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China Jiangsu threatens to take Las Alturas CoE to court as firm resists involvement in enquiry

Sunday, March 15, 2015
Las Alturas Damaged Unit

Contractor China Jiangsu International Corp T&T Ltd has issued a pre-action protocol letter threatening litigation against the Las Alturas Towers Commission of Enquiry (CoE) if the firm is not removed as a party in the probe into the failed multi-million dollar project. The CoE could be halted until the contractor’s lawsuit is heard should China Jiangsu make good on its threat to file for judicial review of the commission’s order making it a participant in the enquiry.

The commission has already begun taking evidence in the probe into the structural failure of the $40 million Morvant housing project and is expected to continue hearings until March 20 at the Caribbean Court of Justice, Henry Street, Port-of-Spain. On Wednesday, the contractor, through attorneys Alexander, Jeremie and Company—former Ag John Jeremie’s firm—issued the four-page letter to the commission claiming that the Mustapha Ibrahim-chaired CoE erred in law when it made the contractor a party to the proceedings.

In the letter, a copy of which was obtained by the Sunday Guardian, the lawyers claim that by order dated January 26, 2015, the commission “purported” to make China Jiangsu a party to the enquiry. However, the lawyers for the contractor contend that China Jiangsu “is not an entity mentioned in the Warrant of His Excellency which was gazetted in an extraordinary issue of the T&T Gazette on 3 December, 2014.”

The CoE is expected to enquire into “the entire process which led to the construction of the Las Alturas towers at Lady Young Gardens, Morvant, and all other acts, matters or decisions done or undertaken incidental to and including the construction” of the project. According to the pre-action protocol letter China Jiangsu is also “currently involved in a private law contractual dispute with one of the entities named in the warrant (HDC) which will impact on our client’s ability to participate in the proceedings of your commission.”

The commission, which also comprises commissioners Dr Myron Wing-Sang Chin and Anthony Farrell, had invited China Jiangsu, the contractor that worked on the Las Alturas project and which the evidence showed submitted the lowest tender, to be party to the enquiry by letter dated January 20, 2015. However, China Jiangsu subsequently responded and declined the opportunity to be a party to the enquiry. 

Commission attorney contends China Jiangsu should participate in CoE
On January 26, Pamela Elder, SC, who is representing the commission, together with Jagdeo Singh, instructed by attorney Alvin Pariagsingh, made an application to have China Jiangsu made a party to the enquiry. She pointed out that there were several pieces of evidence in the commission’s possession which would lead to the inevitable conclusion that China Jiangsu would have an interest in the enquiry. 

Among those, Elder contended, was the fact that China Jiangsu was the contractor for both phases of the Las Alturas contract and the corporation was paid in excess of $65 million for the construction and design of buildings H and I which had to be demolished. Ibrahim agreed with Elder’s submission and granted an order making the contractor a party. Commission secretary Laraine Lutchmedial dispatched a letter notifying the contractor that they were made a party to the CoE. 

The Sunday Guardian understands, from legal sources, that the commission made all disclosures to China Jiangsu. 

Commission order prompts flurry of letters
Alexander, Jeremie and Company, by letter dated February 6, wrote to the CoE and contended that “there is no express power contained in the Commissions of Enquiry Act which empowers a commission to add parties to the President’s warrant.” The lawyers requested an indication of the legal basis on which the commission issued the order to China Jiangsu. This prompted a flurry of letters between lawyers, which culminated on Wednesday with the pre-action protocol letter.

Lutchmedial, in a February 24 letter, said, “whilst a literal interpretation of the Act does not reveal an express power to make orders declaring persons and/or entities parties, a purposive construction to Section 10 of the Act allows the commission to make such an order.”

The commission secretary contended that the overriding duty of fairness which the commission owes to people and/or entities “caught within the provisions of Section 10, makes it imperative, that the commission accords full participant status to persons and/or entities whose conduct is the subject of enquiry or who are in any way implicated or concerned in the matter under enquiry.” She reminded China Jiangsu’s lawyers that their client was the contractor for both phases of the project and was responsible for construction of blocks A to I at Las Alturas.

“The decision to award to your client the status of full participant or ‘party’ standing is also in keeping with the duties of fairness,” Lutchmedial added in her letter. She said, in the letter, that being made party to the CoE allows China Jiangsu “to be involved from the very inception of the enquiry and to cross-examine witnesses and make submissions. Your client would therefore be able to advance challenges to the evidence.” By letter dated February 27, Alexander, Jeremie and Company wrote to the commission responding to Lutchmedial. 

The lawyers contended that China Jiangsu had not sought leave of the commission to be represented nor had it claimed the benefit of entitlement to counsel afforded by Section 10 of the Act. They again reminded the commission that China Jiangsu was engaged in a private law contractual dispute with HDC. On March 2 when the first evidential hearings of the CoE commenced, neither a representative nor counsel for the contractor appeared at the enquiry.

Contractor’s attorneys—Judicial review is an option 
Alexander, Jeremie and Company, in its pre-action protocol letter signed by Raisa Caesar, warned the CoE that it had advised China Jiangsu that it could institute proceedings for judicial review on the basis that the decision of the commission was “unauthorised and contrary to law and in excess of the jurisdiction of your commission since it was not based on a statutory power granted or implied by the Commissions of Enquiry Act.”

The lawyers contended that “the decision to make our client a party to these proceedings was an unreasonable, irregular and an improper exercise of discretion in that your commission used its power to regulate its procedure in a manner that was in fact an abuse of power.” The commission has 14 days to respond to China Jiangsu’s letter—that is around March 25.

Alexander, Jeremie and Company, in the letter, contended that should the commission fail to respond to the demand to rescind its decision China Jiangsu “shall issue proceedings” against the CoE without further notice. The contractor will be seeking reliefs, that is, a declaration that the decision to add China Jiangsu as a party to the CoE into the construction of the Las Alturas Towers is unreasonable, illegal, null and void and of no effect; an order certiorari quashing the decision of the commission; costs; and any other reliefs the court may deem just.

Hearing of the CoE is expected to resume tomorrow.


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