Chester Sam­bra­no

Lead Ed­i­tor, News­gath­er­ing

chester.sam­bra­no@guardian.co.tt

For­mer Com­mu­ni­ty-based En­vi­ron­men­tal Pro­tec­tion and En­hance­ment Pro­gramme con­trac­tor East­man En­ter­pris­es Ltd has suf­fered an­oth­er le­gal blow af­ter it was or­dered to pay the com­pa­ny’s le­gal costs af­ter the con­clu­sion of an ap­peal on the use of an Al­ter­na­tive Dis­pute Res­o­lu­tion clause in both par­ties’ con­tract.

A state­ment is­sued by CEPEP yes­ter­day about the le­gal mat­ter stat­ed that the Ap­peal Court pan­el found that the con­trac­tor was wrong to by­pass the clause by fil­ing a claim in court.

It said the par­ties had agreed to use dis­pute res­o­lu­tion be­fore ap­proach­ing the courts, and by­pass­ing that process re­moved the pur­pose of the agreed pro­ce­dure.

The rul­ing came weeks af­ter East­man En­ter­pris­es Ltd failed in its bid to re­vive its law­suit chal­leng­ing a mass ter­mi­na­tion ex­er­cise at the State com­pa­ny.  The com­pa­ny’s ap­peal was dis­missed af­ter it chal­lenged the  de­ci­sion by a judge to stay the case based on its fail­ure to en­gage in me­di­a­tion and ar­bi­tra­tion be­fore lit­i­ga­tion.  In the No­vem­ber 20 mat­ter, the Ap­peal Court pan­el of judges found that High Court Judge Mar­garet Mo­hammed could not be fault­ed for stay­ing the case based on East­man’s con­duct af­ter its con­tract and those of over 300 fel­low con­trac­tors were ter­mi­nat­ed based on a Gov­ern­ment di­rec­tive at the end of June.

But the pan­el al­so ruled that Jus­tice Mo­hammed wrong­ly re­ferred pre­lim­i­nary con­tentious al­le­ga­tions over the mass re­new­al of con­trac­tors days be­fore the gen­er­al elec­tion in late April to the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP).

In the lat­est rul­ing, the state­ment from CEPEP stat­ed that Se­nior Coun­sel Lar­ry Lal­la, who ap­peared for the con­trac­tor with at­tor­neys Ka­reem Mar­celle and St Clair Michael O’Neil, ar­gued that the court should make no or­der as to costs.  

Lal­la sub­mit­ted that each par­ty should bear its own costs be­cause the Court of Ap­peal ruled that the tri­al judge erred when she re­ferred the mat­ter to the Di­rec­tor of Pub­lic Pros­e­cu­tions.

The court re­ject­ed the ar­gu­ment in a unan­i­mous judg­ment by Jus­tices Pe­ter Ra­jku­mar, James Aboud and Ricky Rahim.

It ac­cept­ed CEPEP’s po­si­tion that the re­fer­ral is­sue formed a mi­nor part of the ap­peal and did not jus­ti­fy al­ter­ing the orig­i­nal costs or­der.

The pan­el found the main is­sue was about how the Al­ter­na­tive Dis­pute Res­o­lu­tion claus­es op­er­ate as a con­di­tion prece­dent to lit­i­ga­tion.

The court said the re­fer­ral to the DPP was not a sig­nif­i­cant as­pect of the ap­peal and did not oc­cu­py any re­al time dur­ing the hear­ing.

It held that the is­sue did not af­fect the main bases of the stay ap­pli­ca­tion or the is­sues de­ter­mined by both the tri­al judge and the ap­pel­late court.

The court or­dered the los­ing par­ty to pay CEPEP two-thirds of its le­gal costs, sub­ject to a 20 per cent dis­count to re­flect the re­ver­sal of the DPP re­fer­ral.

CEPEP, in its state­ment, al­so urged con­trac­tors to fol­low their con­trac­tu­al terms and said it re­mains com­mit­ted to the rule of law.

East­man En­ter­pris­es first took court ac­tion in ear­ly Ju­ly af­ter the mass dis­missal of con­trac­tors and work­ers from CEPEP. The le­gal ac­tion was fol­lowed by an ap­peal in Au­gust.