Home / View Point / Letters to the Editor / Dear Editor: State’s belligerence to FOIA requests drove up my legal costs, not greed

Dear Editor: State’s belligerence to FOIA requests drove up my legal costs, not greed

“Had the information been disclosed upon my request the State would not have incurred any legal costs… It was the Minister’s and Cabinet’s refusal in the first place and belligerence in the second place that cost the State over $400,000 in legal fees and not my attorneys trying to milk the State.”

The following Letter to the Editor on Attorney General Faris Al-Rawi’s complaint about lawyers using the Freedom of Information Act (FOIA) to financially milk the State, was submitted to Wired868 by attorney Darryl Heeralal, who represented former Central Bank governor Jwala Rambarran in his case against the Ministry of Finance:

Photo: Attorney general Faris Al-Rawi.

To be of few words may be complimentary but to be of few facts is downright dangerous and this seems to be a finely tuned skill of the Honourable Attorney General, arguing a case by presenting the fewest facts as possible.

During the debate on the proposed amendments to the Freedom of Information Act the AG referred to two matters in which I was the Claimant, in making his case that certain lawyers were milking the system. In both matters the State had to pay more than TT$400,000 in legal costs.

Both matters involved four judicial review applications against the Ministry of Finance and the Cabinet.

The Honourable AG having had his say I now wish to present all the facts.

The Ministry of Finance:-

  • On the 30th December, 2015 I sent an FOIA request to the Minister of Finance, Mr Colm Imbert, seeking to have the name/s of all attorney/s who gave advice to his Ministry and government with respect to the removal of then Central Bank Governor Jawala Rambarran. I also requested the fees paid to those lawyers. At the time, Mr Rambarran’s removal was of grave public importance and so too the issue of legal fees being paid to external Counsel, that is lawyers not employed with the Ministry of the Attorney General.
  • The request was sent to the Minister on the 13th January, 2016 via registered post, a method of service allowed for under the Civil Proceedings Rules.
  • The Minister neither acknowledged the request nor disclosed the information.
Photo: Former Central Bank governor Jwala Rambarran.
(Courtesy Afi-global.org)
  • On the 22nd March, 2016 during a debate in Parliament the Minister said four opinions were sought from Senior Counsel to remove Mr Rambarran. The Minister’s revelations are to be found at pages 50 and 51 of the Hansard.
  • Post his comments in Parliament the Minister continued to refuse to disclose the information.
  • On the 21st April, 2016 I instructed my Attorneys to file leave to judicially review the Minister’s refusal to disclose the information, CV2016-01311.
  • At a hearing on the 27th April, 2016, at which Attorneys for the State were present, leave was given to file judicial review proceedings.
  • The judicial review proceedings were filed on even date.
  • On the 1st July, 2016 following arguments from my attorneys and lawyers for the State the High Court ordered the Minister to disclose the information within 18 days of the date of the order.
  • The Minister refused to comply with the High Court’s order.
  • By letter dated the 20th July, 2016 my attorney wrote to the Permanent Secretary in the Ministry of Finance informing that the High Court’s order was not complied with and gave them 24 hours in which to do so. The letter warned that if there were no compliance then judicial review proceedings would be filed.
Photo: Finance Minister Colm Imbert.
(Copyright i95.5FM)
  • The letter was personally served on the PS on the 21st July, 2016 at 3.47 pm. Under the rules of court personal service does not necessarily mean the person is personally served. One may be served through an authorized agent which was done in this case.
  • Again there was no compliance with the order and no response to my letter dated the 20th July, 2016.
  • I then instructed my attorneys to file leave to judicially review the Minister’s refusal to follow the High Court’s order to disclose the information sought.
  • Arguments were heard before the Honourable Court on the 29th July, 2016 and the information was subsequently disclosed.

(The Cabinet)

  • On the 30th December, 2015 I sent an FOIA request to the Secretary to the Cabinet, seeking to have the name/s of all attorney/s who gave advice to the Cabinet with respect to the removal of then Central Bank Governor Jawala Rambaran. I also requested the fees paid.
  • The request was personally served on the 4th January, 2016 at 9.35 am.
  • On the 8th January, 2016 the Permanent Secretary in the Office of the Prime Minister acknowledged receipt of my request.
Photo: Prime Minister Dr Keith Rowley (centre) chats to Attorney General Faris Al-Rawi in Parliament.
(Copyright Newsday)
  • On the 21st January, 2016 the Secretary to the Cabinet responded to my request and issued a Certificate of Exemption under the Act.
  • On the 21st April, 2016 I instructed my Attorneys to file leave to judicially review the Cabinet’s decision to not disclose the information and rely on the exemption, CV2016-01313.
  • At a hearing on the 27th April, 2016, at which Attorneys for the State were present, leave was given to file judicial review proceedings.
  • The judicial review proceedings were filed on even date.
  • On the 1st July, 2016 following arguments from my attorneys and lawyers for the State the High Court ordered the Cabinet to disclose the information within 18 days of the date of the order.
  • The Cabinet refused to comply with the High Court’s order.
  • By letter dated the 20th July, 2016 my attorney wrote to the Secretary to Cabinet informing that the High Court’s order was not complied with and gave 24 hours in which to do so. The letter warned that if there were no compliance then judicial review proceedings would be filed.
  • The letter was personally served on the Secretary on the 21st July, 2016 at 3.30 pm.
  • Again there was no compliance with the order and no response to my letter dated the 20th July, 2016.
Photo: Cabinet members Faris Al-Rawi (far left), Fitzgerald Hinds (centre) and Esmond Dillon (second from right) share a light moment during the Independence Day Parade on 31 August 2018.
(Copyright Ministry of National Security)
  • I then instructed my attorneys to file leave to judicially review the Cabinet’s refusal to follow the High Court’s order to disclose the information sought,
  • Arguments were heard before the Honourable Court on the 29th July, 2016 and the information was subsequently disclosed.

The Minister of Finance had at least five opportunities to disclose the information and he refused.

  1. When the request was sent.
  2. At the leave stage of the 1st Judicial review action. From my personal experience most matters are settled at this stage and the JR application is withdrawn. Legal costs at this stage do not generally cross $10,000.
  3. When the Court made the order to disclose on the 1st July, 2018.
  4. When the pre action letter was served on the Minister on the 21st July, 2016.
  5. At the leave stage of the second judicial review action.

The Cabinet had the same five chances to disclose the information but they too refused.

I was forced to file the second Judicial Review application as both institutions wilfully refused to follow the High Court’s order. The State cannot be sued for contempt under these circumstances and I had to file proceedings to review their refusal to comply with the Court order. Owing to the nature of these proceedings I had to hire Senior Counsel.

Both institutions had over six months in total in which to comply with my request and only did so after I filed a second court action.

Photo: Attorney Darryl Heeralal (right) and his brother Nyron Heeralal stand outside the Hall of Justice.

Had the information been disclosed upon my request the State would not have incurred any legal costs. Had the information been disclosed at the leave application of the first judicial review, costs would have been minimal—less than $20,000 for both matters. Had the Court’s order been complied with then the costs would have remained the same.

Legal costs went up because of the nature of the Judicial Review proceedings involving the refusal of the Minister and Cabinet to follow the Court’s order and this was their doing not mine.

So to be clear it was the Minister’s and Cabinet’s refusal in the first place and belligerence in the second place that cost the State over $400,000 in legal fees and not my attorneys trying to milk the State.

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One comment

  1. Imps Berth should be paying these costs. It shows the arrogance of this Guavament in dealing with the people issues but they want increased pensions. What about the rest of the population who ketching they ass to make ends meet? But is RED till ah dead.!