Contractors who are owed billions of dollars by the State are likely not to see one red cent following a decision by the High Court yesterday to uphold the limitation defence used by the State to avoid payment to a contractor.
The High Court dismissed the claim by contractor Terrence G Wiltshire, of the Bynoe Rowe Wiltshire Partnership, to recover $14 million from the State for construction work he did eight years ago on the basis that the four-year limitation period to initiate the lawsuit had expired.
However, in dismissing the matter which Wiltshire had brought against the Attorney General, Justice Frank Seepersad acknowledged that the limitation defence to avoid payment had caused a kind of disquiet.
He said it also had the ability to erode the public trust and confidence in the executive and urged the State to do what was right.
Wiltshire had gone to court seeking a mandate to get the State to pay the sum which represented a ten per cent retention payment on a package of contracts awarded by the Ministry of Education for refurbishment of schools.
Under government contracts the ten per cent is withheld upon completion and handing-over of the project so that any defects can be remedied. The contracts were completed during the period 2008-2009.
The Attorney General’s office moved for the court to strike the matter out on the basis that it was statute barred as Wiltshire waited past the four years legal limit to make the claim.
In an oral judgment delivered at the Hall of Justice, yesterday, Seepersad ruled in favour of the State.
Submitting that under Section 9 of the Limitations of Certain Actions Act, claims in the contract must be proceeded with, within four years of the accrual of the cause of the action, Seepersad ruled that in this case the court found that the cause of action accrued in 2009 and the claim ought to have been filed in 2013.
In dismissing the claim, Seepersad strongly criticised the action of the State, pointing out that while a party is entitled to raise a limitation defence, the State’s action in the matter had caused disquiet with the court.
“When the State advances a technical legal argument so as to avoid the payment of a legitimate debt, such action can significantly erode the public’s trust and confidence in the executive and can lead to a heightened state of unlawfulness and anarchy.
“The position adopted in this matter also appears to be counter -productive, as such a stance may not lend itself to investor confidence,” he added.
He underscored that in the current economic climate, the inability to recover such a substantial debt could have debilitating consequences for a businessman.
He suggested: “The symbiotic relationship between the business community and the State has to be nurtured, especially given the prevailing economic circumstances and the course adopted by the State in this case is not consistent with the call for patriotism and for the investment by businessmen in the local economy.
“While the court cannot enforce this debt, the State is urged to do that which is right.”
In the circumstances, the court indicated that it would be oppressive to make a costs order, given the fact that the State had received a substantial benefit from the partnership’s work. He ordered that each party had to bear their respective legal costs.
The Bynoe Rowe Wiltshire Partnership was represented by attorney Fulton Wilson.
Attorney for the State, Karel Douglas, thanked the court for its comments. The attorneys acknowledged that the decision may impact on a significant number of contractors.