The previous articles, here and here, delved into the meaning of counterfactuals, those being baseless claims, hypotheses or beliefs. In those cases, I dismantled the dishonest discourse of some of our thought leaders, who should certainly know better. The prior examples were rooted in the sobering racist beliefs expressed by too many educated and responsible people, that is my view.

This week I continue my Season of Reflection by delving into the almost-forgotten Tobago Sandals MoU litigation which forced publication of that important document. This article will be dealing with the issues relating to the legal fees paid in that matter, so it does not repeat the points in the MoU or anything like that.

On 7th June 2019, the Attorney General, Faris Al Rawi, announced proposed changes to the Freedom of Information Act (FoIA) on the basis that the current arrangements were costing the State too much money in terms of the legal fees refunded to successful applicants for official information. The AG’s rationale was that applicants were effectively milking the State in cynical, ‘cut-and-paste’ legal actions, usually filed on the day after the expiry of the legal time limit for responses. Millions of dollars were being spent in this manner, which placed a serious burden on our scarce Public Money, so the proposal was to have all intended refusals vetted by the AG’s office. That would have entailed more time for official review, so the time-limit for FoIA responses was proposed to be increased from 30 days to 180 days.

Of course, there were strong objections, including my own on these pages, with those proposals eventually being shelved for further consideration and/or consultation. It was really striking to me that the AG’s presentations did not include any examples of say the ten most expensive or longest cases or anything like that. The lack of evidence was compensated for by the blatant appeal to the widespread public perception that the previous PP administration had grossly overspent on legal fees during the tenure of then AG, Anand Ramlogan SC. Based on the reports, I share the belief that the previous administration has really serious questions to answer on the levels of legal fees paid. That said, the AG’s presentation made me wonder, as the failure and/or refusal to refer to available data is a clear ‘red flag’.

So, here are the Tobago Sandals MoU legal fees details, for readers to consider.

The entire journey from my request for the MoU to the first (and supposedly final) Court hearing, took just nine months. On 27th February 2018, all three daily newspapers carried prominent articles in which Adam Stuart (then Sandals Resorts’ CEO) was emphatic that there was no secret at all in the MoU. I wrote to the PS in the Office of the Prime Minister the same day to request the MoU and point out those widely published statements, together with similar claims from the PM made in our Parliament. After a five-month exchange of correspondence between us, it was made clear to me that the OPM had no intention of publishing the MoU, so I formally engaged my attorney to file the case. Up to that point, we had been having preliminary correspondence, with no lawyers writing to each other or the Court.

On 2nd August 2018, my pre-action protocol letter was issued to PS Maurice Suite at the OPM and the correspondence between attorneys started. The first hearing was on 29th November 2018 at San Fernando High Court before Justice Frank Seepersad, but that was an extremely short one in which there was no need for any ruling, as the MoU had been disclosed at a Press Conference the evening before. The OPM’s lead attorney, Ms Deborah Peake SC, told the Court that the OPM was withdrawing its case since the MoU had been disclosed the evening before and that the requested document would be delivered to me that day. The Court issued a Consent Order to reflect that and my full costs were awarded, to be ‘assessed by the Court in default of agreement’.

After months of trying to get an agreement on my actual costs, which were $91,600 (VAT inclusive), we applied for a Court date to have the costs assessed. As a matter of completeness, I applied under the FoIA to get the details of the legal costs paid by the State in this matter.

These are the legal costs paid by the State in the Tobago Sandals MoU matter.

Of course, those letters were entered into evidence as being relevant to the matter before the Court. At our 30th July 2019 hearing on costs, before the Master of the San Fernando High Court, we argued that our claim should be paid in full, having regard to the State’s level of expenditure. In point of fact, in the natural course of these matters, we had done most of the work to make the case to obtain leave to proceed and to file substantial submissions.

At that hearing, the Chief State Solicitor argued in detail with several items in our claim, the position being that my claim for $91,000 was excessive and needed to be reduced. So, the losing side spent $545,625 of scarce Public Money, then went on to dispute the winning side’s claim for $91,000.  Well I tell you, what eh meet yuh really eh pass yuh.

Public Money must be managed and accounted for to a higher standard than private money.

The Master’s ruling has been deferred until 22nd October 2019, so one can only hope and trust that good sense will prevail. The Courts have to defend the citizens’ rights to freedom of information, up to and including the proper award of costs.