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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Emile Elias and Company Limited v Attorney General (Trinidad and Tobago) [2011] UKPC 19 (18 July 2011) URL: http://www.bailii.org/uk/cases/UKPC/2011/19.html Cite as: [2011] UKPC 19 |
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[2011] UKPC 19
Privy Council Appeal No 0089 of 2010
JUDGMENT
Emile Elias and Company Limited v The Attorney General of Trinidad and Tobago
From the Court of Appeal of the Republic of Trinidad and Tobago
before
Lord Phillips
Lord Walker
Lord Wilson
JUDGMENT DELIVERED BY
Lord Walker
ON
18 July 2011
Heard on 15 June 2011
Appellant Alvin Fitzpatrick S.C (Instructed by Ward Hadaway) |
Respondent Sir Fenton Ramsahoye SC Howard Stevens Sanjeev Datadin (Instructed by Charles Russell LLP) |
LORD WALKER:
"The summary of the financial position of the project is as follows:
Contract Sum $4,902,848.62
Final Account Sum $5,329,396.34
The latter figure includes $277,001.00 against the Contractor's claim for Extension of Contract Time.
Our 81/07/16 ruling on Liquidated and Ascertained Damages amounts to $468,000.00. We strongly recommend that you exercise this clause and subtract this sum from any payments still due to the General Contractor. This will in effect reduce the Total Contract Sum to $4,861,396.34 showing a saving on the original February 1973 Contract Sum of $41,452.28.
The Final Account shows a balance of $106,488.42 due to the General Contractor."
The reference to the original February 1973 contract is unexplained, and seems to be a mistake.
"(i) To meet with all Ministries and Departments to determine the bona fides of amounts claimed by Contractors in respect of outstanding sums owed to them.
(ii) To delve further into, and provide logistics for, the repayment of amounts due in bonds.
(iii) To explore other avenues for repayment."
"The data should be submitted in the form of Appendix A (specimen attached) no later than 20 November, 1987 to F. Arthur, the Convener of the Committee, c/o Financial Management Branch, Treasury Building under confidential cover. Details permanent to each contract are to be furnished on a separate form but summarised under cover of a single memorandum."
"Detailed below, in summary form, is a list of the Contractors to whom this Ministry is indebted and the amount outstanding in each case:-
(1) Emile Elias & Company Ltd $573,079.24"
It will be apparent that this amount is very close to the sum total of the amounts for liquidated and ascertained damages and the balance due on the final account mentioned in the architect's letter of 20 May 1983. The more detailed form (Appendix A) specified the same sum as 'Balance due on contract' and added under the heading 'Reasons for delay':
"Consultants advise Ministry to invoke Liquidated Damages Clause, but employer unsure whether rights could be exercised."
"The position of debtor and creditor in England on a simple contract was not altered by Tenterden's Act which apart from requiring writing as evidence of an acknowledgment merely attired in statutory raiment the relevant common law as administered by the Courts in England."
"If any acknowledgment shall be made either by writing signed by the party liable upon any simple contract, or his agent . . . it shall and may be lawful for the person entitled to such action to bring his action for the money remaining unpaid or so acknowledged to be due, within four years after such acknowledgment, . . . or the last of such acknowledgments . . ."
"Under cross-examination by Mr Fitzpatrick, Mr Arthur accepted that the Ministries' responses would have been revealed to the contractors for that purpose [verification, reconciliation and agreement] but said that his assistant, Miss Kanchan 'had general instructions to cooperate with members who had submitted data and try to ascertain, based on responses from both sides . . . that given enough information would work out their differences even if it meant going back to the Ministries'. He denied however, that he gave copies of the Ministries' responses to the respective contractors.
Moreover, Mr Arthur in his very impressive evidence confessed to misgivings about Mr Elias' role and sought to protect the confidentiality of documents even from Mr Elias. He stated that 'EE3' [the completed Appendix A relating to the Company] 'was not the type of document I would have given to him (Elias). As a committee we would have met and considered documents'. He added that the document was 'solely for the committee's use', and after the committee met all documents remained in his (Mr Arthur's) office. Mr Elias was not free to take the documents which were under private and confidential cover. This was his clear evidence part of which I have quoted at para 43. I accept that evidence.'"