Expect British Professor, John Uff, to fly into Trinidad shortly to present his damning report of the Commission of Enquiry into the construction sector, the Urban Development Corporation of Trinidad and Tobago (Udecott), and the Cleaver Heights housing project. The way was paved yesterday for Uff to hand in his report to President George Maxwell Richards after the High Court dismissed Udecott's judicial review in which the State company claimed that the Uff Commissioners were biased towards Udecott and its executive chairman, Calder Hart. The report was due on two previous occasions, the last being February 28. But the Commission gave an undertaking that it would not hand in the report until completion of the judicial review case. Yesterday, Justice Mira Dean-Armorer, presiding in the Port-of-Spain High Court, delivered a 142-page judgment in which she dismissed the judicial review case in which Udecott sought to prevent Uff from submitting the report. She ordered that the final report be handed in by the other two of the four commissioners�Uff and Desmond Thornhill. But Devesh Maharaj, attorney for Udecott, sought to get a stay of the order in the event that his client wants to appeal.
Maharaj asked for an order to block the publication of the report. Dean-Armorer asked, "On what basis should I do so?" Maharaj responded, "In the event that the claimant wants to appeal, which we should do shortly." Dean-Armorer added, "Then you will have to run upstairs (Court of Appeal). I may be able to stay the order for certiorari, or the order for costs, but I don't think I can stay the publication of the report. You have not shown me any good reasons why I should do so," the judge declared. After the hearing, Maharaj offered little comment, except to say that the lawyers need to study the report before making the next move. Udecott, however, was able to get an order from the court to say that the decision of the commissioners to receive a memorandum prepared by former commissioner, Kenneth Sirju, and to annex that report to the Commission of Enquiry's report, was illegal, null and void. Dean-Armorer granted an order of certiorari to quash the decision of the commissioners to receive such an extraneous memorandum and annex it to the Commission of Enquiry report.
She also ordered Udecott to pay 7/8 of the costs to the Uff Commission, the defendants in the matter. Another commissioner, Israel Khan SC, resigned last August. Dean-Armorer pointed out that in this case, Udecott made no allegation of actual bias against the commissioners. Udecott alleged the appearance of bias against Uff by virtue of his remarks, pronouncements, orders, action and inaction during the life of the enquiry. An allegation of apparent bias was also made against Sirju by virtue of his professional history and his treatment with it in the course of the inquiry. There was evidence that Sirju's company did work for NHIC on the Cleaver Heights project. He stepped down from the final phase of the enquiry which dealt with the controversial Cleaver Heights project. There was also an allegation of apparent bias by Uff Thornhill and Sirju, by virtue of infection, through their association with former commissioner, Khan. No allegation was made in respect of words or actions of Thornhill.
ABOVE: ?Israel Khan, SC, admitted being biased towards Udecott and Calder Hart. PHOTOS: KARLA RAMOO
Khan admits to being biased
Dean-Armorer considered how the fair-minded and informed observer would view the allegations against Khan who recused himself on August 11, 2009. She said Khan admitted that he was biased in an interview in the media. He said that his feelings of antipathy against Udecott and Hart were developed only after they accused him of being racist. The judge added, "In my view, however, the fair-minded and informed observer would have detected the appearance of bias in the interrogation by former commissioner Khan on 28th January 2009. The fair-minded observer would be mindful of the sociological context of Mr Khan being a senior advocate practising at the criminal bar where there is a culture of aggressive and robust cross-examination." She continued, "The fair-minded and informed observer would be aware that a practitioner of Mr Khan's seniority would find it difficult to refine his method of questioning within the short time between his appointment as a commissioner and the impugned interrogation."
Dean-Armorer stated, "In my view, the mere robustness of the questioning with the former commissioner's frequent interruptions of the witness would not lead the fair-minded observer to the conclusion that there was a real possibility that Commissioner Khan was biased." She concluded that a fair-minded observer would note that there was a clear attempt to suggest that Hart was unintelligent. She said the fair-minded observer would form the view that there was a real possibility that Khan had a visceral dislike of Hart and that there was a real possibility of bias.
Khan Responds
Following the judgment, Khan responded, "It is absolutely no surprise to me that Udecott and Calder Hart lost these matters. The judgment is in keeping with the law and the facts. In my letter of resignation, I told Mr Hart's lawyers that their threat of judicial review against the Commission was so preposterous that they would be laughed out of court. I had called upon Calder Hart and Udecott to embrace the Commission of Enquiry unless there was cocoa in the sun."
Allegations against Uff
Dean-Armorer recalled that in January 2009, Uff incurred the anger of attorneys by imposing a weekend hearing without consultation. She spoke of the "moving of the goalpost", that is to say, shortening of the opening address of Andrew Goddard QC, lead counsel, for Udecott. The judge also noted the sudden introduction of the evidence of Carl Khan, former husband of Sherrine Hart, now married to Calder Hart. She said the fair-minded observer would note that Khan's evidence was introduced on a day when only junior counsel for Udecott was present, and that Hart was unrepresented. While she said the observer would find the introduction of the evidence to be unfair, the observer would not find this incident reflective of "an attitude of mind which prevents the chairman (Uff) from making an objective determination of the issues he has to resolve."
?'Vindicated'
?The Urban Development Corporation of Trinidad and Tobago (Udecott) claims it has been vindicated by the findings of Justice Mira Dean-Amorer in its application for judicial review.�In a release last night, Udecott stated: "Justice Dean-Amorer severely criticises the commission's behaviour, citing its sudden introduction of the evidence of Carl Khan as unfair, in that it deprived Udecott of the opportunity to know what charges were being made against it. "She said the court was "appalled" at Professor Uff's failure to treat Mr. Hart fairly, adding that Professor Uff was guilty of 'negligent authoritarianism' in his treatment of Udecott and Mr Hart. "Justice Dean-Amorer, clearly outlined her findings of bias against Udecott Executive Chairman Mr Calder Hart by former Commissioner Israel Khan. She also notes that Mr Israel Khan had been biased against Udecott since January 2009."