Farrell et Al v Colonial Life Insurance Company (Trinidad) Ltd et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 18 April 2012 |
| Neutral Citation | TT 2012 HC 131 |
| Docket Number | CV 1234 of 2011 |
| Court | High Court (Trinidad and Tobago) |
| Date | 18 April 2012 |
High Court
Rampersad, J.
CV 1234 of 2011
Claimant: Dr. Claude Denbow SC, Seenath Jairam SC, Dharmendra Punwassee, Rishi Dass instructed by Donna Denbow
4th & 5th defendants: Allan Newman QC, Kelvin Ramkissoon instructed by Kerri Anne Olivierrie
Constitutional Law - Fundamental rights and freedoms — Right to enjoyment of property — Equality before the law — Fair hearing — Constitutionality of the Central Bank (Amendment) Act No. 19/2011 and the Purchase of Certain Rights and Validation Act No. 17 of 2011 — Constitutionality of award of interim costs.
The claimant filed an application for interim costs on 8 March 2012 as a further relief for advanced costs being sought and supplemental to the then pending application for pre-emptive costs. In their submissions of 09 March 2012 made in support of the application for interim costs, the claimant's attorney at law submitted that, by CPR Rule 17.1(1), the court may grant interim remedies including interim costs.
This court gave a written judgment in relation to the pre-emptive costs application on the 29th March 2012 and a history of the proceedings was given which need not be repeated here. The court will rely upon that history in this matter.
At issue, now, is whether an order for interim costs can be made against the fifth named defendant in favour of the claimant – Mr. Percy Farrell who was appointed on 29 July 2011 to represent the class of persons who hold EFPA policyholders and who have not accepted the Dookeran plan – as defined in this court's pre-emptive costs judgment.
The claimants filed a re-amended statement of case on the 14th November 2011. In it, the claimants sough various constitutional reliefs against the 5th named defendant relative to the unconstitutionality of the
- The Central Bank (Amendment) Act No. 19 of 2011 (“the CBAA”); and 4.2. The Purchase of Certain Rights and Validation Act No. 17 of 2011 of the laws of Trinidad and Tobago (“the PCRVA”)
Which were both passed on 20 September 2011, during the currency of these proceedings, and both of which, cumulatively, had a serious effect on these proceedings.
The re-amended pleadings for the claimants listed a number of ways in which the CBAA impinged the Constitution and set out in the following reliefs:
“2. Against the Fifth defendant:
A. DECLARATIONS:
(i) A declaration that the Central Bank (Amendment) Act 2011 (“CBAA”) infringes upon and/or denies the Applicant (and all other persons within his class) the right to the enjoyment of property and the right not to be deprived thereof except by due process of law as guaranteed by section 4 (a) of the Constitution in a manner that is not reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual, contrary to section 13 of the Constitution.
(ii) A declaration that the CBAA infringes upon and/or denies the Applicant (and all other persons within his class) the right to equality before the law and the protection of the law as guaranteed by section 4(b) of the Constitution in a manner that is not reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual, contrary to section 13 of the Constitution.
(iii) A declaration that the CBAA infringes upon and/or denies the Applicant (and all other persons within his class) the right to a fair hearing as guaranteed by section 5(e) of the Constitution in a manner that is not reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual, contrary to section 13 of the Constitution.
(iv) A declaration that the CBAA infringes upon and /or denies the Applicant (and all other persons within his class) of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the rights and freedoms guaranteed under section 4 and 5 of the Constitution as guaranteed by section 5 (2) (h) of the Constitution in a manner that is not reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual contrary to section 13 of the Constitution.
(v) A declaration that the CBAA is unconstitutional on the ground that it contravenes the Separation of Powers Doctrine enshrined in or recognized by and is inconsistent with the very structure of, the Constitution by vesting the power to stay proceedings indefinitely in the Executive.
(vi) A declaration that the CBAA is unconstitutional on the ground that it diminishes the jurisdiction of the Supreme court and/or interferes with the supervisory jurisdiction of the Supreme court without having been passed in accordance with the procedure prescribed by section 54 of the Constitution.
(vii) A declaration that the CBAA is unconstitutional on the ground that it alters sections 99 and/or 100 of the Constitution without having been passed in accordance with the procedure prescribed by section 54 of the Constitution.
B.
(i) An Order that the trust fund established by Sections 37 and 39 of the Insurance Act in respect of CLICO's statutory fund obligations should not be dissipated and/or diminished to such an extent as to exclude the claimant and the class of EFPA policyholders who he represents from having their property rights as beneficiaries of the trust fund extinguished.
(ii) Further and in the alternative, an Order that the value of the assets placed by CLICO in the statutory fund created under Sections 37 and 39 of the Insurance Act not be dissipated and/or diminished with the result or to the extent that at any given time the value of the said statutory fund is less than the aggregate value of the interest therein of the claimant and the EFPA policyholders represented by the claimant.
C. All necessary directions and enquiries to give effect to the provisions of the Constitution and the orders sought herein.
D. Costs.”
The claimant averred that the CBAA violated Section 4 (a) of the Constitution which guarantees the right of the individual to the enjoyment of property and not to be deprived thereof except by due process of law. The listed particulars of the contravention of the right not to be deprived of property except by Due Process of Law was as follows:
- The CBAA deprives the claimant the right to pursue his claim for the protection of their beneficial interests in the Clico's Statutory Fund while the said fund is being exhausted at the direction of the CBTT1, a defendant to the proceedings; 6.2. The CBAA is a tool used by the Executive to permanently deprive the claimant of his status as a beneficiary of the assets held on trust in Clico's statutory fund; and 6.3. Such deprivations occurring: 6.3.1. Without providing an opportunity to persons affected to make representations; 6.3.2. Without the CBTT justifying the need for such a course before a Court of Law; 6.3.3. Without providing the claimants with an opportunity to invoke the Court's jurisdiction to supervise such deprivations; 6.3.4. At the direction of the CBTT during a stay which is imposed at the pleasure of the CBTT; 6.3.5. Without giving adequate compensation; and 6.3.6. Suspending the said rights at the pleasure of the CBTT, a defendant to the proceedings, whose objective is to permanently deprive the claimants of their status as beneficiaries of the Trust.
The claimant further stated that, in his introduction of the CBAA into the House of Representatives on 14th February, 2011, the fourth named defendant admitted that the CBAA deliberately took away due process rights when he said:
“Mr. Speaker, this government has not entered into the decision to amend the Central Bank Act lightly. The inclusion of provision which will allow individuals to apply to the high court to set aside the stay has been considered as such provision to provide the necessary due process coverage that will obviate the need for a special majority. However, the inclusion of such protective provisions could effectively negate the usefulness of the stay of proceedings provision, as it will inevitably result in a multiplicity of applications before the court in order for the stay to be suspended.
The claimant also averred that the CBAA contravened section 4(b) of the Constitution which guarantees the protection of the law and equality before the law. He listed the particulars of the contravention of Right to Equality before the Law as follows:
- The CBAA vests in the CBTT, a defendant to the proceedings, the power to stay the proceedings indefinitely; 8.2. The stay so imposed does not affect claims or counterclaims by the CBTT or the institutions in respect of which the stay operates, resulting in inequality of arms in the conduct of such litigation; 8.3. The CBAA vests the CBTT with the power to render the proceedings and any orders made therein nugatory by destroying the subject matter thereof; and 8.4. Allows other classes of policyholders of Clico to enjoy the protection of Clico's statutory fund while the rights of the claimant as a beneficiary thereof are systematically taken away by the Executive.
The claimant further averred that the CBAA violates Section 4(b) of the Constitution which further guarantees the protection of the law. He listed the particulars of the contravention of Right to Protection of the Law as follows:
- The CBAA allows the traditional policyholders to enjoy the protection of CLICO's statutory fund, while the applicant is being excluded therefrom when both classes of policyholders hold policies issued by Clico in respect of its long term insurance business and are equally entitled to be beneficiaries of the Trust created in respect of Clico's fund; 9.2. The CBAA suspends the right of access to the Court...
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