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The firm’s principal, Mr. James Bristol, argued successfully in 3 important cases before the Court of Appeal.

In the first, The Trustees of the Public Workers Union (“PWU”) v A’M Track Construction & Michael Samuel (“the Contractor”), the Court of Appeal reaffirmed the principle that an increase in the material costs during the term of the contract (“the Contract”) between the parties will not frustrate the contract as the contract merely becomes more onerous.

On the facts of the case, the Court of Appeal accepted that the Contractor, in the absence of an escalation clause, accepted the risk of price increases and further that the Contractor could not say exactly when the Contract came to an end by reason of frustration. Further, the increase in prices was also caused by the Contractor’s default. The Court of Appeal applied the House of Lord’s decision in Davis Contractors Ltd. v Fareham Urban District Council (1956 H.L. 696).

The second and third cases were two related cases, The Permanent Secretary of the Ministry of Finance (“The PS”) v Financial Investment & Consultancy Services Ltd. (“FICS”) and The Attorney General of Grenada (“The AG”) v Financial Investment & Consultancy Services Ltd. (“FICS”).

 In The PS v FICS, the Court of Appeal held that the enforcement provisions of Section 21 of the Crown Proceedings Act (“the CPA”) were not impliedly repealed by Section 41 of the Public Finance Management Act (PFMA”) as the provisions of the CPA were not repugnant to those of the PFMA, the PFMA being the later Act.

In The AG v FICS, the Court of Appeal held that the immunity from execution contained in Section 21(4) of the CPA was not absolute but could be waived by the Government of Grenada (“the Government”) and further, that the procedural provisions in CPA were likewise waived.

The background to both cases, is that the Government issued bonds to FICS and the contractual documents contained a waiver by the Government of immunity from suit and execution. The Government failed to redeem the bonds and FICS obtained judgment in default which the Government refused to honour. FICS took out mandamus proceedings against the Permanent Secretary to compel his compliance with Section 21(3) of the CPA and also took out garnishee proceedings against the Attorney General in order to recover the judgment debt from Government’s monies held in the accounts with certain banks in Grenada.

These two decisions are important as they assist creditors in clarifying the methodology which may be employed to obtain the fruits of their judgments against the Government.

What is more important is that the Court of Appeal in the AG v FICS recognised the principle that the Government should not enjoy special privileges (of immunity under section 21(4) CPA) when it is participating in the world of commerce and cited the case of Gairy (Jennifer) v The Attorney General of Grenada ((1999) 59 WIR 174).

What this means is that it is likely upon a challenge to the constitutionality of Section 21(4) of the CPA, that that section will be struck down for infringing the fair trial rights guaranteed by Section 8(8) of the Constitution of Grenada. A constitutional challenge is pending in the High Court in an unrelated matter filed by HHB.

Saturday, December 15, 2018