Dunkeld Investments Limited, a UK company affiliated with British billionaire Michael Ashcroft, appeared against the Government of Belize in the Court of Appeal this morning, in an attempt to challenge the injunction placed on the company by Justice Samuel Awich, restraining it from pursuing foreign arbitration over the nationalization of Belize Telemedia Limited (BTL).
The hearing scheduled to span two hours this morning could not proceed, because the panel of judges, led by Justice Manuel Sosa, ruled that submissions should be made in writing, after Senior Counsel Denys Barrow bitterly complained that Dunkeld attorney, Nigel Pleming, QC, an English barrister hired to defend Dunkeld, served him documents, including a 77-page written submission, a mere two days before today’s hearing.
“Give me the opportunity to put in my 77 pages,” Barrow told the court.
Barrow said that whereas the document was served to him with 50 cases and extracts of authority only a few days in advance of the scheduled hearing, court rules requires that skeleton arguments—which should not be longwinded submissions—should be served 14 days before the date set for the sitting of the Court of Appeal. This year, the session opened on October 8, 2012.
“My protest was that was unfair, it was unjust; it did not give the government time to prepare for its own case,” Barrow told the media, adding that he could not even do a half-prepared job under the circumstances.
For background, he explained that Dunkeld has a longstanding case and it concerns two proceedings for international arbitration which this company, connected with Telemedia, started. The Government has sought to stop them from proceeding with international arbitration on the basis that the matter should be dealt with, not by foreign litigation, but in local courts. Barrow explained that there are separate proceedings before Belize courts.
“Let it be dealt with here and not abroad,” said Barrow, adding that “it is oppressive and totally too expensive” to have to participate in foreign and local litigation.
In the Court of Appeal case, Dunkeld is appealing an injunction by former Supreme Court Justice Samuel Awich (a judge since assigned to the Court of Appeal), restraining Dunkeld from continuing with foreign arbitration; however, Awich had also held Dunkeld in contempt and refused to hear Dunkeld until it rectifies the contempt, said Barrow.
In court this morning, Pleming said that the delay in filing the documents was due to personal difficulties, and the reason he had prepared the 77-page submission for this hearing was really to assist the court, since a two-hour hearing would mean that he would have only one hour to present his case. Pleming furthermore said that he had via letter written to Barrow indicating the scope of the appeal: challenging Awich’s injunction and his contempt finding. He added that most of the information contained in the submission was really nothing new to counsel for the Government. He urged the court to proceed with the hearing today.
Barrow told the media that he does not ascribe any ill intention to Mr. Pleming, who he regards as a qualified professional.
After hearing the parties on the matter, the court ruled that the parties should set a timetable, to be submitted to the Registrar, for exchanging papers for their consideration.
Sosa said that the judges will hear the appeal based on the written submissions the parties will make.
In court today, it was affirmed that the company is challenging the jurisdiction of the local courts to arbitrate the dispute.
Of note is that Justice Sosa concurred with Barrow that late filings are a concern. He noted that sometimes, submissions are made to the court the day before or the morning of hearings.
“What will the court do about that?” Barrow questioned.