FORMER chairman of the Urban Development Corporation (Udecott) Calder Hart has won his complaint that his right to a fair hearing was breached by the commission of inquiry into the construction of the failed Las Alturas housing complex in Morvant.
On Friday, Justices of Appeal Mark Mohammed, Peter Rajkumar and Maria Wilson allowed Hart’s appeal of Justice David Harris’s dismissal of his protests in a ruling in 2020.
In their ruling, the judges said the commission did not follow its own procedures. They said although Hart did not participate in the inquiry by either testifying or providing a witness statement, he was entitled to be treated fairly.
“It is a fundamental requirement of natural justice and procedural fairness that a person be afforded the opportunity to respond to, or defend himself against, proposed adverse findings or criticism rather than being condemned unheard.”
Hart had been invited to give a statement as a former Udecott chairman but did not participate after the commission failed to provide him with documents, including minutes of board meetings from Udecott and various technical reports. He was on the Microsoft Teams virtual platform for Friday’s ruling.
Rajkumar, who delivered the decision, said, “This case does not require consideration of the facts found, evidence led, and decisions arrived at by that commission.
“It is concerned rather with the decision-making process and in particular whether the appellant was entitled to be afforded fundamental fairness by an opportunity to respond to adverse findings that the commission proposed to make against him.”
As a result, the commission’s findings and recommendations only against Hart, contained in five paragraphs of its report, dated August 30, 2016, were quashed and deemed to have been arrived at in breach of the principles of natural justice.
In several of its findings, the commission had said Hart was “clearly the mind and management of Udecott with respect to the project.”
Hart’s contentions were that the adverse findings made against him by commissioners retired judge (now deceased) Mustapha Ibrahim, Dr Myron Wing-Sang Chin and Anthony Farrell, were unfair and illegal at no stage was he alerted by the commission that it could make adverse findings against him.
Harris’s ruling was also faulted by the judges.
In his decision, Harris held that “At the onset, it cannot be in dispute that the commissioners are duty-bound to faithfully, fully, impartially and to the best of their ability discharge the trust and perform the duties devolving upon them as commissioners. “Did they do so? This court holds that they did discharge their duty as prescribed by the terms of reference and indeed the law generally.”
However, Rajkumar said even if the commission’s perception that Hart had been uncooperative, there was no reason for it to dispense with the requirement that it adhere to its own procedures, “especially because of the serious nature of the potential and actual findings and recommendations” against Hart.
Rajkumar also said the process engaged by the commissioners, “at great public expense,” was flawed and the recommendation that civil proceedings against Hart be instituted without giving him the opportunity to respond, had no “legitimacy.”
Rajkumar said, “One must be mindful of the great public expense that would have been incurred in conducting a commission of inquiry over such a prolonged period, and the receipt into evidence and assessment of a substantial volume of documentary and oral witness testimony.
“One must also be mindful of the fact that this was a matter that called out for a commission of inquiry as to how in effect multi-story buildings for multifamily occupation were allowed to be constructed without a prior geotechnical report on a site generally unsuitable for the intended project, over a large longitudinal crack and with issues of slope stability.
“Two of those apartments had to be demolished in 2019 as they were too unsafe to be allowed to stand. That is a matter that certainly required investigation and explanation.”
He continued, “ However that must not be allowed to obscure the fact that a finding against a party and a recommendation that civil proceedings be instituted against him arrived at as a result of a flawed process, would have no legitimacy. The process was flawed in law by not allowing him the opportunity to respond to the adverse findings that were made against him.”
In their ruling, the judges also provided guidance to commissions of inquiry and other similar types of investigations.
The Appeal Court’s guidelines addressed Salmon letters, urged commissions to follow their own procedures, and emphasised the principles of procedural fairness.
The judge said concepts such as legitimate expectation, the right to be heard, and natural justice, were “all simply alternative ways of requiring that any process where adverse findings may be made against someone is required to be fair.”
To other similar types of inquiries, the judge advised that care should be taken not to fall afoul of the requirement to avoid apparent bias.
Also in 2020, another judge ruled in favour of former Housing Development Corporation managing director Noel Garcia, who also challenged the Las Alturas commission’s breach of the rules of natural justice in the way it treated him. Adverse findings were also made against Garcia. Justice Kevin Ramcharan had quashed the findings against Garcia, declaring that the commission, in deciding, finding or recommending, or in the process of arriving at its decision, acted illegally, irrationally, unreasonably, and without observing the principles of natural justice.
As a result, he held the decision against Garcia was null and void and had no effect. In April, Harris ordered contractor China Jiangsu International Corporation TT Ltd to pay a total of $30.1 million to the HDC for damage and loss arising out of the failed construction of the two buildings. Hart was represented by Jamaican King’s Counsel Dr Lloyd Barnett, Anthony Bullock and Tecla Duncan-Caines. Senior Counsel Fyard Hosein and Rishi Dass as well as Amrita Ramsook appeared for the Attorney General as an interested party in the matter. The commission, Wing-Sang Chin and Farrell were represented by Richard Clayton, KC, Jayanti Lutchmedial and Ganesh Saroop. Ibrahim died in June 2017, and Hart had not been successful in an earlier application to have his estate joined as a party.
Wing-Sang Chin and Farrell were ordered to pay Hart’s costs at the High Court and two-thirds at the Appeal Court.
Hosein raised the issue of indemnity for the State as, he said, the former commissioners appeared in the actions on their own. He said the AG was not asking for costs and would impose any order made against it.