Last update: 08-Dec-2013 4:55 am
Sunday, December 08, 2013
Trinidad & Tobago Guardian Online
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Court clears way for eTeck lawsuit
High Court judge Devindra Rampersad yesterday ruled that the State was free to pursue its US$5 million lawsuit against the former members of the Evolving Technologies and Enterprise Development Company (eTeck) board, even though it was filed after the four-year statutory limitation period. The judgment, which was delivered in the San Fernando High Court yesterday afternoon, is expected to be used as precedent in several ongoing civil lawsuits involving former members of state boards accused of impropriety, which were all filed after the 2010 general election. In his 22-page judgment, Rampersad said: “Public scrutiny of public posts must exist to secure public funds.”
Rampersad agreed with the State’s contention that it only found the alleged breaches by boards after the change in government and said it would be “highly unlikely and most improbable” for the breaches to be found otherwise. He also dismissed allegations of victimisation in the case. “Political victimisation, as alluded to, as real as it may be, does not feature in the court’s mind in the exercise of its function as the determiner of facts related to deliberate breaches of duty,” Rampersad said. He dismissed submissions made by some of the board members, who claimed that the by-passing of the limitation period in the case would be a disincentive to prospective board members. “The potential subjection of any director to legal proceedings is a reality which hovers over every board to ensure that decisions made and conduct carried out are properly done to the appropriate standard and can be policed and remedied as appropriate,” Rampersad said.
In the substantive lawsuit, filed in 2011, the State alleges the board entered into a $30 million agreement with Chinese-based company, Bamboo Network Ltd, between January 18 and May 17, 2005, without carrying out a due diligence exercise into the company’s financial records beforehand. The directors being sued for breach of fiduciary duties and negligence are former chairman Prof Ken Julien and board members Ulric Mc Nicol, Brian Copeland, Rene Monteil, Eugene Tiah, Sonia Noel, Wendy Fitzwilliam and John Soo Ping Chow. In March last year, the directors filed an application to have the lawsuit struck out, saying it was an abuse of process as it was statute-barred under the Limitations of Certain Actions Act. In defence of the claim, the State relied on Section 14 of the legislation, which postpones the limitation period when facts have been deliberately concealed.
Rampersad initially rejected the preliminary application, saying it could be dealt with in the substantive case. The directors appealed and in December the Appeal Court reverted the issue to Rampersad for his consideration. The State was represented by Queen’s Counsel Vincent Nelson, Israel Khan, SC, and attorneys Gerald Ramdeen and Varun Debideen.
The directors’ legal team included Senior Counsel Douglas Mendes and John Jeremie and attorneys Michael Quamina, Stuart Young, Kerwin Garcia and Stephen Singh.
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