|STATE FEELS $$ BURDEN |
By Andre Bagoo Sunday, May 8 2011
TO PURSUE charges of white-collar crime against businessmen Ishwar Galbaransingh and Steve Ferguson, the State has spent an estimated $72 million in fees over the last nine years as a series of related court cases brought against the men have slowly snaked their way through the judicial system.
The estimate has been compiled after an exhaustive Sunday Newsday review of all of the court cases, from the Magistrates’ Court up to the Privy Council, dating back to 2002, which have stemmed from allegations of corruption levied against the men in relation to the $1.6 billion Piarco International Airport project.
The review comes as the men this week prepare to fight yet another legal battle in the High Court in order to once more attempt to block moves by the State to have them extradited, moves that date back almost five years.
As the men have fought harder to block proceedings brought against them, the State has had to spend more in order to defend lawsuits brought to challenge criminal proceedings.
Sunday Newsday reviewed hundreds of pages of public records, including press reports, official Government statements and Budget documents, and interviewed senior judicial officers who gave three independent expert estimates of the costs of all of the litigation on the State’s side, in relation to the more than two dozen court cases that have been brought involving the men.
The review revealed that:
…the State has thus far spent an estimated $31 million in first instance criminal proceedings to charge the men, to attempt to have them extradited or to recover damages;
…more than that amount, or $41 million, has been spent by the State to defend a series of ancillary lawsuits brought to challenge rulings or block the State from carrying out its desire to charge or extradite;
…in one instance, a case in which the men were charged was called 213 times over five years before the men were eventually committed in the Magistrates’ Court along with about a dozen others;
…the cost of the Commission of Inquiry into the Piarco International Airport project, the report of which was a precursor to the charges, was estimated by the State to cost $6.6 million (included in the $31 million estimate);
…at last count at least top 14 silks, including eight British QCs and six local SCs, have represented the State’s interests at various points in the proceedings, while five different Directors of Public Prosecutions have passed through the Office of the DPP as the legal battles involving the men continue.
With millions already spent, there appears to be no end in sight to the litigation involving Galbaransingh and Ferguson, who have been tied to the UNC as financiers under the Basdeo Panday administration.
Galbaransingh and Ferguson are wanted in the United States for allegations of wire fraud. They are alleged to have laundered about $27 million and on November 29, 2005 were subject to a US Grand Jury indictment in relation to Piarco. But since 2005 the matter has had slow progress and has featured a series of court challenges as the men battle simultaneous proceedings. More recently, the men have challenged the decision of the State to order them extradited and a judicial review case —one in a long line of precursors —will come up before Justice Ronnie Boodoosingh on Wednesday.
However, years before the extradition proceedings, both men were first charged in criminal proceedings at the Port-of-Spain Magistrates’ Court. In a preliminary inquiry before the then Chief Magistrate Sherman Mc Nicolls, the men were charged in March 2002 with an alleged conspiracy to defraud in relation to Piarco performance bonds. They were eventually committed after five years of legal moves to challenge the proceedings in July 2007.
“This is not your ordinary run of the mill case,” Karl Hudson-Phillips QC, the first of three State prosecutors in that matter, had said of it in 2002.
The men, however, were also charged in another inquiry in the Magistrates’ Court in relation to an alleged bid-rigging conspiracy tied to Piarco. That inquiry began in the Port-of-Spain First Magistrate’s Court in May 2004 before Magistrate Ejenny Espinet.
Galbaransingh and others, including former UNC minister Carlos John, are also on bribery charges. Panday is alleged to have taken bribes in the matter, which dates back to 2007 and also involves the Piarco project.
Additionally, the Ministry of the Attorney General, under former Attorney General John Jeremie, in July 2004, had initiated proceedings to freeze a Liechtenstein bank account tied to Ferguson.
In that same year, the Ministry of the Attorney General also filed a $2.6 billion lawsuit in the 11th Judicial Circuit Court at Florida, USA, under the Racketeer Influenced and Corrupt Organizations Act.
Beyond these primary cases there have been a seemingly endless series of appeals to the High Court, Court of Appeal and Privy Council, which the men’s lawyers have brought at various stages over the years. There has even been one appeal where, ironically, the men’s main point of contention was that there are too many appeals and cases going on simultaneously. The men lost that case in the first instance.
At all points, in almost all of the proceedings, the State has had to spend millions to have its interests represented.
Because legal fees are regarded by some as a sensitive issue, their full extent is often underreported and rarely disclosed officially in their entirety.
As such, Sunday Newsday asked three senior judicial officers, ranging from judge to silk, to give estimates for fees for the cases under review. The officers, experts in their fields, declined to go on record because of the sensitive nature of their places within the legal fraternity, which frowns on the public disclosure of fees.
The legal officers were interviewed independently and produced rough estimates for legal costs such as fees on brief, refreshers, payments to juniors and payments to instructing attorneys. Each officer emphasised that fees are not uniform and may vary within ranges depending on factors such as: the advocate involved; the complexity of the case and any pre-existing relationships in place. In all, the three estimates were averaged. And for every court matter the averages were applied to come up with the total estimates.
Also considered were the duration and number of sittings of court cases. As some sittings were left unreported due to varying press coverage, the experts recommended a premium to their estimates of approximately ten percent, to cover for instances where some refreshers (for repeat court appearances by advocates) could not be completely gauged. Another factor which the officials considered was the fact that the men would have to pay the State’s costs for the cases which they would lose. However, the mechanism of payment in those instances would be a re-imbursement, leaving clear economic costs in place.
There have been about 24 reported appeals, in addition to six first instance legal proceedings and two inquiries (Bob Lindquist; Justice Lennox Deyalsingh). On average, each appeal could cost the State between $1 million to $3 million in legal costs.
Over the last decade, about 14 silks (the highest ranked and most costly lawyers) have at various stages represented the State’s interests in proceedings against Galbaransingh and Ferguson or at appeals brought by the men.
Hudson-Phillips QC, Edward Jenkins SC, Gilbert Petersen SC and Theodore Guerra SC represented the State at various stages of the first Piarco inquiry before Mc Nicolls. Sir Timothy Cassel QC did so in the second and third (ongoing).
At the High Court, Court of Appeal and Privy Council, a range of lawyers have represented the State in different appeals brought by the men. These include Dr Lloyd Barnett QC; James Lewis QC; James Guthrie QC; James Dingemans QC; James Guthrie QC; Stanley Marcus SC; Martin Daly SC; Avery Sinanan SC and Douglas Mendes SC.
In addition, there have been other costs: for junior and instructing attorneys (normally between one and two thirds of payment to seniors); millions for forensic reports (such as a Bob Lindquist report into Piarco produced after a two-year investigation; Hudson-Phillips was also reportedly retained in relation to the production of this report); the cost of inquiries (one was conducted by Justice Lennox Deyalsingh in 1997) and for sometimes unpublicised legal opinions and other expenses incurred before matters culminate in action.
This week lawyers for the men are expected to argue that Attorney General Anand Ramlogan’s decision to sign extradition warrants, after a review process mandated by former Attorney General Jeremie in his last days in office in 2010, was unlawful. The matter is due to be called on Wednesday before Justice Ronnie Boodoosingh at the High Court. The preliminary point of argument in the case, which had been scheduled for Tuesday but was pushed back, is the thorny issue of disclosure.
Whatever the outcome of the case, it will join almost two dozen appeals which the men have brought over the years in line with their legal rights, appeals which have been brought against the State as it struggles to implement charges of white-collar crime.
Since 2002, businessmen Ishwar Galbaransingh and Steve Ferguson have brought or been involved in almost two dozen appeals against various proceedings against them brought by the State.
Almost every action has given rise to an appeal. For example, even in relation to the grant of search warrants back in 2002, the men tested their legal rights.
In relation to charges of a performance bond conspiracy tied to the Piarco International Airport (a five-year long inquiry matter that was called 213 times in the lower courts), Galbaransingh’s Northern Construction Limited sued the Ministry of the Attorney General in 2002 over police search warrants. The matter was key as documents obtained under the warrants were later challenged all the way to the Court of Appeal and Privy Council.
There were later High Court stays of the first Piarco inquiry and a second Piarco inquiry (related to bid-rigging). The committal procedure in the first Piarco inquiry was subject to extensive High Court review.
In May 2009, Justice Carlton Best ruled against the men’s lawyers, who had tried to argue that the multiplicity of cases against them was unconstitutional.
The issue of bail also sprung litigation: first before Justice Malcolm Holdip, the Court of Appeal, and then Justice Ronnie Boodoosingh.
The bulk of appeals have focused on extradition proceedings.
In January 2007 there was a first judicial review application which was lost, then another appeal in the Court of Appeal in October 2007. Having lost at the Court of Appeal, a party to the inquiry tries to get special leave to the Privy Council (a procedure which still draws a fee on brief for attorneys involved). This was denied.
More recently, the Court of Appeal, in May 2010, stayed extradition. A High Court Judge heard the men’s challenge to the legality of the Extradition Act in June, 2010.
Dramatically, the men challenged Attorney General Ramlogan’s decision to sign off on an extradition warrant in a night sitting of the High Court in October 2010. This went to the Court of Appeal which held that the judicial review of the AG’s decision should proceed. That review is expected to come up this week before Justice Boodoosingh at the High Court.
The Office of the DPP has, in this case history, also brought its own appeals in relation to the rulings of magistrates and judges. For instance, appeals over disclosure rulings were lodged in April 2003, June 2004 and February 2006 in relation to the Piarco inquiries.
Other persons’ charges in these inquiries have also brought legal challenges which stalled proceedings and forced the State to fork out millions to defend them.