UNFAZED

Cenitech Engineering Solutions Ltd, whose application for leave to appeal to the United Kingdom (UK) Privy Council was refused by the Court of Appeal, is going directly by way of special leave to get a decision in relation to its loss of profit of $350 million as a result of revocation of a government contract in 2013 to build houses in Clarendon and St Thomas.

The Public Procurement Commission, formerly the National Contracts Commission, is the respondent.

During the course of 2012 and 2013, Cenitech applied for and obtained a certificate of registration from the respondent as a government contractor. The Ministry of Agriculture and Fisheries in September 2013 invited tenders from registered government contractors for a project that involved the construction of houses in Clarendon and St Thomas.

Cenitech was one of the successful bidders for the contract.

On December 3, 2013, the contractor general wrote to Cenitech raising concerns about its registration with the respondent. Acting on the concerns raised, the respondent sent a letter to Cenitech on December 12, 2013, revoking its registration with immediate effect.

The decision to revoke the registration was made without advising Cenitech of the alleged misrepresentations that that had formed the basis for the revocation. Cenitech was not given an opportunity to make representations in response to the allegations before the registration was revoked.

The Cabinet subsequently revoked its approval of awarding the contracts to Cenitech and the contracts were awarded to other bidders.

Cenitech took the issue to the Supreme Court in 2014 and was granted leave to apply for judicial review of the revocation of its registration, Cabinet’s revocation of the award of the contracts, the award of the contracts to other contractors and the hearing conducted by the contractor general after the registration was revoked.

There was also a claim filed by Cenitech for more than $350 million for loss of profit. Cenitech contended that as a result of the revocation, the minister refused, failed or neglected to execute contracts with the company which was ready willing and able to perform them.

NAME CHANGE

When the hearing commenced in 2019, the Full Court granted an application for the name of the Office of the Contractor General to be changed to the Integrity Commission, reflecting the change in name brought about by the passage of the Integrity Commission Act.

The Full Court issued a declaration in March 2021 that the respondent had acted in breach of the rules of natural justice when it revoked and/or cancelled the registration. The court stated that the attorney general would “be liable vicariously for the acts or omissions of the respondent or as the Crown’s representative”. The court ordered that damages be assessed against the respondent and the attorney general.

It was also the court’s finding that the contractor general could not be faulted for the failures of the applicant and was therefore not liable for any breach of duty owed to the applicant. The court found that the minister could not be faulted for not awarding the contract to the applicant after the respondent revoked the registration. It was also determined that since no contract was signed between the Government and the applicant, there was no viable cause of action for breach of contract against the Government. The court ordered that the respondent and the minister were liable to pay the applicant’s legal costs while the respondent and the attorney general were ordered to pay the costs of the minister and the Integrity Commission.

The attorney general and the respondent appealed the ruling and the Court of Appeal ruled in December last year that “the Full Court erred in-law in making an order that damages should be assessed against the attorney general and the respondent since there was no legal basis on which the order could have been made in judicial proceedings, in the absence of a pleaded and proven cause of action in private law; or liability under the Constitution, and in the absence of a judgment or order establishing such liability and corresponding relief”.

QUESTIONS OF IMPORTANCE

Cenitech filed a motion in January for conditional leave to go to the Privy Council under section 110 of the Constitution as the questions as proposed in the appeal involved questions which were of great general or public importance.

When the matter came for hearing, King’s Counsel Ransford Braham and attorney-at-law Neco Pagon , instructed by Dabdoub, Dabdoub & Company, who are representing Cenitech, announced that there was no intention for the attorney general to be a party to the motion and the attorney general was removed as a respondent.

Braham had submitted that, under the Constitution, the threshold value was met given the fact that the applicant had pleaded and sought money from the outset. He argued that the value of the right to a licence had been denied, making the value of the licence lost – the measure of the value of the right to a fair hearing. He said the value lost amounted to $350 million, which was the amount of damages claimed.

He contended further that although, “in the judgment, this court was not satisfied that the basis for such an assessment was properly before the court, this did not dis-entitle the applicant to the award and did not change the fact that the issue or matter dealt with a claim of the value of $1,000 or upwards.”

Attorneys-at-law Annaliesa Lindsay and Josemar Belnavis, instructed by Lindsay Law Chambers, who represented the respondent, opposed the application and argued that a party that failed to plead its case cannot thereafter seek or be granted an award or remedy when the other party had not been given sufficient notice of his claim, as should be indicated in the pleadings.

The court comprising Justice Paulette Williams, Justice David Fraser and Justice Georgiana Fraser, in refusing to grant the application in October, pointed out that the Full Court awarded damages to Cenitech despite “the applicant not having specifically claimed, pleaded, or proven the causes of action the Full Court said it could have”.

It was the court’s finding that the applicant had failed to make out its case as of right under section 110 of the Constitution and also failed to satisfy the court that the proposed questions were of great general or public importance or otherwise to be submitted to His Majesty in Council for consideration.

editorial@gleanerjm.com