CLICO policyholders lose bid for Privy Council
THE Court of Appeal has refused to grant leave to a group of CLICO policyholders to go to the Privy Council to challenge the decision of the local court to deny them pre-emptive and interim costs to pursue their legal challenge of the bailout plan offered to them by Finance Minister Winston Dookeran.
On May 17, Justices of Appeal Justices Wendell Kangaloo, Humphrey Stollmeyer and Gregory Smith upheld a March 29 decision of High Court Judge Devindra Rampersad.
Executive Flexible Premium Annuity (EFPA) policyholders Percy Farrell, Marina Inalsingh, Prof Gordon Rohlehr, David Dayal and Michael Alexander were seeking to have the costs of their legal challenge paid from the Statutory Trust Fund established by the Central Bank of Trinidad and Tobago.
However, Rampersad ruled the court had no discretion to interfere with the Statutory Fund without regard to the risk assessment factor.
He said any order by the court to the contrary would be subjected to justified criticism as the court would be making an order for payment without having considered the effect of such a payment on the entire statutory fund.
The decision was appealed on the ground that Rampersad erred in law and that he misinterpreted the provisions of the Insurance Act relating to the assets contained in the fund. The appeal was dismissed by Kangaloo, Stollmeyer and Smith.
While agreeing that the Court of Appeal has the jurisdiction to make an order for pre-emptive costs, the court said it was guided by the principle under which the fund was established.
Kangaloo said the Statutory Fund is subject to heavy regulatory control by the Central Bank and any order for costs will be contrary to the Insurance Act. He said it would not be just and fair to make an order for the payment of legal costs to fund the litigation.
In relation to the claim for interim costs, Kangaloo said the court entertained serious doubt about its power to make such an order.
The policyholders, represented by Dr Claude Denbow SC, Seenath Jairam SC, Faris Al Rawi, Dharmendra Punwasee and Rishi Dass, instructed by attorney Donna Denbow, sought leave to appeal to the Privy Council.
The matter was heard yesterday by Justices of Appeal Peter Jamadar, Rajendra Narine and Gregory Smith who agreed with the decision of their counterparts.
Dookeran's bailout plan includes a lump-sum payment of $75,000 in the form of a government IOU to those investors whose principal balance exceeded that amount and an amortised balance payment at zero interest over the next 20 years.
Attorney Kelvin Ramkissoon represented the Attorney General and Minister of Finance while attorney Neal Bisnath appeared on behalf of CLICO.
The Central Bank was represented by Senior Counsel Reginald Armour.