claim that the commission did not make findings against Garcia but only recommendations, Kangaloo said, "It does not matter how you dress it up. This isn't any recommendation.
They went outside their terms of reference and this is abuse," he argued."These were not recommendations alone...They found my client liable," he added. Kangaloo said it was an important commission of inquiry in which substantial public funds were spent. "It was a very important inquiry coming after a change of Government. What the commission was supposed to do if he was in peril, there was a duty to make him know and they did not," he said, adding that the puported Salmon letter sent to Garcia was not a proper one.
Salmon letters are official letters sent out by a public inquiry to people that will be subject to criticism when its report is released. Representing the remaining commissioners, Richard Clayton, QC, making his submissions from London, said his role as managing director of the HDC was subject to scrutiny.
However, he said there were no findings of liability and it was perfectly obvious when looking at the report, what was said of him were recommendations. He said the commission was entitled to form an adverse position and not every single criticism was required to be put to him Clayton also said the court should be slow to reverse an inquiry's finding of fact.
Senior Counsel Fyard Hosein, appearing for the Attorney General, said the AG had no interest in the matter but was there to assist the court by setting out the principles of law relevant to the debate. He said one could not confuse the HDC with Garcia and submitted that the commission should have been careful to define who were found liable and in what capacity.
"The court will have to find if the line of liability of was sufficiently demarcated. Was it the HDC's liability or his own liability?" Hosein asked, as he called on the judge to thread carefully. Wing-Sang Chin and Farrell are also represented by Alvin Pariagsingh while Rishi Dass also appears for the Attorney General.