A large group of British Amer­i­can In­sur­ance Com­pa­ny (BAICO) pol­i­cy­hold­ers from sev­er­al East­ern Caribbean coun­tries will have to wait to learn the fate of their law­suit over a move by the T&T gov­ern­ment to bail out on­ly lo­cal fi­nan­cial sub­sidiaries of CL Fi­nan­cial (CLF). 

Caribbean Court of Jus­tice (CCJ) pres­i­dent Adri­an Saun­ders and judges Win­ston An­der­son, Mau­reen Ra­j­nauth-Lee, An­drew Burgess, and Pe­ter Ja­madar re­served their judge­ment in the case af­ter hear­ing sub­mis­sions at the court’s head­quar­ters in Port-of-Spain be­tween Mon­day and yes­ter­day. 

“The court will take time for its de­ci­sion in this mat­ter. We will let you know in due course when we are ready to ren­der a de­ci­sion,” said Saun­ders, at the end of yes­ter­day’s sit­ting.

In the law­suit, the group is con­tend­ing that the Gov­ern­ment breached the Re­vised Treaty of Ch­aguara­mas (RTC), which es­tab­lished the Caribbean Sin­gle Mar­ket and Econ­o­my (CSME), by bail­ing out cer­tain lo­cal CLF sub­sidiaries such as Cli­co and British Amer­i­can (Trinidad) and not re­gion­al sub­sidiaries such as BAICO. 

The group is claim­ing that while lo­cal pol­i­cy­hold­ers were pro­tect­ed and es­sen­tial­ly guar­an­teed their full in­vest­ments, the East­ern Caribbean pol­i­cy­hold­ers were on­ly able to re­coup ap­prox­i­mate­ly 14 per cent of their in­vest­ments through the liq­ui­da­tion of the re­gion­al sub­sidiary.

Pre­sent­ing sub­mis­sions on be­half of the group, King’s Coun­sel Si­mon Dav­en­port claimed that the Gov­ern­ment’s ac­tions breached Ar­ti­cle 7 of the RTC, which pro­hibits dis­crim­i­na­tion based on na­tion­al­i­ty. 

“Every Caribbean per­son is equal be­fore the law,” Dav­en­port said. 

He claimed that as­sets of British Amer­i­can In­ter­na­tion­al Com­pa­ny (BAICO), the hold­ing com­pa­ny for British Amer­i­can Trinidad, were used in the bailout, but the T&T Gov­ern­ment did not ac­cept its li­a­bil­i­ties, in­clud­ing to pol­i­cy­hold­ers. 

“CL Fi­nan­cial did not dis­tin­guish among group com­pa­nies un­less ab­solute­ly nec­es­sary,” he said. 

“This case is not go­ing to bank­rupt T&T. The amounts are sig­nif­i­cant but are on­ly a frac­tion of the monies in­ject­ed and now re­cov­ered by T&T,”  he added. 

Dav­en­port re­ferred to a US$100 mil­lion fund that was promised by the Gov­ern­ment un­der the tenure of for­mer prime min­is­ter Kam­la Per­sad-Bisses­sar dur­ing a Cari­com Heads of Gov­ern­ment meet­ing, held in Ju­ly 2012 in St Lu­cia. 

He not­ed that T&T on­ly made an ini­tial US$36 mil­lion con­tri­bu­tion and promised to fi­nance part of the re­main­der through a loan. 

Dav­en­port claimed that the T&T gov­ern­ment al­so breached Ar­ti­cle 184 of the RTC, which re­quires mem­ber states to pro­mote the in­ter­ests of con­sumers by pro­vid­ing ad­e­quate and ef­fec­tive re­dress. 

He ad­mit­ted that if the Gov­ern­ment did not take any ac­tion to pro­tect its lo­cal pol­i­cy­hold­ers, then his clients would not have a valid claim against it. 

Re­spond­ing to the sub­mis­sions, Se­nior Coun­sel Deb­o­rah Peake not­ed that there was no ev­i­dence that BAICO’s as­sets were used in the bailout. 

She said when the Gov­ern­ment signed a Mem­o­ran­dum of Un­der­stand­ing (MoU) with CL Fi­nan­cial for the bailout in 2009, on­ly three lo­cal sub­sidiaries Cli­co, BAT and Cli­co In­vest­ment Bank (CIB) were un­der con­sid­er­a­tion and not CLF’s 39 oth­er lo­cal, re­gion­al and in­ter­na­tion­al sub­sidiaries such as BAICO.

“This case as­sumes that they (BAICO) were un­der con­sid­er­a­tion.” she said, as she not­ed that the claimants had to prove that the Gov­ern­ment know­ing­ly ex­clud­ed re­gion­al pol­i­cy­hold­ers. 

She sug­gest­ed that the group’s case was based on a mis­un­der­stand­ing of the RTC.

“The RTC was for free trade with­in a cus­toms union not to frus­trate a gov­ern­ment which is pro­tect­ing its coun­try’s econ­o­my,” she said.    

Deal­ing with Dav­en­port’s claims over con­sumer pro­tec­tion re­quire­ments, Peake sug­gest­ed that such pro­vi­sions were meant to deal with an­ti-com­pet­i­tive be­hav­iour. 

“It is not rea­son­able to use it when the mar­ket has col­lapsed,” she said. 

Ad­dress­ing the US$100 mil­lion fund, Peake sug­gest­ed that it was not bind­ing or en­force­able as it was not a de­ci­sion made by re­gion­al lead­ers. 

“It was a com­mit­ment,” she said, as she not­ed that in Ju­ly 2016, the Min­istry of Fi­nance wrote to the Gov­er­nor of the East­ern Caribbean Cen­tral Bank to in­di­cate that a loan from the Caribbean De­vel­op­ment Bank was not ap­proved and that fur­ther fund­ing was not pos­si­ble due to the un­favourable eco­nom­ic en­vi­ron­ment.  

“Where were tax­pay­ers to find funds to treat all the sub­sidiaries the same way? This is not ground­ed in re­al­i­ty,” she sa. 

The group, which filed the law­suit in the names of El­lis Richards, Spencer Thomas and the Med­ical Ben­e­fit Board, was rep­re­sent­ed by for­mer St Lu­cia Prime Min­is­ter Dr Ken­ny An­tho­ny, Robert Strang, Gre­go­ry Pan­tin, Matthew Hap­pold, George Kirnon and­Miguel Vasquez. 

Tama­ra Toolsie, Brent James, Mur­vani Ojah Ma­haraj ap­peared along­side Peake for T&T.