Guardsman-NHT battle heats up
Published:Friday | May 21, 2021 | 12:09 AMRomario Scott/Gleaner Writer
A high court judge has refused an application by managing director of Guardsman Group, Robert Epstein, to amend his defence and to file a counterclaim in the consequential case involving the National Housing Trust and the security company as the state entity moves to collect 16 years of contributions.
The case centres on the NHT’s demand for payments for contributions for security guards between 2000 and 2016.
But it is Guardsman’s contention that the monies were not paid because the demands for payment had not been lawfully made.
They argue that they are not employers of security guards.
The trial was set to begin on May 17.
Epstein has been named a defendant in the case as well and made the application for leave to further amend his defence and issue a counterclaim so as to obtain a declaration that the designation as the responsible officer of the entity and initiation of proceedings against him are null and void.
In denying the application, Justice Carole Barnaby also refused attorney-at-law Lloyd Barnett’s application to appeal the ruling.
Barnett had argued that the application was in the interest of justice.
In reaching her conclusion, Barnaby noted that the case was at an advanced stage.
“While I am of the view that in an appropriate case it would be possible for the court to allow a party to amend a statement of case and counterclaim for administrative relief, including for remedies available on judicial review, the circumstances of this case do not recommend the exercise of such a discretion,” Barnaby said.
Further, she pointed out that for almost three years, Epstein knew he was being treated as the responsible officer but had only sought to inject those defences.
“That the second defendant (Epstein), who has always been represented by counsel, would seek to challenge the exercise of a public duty imposed by statute almost three years after he was certain that the ground for challenge had arisen, only two months before a twice-adjourned trial of the claim, and after evidence and skeleton submissions have been filed, causes me to harbour genuine concern about the bona fides of the amendments and request for leave to issue a counterclaim,” Barnaby wrote in her judgement.
She also took into consideration that the NHT had more to lose as she weighed the implications of allowing the late amendment Guardsman and its managing director were seeking.
“While there was no affidavit filed in opposition to the application, having regard to the statutory mandate of the NHT, to be out of the substantial contributions said to be owed for the years 2000-2016, is likely to have financial implications for the Trust and contributors who would wish to benefit from the fund,” the justice stated.
In closing out the judgment, she made the remark that there was also value to determine whether security guards are independent contractors or employees.