A retired public officer is suing the Government over its decision to change the terms of his $250,000 Treasury Note investment as part of its recent debt restructuring programme.
Former school teacher Alvin Foster of No. 30 Stage 1, St Silas Heights, St James is asking the High Court for an injunction to reverse the decision claiming that Prime Minister and Minister of Finance Mia Mottley overstepped her authority when she – along with the Government – unilaterally changed the terms of his contract to his detriment, to give effect to the Debt Holder (Approval of Debt Restructuring) Act, 2018. He will have his day in court tomorrow.
In a 12-page claim document dated May 13, 2019, that calls for a judicial review of the decision, the 64-year-old pensioner has also included in the suit, the Accountant General Dane Coppin as the first respondent; the Central Bank of Barbados as the second and the Attorney General Dale Marshall as the fourth.
He has submitted 12 points of relief which he wants High Court Justice Cecil McCarthy to grant him.
“An injunction to prohibit the respondents from taking any action that would breach the contract between the applicant and the Government of Barbados with respect to the Treasury Notes purchased by the applicant and if such action has already been taken, a halt and reversal of that action,” the pensioner stated through his attorney Guyson Mayers.
Foster is also requesting unspecified damages from the four respondents and a declaration by the court that the decision of the Minister of Finance and the Government to breach the obligations under the agreement of December 5, 2017, was contrary to law, an abuse of power and an unreasonable or irregular or improper exercise of discretion. He contends that the court should also rule that the same decision was an unlawful deprivation of his property and that the action was ultra vires.
Justice McCarthy is also being urged to declare that Foster had a legitimate expectation that the Minister and Government would not alter or vary the terms of his investment unilaterally and without his consent or approval.
The retired school teacher also wants the High Court to make a declaration on how he was affected by the voting system which the Government had introduced to determine the level of support for the changes it had proposed.
He is asking the court to agree with him that the weighted system of voting was set up in such a way that the outcome was a forgone conclusion where Government, through its various agencies, entities or bodies, held most of the instruments. He said that in the circumstances, the respondents acted improperly in breach of the contract and natural justice.
“Put differently, under the guise of the proposed Bill, the respondents purported to offer a transparent proposal, the outcome of which was calculated and/or determined before the fact. That is, the variation would be affected. The entire process was a formality to a foregone conclusion,” the claimant contended in his list for relief.
Further to that relief, Foster is asking the court to make an order quashing any decision or application of any law, rule or regulation that would breach or allow for the breach of the Government’s contract with him or contravene his Constitutional right to protection of his property.
He explained that his contract with the Government required that he be paid interest of six dollars on every hundred dollars per year in half-yearly installments on the November 30 and May 31 each year and that the principal would be fully redeemable on May 31, 2019.
“The claimant is 64 years old and the act of the defendants would deny him the money due under his contract, which was due in one year for 15 years. Should be survive, he will be 79 years old. However, he faces a real likelihood that he may not receive the monies due to him during his lifetime,” said the claim document in outlining the particulars of the case.
But in commenting on the eve of the hearing, Queen’s Counsel Roger Forde who is representing the four respondents in association with Carrington and Sealy law firm, told Barbados TODAY that Foster’s claim against the Prime Minister was ill-conceived.
“Our case is simple. He doesn’t have judicial review against the Minister because it was not her decision which changed the terms of the bond,” Forde said.
He was also asked if the court were to uphold the pensioner’s claim, if it would affect the loan arrangement which Barbados has with the International Monetary Fund (IMF), which forms part of the same debt restructuring programme.
“In a limited way. The majority of persons who hold bonds, approved them. So that is why I say in a limited way. The others already voted in favour of the process. They can’t change their votes. What is the worse case scenario is a fellow might say ‘I want my money now.’ But they can’t change their votes,” the Q.C. reasoned.
While Forde was not willing to comment any further on the matter, a senior lawyer explained to Barbados TODAY that the retired public servant did not have a case against the Government because it was Parliament which changed the contract through enactment of the legislation and not the Minister or the Government.
The short-term bonds had been replaced with 15-year instruments.