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Vincentians lawyers and case managers in the BACOL lawsuit, Kay Bacchus-Baptiste and Louise Mithcell.
Vincentians lawyers and case managers in the BACOL lawsuit, Kay Bacchus-Baptiste and Louise Mithcell.
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Two Vincentian lawyers involved in the lawsuit against the government of Trinidad and Tobago over the 2009 collapse of two insurance giants based there, say the decision of the court to dismiss the claim is “a devastating blow to policyholders across the Eastern Caribbean, a step backwards for CARICOM and a stain on the Caribbean Court of Justice itself”.

On Tuesday, the Trinidad-based Caribbean Court of Justice dismissed a lawsuit brought against the Trinidad and Tobago government over the 2009 collapse of the British American Insurance Co. Ltd (BAICO) and Colonial Life Insurance Co. Ltd (CLICO) insurance giants.

In April, the CCJ heard the matter of Ellis Richards and others versus Trinidad and Tobago, with the lawyers for the policyholders arguing that the Trinidad and Tobago government breached the Revised Treaty of Chaguaramas (RTC), which established the CARICOM Single Market and Economy (CSME), by bailing out certain local CL Financial (CLF) subsidiaries such as CLICO and British American Trinidad (BAT) and not regional subsidiaries such as BAICO.

The CCJ dismissed the EC$800 million lawsuit brought by the BAICO and CLICO Policyholders Group (BACOL).

BACOL was claiming that after 15 years of perseverance, it has “significantly advanced the pursuit of financial justice” for policyholders in Antigua and Barbuda, Dominica, Grenada, Montserrat, St. Kitts and Nevis, St. Lucia and St. Vincent and the Grenadines who have “suffered extreme financial loss and hardship” after the collapse of BAICO.

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However, Vincentian lawyers Kay Bacchus-Baptiste and Louise Mitchell, who were the case managers in St. Vincent and the Grenadines, said on Thursday that in its judgment, “the CCJ has failed to deliver to citizens of CARICOM in the smaller islands of the Caribbean the type of fairness among member states that its Original Jurisdiction empowered it to protect.

“The CCJ, led by Vincentian Justice Adrian Saunders, has let down the long-suffering policyholders of St. Vincent and the Grenadines and the wider Caribbean,” the lawyers said in a joint statement.

They explained that the essence of the claim was that it was discriminatory for the Government of Trinidad and Tobago, to have, among other things, sequestered assets of CL Financial, some of which were assets owned by BAICO, and used them to make distributions mainly to policyholders resident in Trinidad and Tobago, who held policies with other subsidiaries of CL.

“The Treaty of Chaguaramas contained provisions intended to both protect consumers within CARICOM (Article 184) conferring on them certain consumer rights, and also to protect against discrimination against any member state based on nationality (Article 7).”

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President of the Caribbean Court of Justice, Adrian Saunders, during a ceremonial sitting of the court in St. Vincent and the Grenadines in 2018. (Photo: Lance Neverson/Facebook)

Handing down the ruling, the CCJ president said that the court found that the circumstances of policyholders of CLICO, BAT and CIB were not similar to other policyholders and “this was due to the findings of the court that the defendant’s actions formed part of a governmental bailout of private commercial entities with a view to preventing severe dislocation to its economy.

“The Court noted that if the claimants’ arguments were correct, it would mean that the defendant would have been responsible for bailing out all BAICO policyholders in other Caribbean territories,” Justice Saunders said.

“The Court found that it could not have been within the contemplation of the framers of the RTC that the member states in such circumstances would be obliged to compensate all BAICO policyholders in all CARICOM states for all their loss and damage.”

However, Bacchus-Baptiste and Mitchell said the CCJ’s ruling in effect means that while the Treaty confers certain rights on CARICOM nationals, it does not go further to present effective remedies for the breach of those rights.

“Also, the Court’s extremely narrow interpretation of Article 7 means that nationals cannot look for protection in cross border trade. The ruling that the BAICO policyholders were not discriminated against based only on nationality, is difficult to understand at best,” the lawyer said.

“The Court stated that the circumstances of BAICO policyholders was different from those of the other CL Financial subsidiaries in Trinidad and Tobago, because those policy holders benefited from a Government bailout. The court held that this Government bailout was understandable as being necessary to save the local economy. The Court did not say anything to acknowledge the injustice of the fact that this was done at the expense of policyholders from the OECS.”

The lawyers further stated that the CCJ did not even acknowledge that the Government of Trinidad and Tobago admitted that it would have given greater support to the policyholders of BAICO, had it not suffered an economic crisis due to depressed oil prices and COVID-19 pandemic, which they said was “an admission of its responsibility”.

“After this disappointment from the CCJ, policyholders will focus their attention back to the Judicial Managers, and continue to inquire as to when the remaining funds being held by the Judicial Managers will be distributed out, even though it is not expected that this distribution will be substantial,” they said.

They said the judicial managers successfully sued Lawrence Duprey in the United States and the judgment was recognised in Trinidad and Tobago.

“This may have positive implications for policyholders,” the joint statement said. 

“Furthermore, questions need to be asked about the status of the case that the Government of St. Vincent and the Grenadines brought against RBTT for its possible role in failing to honour BAICO’s obligation to hold a security deposit in St. Vincent on behalf of BAICO’s policyholders.

“Questions must be asked as to why the Minister with responsibility for Insurance did not ensure that the statutory deposit was in fact being held on account. To date, the case is languishing in the courts and no fines have been imposed.

“The Government of St. Vincent and the Grenadines, which has supervisory authority over BAICO within this jurisdiction, based on a statutory obligation, must be called on to offer some measure of compensation to the long-suffering citizens, many now elderly, who lost much of their savings. Also, the Government of SVG, together with CARICOM, must be asked to speak to the Government of Trinidad and Tobago to come to some resolution on this matter. As citizens of CARICOM we demand no less.”

10 replies on “Vincy lawyers criticise CCJ over judgment in BACOL lawsuit”

  1. Did you think the CCJ would have ruled differently? Is the judge who was to deliver the judgement on the illegal COVID mandate in SVG is he still sick?
    Can we rely on that s court to deliver justice for us? Should we make this court our final appellate? Previous and recent judgements will surely give you answers.

  2. This is abuse. So this means the victims can whistle at their hard earned money? It’s a good thing people still have a last resort in the privy counsel. I’ve always known Adrian to be a talkative person.

  3. Benjamin G. Samuel says:

    This is why man’s justice will always be found wanting.
    If the head office for BAICO and CLICO was in Trinidad and Tobago, how is the government of that country not responsible for its subsidiaries if it ceases operations at the head office?
    The regions will now have to change their laws relative to organizations and businesses operating in their country with head offices domiciled elsewhere.

  4. For all who talk about CCJ as final Court of appeal better take warning.
    There will never be justice, follow their money.

  5. Patrick Finlay says:

    A case in point.
    In the early 1990s there was in Grenada, what may have been a scam, whereby, through the Ministry Of Labour, an offer was made to persons interested, the opportunity to apply for jobs (in the electrical field) in the Middle East – Saudi Arabia, Bahrain, Qua-tar. ( I myself received correspondences from Governments/Agencies through the British High Commission – Durey – in response to my applications). These Applications were paid for by the applicant.

    When the Jobs failed to be realized, the Government of Grenada took responsibility for the money put out by applicants and reimbursed them.

    The Governments of the O.E.C.S. should consider compensating its citizens for their loss, given that they allowed the two insurance companies license to operate in their States.
    Recall Michael Milken; Junk Bonds; the U. S. Government bailout to mitigate the loss of its citizens. Actually, the Trinidad & Tobago Government did the same, as they claim , to protect their economy. In the end, monies given in compensation will quickly end up right back into the economy of our OECS States as retirees meet the expense of every-day life.

  6. Becky Brandford says:

    The CCJ’s decision is not only technically correct but also based on pure common sense. The only persons who benefited from this frivolous claim were the lawyers who further victimized the policy holders of the islands by persuading them that they had a arguable case.

  7. What an abuse. Our people have to bear such a lost. Horrible. Our people are the most challenged in the world, Our GDP doesn’t match what is happening on the ground. Our people are being abused left and right by people who don’t give a sh*t bout poor people. It’s more of the same old sh*t.

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