CCJ dismisses appeal by Be

-finds that Supervisor of Ins

The Caribbean Court Justice (CCJ) last Thursday dismissed an appeal by six former CLICO Belizean policyholders whose contention it was that their financial loss from the company’s 2009 liquidation was the result of the Supervisor of Insurance, Alma Gomez’s reckless handling of the Company.

In its ruling, the Court, noted among other things, “that neither the Supervisor nor anyone else could have foreseen CLICO’s sudden collapse,” holding further, that Gomez “had acted in good faith.”

The appellants; Kent Herrera, Nikita Usher, Valdemar Castillo, Vildo Marin, Eugenio Ek and Leonardo Varela of Executive Flexible Premium Annuity (EFPA) were policyholders of Belize’s branch office of CLICO (Bahamas) Limited.

After the Company collapsed, the appellants brought an action against Gomez, Minister of Finance Dean Barrow and the Attorney General of all of Belize, arguing that it was their recklessness, especially that of Gomez, which caused them to be out of pocket.

The appellants said they suffered serious financial loss as they were unable to recoup their investment in the Company after it was liquidated, and so instituted action against the respondents seeking to recover their losses.

They premised their action primarily on the basis that section 26 of the Insurance Act Cap: 251 required the establishment and maintenance of a statutory fund designed to protect them against the type of loss they suffered.

Had the respondents, particularly, the Supervisor of Insurance not been reckless in her conduct of regulating CLICO specifically in her duty to maintain the statutory fund in a proper manner, the appellants are of the view that there would have been no losses.

The main issue to be decided by the Court, was whether the respondents could avail themselves of the statutory bar contained in section 4 (3) of the Act which states that “the respondents and any officer or person acting pursuant to any authority conferred by the Minister or the Supervisor, as the case may be, shall not be liable to any action in respect of any matter done or omitted to be done in good faith in the exercise or purported exercise, of the functions conferred by or under the Act.”

In arriving at the ruling it did, the Trinidad-based court of last resort embarked upon an enquiry as to whether the respondents had acted in good faith, and could therefore be protected from suit.

The Court found that “statutory good faith defences” were intended to relieve from liability to suit, public officials who acted “with honesty of purpose.” It placed the onus on the respondents to adduce sufficient facts and circumstances to avail themselves of the defence.

The CCJ analysed the case of Gulf Insurance v The Central Bank [UKPC] 10 on which the appellants relied, holding that unlike the Trinidad provision in that case, section 4(3) of the Belize Act expressly extended its protection to acts and omissions that fell outside the performance of the statutory functions of the relevant public official, provided the official was acting in good ment of duty.

The court reasoned that public of dards of performance commensurate “Where a public official recklessl would be difficult, if not impossibl good faith.”

“If, however, the public official meet the standards but failed to ach could rely on the good faith defence

The Regional Court said that the officials “who were not fraudulent, sion with the impugned company, or recklessly indifferent to the occurre

In this context, the Court conclu way of establishing lack of good fai

In considering whether the Su observed that the Act afforded her administration and regulation of the

In particular, it noted that while s the Supervisor to sanction compan conditions for licensing and or lice