ENERGY giant Methanol Holdings Trinidad Ltd (MTHL), two other energy companies and several of their principals can now challenge the use of a local accounting firm in investigations arising out of the decade-old collapse of Clico.
On Tuesday, Justice Nadia Kangaloo ruled that the application of MTHL, Process Energy, Consolidated Energy (Trinidad) Ltd, and their principals, against a decision of the Director of Public Prosecutions (DPP) and the police to use accounting firm Deloitte in investigations was an exceptional case.
It is only in exceptional cases that decisions of the DPP can be reviewed by the court. The judge provided several authorities to support her ruling to grant leave.
Tuesday’s hearing was heard virtually. The local energy firms and their principals are represented by Lord David Pannick, QC, and Lee Merry. Pannick, who was admitted to practice in July for the case and any case which arise out of it, made his submissions from London.
The parties are seeking several declarations that the decision of the DPP and the commissioner to continue to engage Deloitte for criminal investigation was unreasonable and a breach of natural justice, among other things. They also want a declaration that the conduct of the DPP trespassedon the police’s function and compromised essential elements of the judicial process.
Initially the parties sought an injunction to restrain the DPP and the top cop from continuing to use the accounting firm, but admitted in the application in March that in response to their concerns, it was indicated that investigators would not interview witnesses with Deloitte’s participation.
However, the parties noted that if an attempt is made to access certain documents police seized in a raid of Methanol Holdings' offices last year, they will make an urgent application for interim relief.
From May 2-July 12, 2019, police searched MHTL’s offices at Atlantic Avenue, Pt Lisas. In all, 82 boxes of documents were taken over the two-month period and an additional 78 boxes 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 say the use of external consultants may, in large part, explain why the investigation has taken so long.
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, 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,” they argued
In September 2010, the reports and files on 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 collapse.
In 2016, the Colman commission report 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.
Representing the DPP was Senior Counsel Ian Benjamin.