Contractors aim to take EMBD $400m cartel case to Privy Council

AN application for conditional leave to appeal to the Privy Council has been filed by the group of contractors who failed to have a multi-million dollar cartel case brought by the Estate Management and Business Development Company Ltd (EMBD) against them struck out.

At a status hearing of the claim, which also includes former official of the EMBD and former housing minister Dr Roodal Moonilal on February 21, attorneys for the contractors said they had not yet received a date for the hearing of the conditional leave application.

Presiding over the EMBD’s case is Justice Frank Seepersad.

The judge was told that part of the application for conditional leave includes a request for a stay to file defences by March 20, as ordered by the Court of Appeal in January.

Attorneys suggested that the claim before Seepersad be stayed until there is a determination by the Privy Council on their challenge for better particulars of the EMBD’s case against them which will have an effect on the defences to be filed.

Objecting to this was King’s Counsel David Phillips who leads a team of attorneys for the EMBD.

He said the application for conditional leave and the stay were being sought by those defendants who participated in the strike-out applications and not the others who had consented to abide by the Court of Appeal’s ruling.

They include contractor Namalco, Moonilal, former EMBD CEO Gary Parmassar, former divisional manager Madhoo Balroop and engineer Andrew Walker.

Phillips urged Seepersad to have them put in their defences.

However, their attorneys and those for TN Ramnauth, Kallco, Mootilal Ramhit and Sons Contracting Ltd, and Fides Ltd questioned the value or practicality of filing defences at this stage, suggesting that the filing of all defences be put on hold until the Privy Council rules to avoid incurring further costs.

They argue that not only would they have to amend defences but if the Privy Council agrees with their argument for better particulars, then the case against them would fall since the EMBD has already said they have already provided all the evidence they could to support the cartel claim.

Although he agreed there was no useful purpose for some defendants filing defendants, Seepersad said he was not going to interfere with the Court of Appeal order for defences to be filed by March 20.

“From a practical perspective, I can see no useful purpose for some defendants filing defences when the court cannot progress the matter as there are outstanding matters to be determined by the board (the Privy Council) and the possibility that the board may issue directions that requirement claimant to file further and better particulars.

“While I appreciate the inordinate time this matter is engaging the court’s attention and has not gotten off the ground, my hands are tied in so far as the appellate process must be engaged.”

However, he said if no stay was granted then the obligation to file defences by the end of next month remains.

“I am not minded to interfere with that. There is an order to comply with.

He has adjourned the matter to April 29 for another status hearing.

In the conditional leave application, the contractors have argued that the Appeal Court misinterpreted and misapplied well-established law governing pleadings, the requirements of a party to plead fraud, dishonesty and bad faith, attribution of knowledge of companies in torts of unlawful means conspiracy, knowing receipt and dishonest assistance and well-established principles of law governing the duty of the court to strike out a claim of unlawful means conspiracy which does not plead all the elements of the cause of action.

In their ruling in January, Justices of Appeal Charmaine Pemberton, Peter Rajkumar and Vasheist Kokaram upheld a 2020 decision of Justice James Aboud to allow the EMBD’s case to proceed.

In August 2020, Aboud dismissed preliminary applications by the five contractors to have the EMBD detail allegations against them so they could fairly mount their defence, or strike out the claims.

The substantive lawsuit centres around 12 contracts for the rehabilitation of roads and infrastructure granted to five contractors before the September 2015 general election.

The contractors had initiated proceedings against the state-owned special purpose company for the almost $200 million balance owed on their respective contracts.

The EMBD countersued the contractors claiming that they, as well as contractors Fides and Namalco, conspired together with Moonilal, Parmassar, Balroop, and Walker to corruptly obtain the contracts.

It also claimed that the parties agreed to facilitate the contractors receiving preliminary payments for the work which was allegedly overpriced and substandard and utilised a loan, meant to pay for other legitimate contracts, to make interim payments to the contractors.

Through the lawsuit, the EMBD is seeking a series of declarations against the parties including one on the illegality of the contracts.