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Efforts by the Judicial Manager to get the High Court’s permission to seal the CLICO financial forensic report which was filed last Friday, is being fought in court by the Barbados Investors and Policyholders Alliance.
The judicial manager, represented by attorney Patrick Toppin, appeared in court today and submitted their final recommendations along with that report, with respect to the collapse of the insurance company.
Lead attorney for BIPA, Alair Shepherd, said today the alliance would be urging the court to reject an application by the judicial manager to have the forensic report sealed. Shepherd is insisting that the policyholders paid for that report and that everything related to the CLICO issue, would impact on them and therefore, they had a right to see the document. The judge has postponed, until Friday, July 12, hearing in that case, where the judicial manager is seeking further directions from the court on how next to proceed, now that the final recommendations and forensic report have been presented.
The court is also expected to rule on whether the forensic report should be sealed. If approval is given to seal it, the public would not have access to the document, which should reveal all the financial transactions of CLICO, leading up to its collapse.
A source close to the judicial manager told Barbados TODAY they had asked the judge to bring forward the date of hearing to an earlier time and was currently awaiting a response. In a separate matter, but related to CLICO, BIPA has filed two claims. Most of the parties to this case appeared in the Number 10 Supreme Court this morning, requesting that the Alliance be appointed to represent the policyholders in the proceedings of the judicial manager and also to act on behalf of CLICO and British American Insurance Company’s policyholders.
Their attorney, Shepherd said afterwards, that in those actions, BIPA was seeking to ensure that any losses incurred in the proceedings of the judicial manager, are paid to the policyholders by the Crown or Attorney- General on behalf of the supervisor of insurance, the company directors or auditors, PriceWaterHouse Coopers.
Shepherd said some of the directors in this action were requesting security for costs from BIPA. These directors, he explained, say the Alliance cannot bring any action of negligence against them, because the case had been filed outside of the statute of limitation.
But the attorney is rejecting such a position. Shepherd said while the policyholders did not want the forensic report sealed, their desire was for the judicial managers to get as much money as possible for the sake of the policyholders, and would therefore do nothing, to prevent that.
Attorney for the State, Donna Brathwaite gave notice that she would be seeking to have the name of the Attorney- General removed as a party to this case. This case was adjourned until October 21.
President of BIPA, June Fowler was upbeat regarding the “positive” progress of the issue declared her delight at how it was nearing a conclusion. Fowler said she was also pleased at being able to “sit down” and hold discussions with the judicial manager over the weekend.
No fewer than 13 defendants are being summoned. Among the high profile persons served were former Executive Chairman of CLICO Holdings (Barbados), Leroy Parris, and his Trinidad counterpart Lawrence Duprey, represented by Hal Gollop, QC; Leslie Haynes, Woodbine Davis, Anthony Ellis and Basil Springer, CLICO directors, represented by Elliott Mottlley, QC, and David Griffith, former Accountant-General and a director, whose counsel is Vernon Smith, QC.
CLICO and BAICO financial information prepared by chartered accountant Peter Douglas, showing a solution for Barbados policyholders.
THIRTEEN DIRECTORS of the insolvent CLICO and British American Insurance Company (BAICO), including former CLICO executive chairman Leroy Parris and president of CLICO Holdings Barbados Limited, Terrence Thornhill, are facing $128 million in negligence lawsuits.
The action has been initiated by the Barbados Investors and Policyholders Alliance (BIPA), whose lawyers have served the directors with pre-action protocol letters, giving them two weeks to respond with either “plausible reasons” why the action should not be maintained or a convincing settlement offer.
Failing that, the court action to recover $76 million from the CLICO players and $52 million from those accused of negligence in the BAICO matter will be triggered.
The SUNDAY SUN was told that attorneys at law Alair Shepherd, QC, and Esther Arthur sent off the January 17 correspondence along with a draft statement of claim to CLICO directors Parris, Thornhill, Anthony Ellis, Woodbine Davis, QC, Leslie Haynes, QC, Elridge Thompson, Adrian Lorde, Basil Springer, Edrick Griffith and Vishnu Ramlogan.
The BAICO claim named former CL Financial chairman Lawrence Duprey and directors Brian Branker and Robert Fullerton.
The other defendants named in both claims were accounting firm PriceWaterhouseCoopers, the auditors of BAICO and CLICO; the Supervisor of Insurance; and the Attorney General, as the representative of the Crown.
BIPA has contended that the loss suffered by its members was a direct and/or indirect result of the negligence and breach of duties by the defendants.
President June Fowler said their actions “individually and collectively contributed to the unnecessary demise of the two companies and the consequent massive losses to policyholders”.
“It is with a heavy heart that BIPA has instructed its attorneys at law to proceed with these actions,” she said.
“Having pursued various other more conciliatory avenues over the past two years without success, BIPA has been left with no alternative but to represent the best interests of its members by taking this action,” Fowler added.
She said that many Government promises had gone unfulfilled and neither of the judicial managers had taken the route of legal action to recover the funds.
In the case of BAICO, the alliance said its members had lost out on $52 million, while the higher amount of $76 million was lost by the CLICO investors.
The statements of claim detailed where BIPA believed each defendant fell short.
Among dozens of accusations made against the directors were that they did not properly manage the affairs of the companies; rubber-stamped management decisions; recklessly funded acquisitions of investments regardless of whether they could yield any dividends, thereby exposing the company to insolvency; blindly relied on the reputation of Duprey and the CL Financial group of companies; and failed to recognize that the course of conduct embarked on by the companies could only result in their insolvency.
The Supervisor of Insurance was accused of failing to perform his statutory duties by ensuring that BAICO was only able to carry on as an insurance company if it both maintained the required Statutory Fund and complied with restrictions on the use of assets representing that fund.
As for the auditors, the claim further contended that they failed to carry out their work to uncover the companies’ risk of not maintaining the liquidity needed to meet their obligations; plan and carry out their work to uncover potential deficits in future cash flows of the companies; and to carry out their work so as to show that the returns on investment for high interest rate products were substantially lower than the returns guaranteed to the policyholders.
PricewaterhouseCoopers has already responded to the correspondence from BIPA’s lawyers. In a January 23 letter, territory leader Marcus Hatch said the company was in the process of seeking to appoint attorneys who would respond after an investigation of the matter. It promised a full, written response within a month.
Fowler said that while BIPA campaigned for the rights and restitutions of funds to all 35 000 CLICO and BIPA policyholders in Barbados, only the 424 members of the alliance had been named in the court action.
BIPA’s action comes ahead of the four-year anniversary of the collapse of CL Financial, the parent company of BAICO and CLICO, and amid efforts by judicial managers – Deloitte Consulting represented by Oliver Jordan and Patrick Toppin in the case of CLICO, and KPMG’s Lisa Taylor and Michael Edghill for BAICO – to find a resolution.
Both have indicated that policyholders would not get back all the money they invested.