CCJ dismisses appeal by Belizean CLICO policyholders
in good faith and that the respondents were accordingly protected from suit.
To the appellants’ attempt at fixing liability directly to the State, they sought to submit that the good faith defence under section 4(3) was available to the Minister and the Supervisor, but not the State.
The Court noted that this argument was raised for the first time on appeal and agreed with the respondent’s objection that it was too late for it to be accommodated as the State would have been unfairly denied the opportunity to marshal its defence to meet that new contention.
The Court noted, however, that even if it was minded to allow the submission, the immunity would extend to the State as well by virtue of Section 4(4) of the Crown Proceedings Act.
That section states, “Any enactment which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any tort committed by that department or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that department or officer, apply in relation to the Crown as it would have applied in relation to that department or officer if the proceedings against the Crown had been proceedings against that department or officer.”
The matter was heard by Justices Adrian Saunders who delivered the judgment; Jacob Wit, David Hayton, Winston Anderson and Maureen RajnauthLee.
Lower Courts
Both the Belize Supreme and Appeal Courts had also found that the Supervisor’s conduct was not reckless and that she had acted in good faith.
For its part, however, the Supreme Court threw out the application which had been filed by the appellants after ruling that section 26 of the Act did not confer on the Supervisor an implied duty that was actionable by the appellants.
Additionally, the trial judge held that section 4(3) of the Act conferred on the respondents blanket immunity from suit.
The Court of Appeal upheld this finding declaring also that the Supervisor had acted in good faith in the exercise of her duties under the Act.
It, however, found that the statutory fund constituted security for the benefit of the appellants and that in accordance with the case of X (Minors) v. Bedfordshire, [1995] 3 AER 353 the respondents were in breach of the Act.
The Belize case will have resonance here as when CLICO (Guyana) Ltd collapsed in 2009 leaving CLICO customers in the bind, similar questions were raised about what the regulatory authorities should have done. The state in the end voluntarily reimbursed many customers whose investments were lost. One major client of CLICO (Guyana), the National Insurance Scheme (NIS) was left facing a loss of $5.6b. In 2016, the government formalised a deal through which the NIS will recover the amount over 20 years via a debenture.