In light of the recent scenario with former Senator and Minister of Planning Mary King we will look at the larger picture of doing business with the State in a subsequent article, but will begin the issue by looking at the Tobago House of Assembly as an example. Someone really needs to look at the history of litigation undertaken by or against the Tobago House of Assembly and the results thereof to see whether taxpayers are getting value for money from the THA's legal representatives.
We saw in the newspapers recently that the THA lost in the Court of Appeal yet again in what appeared to be an ill-fated challenge to a judgment of the Honourable Justice Jones in the matter where teenagers Ana Carolina Barry-Laso and Yannick Quesnel were injured in a boating accident at Pigeon Point Heritage Park.Of course, litigation is always an unpredictable business, but if one looks at the trends of the judgments against the THA over the years and the several rulings made against it, a fairly predictable trend begins to emerge.
Who are the main legal advisers for the THA and who are the main attorneys they brief and send out cases to? Who is responsible for the creation of contracts, forms and legal documents which bind the THA every day? Who guides and advises on the form, content and clauses of the myriad legal forms and documents that the THA would use every day as it goes about its normal business transactions?When matters are referred from the various divisions within the THA, be it Agricultural Division, Works and Infrastructure, Marine and Land Resources or whatever area that legal challenges or questions may arise, who guides and advises the various Department Heads and Division Secretaries?
Getting value for money
Now it may very well be that the THA needs a bigger financial allocation to strengthen its in-house Legal resources but apart from the in-house resources, one has to wonder how are the allocations of external matters and briefs decided upon?We have seen some startling revelations recently about the allocation and distribution of briefs in Trinidad concerning the Udecott Commission of Enquiry but no one seems to be asking questions as to what exactly is happening with the distribution of briefs in Tobago.
No one seems to also be doing any scientific analysis or evaluation to determine whether Tobagonians are getting value for money with the legal teams coming up to represent their interest through the THA.How much pointless litigation has been pursued and how many more fatally flawed matters are there in which the THA has either been shot down or run out of Court? There are of course some matters which you cannot win where you look for the best settlement or exit strategy but then there are some cases in which it must be patently clear that you cannot even hope to begin defending and the advice of good and prudent counsel should be to tell you this from the start.
There have been quite a few instances where resources have been used in Quixotic pursuits, charging at windmills and the trusty Pancho always turns out to be the taxpayer who has to bear the brunt of the expense at the end of the day and in this regard, it is not limited at all to the THA and their management of their legal portfolio.Central Government has, at times, been quite guilty of the self-same thing and we have often seen millions of dollars spent on what, at times, may appear to be useless litigation as the members of the public are left wondering what was the point of that whole lengthy, expensive exercise.
I have always said that once attorneys work they must be paid and the State and state agencies will no doubt seek to be vigilant to ensure they get value for money with the fees paid on litigation for or against the State.Part of this duty and responsibility involves looking at matters to determine or get a legal opinion as to whether they are worth pursuing at all or whether the interest of the State or state agency would not be best served by seeking an early amicable settlement.The public is entitled to ask questions in this regard and ought to be treated with respect when question and answer time comes up on any analysis of great State expenditure on legal expeditions which may sometimes seem to bear little or no fruit from the public's perspective.
Accounting to the public
Both Central Government and the THA have responsibilities to account to the public for how they divvy up and distribute the slew of briefs which they would of necessity have to farm out from time to time.Is there some pre-qualification process and measurable performance criteria by which attorneys or counsel are chosen to represent the State or the THA, or is it that you just have to be in good with the boys to get your turn to feed at the trough and when a new set of boys takes office it is just a new set of feeders at the trough?Now, while this article has focused on the aspect of provision of legal services, the same or similar arguments apply to other goods and services sectors in this country and we will examine these from time to time as we seek to shape and fashion a new culture, ethic and paradigm for doing business with the State in Trinidad and Tobago.