29th Nov 2015

Source: Kaieteur News

Chief Justice Ian Chang in an 80-page decision has ruled in favour of BK International, Inc. in a long standing dispute between the Ministry of Local Government, prohibiting the Ministry, Minister and Permanent Secretary of Local Government Ministry from terminating the Haags Bosch landfill contract.

The Ministry is now the Ministry of Communities and there is a new Minister in place. The new Minister, Ronald Bulkan, had also agreed to enforce the decision of the previous administration.

BK International was represented by Devindra Kissoon of London House Chambers.

In March, BK’s Counsel Mr. Kissoon, in response to a termination notice received from the Ministry on February 27, 2015, obtained orders nisi against the Permanent Secretary and Minister of Local Government, among other things, preventing them from terminating the contract with BK for the construction and operation of the Haags Bosch dumpsite.

In his affidavit in support of BK’s application, Mr. Brian Tiwarie deposed that the Ministry, the Permanent Secretary and the Minister acted “unjustifiably” and “in egregious bad faith as part and parcel of practice and pattern of conduct victimizing BK.

He also accused the Minister and/or the Permanent Secretary of abusing their power, and in so doing, reached a decision that no reasonable authority could have adopted, if it had taken account of all relevant considerations and had left out of account all irrelevant collateral matters.”

Tiwarie stated that “The Ministry has constantly delayed and changed design instructions due to shoddy design work, expecting BK to immediately adapt to the Ministry’s ever evolving needs, while at the same time pressuring BK to accept and process an increase of almost double the amount of waste originally contemplated at an incredibly high standard.
This was being done against the backdrop of withholding payment for operational or construction costs from BK for years at end, and failing to establish required accounts necessary to fund the Ministry’s shortfall in payments to BK as agreed.

This was done, according to the lawyer, to stifle BK and force a termination of the parties’ contract, to corner BK to expend and utilize its own resources to comply with the Ministry’s ever increasing unreasonable demands.”

“Despite the fact that BK not only complied with the Ministry’s demands and constructed and operated the Landfill Site without any failure whatsoever, and invested more than five years and millions of dollars of its own money into the project, with the reasonable and legitimate expectation that it would reap the benefit of its hard work until the end of the contract in 2019 the evidence showed that the Ministry conjured up a scheme to terminate the parties’ contract.

Solicitor General, Sita Ramlal, on behalf of the Government argued that BK’s action was unsustainable since BK could not seek prerogative relief, instead having to rely on private law remedies.

She argued that the State contracted BK in its capacity as a private party, and that the dispute concerned private law rights and not of public law.

The Government’s decision to terminate was susceptible to judicial review and that BK should bring a separate private law proceeding to determine any alleged wrongs.
Kissoon retorted that the Government was relying on outdated law.

Chief Justice Chang, in dismissing the Ministry’s arguments, found that the remedy of judicial review was appropriate, given the fact the State entered its contract with BK “in the exercise of the State’s common law power to contract”; that “the general public had a direct interest in the project” given “the level of public expenditure…the importance of the project to public health and welfare.”

Chief Justice Chang went on to find “that the failure of the respondents to take into consideration such relevant factors rendered its decision to terminate as irrational in public law sense, since in the circumstances, no public authority could reasonably fail to consider its own breaches of the provisions of the contract in making a decision whether to terminate its contract with BK.”

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