State must pay $35M

Chief Justice Ivor Archie, Justice of Appeal Wendell Kangaloo and Justice of Appeal Peter Jamadar ordered the State to pay $31.2 million plus interests after State lawyers failed to file paper work on time and in accordance with civil procedure rules.

In a written judgment handed down by the Court of Appeal yesterday Jamadar described the circumstances of the case as “a complete calamity” and “colossal disaster” which was caused by the failure of lawyers to meet deadlines which had been set out in the lawsuit when it was at the pre-action and first instance stages.

The case stemmed from a dispute between contractor Universal Projects Limited and the Ministry of Works and Transport for improvement works for the Churchill Roosevelt Highway back in October 2007.

The Ministry of Works had in that month terminated the contract, but this termination was disputed by Universal Projects Limited who demanded payment in several letters. These were ignored by the Ministry of Works and Transport.

A pre-action protocol letter, which is the prelude to full-fledged litigation, was issued by Universal on November 12, 2008 to the Ministry of Works, Minister of Works Colm Imbert and also to then Attorney General Bridgid Annisette-George. The letter was ignored.

A court action was later filed and served on the Office of the Solicitor General, a division of the Office of the Attorney General.

However, the matter went to trial and no defence was ever filed on behalf of the State, despite a threat of a default judgment against it being entered in the case and communicated to State lawyers. As a result High Court judge Justice Carol Gobin at first instance entered a judgment against the State, awarding the sum of $31.2 million. The Office of the Attorney General challenged the case, arguing that the State should be treated differently under the civil rules and that the failure to comply with the time-line for litigation was due to the then lack of a Solicitor General.

However, Jamadar criticised the State for its handling of the case. “No explanation or no good explanation has really been given for any of these omissions,” he said.

“The history of this matter...demonstrates that from the very inception, starting with the pre-action protocol letter, there have been several instances of non-compliance with the rules,” he wrote.

“At every step along the way in this matter State attorneys were involved as described above. They must take some responsibility for the colossal disaster that has been chronicled in this matter. Moreover, the appellant (Office of the Attorney General) and the Ministry of Works must also take some responsibility.

“The consequence is that the State has deprived itself of the opportunity for setting aside the default judgment entered against it in this case. Though the sum payable is a large one, that ought not to change the approach of the courts to matters such as this one,” he ruled.