Maroc - NEWSDAY.CO.TT - A la Une - 30/Oct 23:15

Privy Council: Las Alturas CoE treated Calder Hart unfairly

A Court of Appeal ruling in favour of former Udecott chairman Calder Hart in 2023 has been upheld by the Privy Council, which ruled he was denied natural justice by the 2016 Las Alturas commission of enquiry (CoE) that blamed him for the collapse of the housing project in Morvant. In a judgment on October 30, Lord Clark, with Lords Sales, Leggatt, Lady Rose and Lady Simler concurring, the Privy Council upheld the Appeal Court’s ruling that the Las Alturas commission of enquiry breached Hart’s right to procedural fairness by publishing adverse findings about him without first allowing him to respond. Justices of Appeal Mark Mohammed, Peter Rajkumar and Maria Wilson had allowed Hart’s appeal of Justice David Harris’s dismissal of his complaints in a ruling in 2020. In their ruling, the judges said the commission did not follow its own procedures. They said that although Hart did not participate in the inquiry by either testifying or providing a witness statement, he was entitled to be treated fairly. “It is a fundamental requirement of natural justice and procedural fairness that a person be afforded the opportunity to respond to, or defend himself against, proposed adverse findings or criticism rather than being condemned unheard.” Hart had been invited to give a statement as a former Udecott chairman, but did not participate after the commission failed to provide him with documents, including minutes of board meetings from Udecott and various technical reports. As a result, the commission’s findings and recommendations against Hart, contained in five paragraphs of its report, dated August 30, 2016, were quashed and deemed to have been arrived at in breach of the principles of natural justice. In several of its findings, the commission had said Hart was “clearly the mind and management of Udecott with respect to the project.” The commission and its only surviving commissioner, Dr Myron Wing-Sang Chin, then appealed to the Privy Council, contending Hart had declined to participate in the inquiry and that fairness did not require prior notice. However, in its ruling on October 30, the British law lords disagreed, holding that Hart was denied procedural fairness when the commission criticised his role in the Las Alturas Towers housing project without first allowing him to respond. The Las Alturas project, launched in 2002 and plagued by landslides and structural failures, resulted in millions of dollars in public losses and the eventual demolition of two apartment buildings. The commission’s report held Hart personally accountable, asserting he failed to act prudently in acquiring unsuitable land. Hart sought judicial review, arguing he had been condemned unheard. Privy Council: No one should be condemned unheard In its ruling, the Privy Council upheld the appellate court’s finding that the commission’s actions violated common law fairness and the Judicial Review Act of 2000. In its judgment, the law lords held that the commission’s duty of fairness extended to giving Hart “notice and an opportunity to respond” to proposed criticisms, regardless of his decision not to testify. The judges stressed that natural justice “requires that no one should be condemned unheard,” and that the gravity and finality of the findings demanded prior warning. Lord Clark ruled that the commission’s failure to give Hart notice before issuing its report “did not comply with the law on natural justice and fairness” and that the Court of Appeal was correct to quash the report’s findings against him. While the Privy Council declined to expand on the wider legal issues surrounding the use of “Salmon letters” and “Maxwellisation” procedures – safeguards allowing individuals to respond to proposed adverse findings – it reiterated that fairness must always be assessed on the facts of each case. [caption id="attachment_1187709" align="alignnone" width="1024"] One of the condemned buildings at the Las Alturas project. - File photo[/caption] “In this case, the issue about the need for a Salmon letter simply does not arise,” Lord Clark wrote, adding, “It is not necessary to embark on any further analysis or consideration of Maxwellisation here, when the requirements of natural justice and procedural fairness, as covered by section 20 of the 2000 Act, have not been met. “The Court of Appeal properly recognised that Mr Hart should have been afforded the opportunity to respond to, or defend himself against, proposed adverse findings or criticism, rather than being condemned unheard… “The suggestion that the allegations against Mr Hart were made clear from the outset in the commission’s terms of reference is also of no merit. “While the terms of reference indicated the questions to be asked, those questions could not be interpreted as meaning that, in effect, Mr Hart was to be held liable and accountable for what had occurred. It is the proposed adverse comments and findings that need to be known, rather than the starting point of the investigation.” Lord Clark emphasised that the fact that a person had not given evidence did not preclude their right to have notice and be allowed to respond to adverse comments or findings. “It cannot be inferred from the fact that evidence was not given by Mr Hart that he could not, or would not, have had anything to say about the comments and findings. “It was inappropriate to speculate about whether or not, if given notice, he would respond and, if so, what he would say, or indeed to assume that nothing he could have said would have made any difference.” Law lords: Hart could have been given more time The law lords also dismissed an argument by the commission that extending the time of the inquiry to allow Hart to respond would have been inappropriate. “The argument is insupportable…The findings made by the commission against Mr Hart were very serious and expressed in conclusive terms. “Natural justice and fairness required that Mr Hart should have been given notice and allowed the opportunity to respond, and this outweighed any concerns about an extension of time. “The appellant has not provided any satisfactory basis to show that the commission’s conduct in failing to give notice and an opportunity to respond was fair. “As a result, the Board is satisfied that the commission did not comply with the law on natural justice and fairness, now embodied in section 20 of the 2000 Act.” In April 2020, Justice Harris had ordered contractor China Jiangsu International Corporation TT Ltd to pay a total of $30.1 million to the Housing Development Corporation for damage and loss arising out of the failed construction of the two buildings at Las Alturas. The Las Alturas Towers were apartment buildings at Lady Young Gardens, Morvant, built for the HDC. 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. The commission of enquiry was appointed on December 2, 2014, 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. 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. Its report was published on August 30, 2016. Also in 2020, another judge ruled in favour of former Housing Development Corporation managing director Noel Garcia, who also challenged the Las Alturas commission’s 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 that the decision against Garcia was null and void and had no effect. Dr Lloyd Barnett, KC, Anthony Bullock, Weiden Daley and Shaydia Sirjue represented Hart while the commission was represented by Richard Clayton, KC, Rowan Pennington-Benton instructed by Freedom Law Chambers.   The post Privy Council: Las Alturas CoE treated Calder Hart unfairly appeared first on Trinidad and Tobago Newsday.