Property Matters – the Sandals case

Property Matters – the Sandals case

I applied to the High Court for a Judicial Review of the refusal of the Office of the Prime Minister (OPM) to provide the Tobago Sandals MoU under the Freedom of Information Act (FoIA). On 11th October 2018, I was granted leave to proceed with the Judicial Review and the Case Management Conference is set for 29th November 2018.

Does the public have the right to know what are the terms and conditions of the various large-scale projects being done by the State?

The twists and turns in this episode seem to be ‘Carefully Crafted Confusion‘ – a phrase I coined during the Invaders’ Bay imbroglio under the previous PP administration. Large-scale projects on valuable public land, expected to require heavy public investment, all being done for the benefit of the public of course, yet the details are kept under covers.

The State’s shifting positions on Tobago Sandals are striking. For example, Minister Stuart Young gave these interviews on CNC3 TV –

  • Wednesday 28 February 2018 – in which he insisted that there was no secrecy or any reluctance to engage with the public on this mega-project.
  • Wednesday 17th October 2018 – in which he stoutly defended the need for secrecy of the MoU. Of course, having been sued for the refusal to provide the not-secret MoU, an entirely different position is now adopted. With ‘a straight-straight face’, as David Rudder would say. Well I tell you.

Continue reading “Property Matters – the Sandals case”

CL Financial bailout – filling the gaps part three

This was published on Emancipation Day 2018, as we start the Season of Reflection. Sober reflections as one tries to close the gaps.

Vishnu Dhanpaul_1_0
Vishnu Dhanpaul, PS, Min. of Finance. Courtesy Central Bank of T&T

This summarises the reply of Ministry of Finance PS Dhanpaul on 14th June 2018, to my original request of 24th April 2018. Dhanpaul wrote that the Ministry –

  • had no details of legal fees as the lawyers were not retained by them;
  • had no CLF audited accounts from 2008 to date, but management accounts for 2015, 2016 and 2017 were sent;
  • denied my request for the presentation made to Independent Senators in September 2011 on the grounds that since we had agreed to omit that item from the Consent Order my request was ‘an abuse of the process of the court‘. In any case the file could not be located.;
  • Legal and other advice was being obtained on the outstanding items;
  • Further letters were to be sent via hard-copy, other formats would be ignored.

The full letter from PS Vishnu Dhanpaul is here.

This is my reply

Email
From – Afra Raymond
To – Vishnu Dhanpaul
Date – Fri, Jun 22, 2018 at 7:42 PM

Hello PS Dhanpaul,

I have carefully considered your reply of 14th June 2018, the overall tone and content of which is perturbing, given the background in this matter.

My reply is itemised here for ease of reference –

  • The group accounts for CL Financial – Thank you for providing the management accounts of CL Financial Limited as at December 31st 2015, December 31st 2016 and April 30th 2017. Of course the 2015 accounts show balances for 2014, so what is the document from which those 2014 numbers were derived? My original request was for ‘…audited accounts of CL Financial Limited…to include interim, preliminary, draft, unaudited or management accounts…‘. Those broad request terms were submitted precisely to allow for the related matters of opening balances and source documents to be accommodated. In light of that, please provide the set of accounts from which the 2014 balances were taken, whatever the permutations in which those might appear. Also, please provide the available accounts for the outstanding years – 2008 to 2014 – whether those be interim, preliminary, draft, unaudited or management accounts;
  • Legal Fees – Please reply to indicate which Ministry or State Agency had responsibility for retaining and paying the attorneys who represented the Ministry of Finance in these two court case – I find your answer to be verging on the obtuse;
  • Presentation to Independent Senators made in September 2011 – The consent order of 24th January 2018 in no way affects that this document is disclosable – indeed, the Ministry’s 22nd January 2018 Supplemental Submission set out a clear position, which accepted that there are no applicable exemptions in the FoIA to prevent publication of the presentation made to Independent Senators in September 2011. Its twelfth paragraph states – “…As to the Order in relation to Request No. 2 the Appellant’s position is that it accepts that there is no exemption on which the Appellant can rely…” For your information, a copy of that document is hyperlinked above for ease of reference. In the circumstances, the Ministry’s position is risible in that even if one accepts its position, which I do not, any other applicant would be entitled to obtain the document without that defence being available. In any case, a presentation of that importance would have been the subject of considerable email traffic, which means that there would have been drafts and attachments exchanged between the Ministry and its advisers – those email records need to be examined for those documents. Your suggestions as to an abuse of process are quite misplaced and somewhat ironic, given my next point;
  • The outstanding items – The issue of the details of the costs of the CL Financial bailout was litigated since March 2013, with the Ministry having lost at the High Court in July 2015 and conceded defeat at the Appeal Court in January 2018. What could possibly be your rationale for seeking further legal and other advice on these requests? This series of requests for information is being made to the same Public Authority in respect of the same bailout process, the only material difference being that the information being requested now was not previously requested. This series of requests is being made, in the public interest, to obtain the outstanding details of exactly how this bailout was funded. By way of illustration and for the benefit of other readers, take the case of a request for information under the FoIA which sought certain details of applicants for certain state training with names from A-F. In that example if the application was refused, then became the subject of judicial review, then the High Court ruled in favour of the publication and the State conceded its case at Appeal Court level, how then could the State refuse a subsequent application for the same details of applicants for the same training program with names G-Z? It is my considered view that for a Public Authority to be seeking further legal and other advice in such a situation would be tantamount to an abuse of process. I am stating that for the benefit of any other readers who might be unclear as to the important principle at stake in this matter. I have no doubt that you fully understand the issues as stated. Quite apart from the commitment of scarce public resources to obtain further advice on this matter, please note that the Ministry is now beyond the 30-day deadline specified at S.15 of the Act to indicate whether it is refusing or approving my requests;
  • Communication – I reject your proposals as to our future communications. At this time, the vast majority of my communications are via email, possibly 95% – I have little doubt that the ratio is any different at the PS level of our public service. In these circumstances, what could possibly be your rationale for proposing the hard-copy mode for our further communication? In any case, all the Ministry’s letters in this current exchange are being delivered to my office, notwithstanding the typed address being my home.

I await your early reply so that this long-outstanding matter can be properly concluded, in the public interest and without any further delay. For the avoidance of doubt, please do not take this correspondence as in any way representing my acceptance of your delay, now well outside the time-limit stipulated in the Freedom of Information Act. All my rights are hereby reserved.

Yours sincerely,

Afra Raymond

CL Financial bailout – filling the gaps, part two

clf-bailout

This article provides more details of the games being played in this Information War. It seems that the concealment of the details of the CL Financial bailout is of high importance.

First item is this acknowledgment from the PS in the Ministry of Finance which would be funny, if this entire matter were not so very serious –

Continue reading “CL Financial bailout – filling the gaps, part two”

CL Financial bailout – filling the gaps

This article sets out my ongoing search for all the details of all the payments made under the CL Financial bailout. That includes my recently-concluded litigation and my new requests for information under the Freedom of Information Act.

The Consent Order of 24th January 2018 required the Ministry of Finance to provide these details –

  1. Any unaudited financial statements of CL Financial Limited for the years 2008-2011 in the possession of the Ministry of Finance which were relied upon to prepare the affidavits of Minister Winston Dookeran filed on 3 April, 2012 in High Court proceedings CV 2011-01234, Percy Farrell and Others v Clico and others.
  2. Any list of the creditors of CL Financial existing at the date of the request in the possession of the Ministry of Finance, the names of the EFPA holders of Clico, the dates of the repayment of EFPA holders of Clico and the identities of those whose investments have been repaid.

The Ministry’s attorneys have now stated that they are unable to locate the specified financial statements and the list of CLF creditors has not been provided. My team will be responding to press for those details, in the public interest and in accordance with the Appeal Court’s Consent Order. Continue reading “CL Financial bailout – filling the gaps”

Property Matters – Sandals MoU?

Adam Stewart, CEO Sandals

This is a continuation of my 8 March 2018 article on the Sandals MoU. That MoU was declared as no secret by our PM to the Parliament on 12 October 2017 and that was confirmed by the then CEO of the Sandals group, Adam Stewart, as reported on 27 February 2018 in the T&T press.

My 27 February 2018 request for that MoU under the Freedom of Information Act (embedded below) was therefore made against that background of both parties’ declaration that there was no secret. The Office of the Prime Minister responded on 22 March 2018 to refuse my request, citing that the MoU contained a confidentiality clause which prevented its disclosure at this time. I have since written to the OPM to request a reply in conformity with the provisions of the Freedom of Information Act – I am still awaiting a reply to that letter.

I have now written to Mr Adam Stewart of Sandals Resorts International to request from him a copy of the MoU. (See below)

This is a proposal of high public importance as it is being advanced as an important part of our country’s diversification strategy, so the correspondence is set out in this article.

From: Afra Raymond
Date: Fri, Jun 15, 2018 at 3:41 PM
Subject: Request for Memorandum of Understanding with Sandals Resorts
To: Adam Stewart

Dear Mr Stewart,

I am writing to request a copy of the signed Memorandum of Understanding between Sandals Resorts International and the Government of the Republic of Trinidad & Tobago – it was recently reported that this MoU was signed on 10th October 2017.

There is no doubt that the proposed 750-room Sandals/Beaches Resort for Tobago will be a large-scale, high-impact development, so there an understandable public interest in those proposals. I was therefore greatly encouraged by your emphatic statements that there is no secrecy in relation to the business arrangement or the MoU and that you refuted any secret deals – as reported in the Trinidad & Tobago press on 27th February 2018.

I was therefore astonished that the Office of the Prime Minister replied on 22nd March 2018 to my request for that MoU by citing a confidentiality clause to refuse its disclosure at this time. I wrote to the OPM on 11th April 2018 requesting a clarification and their reply is still awaited. In the interim, I am requesting from you a copy of the MoU in the public interest of transparency in this large-scale development proposal.

For your information, my earlier article on the Sandals MoU was published in the Express Business on 8th March 2018 and can be accessed here. The related correspondence is attached for ease of reference.

Please let me have your reply in due course.

Afra Raymond

afraraymond.net

 

Afra gets CLICO data…End corbeaux capitalism, he says

cobocapitalism

This interview appears in the Business Express Newspaper on Wednesday, March 28, 2018.

LAST week, nearly six years after he first requested the data under the Freedom of Information Act (FOIA), the Ministry of Finance sent Afra Raymond a compact disc with information on all individuals and institutions who received payments from the State for their investments in CLICO, the insurance company that collapsed in January 2009. The matter went to the Court of Appeal before the parties agreed on an out-of-court settlement with the ministry agreeing to most of Raymond’s demands.

For Raymond, an Express Business columnist, property expert and transparency campaigner, it has been a long but ultimately rewarding road, which began with the May 8, 2012 filing with the ministry. As to cost, he will receive 70 per cent of the cost of the litigation in the High Court.

He answers questions on the issue below:

Q: What in broad terms is the importance to governance and government in T&T of last week’s release of information on the State’s payment to CLICO

A: The need for eternal vigilance is greater than before, with our reduced national resources and I should never have had to make that kind of effort to get these details. Three administrations, between 2009 and now, felt it was proper to hide this huge public spending. Good sense seems to have arrived – for the while anyway! How much Public Money was spent on lawyers’ fees in this sorry affair? Is that a secret too?

This bailout was done via the Central Bank and the CL Financial parent company which formally came under State control by virtue of the June 21, 2009 Shareholders’ Agreement. The State then created new laws to further inoculate the Central Bank from the oversight of the Courts via judicial review and so on. What is more, our Integrity Commission also seems to have lost its way in failing to recognise that CL Financial is a company under State control. As a result, the Commission has sought no Directors’ declarations from the largest of the State controlled companies. I tell you.

Contrast T&T with the Bajan approach to the related 2009 collapse of CLICO in Barbados – The High Court there appointed Deloitte as Judicial Manager in April 2011 and a far more transparent process is taking place – see clicolife.com for an example of how we could have done it better.

If one analyses the data, do you agree that the majority of holders of the investments were individuals who were looking to maximise the return on their investments?

Yes, there were several wealthy investors, but a great many of the accounts and most of the larger ones, were held by companies, including state enterprises! We all know that the EFPA was approved as an individual pension product, yet it was sold to companies, which were later able to obtain repayment.

What do you think accounts for the large number of institutional investors who were able to invest in investment vehicles that were first marketed as being for individuals?

The sheer size of the returns being offered by the EFPA eclipsed good sense and it was the ‘best deal in the country’, quite literally ‘Too Good to be True’, grew and grew until it was ‘Too Big to Fail’ and as we now know, everyone is so closely related that it is now a case of ‘Too Big to go to Jail!’

What, in your view, are the long-term lessons of your fight for information on this state expenditure?

What is sorely needed is for the media and the academy to take their proper role as wellsprings of enquiry, research and debate. The mainstream media (MSM) have not embarked on a sustained campaign to get this information released. The UWI has taken no formal position on this serious issue as far as I am aware. This is a huge expenditure of scarce public money to repay wealthy risk-takers at a time when basic needs are unfulfilled. Chronic shortages in our public health institutions, so how can we find money for this?!

The process by which this outrageous bailout request made its way to the Head Table, was approved by Cabinet, with the sitting Minister of Finance being a shareholder of the beneficiary company, with the public being the last to know.  [CORRECTION: The ‘sitting Minister of Finance‘ referred to here is not the incumbent, Colm Imbert.  That was an awkward and inaccurate choice of words on my part and I apologise for that error.  The ‘sitting  Minister of Finance‘ to whom I was referring was the holder of that office from November 2007 to May 2010, Mrs Karen Nunez-Tesheira, who was recorded as the owner of 10,410 shares in CL Financial Ltd, being the 289th of 325 shareholders listed in its filing with the Registrar General’s Department of 17th February 2009.] Well I tell you. Never again. It is like a recipe for a failed marriage in which the husband is the last to know…

What are the long-term lessons of the CLICO collapse and the length of time resolution has taken?

Publication of the Colman Report into CLF…The need for financial education…We need a Regional Financial Regulator as the late Norman Girvan proposed in the wake of this fiasco…most importantly, the key players must be arrested and face the courts on serious charges…The State locks up ‘suspects’ in various lockdowns to then go look for the evidence and pay damages, after! All that is to send a message, we are watching you, we know who you are. The question is why won’t the State take the same firm action against the financial criminals? Until we see the State being very serious with white collar criminals, as is now happening in so many other countries, we are going to have more of this ‘Corbeaux Capitalism.’

Property Matters – Sandals MoU

Adam Stewart, CEO Sandals Resorts International

The Tobago Sandals mega-project has returned to the headlines with recent interviews of Sandals Resorts’ CEO, Adam Stewart, in Barbados and Stuart Young, Minister in the Office of the Prime Minister.

Stewart’s statements were widely reported in the local press (see Addendum 1 below) with an emphasis on the lack of secrecy in the entire arrangement and the fact that discussions were still at a preliminary stage. Minister Young’s CNC3 interview on Wednesday 28 February 2018 (below) was also notable for his insistence that there was no secrecy or any reluctance to engage with the public on this mega-project.

Continue reading “Property Matters – Sandals MoU”

CL Financial bailout – the consent order, part two

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. Continue reading “CL Financial bailout – the consent order, part two”

CL Financial bailout – the consent order

CL Financial bailout – the consent order

On Wednesday 24th January 2018 we settled the Consent Order in the Appeal Court, in this long-running legal battle between the Ministry of Finance & The Economy and I. That Consent Order will allow the public much better insight into the CL Financial bailout. The Ministry of Finance & The Economy has now agreed to provide two of the three items I requested in 2012 under the Freedom of Information Act –

  1. Any unaudited financial statements of CL Financial Limited for the years 2008-2011 in the possession of the Ministry of Finance which were relied upon to prepare the affidavits of Minister Winston Dookeran filed on 3 April, 2012 in High Court proceedings CV 2011-01234, Percy Farrell and Others v Clico and others.
  2. Any list of the creditors of CL Financial existing at the date of the request in the possession of the Ministry of Finance, the names of the EFPA holders of Clico, the dates of the repayment of EFPA holders of Clico and the identities of those whose investments have been repaid.

We agreed to delete Paragraph 2 of the Order of Justice Boodoosingh, which referred to the presentation made to Independent Senators in September 2011.

The Ministry is to pay Seventy Percent (70%) of my High Court costs to be assessed in default of agreement and it was also agreed that there would be no order as to costs in respect of the appeal.

The Appeal Court panel comprised Justices of Appeal Mendonca, Jamadar and Rajkumar.

I am thanking my attorneys, Gilbert Peterson SC and Kingsley Walesby, for their diligence and skill in seeking the Public Interest in this important matter. I am also thanking my friends and media colleagues who supported this campaign for proper standards of accountability, transparency and good governance in our country.

We could not have come this far without the assistance of other campaigners such as the T&T Transparency Institute, Disclosure Today, the Constitution Reform Forum and of course, TedX POS and The Big Black Box…Special appreciation goes to those organisations…

Finally, of course, I thank the Minister of Finance & The Economy and his Cabinet colleagues who decided to support this long-standing call for those details to be published. It is a case of better late than never, so my thanks are sincere ones. We now need to maintain our vigilance as we advance the standards of accountability, transparency and good governance in our country.
Thank You.
Afra Raymond

That was the Press Release I made at the end of these protracted legal proceedings.

Timeline of this legal action

  • 8 May 2012 — Request made under the Freedom of Information Act (FoIA) to the Ministry of Finance & The Economy;
  • 29 March 2013 — Lawsuit filed to challenge the refusal of the Ministry to provide the requested information. The Ministry’s reason for refusing was that CL Financial is a private company and not a ‘public authority‘, to which the FoIA is limited;
  • 22 July 2015 — High Court ruled in favour of my original Request for Information and ordered publication of the requested details;
  • 10 August 2015 — The Ministry appealed the High Court ruling, citing new reasons not advanced in the earlier case;
  • 24 January 2018 — At our first hearing, the Ministry resiled from its previous positions and only objected to one of the three items I requested. We agreed the terms of a Consent Order and the legal matter ended.

The bailout started in January 2009 — that is the official date at least — so it is almost nine years in progress. It is impossible to say just what caused the Ministry of Finance & The Economy to reverse its position, but at last there will be a long-overdue publication of the details of just who got paid.

Certainly, with the effluxion of those 8+ years, certain legal limitations would have accrued, such that it may well be impossible to proceed against certain persons.

On 8th August 2017, the Appeal Court ruled in favour of the State’s application to appoint Provisional Liquidators to CL Financial. As required by that ruling, the first 3-monthly Report of the Liquidator is due to be filed in the High Court at the end of January 2018. That Liquidator’s Report would comprise detailed accounts of the sort which would have negated the Ministry’s earlier objections to publishing the accounts for the CL Financial group.

It will be fascinating to examine the details when they are submitted, which I expect within the next fortnight. We will be able to see who were the real beneficiaries of this immense payout of Public Money.

Of course, the terms of the Consent Order do allow a certain latitude, so it is important to remain vigilant in this endgame. Apart from the two parties to this concluded legal battle, the fact is that most of the beneficiaries I interacted with never wanted their identities disclosed. I would be surprised if those wealthy and influential persons did not attempt to thwart the impending publication.

The final point is that the item for which I withdrew my request was the presentation made to Independent Senators in September 2011 by the then Minister of Finance & The Economy, Winston Dookeran. The fight for that item would have raised certain fascinating issues between the Freedom of Information Act and the Constitution, which at S.55 protects Parliamentarians and their proceedings from intrusion by the Courts. Those issues are sure to arise again, but both sides left them aside in reaching this agreement.
Continue reading “CL Financial bailout – the consent order”

3hotels

These are the documents from my Request for Access to Official Document(s) Under the Freedom of Information Act, 1999 from the State and the agents acting on behalf of the State, in the referenced hotels.

eTeck

UDeCOTT

Ministry of Finance

Inland Revenue Division