Government challenges Nelson's $96m claim: Pay back every cent

GOVERNMENT is going after every cent paid out to Jamaican-born King’s Counsel Vincent Nelson.

In response to Nelson’s $96 million claim for compensation for an alleged breach of an indemnity agreement to protect him from prosecution, the State, last month, fired its own salvo in a counterclaim.

The counterclaim, filed along with a re-amended defence on November 7, alleges Nelson received the money as a result of “unlawful and unjust enrichment,” at the expense of the people of TT.

In his lawsuit alleging a breach of the indemnity agreement, first filed in February and re-amended in June, Nelson said he incurred costs and expenses associated with his notarised statement which he gave on October 26, 2017. The statement disclosed the alleged criminal conspiracy and criminal enterprise with former attorney general Anand Ramlogan and ex-UNC senator Gerald Ramdeen.

The defence said, “for the very reason it was illegal as being against public policy to agree not to disclose the claimant’s notarised statement, it would be illegal as being contrary to public policy to agree to compensate (him) for any damage suffered…any such agreement would be illegal and unenforceable.”

In May 2019, Nelson, 62, a tax attorney who lives in the UK, was indicted on three charges of conspiring to commit money laundering, misbehaviour in public office and conspiracy to commit an act of corruption. The misbehaviour charge was discontinued after he entered a plea deal with the Office of the DPP.Justice Malcolm Holdip sentenced him in March 2020 and ordered him to pay a total of $2.25 million in fines which he also wants the State to pay. Those fines become due on January 3, 2023, as the payment of all fines, except maintenance, was deferred several times because of the covid19 pandemic.

On October 10, the DPP announced he was stopping the case against Ramlogan and Ramdeen because Nelson was unwilling to testify until his civil claim against the State came to an end.

Nelson claims if not for his conviction – which he also claims was not part of his agreement with the Government – he would have returned to practise law for 10 years until his retirement in 2028 when he turned 71.

He is claiming the $96 million for these “lost years” of work. Nelson said he had no funds saved for a pension and it was always his intention to return to work as soon as he was cured of cancer. Nelson says before his conviction he earned an average annual salary of £1.4 million.

But the State contends any income Nelson earned since his corrupt agreement to pay kickbacks to Ramlogan, or could have earned since then, would be premised on his continued dishonest and corrupt failure to disclose that he had “corruptly agreed to pay the said kickback to Ramlogan.”

It also said his inability to earn an income as a lawyer would only be possible if the continued to conceal his corrupt activities so any losses he incurred were “irrecoverable” by him from the State, which, in any event, was rigorously denied several times in the 37-page re-amended defence and counterclaim.

“The defendant says that the claimant is barred, as a matter of public policy, from claiming or recovering any loss, damages, costs or expenses arising from his own criminal conduct.”

In October, Newsday reported that Nelson’s attorneys – the firm BCL Solicitors of London and local attorney Roger Kawalsingh – received a little over $8.4 million for legal fees and disbursements for airfare and accommodation associated with the statement he gave on the alleged corrupt legal-briefs deal and his plea-deal hearing in 2019.

Kawalsingh was paid by cheque for invoices dated January 18, 2018-September 28, 2020, totalling a little over $4.7 million. BCL was paid for invoices dated October 31, 2018-July 27, 2021, totalling £376,890, by wire transfer.

The State’s counter-claim says, “The defendant accordingly claims repayment of the said sums as money had and received and/or obtained by way of the claimant’s unjust enrichment.”

The new defence says former attorney general Faris Al-Rawi, now Minister of Rural Development and Local Government, denied accepting liability under the agreement or to any compromise or negotiations with Kawalsingh on the sums payable to Nelson.

Last Tuesday, after the first hearing of Nelson’s claim in the High Court, Attorney General Reginald Armour, in a statement, spoke of the counter-claim filed by the State as he revealed that leading UK expert in the practice of proceeds-of-crime civil recovery and money laundering, King’s Counsel Kennedy Talbot, was retained to take over from local senior counsel Gilbert Peterson and Douglas Mendes.

Peterson and Mendes, both of whom were on record as lead counsel for the State, returned their briefs. Both men were instrumental in drafting the alleged indemnity agreement between Nelson and Al-Rawi for the Government.

Armour said it was his own thinking that in the interest of justice it was appropriate and prudent to retain other lead counsel, unconnected with the matter.

Mendes later confirmed to Newsday, he had come off record.

The matter, assigned to Justice Jacqueline Wilson, has been adjourned to December 12, at which time dates are likely to be set for managing the case and the hearing of an application filed by Nelson to have the file unsealed.

The re-amended defence admitted entering into the indemnity agreement with Nelson after Nelson came forward with the information of the alleged criminal conspiracy to defraud the State.

It was alleged that Ramlogan demanded from Nelson a percentage of the gross fees he would receive for representing the Government or any state enterprise. It was also alleged that Nelson would pay ten per cent of those fees and the funds would be paid into Ramdeen’s account. Nelson claimed 12 wire transfers were made and also provided “evidence” of it in screenshots showing the payments from his UK and Jamaican bank accounts.

The indemnity agreement purported to indemnify Nelson “against all actions, suits, proceedings, claims, demands, damages, costs, expenses and liabilities whatsoever which may be taken against him or be incurred or become payable or sustained by reason of the breach of any of the undertakings contained in the said agreement.” There was also an agreement that Nelson’s statement would not be revealed in Parliament and promised to cover any legal costs Nelson could incur in any defamation claim.

Nelson claims Al-Rawi made an admission of liability to pay in letters to his UK attorneys and also a breach of the agreement.

In its defence, the State has not only denied all of Nelson’s claims, except that there was an indemnity agreement but also maintains that the tax attorney always had independent legal advice; and the agreement expressly provided that his statement will be disclosed to the DPP and the police and everyone was aware that it was possible the DPP would not accept any recommendation not to prosecute Nelson. There was an admission that Al-Rawi did recommend to the DPP not to prosecute Nelson because of his whistleblowing evidence and went so far as to suggest that Nelson should be given a conditional pardon to secure his continued assistance.

It is also maintained that Nelson’s inability to practise law was not caused by any alleged breach of an indemnity agreement with the Government, but because of his own criminal conduct.

The defence set out how it all began when Nelson filed a lawsuit against the Government for payment of $10 million in legal fees. That lawsuit was settled and Nelson received his payment but Kawalsingh also told Al-Rawi his client was “terminally ill with cancer and he wished to purge his conscience of his criminal conduct” before he “passed away.”

As of December 2021, Nelson said MRI scans in 2019, 2020 and 2021 showed no signs of cancer.

The re-amended defence also maintained that at no time did the Government make a decision that Nelson “should not be prosecuted” or promised to ring-fence or limit prosecution to only the Ramlogan and Ramdeen matter while affording him protection from any foreign jurisdiction.

Nelson complained his statement was given to the UK’s white-collar crime investigative unit, National Crime Agency (NCA). Al-Rawi told police he had a duty to comply with his obligations under the Mutual Legal Assistance in Criminal Act and said it would be contrary to public policy not to disclose Nelson’s statement to the NCA.

The State goes on to say Nelson's legal troubles were caused by the media coverage of his criminal acts.

In its counterclaim, while not specifying exact amounts hoped to be recovered, the State said it "would provide particulars of the sums it is asking for after discovery but asks for the repayment of “the expenses incurred by the claimant” and the payments made to him or his attorneys.”

“The defendant, accordingly, claims repayment of the said sums as money had and received and/or obtained by way of the claimant’s injustice enrichment.”