The Court of Appeal today ruled in favour of CEPEP in a controversial test case brought by contractor Eastman Enterprise Limited. The Court dismissed the contractor’s appeal and held that Justice Margaret Mohammed was correct to stay the test case brought by CEPEP Contractors because they violated the alternative dispute resolution clause in the contract.
The unanimous judgment was delivered by Justice of Appeal Peter Rajkumar with whom Justices of Appeal James Aboud and Ricky Rahim agreed. The Court rejected the arguments of Eastman’s legal team led by Larry Lalla SC, Kareem Marcelle MP and St Claire O’neil that they were not bound by the arbitration clause because it was vague and uncertain and that the Arbitration Act referred to in the contract had been repealed. The Court accepted the arguments of the CEPEP’s lead attorney, Anand Ramlogan SC, that the contract was valid and binding and that the court’s were hence duty bound to respect and enforce the alternative dispute resolution process.
In rejecting the argument that the clause was null and void, the Court said, “It is not even arguable that the Arbitration clause in this case is null and void, inoperative or incapable of being performed. There is nothing in the agreement itself that supports any contention to this effect.”
In a powerful judgement the Court also ruled that quite separate and apart from arbitration the arbitration clause, the contractor was in any event duty bound to proceed to mediation before the matter could reach to arbitration. It found that no attempt had been made by the Contractor to engage in the contractual provisions and that “it is too late to now contend that in this jurisdiction the process of mediation is uncertain. That process is recognised by the Mediation Act which, inter alia provides for the training of mediators. The Act was passed in 2004.”
The Court condemned the contractors conduct in attempting to bypass the contract. According to the Court “The parties having agreed to dispute resolution, prior to approaching the courts, on issues arising out of the contract. It defeated the very purpose of that procedure to ignore and bypass the process which had been designed to attempt to resolve disputes by instead immediately approaching the court.”
The Court held that CEPEP was correct to respect and honor the alternative dispute resolution clause and indicated that this was now established process. It stated “Approaching the court therefore on the basis of seeking urgent interim relief ignores the fact that such relief was available within the arbitration process to which the parties had agreed, apart from the fact that the appellant had evinced the intention to ignore and bypass that process completely. It could not therefore justify ignoring that process based upon any alleged inability to obtain such relief except through the court.”
CEPEP takes note that the Court of Appeal found that the trial judge’s referral to the DPP was premature because the all of the relevant facts and evidence was not before it. CEPEP however remains permitted to the pursuit of justice in this matter and has sought legal advice on the fraudulent misrepresentation perpetuated on the company by the former Chairman. To this end, it will pursue all legitimate avenues open to it in the interest of justice and public administration.