Port Authority can amend disclosure statement

THE Court of Appeal has ruled that a judge’s order which allowed the Port Authority to amend its disclosure statement in its lawsuit against attorney Nyree Alfonso was not procedurally improper and was not treated as an application for relief from sanctions by the Attorney General.

In a written decision in two procedural appeals arising out of a decision by Justice Joan Charles in January, Justice of Appeal Prakash Moosai and Charmaine Pemberton dismissed the arguments before them.

In her appeal, Alfonso argued that the judge erred by granting leave to the Port Authority to amend its disclosure statement without a hearing and attracted sanctions.

Her attorney, Fyard Hosein,SC, argued that the effect of the judge’s order was that it wrongfully discharged the Attorney General from disclosure obligations although the AG had in his possession documents directly relevant to the issues raised in the matter.

He also argued that the judge’s order prejudiced Alfonso since she objected and requested to be heard on the application.

Alfonso, Inter-Continental Shipping Ltd and its managing director John Powell have been accused of a breach of fiduciary duty while the attorney was working for the Port Authority as an adviser to help them source a vessel to replace the Warrior Spirit on the inter-island sea bridge.

The claim against her is that she reviewed the case for terminating the authority’s arrangements for the Government Shipping Service with the owners of the MV Warrior Spirit and identified the MV Superfast Galicia as the preferred replacement.

It is also alleged that while Alfonso was working for the port, she appointed Intercontinental Shipping Ltd, as her agent to tender for the contract.

Intercontinental, the agents for the Superfast Galicia, won the bid. The claim alleged Alphonso benefited financially from the $148 million paid to Intercontinental for the Galicia.

At the procedural appeal, Inter-Continental and Powell’s attorney Ramesh Lawrence Maharaj argued that the judge was wrong to allow the authority’s application since she did not have the jurisdiction to permit the AG to rely on the disclosure statement.

He also argued that the effect of the order relieved the AG from the disclosure obligations, immunised him from any allegation on the breach of the order and was procedurally unfair since his clients did not have an opportunity to be heard on it.

In their ruling, Moosai and Pemberton held that they did not find that the effect of Charles’ order was to interfere with any duty to disclosed imposed on the AG.

It was also pointed out that the error in the authority’s error in the disclosure statement – that it did not comply with the Civil Proceedings Rules (CPR) - did not affect its list of documents.

The judges said the Appeal Court was “always loathe” to interfere with a trial judge’s discretion in case management and will only do so if it is satisfied that the use of that discretion was outlandish.

“The Court of Appeal cannot be seen to be undermining the fundamental premise upon which the CPR is predicated which is certainty of trial date. Whilst a party’s right of appeal cannot be circumscribed, it is not a right, which is to be exercised lightly,” the judges said. The Port Authority was represented by Dr Claude Denbow and Donna Denbow.