TCIG has successfully defended itself against a series of massive claims totalling nearly $200m brought by Trade Wind Industries Limited (TWI). The claims, first brought in the TCI Courts in 2012, and then in an international arbitration, were almost wholly dismissed, TWI winning just $255,010 in damages together with some interest and limited costs.
TWI brought claims for (a) breach of its leases by permitting of the building of the Leeward Marina in 2007/8; (b) massive damage to its stock of conch and its farm caused by dredging in 2008/9; (c) massive damages for breach of a development agreement in 2012; (d) defamation by the Governor in 2012; and (e) expropriation of its assets. Altogether the damages claimed across all five claims totalled nearly $200m.
The Arbitrators’ Awards were previously confidential, but a recent agreement between the parties means publication is now permitted. The First Award, dated 13 October 2016 is 280 pages long and followed many weeks of hearings earlier that year; a short summary of it has more recently been prepared by the Tribunal. The First Award decided that:
(a) permitting of the building of the Leeward Marina in 2006/7 including associated dredging was a breach of TWI’s then existing leases but TWI were entitled to only $250,000 damages for that breach;
(b) TWI failed to prove that dredging caused any damage to its conch or farm. TWI’s business was loss making so it was entitled to no damages in respect of that claim;
(c) although a development order issued by the interim administration in 2012 did not strictly comply with the terms of the development agreement and TWI were therefore entitled to a revised development order, TWI failed to prove it suffered any loss as a result, so it was awarded nominal damages of only $10;
(d) although most of the defamation claims were dismissed, in one respect what was said by former Governor Todd was defamatory; however TWI were entitled to damages of only $5,000 taking into account the “sometimes dishonest and provocative way in which TWI’s senior personnel had dealt with TCIG and the Governor”;
(e) TWI did not have any assets expropriated and its claim in that respect was dismissed entirely.
Total damages awarded to TWI were $255,010. These were paid by TCIG to TWI in late 2016 shortly after the First Award was provided to the parties. The arbitration began in 2013 after TWI’s claim in the TCI Supreme Court was stayed on TCIG’s application in favour of the arbitration process. Three Arbitrators – all senior lawyers in London – were selected as arbitrators to hear the case. . As well as the First Award, the Arbitrators also produced a Second Award dated 10 April 2017, which is also now being published. That Award deals with various supplementary matters including:
finalising the terms of a development order for TWI. TCIG has now granted that Development Order; whether TWI should be entitled to 31 declarations dealing with the Tribunal’s First Award. The Tribunal decided TWI was entitled only to one, namely that TWI is entitled to farm fin fish; legal costs of the arbitration process. The Tribunal decided that the parties should largely bear their own costs, save that TWI would be entitled to receive 20% of its legal costs from TCIG. The Tribunal came to this conclusion because it said that although TWI had won something, “its financial recovery was extremely small compared to what it claimed, the rights it has vindicated may or may not be of any substantial value, and a large part of the costs were incurred on issues that TWI lost”;
TWI was entitled to interest on its damages of $135,986.30. TCIG has paid that interest to TWI;
The Tribunal left open some final matters including some remaining legal costs. It is shortly expected to issue a third and final award dealing with all remaining outstanding matters, bringing the litigation to an end.
The Attorney General commented: “TCIG is delighted to have been able to see off this massive damages claim and long-running litigation. The claim – for nearly $200m – would have been potentially catastrophic for the Government if TWI had been awarded anything like the sum theywere claiming, and the fact that TWI has brought this enormous piece of litigation lasting years, alleging their business has been destroyed by the Government, and seeking these huge damages, but in the end has been awarded only $255,010 in damages, some interest and some limited costs is a very good result for the Government.”
