Opposition Leader speaks out on the Malcolm Jones issue

The Honourable Kamla Persad-Bissessar, SC, MP

Excerpts from an address by
The Honourable Kamla Persad-Bissessar, SC, MP,
Political Leader of the United National Congress (UNC)
Leader of the Opposition of the Republic of Trinidad and Tobago at
The Congress of the Youth & Women’s Arm of the Party, Sunday March 13, 2016

THE MALCOLM JONES ISSUE

In Trinidad and Tobago today, there appears once more to be one set of rules for the PNM and another set for the rest of the country.

BUT WE MUST CHANGE THAT!

SERIOUS ISSUE 1 – FARIS AND JONES

Keith Rowley acknowledged Malcolm Jones as a friend, who gave ‘yeoman’s service’ to our country’s development, and suddenly, his Attorney General dutifully found a way to quash serious legal proceedings against him.

That is Keith Rowley leadership – his view is more important than a Judge in court. So if he couldn’t bend the judge to rule for the PNM, he decided to remove the case altogether.

Now Malcolm Jones and Ken Julien are PNM folk-heroes, rescued from answering allegations of wrongdoing by Rowley and his dutiful and complicit Attorney General and restored to positions of authority.

The boast by AG Faris Al-Rawi that he has disclosed all documents in the scandal surrounding his decision to discontinue the $1.2 billion dollar case against ex-Petrotrin Chairman and President Malcolm Jones is a joke and raises more questions than answers.

Why the Law Association

The Law Association has no judicial nor quasi judicial functions and therefore is not competent to adjudicate on this matter. The courts do have the jurisdiction and competence to so do

What ?

The documents given to QC Nelson whose opinion is being relied upon by AG Faris to discontinue the case are deficient.

From the opinion, it appears that the arbitration award judgement, many witness statements in the said arbitration proceedings and all the documentary evidence were not provided to Counsel. Only four witness statements were given to QC Nelson BUT there were at least four other witness statements filed. Further none of the documentary evidence was given to QC Nelson but there were expert witness reports filed by at least three different firms.

WHO?

Serious questions arise as to the impartiality of the President and Vice President of the Law Association given the following which may show the potential for apparent bias:

The President of the Law Association Mr. Reginald Armour SC was, until quite recently, appearing together with Al-Rawi for PM Dr. Keith Rowley in several high profile political cases including defamation lawsuits.

He was the PM’s personal lawyer.

He also appears to be the former business partner of Al-Rawi as documents at the Companies Registry lists them as shareholders and Directors of a company called “ABOX INVESTMENTS LIMITED”.

Al Rawi’s spouse has since taken over Mr Armourer’s directorship whilst up to December 2015, AG Al Rawi is still listed as a Director.
The vice president of the Law Association, Mr. Gerry Brooks is the new Calder Hart of the PNM.

He has been appointed by Dr. Rowley and Al-Rawi-led Cabinet to serve as Chairman and director in over ten state companies.

Does his Directorship fees amount to about $90,000 monthly? Which probably makes Calder Hart look like a saint.

He serves on :
1. NGC
2. NGC CNG Company Limited
3. Trinidad and Tobago NGL Limited
4. National Energy Corporation of Trinidad and Tobago Limited
5. La Brea Industrial Development Company Limited
6. Phoenix Park Gas Processors Limited
7. NGC NGL Company Limited
8. NGC Pipeline Company Limited
9. NGC Petrochemicals Limited
10. National Helicopter Services Limited
11. National Enterprises Limited
See : http://ngc.co.tt/…/gover…/directors-of-subsidiary-companies/

Apart from the President and Vice President, another executive member Ms. Elena Araujo is representing the PNM in the Election Petition cases.

The Law Association is therefore conflicted in this matter and will suffer from a conscious or unconscious political bias in favour of Al-Rawi. T
he Law Association has been politically compromised and cannot expect the population to bury its head in the sand and pretend it is independent in these circumstances.

It is clear that Al-Rawi expects to get political clearance from the Law Association and this expectation is most probably not misplaced.

If Al-Rawi is serious about an objective and independent investigation into his conduct, we challenge him to disclose all documents related to this matter to the Parliament for a full and frank debate in the public interest.

Alternatively, we ask PM Dr. Rowley to appoint a Commission of Enquiry chaired by a respected and independent jurist to examine the facts in this matter and report to the public via the President. There are several distinguished persons who can satisfy these criteria.

This is a serious matter involving over a billion dollars that went down the drain.

Ironically, the same people who screamed that section 34 was being used to prevent Ish and Steve from facing trial have ironically turned around and done worse, by discontinuing this case.

Such a move ensured that Malcolm Jones will not face trial in a court of law to answer for his actions that caused such massive losses that PETROTRIN almost went bankrupt.

Al Rawi referring the matter to the Law Association at a time when it is controlled by persons who are so closely connected to the PNM is a sham. It lacks credibility and smacks of bias.

We therefore demand an independent inquiry into this matter urgently

Directors of Subsidiary Companies

Directors of all NGC Subsidiary Companies

——

IN THE MATTER OF PETROTRIN
AND IN THE MATTER OF AN ACTION AGAINST MR. MALCOLM JONES

ADVICE

1. I have been asked by Instructing Attorney in this matter to prepare a note of advice to the Board of Petrotrin in relation to the company’s duty to make disclosure of witness statements by former directors and senior management adduced by Petrotrin in arbitrations against WGTL Inc. Those witness statements relate to matters that may be relevant to the events which are the subject matter of Petrotrin’s legal action against the directors. The Defendant, Mr. Malcolm Jones, is seeking the disclosure.

2. I have been informed that a new Board of Directors has now been appointed for Petrotrin. For the sake of completeness and fully informing the Board, I am attaching with this advice the advice rendered in 2011 by myself and a separate advice rendered by Mr. Russell Martineau QC.

The disclosure issue
3. I was not involved in the relevant arbitrations between Petrotrin and WGTL Inc., nor was I consulted regarding the drafting of the witness statements. I have been provided with the witness statements for Charmaine Baptiste, Anthony Chan, Kevin Singh and Imtiaz Ali. I have not been provided with a copy of the arbitral award.

4. As a starting principle, arbitration proceedings are confidential. A stranger to such proceedings has no right to access the documents or findings in those proceedings. However, a court has a power to override that confidentiality and order disclosure to a non-party to the arbitration. Mr. Jones was not a witness and was not a party to the arbitration. The court’s power is exercised on the basis of what is in the best interests of justice in determining the case before it. It is not always easy to define ‘best interests of justice’. Unfortunately, often it is what the judge feels like on the day he is hearing the application and not based upon any bright line principle.

5. In the application by Mr. Jones he has indicated that in his defence he will be relying on the outcome of the arbitration proceedings between Petrotrin and WGTL Inc and that the documents in the arbitration proceedings are “important and relevant to the defence of this matter”. It is difficult to understand how the Defendant can say that he is relying on the outcome and that the documents are important when by his own admission he does not know what those documents are. Be that as it may, the central question remains to be answered as to whether it is in the interests of justice for the documents to be disclosed. In my opinion this is best approached from what I think a court in Trinidad will order in the circumstances. There is a widespread approach that litigation should be approached with all cards on the table facing upwards. This means that a court will be inclined to order disclosure more often than not. In my view, notwithstanding an argument of confidentiality/privilege, a court will order disclosure of the relevant documents. I therefore do not think that Petrotrin will be successful in resisting the application, though if looked at rationally, there is no real basis on which the witness statements will assist the Defendant because it is the evidence given at trial of this action which will be relevant for the determination of the issues and not what was said at the arbitration. Further, whatever may be stated in the arbitration award, it is a fundamental principle of the common law system that a court decides a case upon the facts presented to it and not upon the facts presented to another tribunal, particularly an arbitral tribunal.

The merits of the substantive action
6. As mentioned in paragraph 2 above, I have attached the advices originally rendered in this matter. I have considered the contents of Charmaine Baptiste and Anthony Chan’s witness statement, which were not available in 2011 when the advices were rendered. Having considered them carefully, there is a basis for concluding that the Petrotrin Board, through bad business decisions, found itself committed to the GTL venture with WGTL Inc. The Board was naïve and probably duped by the WGTL Inc. principals. Once the Board discovered how deeply committed Petrotrin had become, it appears from the witness statements of the two directors that the company did what they could to protect Petrotrin’s assets. I apprehend that Mr. Jones will testify at trial to the same effect. A court may very well find that the decisions which taken to achieve this were bad business decisions. However, a distinction is to be drawn between bad business decisions and negligence. This is what will engage the court. I understand that Miss Baptiste and Mr. Chan were convincing witnesses at the arbitration proceedings. There is no reason to believe that they will not be equally convincing in a trial of this action. In the circumstances, there is a reasonable likelihood that a judge will be persuaded that there was a bad business decision but no negligence. This is a matter the Board will need to consider in the context of the future conduct of this action.

7. Subject to what is said in the preceding paragraph, I do not think that a good defence is open to Mr. Jones based on the limitation period – in other words Mr. Jones cannot rely an any contemporaneous knowledge knowledge of the Government as regards the Board’s decision . The limitation point has been comprehensively argued in eTeck v Julian & others. The Defendants in that matter have lodged an appeal with the Privy Council seeking to overturn the Court of Appeal’s adverse decision.

8. If I can be of any further assistance in this matter those instructing me should not hesitate to contact me.

Vincent Nelson QC
39 Essex Street Chambers
London WC2R 3AT
11 October, 2015.