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NGC loses 1st round to SIS

Tuesday, July 17, 2018

The Privy Council has dismissed an appeal from the National Gas Company (NGC) seeking to overturn a decision to strike out a lawsuit against Super Industrial Services (SIS) and one of its subsidiaries Rain Forest Resorts Limited.

Delivering a 16-page judgement yesterday, five Law Lords of the Privy Council ruled that the local Court of Appeal was correct to apply the sanction to NGC after it (NGC) was found to have breached the Civil Procedure Rules (CPR) which govern civil litigation.

The decision does not mean the automatic end of NGC’s lawsuit against the companies, however, as in March it made a relief from sanctions application under the CPR.

In a press release issued yesterday, NGC stated that following the judgement it obtained an injunction freezing the company’s assets pending the determination of the application. The application, in which NGC is claiming that the companies were not prejudiced by its procedural error, comes up for hearing on December 13.

NGC first sued the companies in December 2015 after it begun arbitration proceedings against them over the controversial Beetham Water Treatment Plant. While the project was estimated to cost US$162,055,318.77, NGC was seeking to recover $400 million which was advanced to SIS before the contract was cancelled in 2016. The arbitration is still pending and is unaffected by yesterday’s decision.

In the lawsuit, NGC was seeking orders setting aside four mortgages and a debenture between SIS and its subsidiary, which it alleges were done to siphon the proceeds from the project. It initially obtained an injunction freezing $180 million of the companies’ assets pending the determination of the lawsuit.

While the injunction application was being decided, the companies applied to have the claim struck out based on the fact that NGC failed to meet the deadline for applying for a case management conference of the substantive claim. NGC had initially made a relief from sanctions application but it was eventually withdrawn after High Court Judge Joan Charles dismissed the companies’ application.

Last year, the Court of Appeal delivered a majority judgement in which it overturned Charles’ decision.

In its judgement yesterday the Privy Council agreed with the Court of Appeal, as it ruled that the CPR, which was introduced to reduce inefficiency in civil litigation, should be strictly applied. SIS was represented by Peter Knox, QC and Robert Strang, while Ramesh Lawrence Maharaj, SC and Tom Poole represented Rain Forest. Richard Brindle, QC, Rupert Allen and Jason Mootoo represented NGC.


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