FLOW’s case against Gov’t, CHEC over infrastructure damage delayed
Published:Tuesday | November 7, 2023 | 12:11 AMTanesha Mundle/Staff Reporter
Justice David Batts will today determine whether the multimillion-dollar dispute involving Cable & Wireless Jamaica (FLOW), China Harbour Engineering Company (CHEC), and the Government will proceed to trial on Wednesday after it suffered a setback on Monday.
FLOW Jamaica is suing the Government and CHEC to recover millions in damage allegedly done to its infrastructure during the implementation of the Major Infrastructure Development Programme along several roadways in the Corporate Area.
The company is also seeking to recover monies that were rebated to customers when the system was down as a result of the infrastructural damage.
The trial, which was scheduled to start on Monday in the Supreme Court, failed to get under way after FLOW indicated that its main witness was made redundant and has refused to give evidence, citing a possible conflict of interest as he now works with the Government.
Substitute witness
As a result, the company’s lead attorney, Denise Kitson, KC, made an application to have another employee substituted to give evidence and that he be permitted to file a witness statement.
The substituted witness is needed to speak to the company’s loss and expenditure statement as well as archive materials that have been unearthed.
According to Kitson, FLOW will be severely prejudiced if the company is not granted permission to get a substitute witness. However, she said the witness would need time to complete a witness statement, but noted that the draft would be ready by Tuesday.
Kitson, while noting that her team had prepared a list of more than 1,200 documents that are to be disclosed, said that they include the original expenditure a loss statements and archived materials.
Further, she indicated that the documents had not yet been physically disclosed to the other parties and would hamper the start of the trial, but noted that disclosure could be done later that afternoon. She, therefore, asked for the trial date to be postponed to give the defendants time to peruse the documents.
Government lawyer Lisa White, however, opposed the application while describing the affidavit from the supporting witness as “spurious and mysterious”.
Witness can be located
She highlighted that based on the information, the missing witness is currently in Jamaica and can be located.
While pointing out that she is unsure about the former employee’s new employer, questioned why nothing was done to have the witness give evidence before the court.
White further added that the proposed new witness will not only address matters in the old witness statement but also speak to new issues in which the non-disclosed documents featured heavily.
She argued that her clients needed to have the documents to determine how to present their cases and to get new instructions.
CHEC’s lawyer, Maurice Manning, KC, for his part, argued that FLOW’s decision to not disclose the documents amounted to an ambush. He further indicated that Kitson’s seeming generosity was misplaced and that the application was self-serving for FLOW.
Additionally, he raised concern about the content of the new witness’ statement after noting that it would likely be a supplemental witness statement.
After hearing the arguments, Justice Batts ordered FLOW to disclose the documents and the draft statement by 4 p.m. on Monday. He also ordered the parties to return to court at 2 p.m. today to decide whether the trial can start on Wednesday.