Calder Hart –
FORMER chairman of the Urban Development Corporation (Udecott) Calder Hart has appealed a judge’s ruling against him in 2020 that his rights to a fair hearing and protection of the law were not breached by the decisions of the commission of inquiry into the construction of the failed Las Alturas Housing complex in Morvant.
Justice David Harris had dismissed Hart’s claim against the commission and its individual commissioners, retired judge (now deceased) Mustapha Ibrahim, Dr Myron Wing-Sang Chin and Anthony Farrell, challenging the adverse findings made against him in the commission’s final report.
Ibrahim died in June 2017, and Hart was not successful in an earlier application to have his estate joined as a party.
Hart appealed Harris’s ruling, and on Monday, Justices of Appeal Mark Mohammed, Peter Rajkumar and Maria Wilson reserved their decision after hearing from attorneys representing the former Udecott boss, the commission and the Attorney General.
Justice of Appeal Mark Mohammed –
Hart was on the virtual link to Monday’s appeal.
Hart’s attorney, Dr Lloyd Barnett, KC, criticised the judge’s findings and also addressed his client’s position that the commission’s findings against him were illegal.
“Condemnatory statements were made against him,” Barnett said.
He faulted the failure by the commission to compel the production of certain documents Hart requested so that he could participate in the inquiry, which included minutes of board meetings from Udecott and various technical reports.
Barnett said the commission failed to exercise its statutory powers. He also said at no stage did the commission alert Hart that it could make adverse findings against him, after inviting him to give a statement on the basis that, as a former Udecott chairman, he would be of great assistance to the inquiry.
Barnett said the commission failed to observe the basic principles of fairness by failing to let Hart know of any adverse findings before its report was prepared and finalised.
He said there was a constitutional and common-law obligation and failing to do so was a fundamental error and rejection of the cardinal principles of fairness.
Barnett also referred the judges to the 2020 ruling in favour of former Housing Development Corporation managing director Noel Garcia, who also challenged the Las Alturas commission breach of the rules of natural justice in the way it treated him. Adverse findings were also made against Garcia.
Justice Kevin Ramcharan had quashed the findings against Garcia, declaring that the commission, in deciding, finding or recommending, or in the process of arriving at its decision, acted illegally, irrationally, unreasonably, and without observing the principles of natural justice.
As a result, he held the decision against Garcia was null and void and had no effect.
Barnett also said the judge made fundamental errors in law over Hart’s role in the decision-making process in the Las Alturas project.
In his submissions, Senior Counsel Rishi Dass, who represented the AG, said due process mandated fairness.
“There is no public interest in an inquiry that comes to a conclusion in an unfair process.”
In response to the complaints, attorney for the commission Richard Clayton, KC, argued that there was no error in law, as Hart failed to plead his case properly.
He also said Hart took the position that he would not attend the inquiry when he did not get the documents, and maintained that the commission did all it could to source the requested information from Udecott, making it clear it did not have some of the material Hart asked for.
Clayton said had been invited to access the documents the commission did have in its possession and witness statements.
He also said Salmon letters – official letters sent out by a public inquiry to people who will be subjected to criticism when its report is released – referred to witnesses.
“What was the commission supposed to do when he (Hart) refused to take part? He was distinctly unco-operative throughout the inquiry.”
He said there was a public interest beyond Hart himself, but made it clear that he was not suggesting that the commission ignored his concerns.
“He had plenty of time to say what he wanted but he did not…The commission had a difficult task before it.”
Clayton emphasised that Harris’s findings were correct.
After an 18-month public inquiry, the commission found Hart should be held accountable and liable for losses sustained in the execution of the failed $26 million towers, based on evidence and because of the alleged depth and extent of his role in selecting the site for the failed housing complex.
The commission’s report was laid in Parliament in September 2018.
In his ruling, Harris said, “At the onset, it cannot be in dispute that the commissioners are duty-bound to faithfully, fully, impartially and to the best of their ability discharge the trust and perform the duties devolving upon them as commissioners.
“Did they do so? This court holds that they did discharge their duty as prescribed by the terms of reference and indeed the law generally.”
The commission was set up to investigate “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, which included the procurement process.
Two multi-storey units began falling apart after construction, and the $26 million towers were earmarked for demolition. They were part of a larger project, which was originally budgeted at $67 million and then rose to $90 million. The contract was awarded to China Jiangsu International, which also unsuccessfully challenged the commission’s decision to make it a party to the inquiry.
Last month, Harris ordered contractor China Jiangsu International Corporation TT Ltd to pay a total of $30.1 million to the HDC for damage and loss arising out of the failed construction of the two buildings.
Hart was also represented by attorney Anthony Bullock. Fyard Hosein, SC, and Amrita Ramsook appeared for the Attorney General as an interested party in the matter.
The commission, Ibrahim, Wing-Sang Chin and Farrell were also represented by Jayanti Lutchmedial and Ganesh Saroop.