Local energy firms challenge Clico-collapse investigations

NEXT week Tuesday, a High Court judge will hear a challenge by three local energy companies which questions the use of a local accounting firm in investigations arising out of the decade-old collapse of insurance giant, Clico.

In March, Methanol Holdings Trinidad Ltd (MTHL), Process Energy, Consolidated Energy (Trinidad) Ltd and several of their principals filed the application for judicial review against the Director of Public Prosecutions (DPP) and the Commissioner of Police.

The parties are seeking several declarations that the decision of the DPP and the commissioner to continue to engage the accounting firm Deloitte for criminal investigation was unreasonable and a breach of natural justice, among others. They are also seeking a declaration that the conduct of the DPP has trespassed the police’s function and compromised essential elements of the judicial process.

The matter is being heard by Justice Nadia Kangaloo and the application for judicial review comes up for hearing on September 15.

Initially the parties sought an injunction to restrain the DPP and the top cop from continuing to use the accounting firm, but admitted in its application in March that in response to their concerns, it was indicated that investigators would not proceed to interview witnesses with Deloitte’s participation.

However, the parties noted that if an attempt is made to access certain documents seized by police during a raid of Methanol Holdings' offices last year, they will make an urgent application for interim relief.

From May 2-July 12, 2019, police executed search warrants at MHTL’s offices at Atlantic Avenue, Pt Lisas.

In all, a total of 82 boxes of documents were seized from MTHL’s office over the two-month period and an additional 78 boxes of documents were taken from an off-site storage unit.

The parties’ complaint is grounded on their contention that it was recently disclosed that the DPP chose, at the start of the investigation, to seek expert opinion from a senior partner at Deloitte.

However, the energy firms claim that the senior partner has appeared in arbitral and civil proceedings and given evidence against them on the same issue before the DPP for his consideration and, as a result, the accounting firm is conflicted. They also complain that the DPP has employed consultants who do not have the relevant criminal investigation experience and are largely IT experts and forensic accountants, rather than criminal investigators.

Noting that the investigation has been running for ten years, the parties, in their application, say the use of external consultants may, in large part, explain why the investigation has run for such a long time.

They said when these flaws became apparent, they wrote to the DPP and the commission inviting them to remove the accounting firm from their investigative team, but up to December 2019, they declined to do so.

They are also challenging the role the DPP has played in the investigation, saying the role of a prosecutor must be separate and distinct from that of an investigator.

“The erosion of the dividing line between prosecutor and investigator has the potential to lead to unfairness in the investigation and any subsequent trial.”

In September 2010, the reports and files of the investigation into the collapse of Clico were passed to the DPP and in November, 2010, a commission of enquiry was established to look into what led to the collapse.

During the enquiry, the DPP wrote to Sir Anthony Colman, the lone commissioner, notifying him that a criminal investigation had been launched into the conduct of individuals and companies involved in the Clico collapse.

In 2016, the report by the Colman commission on the Clico collapse was also sent to the DPP.

Earlier this year, Police Commissioner Gary Griffith said the Clico investigation was one of several ongoing high-profile probes.

The local energy firms and their principals are represented by Lord David Pannick, QC, as well as Christopher Hamel-Smith, SC, and Lee Merry.

On July 10, a legal notice signed by Attorney General Faris Al-Rawi announced Pannick’s admission to practise in TT for the matter involving MTHL against the DPP and commissioner and any other proceedings arising out of it.