Thursday, August 27 2009

21st August, 2009

Ms Judith Gonzalez

Secretary to the Commission of Enquiry into the Construction Industry

Commission of Enquiry into the Construction Industry

2nd Floor Winsure Building,

23-25 Richmond Street,

Port-of-Spain



Dear Ms Gonzalez,



Re: Commission of Enquiry into the Construction Industry of Trinidad and Tobago



Please bring this letter to the attention of the Chairman as a matter of urgency.



We write with reference to the letter dated 12th August, 2009 from Commissioner Sirju, received by hand on 18th August, a copy of which we enclose for ease of reference.

The letter purports to be in response to our letter of 24th July, 2009. However, as explained below, the letter is unsatisfactory in that it fails to respond adequately to the issues raised in our said letter. We respectfully ask for the Chairman’s assistance in obtaining proper responses from Commissioner Sirju to the outstanding matters.



Commissioner Sirju’s Relationship with NHIC



As you will be aware, our client first raised concerns regarding potential conflicts of interest between Mr Sirju’s position as a Director and shareholder of KS&P Ltd and his role as a member of the Commission by our letter dated 23rd March, 2009. In that letter our client asked a number of specific questions about the relationship between Commissioner Sirju, NHIC and its Executive Chairman, Mr Emile Elias.

It is only now, nearly five months later, that we have received Commissioner Sirju’s response. The response is manifestly inadequate in that it fails to provide the requested details of any professional engagements (save in respect of the scaffolding collapse) between KS&P and NHIC or its associated companies in the last ten years and fails to disclose whether there is a continuing or extant professional relationship with NHIC and/or any associated companies and/or Mr Emile Elias.

It is not immediately clear to our client why Commissioner Sirju continues to fail to provide such basic information. However, it may be that Mr Sirju is labouring under a misapprehension as to the law in respect of apparent bias since his letter states as follows:

“To conclude bias in any circumstance where technical professional services have been rendered to a company for a fee charged in accordance with terms prescribed by accepted Conditions of Engagement is a wide stretch of phobic imagination that borders on paranoia.”

With respect, Commissioner Sirju’s comment demonstrates a misunderstanding of the law in respect of bias. The true position is that a person cannot preside in proceedings to which one of his clients is a party. Where such a relationship exists, the rule is absolute: Metropolitan Properties Co v Lannon ([1969] 1 QB 577.

In any case, it is certainly not a matter of phobic imagination that borders on paranoia. In the context of the Commission, Mr Sirju is charged with enquiring into matters which affect the interests and concerns of NHIC and Emile Elias. Hence the urgent need for the information previously requested.

We note that Commissioner Sirju has also apparently failed to disclose to any of the interested parties his previous appointments as a paid advisor to Nipdec, Minister Imbert and Udecott. Our client does not wish to take issue with these potential conflicts of interest since these are primarily a matter for other parties. However, these appointments cannot, as Commissioner Sirju appears to believe, negate the appearance of bias arising out of his relationship with NHIC.

Accordingly we would ask that the Chairman confirm that he will request of Mr Sirju that he now answers in detail and unambiguously the requests that have been outstanding for nearly five months as to the relationship between his company and NHIC/Emile Elias.

We are constrained to add that our client finds Mr Sirju’s characterisation of its position in respect of the law of bias as “a wide stretch of phobic imagination that borders on paranoia” as being both insulting and discriminatory and a yet further example of the apparent bias that he has demonstrated towards our client since the early stages of the enquiry.



Commissioner Sirju’s Involvement in the CAA Proposal



After requesting details of Commissioner Sirju’s relationship with NHIC and Mr Elias, our client discovered evidence that Commissioner Sirju had been involved in an unsuccessful attempt to secure a professional appointment from Udecott in connection with the proposed development of the Tarouba site of the Brian Lara Cricket Academy. We wrote to the Commission on this matter on 7th May, 2009. Amongst other things our client sought confirmation of whether, and if so when, disclosure of Commissioner Sirju’s involvement in the CAA Proposal was made to his Excellency the President of Trinidad and Tobago and/or to the Chairman of the Commission of Enquiry and/or to the other Commissioners and/or to any of the interested parties appearing at or participating in the Commission of Enquiry.

We deduce from the terms of Commissioner Sirju’s letter that no disclosure was made because he was apparently unaware of his practice’s involvement in the CAA Consortium, until the matter was raised during the proceedings. Commissioner Sirju appears to suggest that a fellow director of his dealt with the CAA Proposal without informing him. In the circumstances, we request that Commissioner Sirju be asked to provide us with the name of the fellow director forthwith and in any event before 24th August, 2009.

Commissioner Sirju states that the project the subject of the CAA Proposal “does not appear to be the same as BLCA which is under review by the Commission”. This misstates the position. By letters dated 30th April, 2009 and 8th June, 2009, the Commission has indicated that it is minded to consider making specific criticisms of Udecott, including a finding that TAL was awarded a consultancy contract by Udecott in 2004 without proper tendering procedures. The CAA Proposal was to develop a master plan for elite sports training facilities at the Tarouba site. The CAA Consortium was unsuccessful. Instead, the master plan for the elite sports training facilities formed part of the TAL consultancy contract which it is alleged Udecott awarded without proper tending procedures.



If (which is not accepted) Udecott acted unfairly in the award of the consultancy contract to TAL, the CAA Consortium, of which Commissioner Sirju’s firm was a member, may have an actionable claim for damages against UdeCOTT. Hence the question of automatic disqualification referred to in our letter of 24th July unavoidably arises.

We note that Mr Sirju has failed to respond to the various other matters set out in our letter of 24 July, notwithstanding the clear transcript references.



In the circumstances, we would ask that the Chairman make the following requests of Mr Sirju:

(i) That he provides the outstanding information in respect of NHIC/Emile Elias;

(ii) That we be provided with the name of the fellow director who apparently dealt with CAA Proposal without informing Mr Sirju; and

(iii) That he provides detailed responses to the other matters concerning him referred to in our letter dated 24th July, 2009.



We look forward to your most urgent response.



Yours faithfully

Pollonais, Blanc,

de la Bastide & Jacelon