Adjournment application dismissed on Day One of BL&P’S rate hearing

By Emmanuel Joseph

The High Court will have to determine how the hearing into a review of electricity rates in Barbados goes forward following a dramatic start to the proceedings on Wednesday.

The session took an unexpected turn after the Fair Trading Commission (FTC) which was hearing an application from the Barbados Light and Power Company (BL&PC) for a hike in basic rates, denied a motion from Acting Public Counsel Sharon Dean for the proceedings to be adjourned for two months. The rejection prompted Dean to immediately give oral notice of her intention to go to the High Court for an injunction to stay the proceedings, slated to run for 12 business days, while the court hears and rules on her application for the adjournment.

Speaking on her motion, which also includes a request for an extension to file all relevant documentation, the acting public counsel argued that she only took up the post from the substantive holder on Monday and was therefore ill-equipped to properly perform her statutory duties on behalf of the over 200,000 consumers her office represents in this case.

Dean told the panel that the substantive public counsel had still not returned from extended sick leave and as the acting public counsel, it would be impossible to properly prepare a highly technical case in a day which involved 3,500 pages of documents. She submitted that a case was therefore not prepared, neither was she briefed on matters related to the application before the FTC.

The office of Public Counsel also represents the Barbados Association of Retired Persons (BARP) and the Ministry of Energy and Business Development.

“My concern is that the failure to provide us with this adjournment creates a situation where it is almost an abuse of discretion. It would be tantamount to regulatory capture [which] suggests there is no fairness going on. It’s almost as if there is no transparency…all the parties are operating together without the actual transparency that is required for such an exercise,” the acting public counsel suggested. The motions were supported by all of the intervenors with the exception of the Barbados Renewable Energy Association (BREA) led by Stephen Worme who argued that while the office of public counsel is important, if counsel did not participate, there were others who could represent the interests of consumers.

The BL&P rejected the move to adjourn and to extend the timeline for the submission of documents. Its lead attorney, Ramon Alleyne, King’s Counsel, said the commission had sought to balance the issues of all the parties and no one had gotten all that they wished.

“The reality is that the longer the proceedings are drawn out, the greater will be the costs which will be borne by the consumer,” Alleyne warned.

But four and a half hours after the panel returned from deliberating on the public counsel’s motions, chairman of the commission Dr Donley Carrington ruled that despite oral submissions, no sworn evidence had been presented to show there were active efforts made to find a suitable replacement for the public counsel.

Dr Carrington said there was no such evidence considering that notice was given of the proposed hearing dates during the procedural hearing on August 22 this year.

“The Office of Public Counsel also states that fixing dates of hearing commencing on September 21, 2022 was an unreasonable or improper exercise of discretion, a breach of the principles of natural justice and a failure to observe procedures set by law, but has led no cognizant evidence to support the same,” the commission head ruled. He also called attention to an email received on September 19, 2022 from the Business Development Division of the ministry withdrawing an earlier motion for an adjournment.

“The commission has considered the various grounds and matters relied upon by the Office of Public Counsel and the Barbados Association of Retired Persons. It is mindful of the wide interests that the two bodies represent in the matter and that refusal of the order they seek will likely affect their participation in the hearing,” Dr Carrington stated. He noted however, that “these matters” must be balanced with all other relevant factors.

He explained that the BL&P’s application for a rate review dated September 30, 2021 was filed on October 4, of the same year. “It is almost one year since the application was filed. An application for rate review should be heard with reasonable dispatch.

“The rate review application was originally set down for hearing from August 25, 2022 for 12 days. The Ministry of Energy and Business Development by letter dated July 27, 2022 sought additional time to comply with procedural orders and to meet with, and instruct consultants. The commission, on its own motion, convened a hearing at which the dates for the initial hearing were vacated and new dates for hearing given.

The chairman told the session that the initial hearing was adjourned in an effort to be fair to all parties in giving them time to comply with the procedural orders.

“Were this hearing to be adjourned, this would be the second occasion on which the hearing of the rate review application would be adjourned,” the chair said. “The commission is of the view that the motions to adjourn are late in all circumstances. The commission fixed these days for hearing on the 22 of August 2022. Given the gravity of the matter, the motions for an adjournment should have been made in reasonable time of the aforesaid order. The motions were made after arrangements were finalised for this hearing commencing today, and after the amended motion from the Office of Public Counsel was received by the commission,” Dr Carrington declared

He said that in arriving at its decision, the FTC has taken into consideration the motions, the affidavits in support of the motions and the submissions of the parties.

“To date, there has been nothing presented to support the statements made by Ms Dean in relation to her inability to perform the duties of public counsel as identified in Section 9 of the Utilities Regulations Act. While the commission is cognizant of the statutory duties of the public counsel, the commission also has its own statutory duties which it is obliged to discharge and is liable for any failings thereunder,” he pointed out.

“The commission has not prevented the public counsel from participating in the proceedings and discharging its duties under Section 9 of the Utilities Regulations Act CAP 282 of the Laws of Barbados.

“The commission considers that an adjournment at this stage would cause considerable disruption and inconvenience given the number of witnesses, the number of persons participating in the hearing as intervenors and the length of the hearing,” he added. “An adjournment at this stage would result in a substantial wasted time and cost, which eventually would be borne by the consumers,” he said.

Dr Carrington also “strenuously” disagreed with the “aspersions” made by some intervenors that it does not apply the concept of fairness and transparency when adjudicating matters before it.

“The commission is of the view that it would be just to exercise its discretion to refuse the Office of Public Counsel and the Barbados Association of Retired Persons the adjournment of this hearing and the motions are so dismissed,” he ruled.

The FTC chair also observed that the Office of Public Counsel has never sought intervenor status in this hearing.

“The Office of Public Counsel has no status to make a motion on its own unless it had previously been granted intervenor status. The Office of Public Counsel would have failed on this additional ground,” Dr Carrington declared.

The hearing continues tomorrow at 9 am at the Accra Beach Hotel and Spa during which it will entertain motions from the BL&P and the team of attorney-at-law Tricia Watson and David Simpson. (EJ)