Something’s cockeyed somewhere
A GLEANER exposé of a secret settlement agreement between NHT and a private contractor seemed to have prompted NHT pushback.
The published details seemed to most observers lacking umbilical links to Government to produce a win-win for the contractor (who, despite a hefty advance, delivered no houses) and loselose for taxpayers. So NHT issued a Statement addressing the fiscal and secrecy concern.
NHT asserted “NHT’s funds are secure and are being recovered. Importantly, NHT will not lose any funds.”
This assurance is about as useful to contributors, whose earnings are captured annually to fund NHT’s cavalier approach to contracting, as a bleeding ulcer.
• a promise to pay isn’t payment;
• calling on performance bonds is not performance;
• NHT’s sacred obligation to use contributors’ funds to provide contributors with housing solutions was unfulfilled;
• NHT hasn’t only lost funds (e.g. investment opportunities; legal fees; project expenses) but the contractor has been enriched by its use of the advance and delayed reimbursement.
On secrecy NHT asserted “Confidentiality is consistent with the process of mediation and is a requirement of the rules of court. NHT complies with government policy on confidentiality….”
Give me a break. I thought government policy against NDAs was emphatically pronounced by PM, post-Petrojam.
NHT was granular on secrecy: “The rules of court require that what takes place at mediation and documents prepared for or in the course of mediation are kept confidential, and not disclosed in any other context except as allowed by those same rules. The non-disclosure and confidentiality provision in the settlement agreement is consistent with those requirements from the rules of court.
This does not mean that the terms of the settlement agreement would be, or were intended to be, unavailable for viewing by contributors or members of the public. After the settlement agreement was signed by the parties, the agreement was annexed to the Consent Order. Orders of the Court can be accessed at the Supreme Court.”
Rubbish! Settlement Agreement confidentiality is something entirely up to the agreement’s parties. It isn’t mandated by any rule, anything or anybody. On Twitter I also asserted “only parties to an action can see the court file.”
On February 1, NHT released a second statement that reads in part:
“NHT has not signed a Non-Disclosure Agreement (NDA) neither has the NHT at any point during the claim…. sought to keep any elements of the arrangements secret.”
This must be the Guy Lombardo Show! Didn’t the first statement insist: “The non-disclosure and confidentiality provision in the settlement agreement is consistent with those requirements from the rules of court”?
What the actual framfrig? Oh, I get it. NHT didn’t sign a nondisclosure agreement only an agreement with non-disclosure provisions.
Lord, deliver us f rom bad bureaucratic gig impressions!
NHT’s second statement included a twist of which Hitchcock would be proud:
“After the settlement agreement was signed by the parties, the entire agreement…. was annexed to the Consent Order and filed at the Supreme Court on January 15, 2024. Orders of the Court can be accessed by the public at the Supreme Court in accordance with Rule 3.14 of the Civil Procedure Rules (my emphasis).”
Sigh. This is the clearest sign of a wobbly gig desperately trying to stay upright. Rule 3.14’s relevant portion permits “any person” to inspect or take a copy of a “claim form; notice of appeal; judgment or order given or made in court; and with leave of the court…. any other document.”
Lookie here. Proceedings may take place either in open court (i.e. “in court”), which means general public can attend, or in private (“chambers”), where the public isn’t allowed. Matters “in court” are already public so open court formal orders are available to the public.
Matters in Chambers, which include court sanctioned mediation settlements, are private. Access to the court file is as restricted as access to the Chambers proceedings themselves. And, before NHT issues a third statement advising contributors to ask for leave ( Rule 3.14), “any other document” must be of the categories listed.
One last thing (said Lieutenant Colombo). What’s the point of a NDA (oops, sorry, “non-disclosure provision”) if the agreement is going to be publicly available? That logic was confirmed on Friday by a report that its request for a copy of the agreement was denied by Court Administration Division which responded:
“Please be advised that we can only share the order but not the annexed schedule with the agreement because of the nondisclosure clause.”
Some thing’s cock eyed somewhere! Peace and Love.