The British judge who heard the lawsuit that Harlequin brought against its former accounting firm, Wilkins Kennedy, says that Vincentian lawyer Samuel Commissiong, who testified in the trial, was “an untruthful and unreliable witness” on matters where he felt “professionally exposed”.
Commissiong, who is company secretary for both Harlequin Property (SVG) Ltd. and its hotel, Buccament Bay Resort, testified in Kingstown in June when the British High Court sat in St. Vincent and the Grenadines to hear testimony from a number of witnesses.
He was testifying, it was later revealed, at a time when prosecutors in Kingstown had ordered him and director of Harlequin, Britain-born naturalised Vincentian businessman Dave Ames, to appear in court to answer tax evasion charges, jointly, while Ames would also be charged with theft.
Ames fled St. Vincent in June after he was summoned. After three adjournment because Ames failed to turn up in court — claiming he is too ill to return to St. Vincent, he and Commissiong are scheduled to be tried in Kingstown in February 2017.
During his testimony in the unrelated lawsuit, Commissiong told the court that he had destroyed a diary of important decisions that Ames had made.
Commissiong, who escaped disbarment but was fined in 2002 for producing a false legal document, also told the court in June that he suspects that a paragraph of an affidavit he signed — which was found to contain false information — had been tampered with.
The judge in the case, Justice Coulson, gave his impression of Commissiong’s testimony on Monday when he handed down the ruling in the case in which he awarded Harlequin US$11.6 million in damages, less than a quarter of what it had sued for.
The money should be placed in an escrow account rather than given to Harlequin in light of the many claims against the company, said Justice Coulson, who also said some elements of Harlequin’s business model has “the hallmarks of a serious and significant scam”.
Commenting on Commissiong’s testimony, Justice Coulson said: “On matters where he felt professionally exposed — and there were many of them — I find that he was an untruthful and unreliable witness. Some of his evidence on other, more mundane matters, was consistent with the contemporaneous documents and therefore more reliable.”
During the trial, it was revealed that parts of Harlequin’s one-time five-star resort at Buccament Bay was built on lands own by Bernard Punnett and his sister.
Buccament Bay Resort is now a cash-strapped facility that was disconnected from the electricity grid on Wednesday, as its woes continue amidst a weeks-long strike by unpaid workers.
Justice Coulson said the evidence as to the land ownership at Buccament Bay, and the extent to which the necessary land had been acquired by Harlequin or Mr. Ames, was surprisingly confused.
He said this mattered because one of Wilkins Kennedy’s many attacks on the Harlequin business model was that Harlequin had sold properties at Buccament Bay which — if they were built at all — would be built on land which they did not and do not own.
“Harlequin’s difficulties on this topic were exacerbated by the fact that their evidence about land acquisition came principally from Mr. Commissiong, their SVG lawyer. On this topic, I find that his evidence was untrue, and probably deliberately so.
“He had given clear and confident evidence, both written and oral, in the Dublin proceedings, and in the attempt by Mr. and Mrs. Ames to discharge the world-wide freezing order which had been obtained by a number of the disgruntled investors. Yet when he came to give oral evidence before me in St Vincent, possibly because of the clear and persistent cross-examination to which he may not previously have been exposed, Mr. Commissiong resiled from a great many of his previous sworn statements.
“At one point he even suggested — without justification — that his affidavit in the freezing order proceedings bearing his name ‘had been tampered with’. I have therefore had to piece together the evidence as to site ownership from the other available material. I do not rely on any aspect of Mr Commissiong’s evidence on this topic,” the judge said.
The judge said the evidence in relation to the Punnett land is unsatisfactory.
“Although Mr. Commissiong claimed in his affidavit in the freezing injunction proceedings that this land was the subject of a binding agreement on the part of Mr. Punnett to sell to Harlequin SVG, it is clear that this was untrue.”
He said that although there was a proposed agreement between Mr. Punnett and Harlequin in respect of this land, the document was never executed because Mr. Punnett’s sister did not and did agree to the sale.
“As Mr. Commissiong rightly said, that meant that ‘this document could go nowhere … it was useless’. Moreover, he advised at the time that Harlequin SVG were paying large sums of money to Mr. Punnett for land they did not own. That rather begged the question as to why he had referred to the unexecuted agreement in his affidavit, without any of these caveats, in support of Harlequin’s alleged good title to the land in question,” Justice Coulson said.
He continued: “Mr. Ames confirmed in cross-examination that the Apartment Blocks were built on land owned by Mr. Punnett which his sister had not agreed to sell.”
Justice Coulson said that it appears that Harlequin commenced the development on the assumption that about 26 acres of land at the (western) sea end of the rectangle that formed the proposed resort belonged to the Government of St. Vincent and the Grenadines, and they entered into negotiations to buy that land.
Subsequently, it became apparent that the Government only owned around 19 acres of that land and a further seven acres, inconveniently split into three rectangles surrounded by that Government land, had to be purchased from three other parties.
Eventually, the 26 acres (the 19 acres owned by the Government and the seven acres owned by others) were built on by Harlequin SVG.
The judge said the evidence as to precisely how much additional land had been allegedly purchased was very confused.
“At various times, the additional land beyond the original 26 acres was identified by Mr. Commissiong as being a further 5 acres, a further 18 acres, or a further 26 acres. It may not matter for present purposes: what matters is that Harlequin failed to purchase all the land they needed, even for Phase 1 of the Buccament Bay resort,” the judge said.