State to pay Dipcon US$2.2m

-after losing bid at CCJ to challenge judgment

The Government of Guyana will have to pay the US$2.2 million awarded to Trinidad road construction company Dipcon in 2015, after losing its bid to appeal the judgment before the Caribbean Court of Justice (CCJ).

The Regional Court yesterday, among other things, ruled that the Attorney General (AG) of Guyana ( the appellant), failed to file an application to the court for special leave to appeal, pursuant to section 8 of the CCJ Act.

As a result, the October 21, 2015 $455m judgment of then High Court Judge, Justice Rishi Persaud, in favour of Dipcon, for road and infrastructural works done under the former administration remains intact.

The AG, Basil Williams SC, had appealed against the refusal of the Guyana Court of Appeal to extend time for appealing after more than six months had passed since Justice Persaud’s judgment.

The State applied for, and obtained leave on May 30, 2017 to appeal to the CCJ against the refusal.

Delivering the ruling, President of the CCJ, Sir Dennis Byron, said that while the state was granted leave to appeal before it, by the Court of Appeal “as of right,” the appeal did not fall, as it should, within section 6(a) of the CCJ Act.

That section provides, “where the matter in dispute on appeal is above a certain value an appellant has the right to appeal; it does not require the appellant to obtain permission.” Sir Dennis, however, noted that what the state was attempting to appeal was solely a procedural issue— that is, whether it should be granted an extension of time within which to appeal.

He said the situation, therefore, is that the Attorney General, has not filed an application to the CCJ for special leave to appeal, pursuant to section 8 of the CCJ Act.

In its written submission, the state recognized that section 8 enabled the CCJ to prevent a miscarriage of justice by granting special leave to appeal from any decision of the Court of Appeal.

Sir Dennis said it was more than a curiosity that, while appreciating the ability of the court to grant special leave to prevent a miscarriage of justice, it failed to file an application for special leave.

Likewise, the judge explained that the ineluctable inference can be drawn that the AG equally appreciated that he would also need to apply for an extension of time within which to apply for special leave.

This, Sir Dennis said, is owing to the fact that the refusal of the Court of Appeal dates back to January 19, 2017 while Rule 10.12 of the CCJ ( Appellate Jurisdiction) Rules 2017 requires an application for special leave to be made within 42 days of the date of the judgment from which leave to appeal is sought.

Referencing the case of Blackman v GittensBlackman [2014] CCJ 17 ( AJ), among which the court considered in arriving at its decision, the CCJ President said the application for special leave to appeal was made more than a year late when it should have been made within 42 days; noting that there was no application for an extension of time to seek special leave. Consequently, it held that the court had no jurisdiction to entertain the special leave application.

Sir Dennis emphasized that while the court may be minded, “in a proper case,” to grant an extension of time, to comply with the Rules or excuse delay, it does so to avert a clear miscarriage of justice; but noted that litigants are not free to ignore time limits and then seek refuge behind the ‘ overriding objective.”

The CCJ schooled the state, that a failure to apply for an extension of time to file a special leave application, is a sufficient reason to dismiss the out-of-time application for special leave, for want of jurisdiction.

Sir Dennis said that it was disappointing that state counsel saw it appropriate to venture an oral application for enlargement of time, at the very hearing where it argued that it had a right to appeal, and needed no permission, in accordance with section

6.

The judge noted that even though the AG was well aware that he needed to have applied for special leave to appeal, and needed first to have applied for an extension of time within which to make that application, his counsel deliberately chose not to file those applications; noting that the state offered no justification for failing to comply.

In the circumstances, the court said it had no jurisdiction to allow the State’s appeal to against the Court of Appeal’s refusal to grant an extension of time for appealing Justice Persaud’s decision.

Surprising The CCJ said it found it surprising that the local Court of Appeal would depart from its precedent in Mohan v Persaud [2012], and grant the state leave to appeal as of right, when it had already decided in that case, that section 6 did not apply to a refusal to enlarge the time for appealing—a decision which the CCJ would later affirm.

Sir Dennis stressed that if the appellant had made the proper applications for special leave and for an extension of time, it would have borne the burden of persuading the court that it was a proper case for extending time for compliance with the rules and to address whatever factors may have caused it noncompliance.

Sir Dennis noted that the reason given by the AG for failing to appeal in time, was that the state’s case in the High Court had been conducted by “outside counsel” and that following a change in Government in May 2015, he was unaware of the existence of the pending case, and, as a matter of inference, neither was anyone else within the Attorney General’s or Solicitor General’s offices.

Williams, the court further noted, argued that while Justice Persaud’s ruling was given five months after he would have already been appointed AG, it took him some three months, until January 2016, to learn of the judgment, and was only able to file an application to extend time for appealing, a month later.

The judge said that while state counsel laboured the point that “a lot of money was at stake and the case was of great public importance,” it is these very factors which highlight how “unacceptable” their reasons for failing to be aware of this pending litigation and subsequent award of judgment, including its failure to urgently apply for an extension of time within which to appeal.

The CCJ rebuked the

state for relying on such an excuse. Sir Dennis declared, “To say, regardless of who was in Government, that the state failed to satisfy the most basic standard of care, is an understatement.”

On an application for extension of time to make an application for special leave, the CCJ head noted that an applicant must show more than a realistic prospect of success—this, the AG was unable to advance.

Sir Dennis said the applicant must show that there would be a miscarriage of justice if the appeal were not heard.

Merits The judge said, however, that the merits of the AG’s case, were basically that Justice Persaud failed to advert or give proper weight to various aspects of the evidence.

Noting that the case concerned Dipcon’s entitlement to be paid two sums of money; one for extra works and the other for escalations in the price of the materials for doing the work, Sir Dennis said the real issue was whether the terms of the contract entitled Dipcon to recover the sums claimed on these accounts and which the judge awarded.

The main grounds for the state’s proposed appeal, were that Justice Persaud failed to: (a) appreciate or give significance to the fact that it was a lump sum contract, that no balance was due for extra works and no agreement was made to pay for escalations; ( b) find there was no agreement to pay increased costs; ( c) properly attribute the basis on which payments had been made to Dipcon; and (d) properly interpret the provisions of the contract.

The CCJ noted in its ruling, that from the state’s supporting arguments, “the judge was wrong in his conclusions.” For such a case to succeed, Sir Dennis said it would require a court of appeal to agree with the appellant’s argument as to the relevance and weight of evidence, as well as the interpretation to be given to contract documents.

According to the CCJ head, it would be only if the Court of Appeal were to hear an appeal and decide that Justice Persaud was wrong, “which would be most unlikely on our assessment of the appellant’s arguments,” that the appellant would be able to point to a miscarriage of justice as “there is nothing to which the appellant can now point to support a claim that there has been a miscarriage of justice.”

The judge declared that at this stage, “the most the appellant can say is, if I could appeal, I expect to win and if I do then it would be a miscarriage of justice to allow the High Court judgment to stand.”

“That is not good enough,” the CCJ affirmed, noting that it is a far cry from an appeal that “must succeed” or where there are undisputed allegations that indicate a miscarriage of justice probably occurred or where judgment was entered for the wrong sum or the like. “The miscarriage of justice must be established or clearly appear at this stage; it must not be speculative.”

Sir Dennis said that the material before the court, discloses nothing indicating any miscarriage of justice to be averted; and that even if the appellant could have persuaded it to consider enlarging time and granting it special leave to appeal, the Court’s consideration would end with the conclusion that special leave should not be granted because there is no apparent miscarriage of justice to be averted.

Resultantly, Williams’ appeal against the refusal of the Court of Appeal to extend the time for appealing to that court against Justice Persaud’s judgment was dismissed. In addition to the US$2.2m to which Dipcon is entitled, the CCJ also awarded it costs at the rate agreed by the parties of basic costs.

Stay The CCJ said it follows that the application for a stay of the judgment which has effectively stopped enforcement although no stay was granted, falls away and that the judgment may now be enforced.

The state’s case before the CCJ, was heard by Sir Dennis, along with Justices Jacob Wit, David Hayton, Maureen Rajnauth-Lee and Denys Barrow.

Representing the AG, were Solicitor General Kim Kyte and attorneys Judy Stuart-Adonis and Leslyn Noble. Dipcon, meanwhile, was represented by attorney Timothy Jonas.

In early February, 2009, Dipcon Engineering, took the then PPP/C government to court, seeking to recover sums it said it was owed along with all other costs associated with the road construction and infrastructural works done in the Mahaica/Rosignol area.

In March this year, Williams SC, sought leave from the Guyana Court of Appeal to approach the CCJ to continue the state’s fight against the judgment.

In his judgment, Justice Persaud had ordered the government to pay Dipcon US$665,032.17 as payment for road building and construction works.

He had also ordered that it pay Dipcon the sum of US$ 1,563,368.50 for increased costs it incurred for those works, together with interest on both amounts, at a rate of 6% per annum from February 10th 2009, to October 21st, 2015 and thereafter at the rate of 4% per annum until fully paid.

Additionally, Justice Persaud ordered that the government pay the engineering company, $1.2 million in costs.

In September of 2015, a month before Justice Persaud’s judgment, former President Bharrat Jagdeo had stated that he had offered help to President David Granger over ongoing court cases to mitigate any liability to the state.

“… We don’t want the government to lose those … cases based on bad legal representations because it will cost the treasury bil- lions of dollars and us as taxpayers, people of this country,” he had said of his first meeting with President Granger and members of his cabinet.

From all indications there was no progress in this regard after that meeting.

An affidavit filed in support of Williams’ application to the Guyana Court of Appeal stated that he was unaware of the award against the state within the time frame permitted for an appeal.

Stuart-Adonis, a Senior Legal Adviser at the AG’s Chambers, in her affidavit in support of Williams’ application, had said that Williams first became aware of the judgment only after an attorney laid over a court order for the payment of $400 million with the Ministry of Finance.

She further swore that the Minister of Finance did not furnish the AG with details on the judgment, the name of the attorney of law or the parties to the litigation that had generated the court order.

She said that she had been advised by her attor- neys that the application to the Court of Appeal for leave to appeal to the CCJ ought to have been granted in light of the grave issues of public interest. “These issues include the economic effect of this judgment on the Cooperative Republic of Guyana and more specifically in relation to the State’s abilities to engage international donor agencies,” Stuart- Adonis had stated.

She had said that Williams would have contended that as a result of the file being assigned to private counsel and the change in personnel in the post of Attorney General “there was unavoidable delay in making the application for extension of time.”

His predecessor Anil Nandlall, however, had stated that there was more than enough time to challenge the judgment. Nandlall denied blame for the AG’s failure to file an appeal in time and said that if government loses its fight to challenge the award, Williams is solely to blame.

Nandlall had pointed out on March 4 this year that the judgment was granted since the 21st October, 2015. “Mr. Williams has been holding the office of Attorney- General and Minister of Legal Affairs since May, 2015, a full six months before the judgment was granted. The State in these proceedings was represented by Attorney- atLaw, Mr. Roysdale Forde,” he said, before informing that the Chambers has an institutional record-keeping system that documents the status of every matter pending before the Court and the Attorney-at-Law who has conduct of the matter, whether that Attorney- atLaw is attached to the Chambers or is external to the Chambers. “It is obviously the responsibility of the AG to apprise himself of each case in the system”, he stressed.

Nandlall said that in the Dipcon matter, not only was the judgment granted six months after Williams took office but that he (Williams) conceded that he learnt about it in January, 2016, a further four months after the judgment was granted. “If this was not an indictment enough, the incompetence was further compounded by the Attorney-General filing an application for an extension of time within which to file a notice of appeal, until May 12th, 2016. A further five months after he admits knowing of the existence of the judgment. Therefore, the entire period of the neglect is an entire year from the time he took office,” he noted.

Nandlall said that even if one were to accept that Williams only learnt of the existence of the judgment in January, 2016, a competent Attorney- at- Law would have filed an application for an extension of time, within which to appeal within a matter of days. However, he noted that Williams took an additional five months to do so and then “blames me and the rest of the world for his plight.”

Nandlall had said in March this year that in his considered opinion, the Guyana Court of Appeal was perfectly correct in dismissing Williams’ application and there is every likelihood that the CCJ would do likewise.