Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Privy Coun­cil has up­held two con­sec­u­tive de­ci­sions by the lo­cal courts over their abil­i­ty to award com­pen­sa­tion for unau­tho­rised state con­tracts. 

De­liv­er­ing a ma­jor­i­ty judg­ment on Tues­day, Lords David Kitchin, Nicholas Ham­blen, An­drew Bur­rows, and La­dy Vivien Rose dis­missed an ap­peal brought by the Of­fice of the At­tor­ney Gen­er­al against Trin­sal­vage En­ter­pris­es Lim­it­ed.

Lord Michael Brig­gs pro­vid­ed a dis­sent­ing judg­ment in which he dis­agreed with the find­ings of his col­leagues and the lo­cal courts. 

Guardian Me­dia un­der­stands that the case set an im­por­tant le­gal prece­dent that is now ex­pect­ed to be utilised in sev­er­al pend­ing sim­i­lar cas­es be­fore the courts. 

The case cen­tred around a $5.75 mil­lion con­tract award­ed to the com­pa­ny in 2000 for the de­vel­op­ment of the San Fer­nan­do Har­bour. 

The com­pa­ny sued the State af­ter it com­plet­ed the work and was not paid. 

The State con­tend­ed that the con­tract was not valid as the then per­ma­nent sec­re­tary in the Min­istry of Works and Trans­port did not have the au­thor­i­ty to ap­prove it as con­tracts val­ued over $1 mil­lion fall un­der the pro­vi­sions of the Cen­tral Ten­ders Board (CTB) Act and the purview of the Cen­tral Ten­ders Board. 

De­liv­er­ing his ini­tial judg­ment in Jan­u­ary 2014, High Court Judge Frank Seep­er­sad agreed that the con­tract was null and void due to the then-per­ma­nent sec­re­tary over­step­ping her re­mit. 

How­ev­er, Jus­tice Seep­er­sad still ruled that the com­pa­ny was en­ti­tled to pay­ment as the State had been un­just­ly en­riched through the con­tract ir­reg­u­lar­i­ty. 

As part of his judg­ment, Jus­tice Seep­er­sad or­dered the par­ties to agree on an in­de­pen­dent ex­pert to as­sess the work per­formed by the com­pa­ny on the project and de­cide on the ap­pro­pri­ate com­pen­sa­tion for it. 

In 2019, Ap­pel­late Judges Nolan Bereaux, Prakash Moo­sai, and Ju­dith Jones dis­missed an ap­peal from the AG’s Of­fice and up­held Jus­tice Seep­er­sad’s de­ci­sion. 

In con­sid­er­ing the case, the Privy Coun­cil ac­cept­ed that the con­tract was void but had to de­cide whether the com­pa­ny’s claim for un­just en­rich­ment stul­ti­fied the statu­to­ry pol­i­cy of the Cen­tral Ten­ders Board Act. 

In their ma­jor­i­ty judg­ment, the four Law Lords not­ed that the leg­is­la­tion did not ex­press­ly ex­clude claims for un­just en­rich­ment in cir­cum­stances where con­tracts were award­ed in breach of it. 

Deal­ing with the pol­i­cy con­ferred by the leg­is­la­tion, they said, “The poli­cies can be said to be: en­sur­ing val­ue for mon­ey so that pub­lic mon­ey is not wast­ed on ar­bi­trary and self-serv­ing con­tracts; min­imis­ing the risk of kick­backs, fi­nan­cial im­pro­pri­ety, and un­war­rant­ed favouritism; en­sur­ing a trans­par­ent and fair process; and dis­cour­ag­ing or de­ter­ring non-com­pli­ance with the act.”

“In the Board’s view, al­low­ing the resti­tu­tion­ary quan­tum meruit would not stul­ti­fy those poli­cies,” they added. 

They al­so not­ed that the State was un­able to ad­duce ev­i­dence that the con­tract was award­ed to the com­pa­ny through col­lu­sion. 

“In any event, if there was any ev­i­dence of bribery and cor­rup­tion, that would trig­ger crim­i­nal of­fences and the pos­si­ble de­fence of il­le­gal­i­ty to the claim in un­just en­rich­ment,” they said. 

They al­so re­ject­ed sug­ges­tions that the dis­missal of the ap­peal would en­cour­age con­trac­tors to cir­cum­vent prop­er pro­cure­ment pro­ce­dures to ben­e­fit from it. 

“To re­ly on a resti­tu­tion­ary quan­tum meruit would be a mas­sive risk not least be­cause un­til the work had been sub­stan­tial­ly per­formed, there could be dif­fi­cul­ty in es­tab­lish­ing that the de­fen­dant had been en­riched and, un­til that point in time, the con­trac­tor would have no re­dress (be­cause there would be no valid con­tract,” they said. 

As part of their de­ci­sion, the ma­jor­i­ty not­ed that one week be­fore the ap­peal was heard by them, the Pub­lic Pro­cure­ment and Dis­pos­al of Pub­lic Prop­er­ty Act was pro­claimed. 

While they not­ed that the new leg­is­la­tion re­pealed the CTB Act, they not­ed that such did not af­fect their de­ci­sion as the new leg­isla­tive regime does not have a ret­ro­spec­tive ef­fect on pro­cure­ment which oc­curred pri­or to its procla­ma­tion. 

In his dis­sent­ing judg­ment, Lord Brig­gs ruled that the com­pa­ny should not be en­ti­tled to sym­pa­thy for be­ing un­aware of the re­quire­ments of the CTB Act. 

“Any firm seek­ing gov­ern­ment work ought to be fa­mil­iar with it, just as it ought to know the re­quire­ments of health and safe­ty leg­is­la­tion or the im­pact of pub­lic li­a­bil­i­ty,” Lord Brig­gs said. 

The re­de­vel­op­ment of the area sur­round­ing King’s Wharf in San Fer­nan­do, that the com­pa­ny par­tic­i­pat­ed in al­most two decades ago, has been pro­posed by sev­er­al suc­ces­sive gov­ern­ments.

In 2019, Cab­i­net ap­proved the $1.59 bil­lion San Fer­nan­do Wa­ter­front Re­de­vel­op­ment Project.

The ini­tial phase in­cludes the up­grade of the Plaza San Car­los His­tor­i­cal Dis­trict, the re­claim­ing of 3.8 hectares of land at King’s Wharf and the re­lo­ca­tion of the Pub­lic Trans­porta­tion Ser­vice Cor­po­ra­tion main­te­nance fa­cil­i­ty, and squat­ters along the for­mer Trinidad Gov­ern­ment Rail­way line.

The com­pa­ny was rep­re­sent­ed by Ramesh Lawrence Ma­haraj, SC, Anand Singh, Man­davi Ti­wary, Vi­jaya Ma­haraj, and Michael Rooplal. The AG’s Of­fice was rep­re­sent­ed by Thomas Roe, KC.