Rock Hard cement quota challenge set for February

A date in February has been set for the hearing of a challenge against Government’s move to introduce a quota on imported cement and a proposal to increase import duties.

Justice Jacqueline Wilson on Thursday set February 25 for the hearing of the judicial review claim brought by TT-based Rock Hard Distributors (RHTT) and St Lucia-based Rock Hard Distribution Ltd (RHDL) against the Ministry of Trade and Industry, over moves which the cement importer claims would cripple their operations.

A separate hearing for an injunction to restrain the ministry from imposing the quota, an import licensing regime and registration system and the increase in duties is likely to take place sooner if discussions between the parties does not result in a continuation of an undertaking to hold off on the implementation until the challenge is heard and determined.

Attorneys for RHTT and RHDL are pressing for an undertaking or interim relief, if it comes to that, since the new measures were having “adverse destructive effects” on their businesses.

Senior Counsel Ian Benjamin, who leads a team of attorneys for Rock Hard, said the matter was of paramount public interest.

At Thursday’s hearing, he said his clients have asked for a new undertaking on the enforcement of the measures. A previous one granted in December when the companies filed its applications for interim relief and leave for judicial review expired on Thursday.

“The truth of the matter is that we have monthly shipments due to arrive at the end of the month. What we face is quite a challenging circumstance and we are looking for the ministry to meet us halfway.”

The ministry’s lead attorney, Deborah Peake, SC, proposed an interim arrangement that would not prejudice Rock Hard, that the matter should proceed in February without an undertaking by the ministry or an injunction in place. She said there was no likelihood that when the system goes into effect, Rock Hard would be prejudiced, since it was unlikely that its entire annual quota was going to come into the country in the first quarter of the year.

“We know the history of the imports.

“The systems can go into effect without prejudice before the court makes a pronouncement on the legality of the quota system.”

She said there was much more at stake than Rock Hard. “We are dealing with a country in a pandemic period.”

The ministry is asserting that the quota system was being introduced to reduce the leakage of foreign exchange, strengthen the local cement manufacturing industry, maintain employment and build on exports.

“We have set out our reasons why it was put in place…The foreign exchange crisis, while supporting the local industry, which is a generator of foreign exchange. If we give an undertaking stultifying the systems, then we will defeat the entire public policy concern.

“We see no reason why it isn’t an acceptable position (to go on with the matter without a restraint on the ministry).

“There is much more at stake than simply Rock Hard …We are dealing with a country in a pandemic period. I don’t think we can wait three months,” Peake said.

“We can’t say, ‘Government policy must give way because my business will be destroyed.’ There will always be the overriding interest. We have a country to manage and a foreign exchange crisis to manage,” she said, although she also said she would be prepared to have further discussions with Rock Hard. She also pointed out that RHTT was a national of TT which has applied to the ministry to be registered under the quota system.

Rock Hard Distributors of TT and Rock Hard Distribution of St Lucia are challenging the November 13, 2020 decision of the Ministry of Trade to introduce a quota from January 1 only allowing 75,000 tonnes across the board for all distributors for the year.

The other decision taken by the ministry which is being challenged is the proposal it sent to the Commission for Trade and Economic Development (COTED) for a further suspension of the Common External Tariff (CET) on other hydraulic cements and its intent to apply a 50 per cent rate of duty. Also appearing for Rock Hard are attorneys Jagdeo Singh, Justin Phelps and Karina Singh. Tamara Toolsie and Brent James appear with Peake for the ministry.