Judges and WASA’s $2.2m bill

That very instructive December 22 judgment by the Privy Council (PC) against WASA’s “negligent failure” in its statutory duties stands out as a flagship decision regarding the role of lawyers, judicial independence, apparent spite and abuse of taxpayers’ money, very insensitive government agencies, lack of proper oversight for government litigation and some reasons for case-backlogs.

The robustly candid comments by the five PC judges (delivered by Lord Leggatt) on WASA’s neglect, repair delays to a sinking house and their confirmation of the $2.2 million award with costs to the aged couple, Darwin and Kamalar Sahadath, should be taken very seriously by government and its various local government and statutory agencies. especially where large amounts of taxpayers’ money are also spent for legal fees.

Since 2012, the distressed, victimised couple found a leaking WASA main, cracked road, drain and sink holes widening in front of their house resulting in damage to the walls and basement of their sinking house. After repeated complaints, WASA made some “repairs” to the faulty pipe but the leakage and damage increased. The couple, with experts, felt compelled to take costly action against WASA “claiming negligence (alternatively, nuisance, and/or breach of statutory duty) despite the authority being aware of the leak but had failed to repair in a proper or timely manner.”

The PC noted WASA lawyer, Keston McQuilkin (with Alivia Mootoo and Charles Russell Speechlys (UK), resisted the claims while arguing “without evidence” the landslide was caused by something else. The repair delays by WASA aggravated the landslide. The PC also concluded that even without “expert evidence,” WASA was “negligent.” The Law Lords also noted expert evidence that showed rather than rainfall, it was “saturation of the subsoil from the water leak that progressed to the larger landslide.” “WASA’s appeal rubbished,” screamed one headline. Who advised WASA?

The couple’s lead lawyer, Larry Lalla (assisted by attorneys Vikash Indar Lal, Alisa Khan), felt compelled to say: “This matter shows unacceptable, disgraceful, high-handed and oppressive conduct by a state entity, with deep pockets, against some everyday citizens of this country.” The PC further noted that while WASA had some responsibility, the regional corporation neglected its duty at that time to do “repairs to the road and drains” so as to help mitigate the damage. How will “local government reform” and Rural Development and Local Government Minister Faris Al-Rawi prevent such “high-handed and oppressive conduct” by state entities?

Given this successful action and the taxpayers’ money involved, this matter and others like it are worthy of attention by Attorney General Reginald Armour, SC. Further, given the PC comments, the tragic nature of this case, taxpayers’ money involved, the statutory neglect and prolonged suffering of the victimised citizens, there clearly is a need for guidance and oversight also by the relevant parliamentary joint select committee (JSC).

The AG’s constitutional role is “to be responsible for the administration of legal affairs in TT,” especially for “civil proceedings.” (Section 76(2)). While the couple’s action was against WASA, given the overall circumstances of this matter and the PC comments, there is public interest for the AG to intervene in such matters if only for fairness and guidance. The records will show the number of unresolved citizens’ complaints against several statutory bodies and regional corporations for statutory neglect and delayed responses. What has happened to Justice Kokaram’s previous repeated pleas for less costly and more compassionate mediation in such matters?

One month ago, this column suggested, as a healing, prevention procedure, that Minister Al-Rawi dutifully do a survey of such pubic complaints to help ensure that the statutory duties under his charge are early and properly complied with. Attorney Lalla said: “The unfortunate thing is that this couple could have gone for almost ten years without the money needed to rebuild their home when all along the simple, responsible and humanitarian thing for WASA to have done, as a good taxpayer-funded enterprise, was to honour the decisions of the local courts.”

In the instant case, High Court Justice Vasheist Kokaram in January 2017 ruled in favour of the couple. He held WASA responsible for the house sinking, especially by its failure to do the repairs “in a proper or timely manner.” He awarded $2.2 million. On WASA’s appeal in 2018, the Appeal Court panel (Justices Allan Mendonca, Gregory Smith and Prakash Moosai), pushing back WASA’s lawyer, Keston McQuilkin’s two arguments, dismissed WASA’s appeal. The Appeal Court also confirmed the $2.2 million award.

Given the evidential facts and WASA’s “neglect,” the PC not only dismissed WASA’s appeal but admonished WASA’s lawyers: “This second appeal has been brought without heeding the settled practice of the PC Board that it will not, save in special circumstances, review concurrent findings of fact made by two lower courts. It is an appeal which should not have been brought, as it was bound to fail.” Will lessons be learnt from these court rulings? This is what the AG, Minister Al-Rawi, Public Utilities Minister Marvin Gonzales and the JSC should consider to help ensure fairness and judicious public administration.

In fact, this matter should have never reached the courts in the first place. All citizens, of whatever class, race or political preference, should continue to insist in having strong, independent judges and press. It increasingly looks as if the long and powerful arm of the state needs to be checked, prevented from abuse.