Lawyers for contractors in EMBD case: We had a responsibility to protect the court

ATTORNEYS representing several contractors in their claims against the Estate Management Business Development (EMBD) Company, and a counterclaim by the state agency, say the purpose of their letter which asked the judge to hold off on delivering his ruling on preliminary applications in the matter, say they had a responsibility to do so.

Justice James Aboud will on Thursday deliver his ruling on applications by the contractors who are seeking to have the EMBD properly particularise the facts alleged against them so that they could fairly mount their defence.

Last Friday, he was asked to postpone his ruling until after the general election on August 10 because “whichever side succeeds in the applications before the court is likely to bring the administration of justice into political controversy.”

On Wednesday, the judge said the date for the delivery of his ruling was fixed long before the election date was announced, and he had been working on it since March.

Aboud’s judicial support officer on Tuesday e-mailed attorneys informing them that the judge was unable to adjust his work schedule in August and was keeping the August 6 date for the delivery of his ruling.

However, after receiving the judge’s e-mail, attorneys for the contractors again wrote to the judge, and copied their letter to all the parties involved in the claims, the EMBD’s counter claim and the separate case against former UNC minister Roodal Moonilal and others which have all be consolidated and is being heard by Aboud.

Attorney Karina Singh, who is led by Senior Counsel Ramesh Lawrence Maharaj, for some of the contractors, said they wanted to put certain things on the record in light of the letter sent on behalf of the EMBD in response to their letter on Friday.

Singh said the doctrine of separation of powers had no application to the contents of their first letter in which they made it “crystal clear” that its purpose was to bring to the court’s attention the risk of it being brought into political controversy. She said their effort was to “avoid any baseless public perceptions which may possibly damage the integrity, independence and impartiality of the court.”

“Lawyers have a duty and a responsibility where such risks exist to draw those matters to the attention of the court for the court, in its discretion, to consider same and to exercise its discretion in respect of those representations. We have done that and the court has made its decision,” Singh said.

She also referred to the Balgalore Principles which concern the independence and impartiality of the Judiciary and which states that judicial independence is a pre-requisite to the rule of law and a fundamental guarantee to a fair trial. She said the principles state that it was important that the Judiciary be perceived as independent and the test for that independence also include consideration of the public perception.

Also, in a letter of complaint, Moonilal’s attorney Alvin Pariagsingh took issue with a newspaper report which claimed that his client had written to the judge asking for the postponement of the decision.

“I am the attorney at law on record for Dr. Roodal Moonilal in the claim referred and can confirm that no such request was made on his behalf.

“…With a general election mere days away, such a fundamental error is regrettable as it provides fodder for the PNM's propaganda machinery,” the attorney’s complaint said.

On Monday, speaking at a political meeting in Chaguanas East, the Prime Minister questioned whether it was proper for lawyers to write to a judge asking that he delivers his ruling after the election.

Dr Rowley said, “Is it proper for lawyers to write a judge, telling them to wait until after the election to deliver a judgement, because the outcome of the matter could have an effect on the election?

“It used to be that Lady Justice was blind… You know it reach the stage in Trinidad where where lawyers writing the judge, and telling the judge, you see that decision you have to make? Don’t make it before the election.”

He called on the Law Association to say if it was proper conduct.

Before Aboud is a consolidation of claims by several contractors - former EMBD chief executive Gary Parmassar; former divisional manager at EMBD Madhoo Balroop; Andrew Walker; and companies Fides Ltd; Namalco Construction; and LCB Contractors - which sued the EMBD for unpaid contracts, a counterclaim by EMBD which seeks compensation and repayment of sums paid as well as a lawsuit against Moonilal, former EMBD chief executive Gary Parmassar; former divisional manager at EMBD Madhoo Balroop; Andrew Walker; and companies Fides Ltd; Namalco Construction; and LCB Contractors.

The EMBD’s lawsuit against Moonilal and the others allege breach of fiduciary duty, cartel behaviour, bribery, collusion, knowing receipt, dishonest assistance and unlawful means conspiracy.

In their applications, the contractors maintain that at the pleading stage, the party making the allegations must be prepared to particularise it and if it is unable to do so, the allegations must be struck out.

The EMBD's case against the contractors allege that "with the intention of enriching themselves and injuring EMBD, knowingly procured and/or obtained the EMBD contracts, certifications and payments from EMBD, by reason of collusion between themselves and others that was designed to ensure that specific companies ….by a wrongful and unlawful agreement or combination, were awarded specific contracts at inflated amounts and received payments that were not due”.

It is also the allegation that the former minister and certain representatives of EMBD participated in the "cartel arrangments" and/or inappropriately soguht to favor contractors.