CL Financial bailout – the consent order, part two

The previous article gave the essential details of the fight for and contents of the Consent Order between the Ministry of Finance & The Economy and I. It has now been nine days since that Consent Order, yet despite the best efforts of my team we are no closer to understanding this delay. We do not know what reply the Ministry gave its attorneys, who is working on compiling these details, or indeed, if anyone is working on it.

Therefore one has to wonder, in relation to the requested details ‘What did they know?‘ and ‘When did they know it?‘

This article will examine these delays.

The Colman Commission was appointed to examine the causes of the failure of CL Financial (CLF) and four of its subsidiaries –

1. Colonial Life Insurance Company Ltd (CLICO);
2. Clico Investment Bank (CIB);
3. British American Insurance Company Ltd (BAICO), and of course;
4. Caribbean Money Market Brokers (CMMB).

Colman was focused on the period before 30 January 2009 and that Report was submitted to President Carmona on 22 June 2016. Dr. Rowley explained in detail to the Parliament on 1 July 2016 that the Colman Report into CLF could not be published as that would jeopardise any prosecutions by the Director of Public Prosecutions (DPP). Given the ongoing silence of the DPP on this matter, the Colman Report has effectively been suppressed, after a reported cost of $109M in Public Money.

My own work on this issue has mainly been on the rationale for and conduct of the bailout itself. I have been scrutinising the period after 30 January 2009. My scrutiny was distilled into several Requests under the Freedom of Information Act, only two of which succeeded — the first produced the CL Financial Shareholders’ Agreement in March 2010 and this one, which went this far. Having obtained a High Court ruling in favour of my request and a Consent Order from the Appeal Court, it is now vital to obtain all the agreed details without any further delay.

For public information and to continue my focus on the Code of Silence, it is important to itemise the evasive maneuvers being employed by the State, via the Ministry of Finance & The Economy, to delay the moment of truth.

• On 22 July 2015 the High Court ordered the Ministry to provide the requested details to me.
• On 10th August 2015, the Ministry appealed that High Court ruling, with fresh reasons. That was during the Peoples Partnership administration, which lost the general election on 7th September 2015.
• The incoming PNM administration engaged in detailed exchanges with me during 2016 on this issue, which established exactly what were the details I was to receive. I was therefore very disappointed that the Ministry filed its full Appeal on the last working day of 2016, Friday 30 December.
• On Monday 22 January 2018, the Ministry filed a supplemental submission, which resiled from its original positions. Its seventh paragraph states –
  

  “…We accept that the learned judge was right in holding that the Appellant could not refuse disclosure on the ground that CLF Limited was not a public authority…”

  
  It is therefore clear that the Ministry had resolved to publish the requested details since that date.

• On Wednesday 24 January 2018 the lead attorney for the Ministry since 2013, Russell Martineau SC (who has served as both AG and President of The Law Association), told the Appeal Court what was the Ministry’s new position and he requested that we agree the exact details to be provided. That was completed within minutes.

So, since 2016, the Ministry knew for sure exactly what details I was seeking and since 22 January 2018, it agreed to provide those. I do not accept that this information is somehow unclear. What is more, even if one were to accept that the Ministry needed time to compile the details, its attorneys could have requested a stay of execution to allow that. In the absence of such a request, one can only reasonably assume that the details are readily available.

What is in question is the motivation for these chronic delaying tactics. It almost feels like a gate is being held open, like when people storming a fete. By the time you read this, it would have been two weeks since the Consent Order was made in the Appeal Court, so the next step is action against the Ministry for Contempt of Court.

The Provisional Liquidator’s Three-monthly Report

The Appeal Court’s ruling on 8 August 2017 in favour of the State’s application to appoint Provisional Liquidators to CL Financial contains these two orders in the cause of transparency –

“…3. That within twenty-one (21) days from the date hereof, CLF do make out and submit to the Joint Provisional Liquidators a statement as to the affairs of the Company verified by affidavit and showing particulars of the assets, debts and liabilities of the Company, the names residences and occupations of its creditors, the securities held by them respectively, the dates when the securities were respectively given and such further or other information as the Joint Provisional Liquidators may require…

…5. That the Joint Provisional Liquidators do file with the Court considering the winding up petition and serve on all the parties appearing before the Court today accounts of such costs and expenses incurred every three (3) months commencing on the first working day of November 2017 and continuing thereafter until further order…”

I will be obtaining those Reports for consideration.