Court rejects FLOW's efforts to bring in new witness in case against Gov't, CHEC

Cable & Wireless Jamaica, which operates as FLOW, was yesterday dealt a major blow in its multimillion-dollar case for infrastructural damages against the Government and China Harbour Engineering Company (CHEC), after the court rejected crucial pieces of evidence and an application for the telecommunications company to bring in a substitute witness.

The trial, which should have started on Monday after facing numerous delays since last February, is set to start today in the Supreme Court.

The evidence in question, which includes contractor invoices for repair work done and invoices for rebate payment to customers, is required by FLOW to establish the cost for special damages, which it is seeking.

In respect to the substitute witness, permission was being sought by FLOW to have a new witness brought in for its main witness, who was reportedly made redundant and is refusing to give evidence, citing a possible conflict of interest.

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.

On Monday, FLOW, following an order from Justice David Batts, disclosed 1,200 documents to the defendants which included the invoices.

A draft statement from the proposed new witness was also disclosed.

However, on Tuesday when the case was called up, lawyers for the National Works Agency and the Attorney General's Chambers and CHEC opposed the application for a substitute statement and for an extension of time to file a new witness statement.

Lisa White, from the Attorney General’s Chambers, and Maurice Manning, KC, who is representing CHEC, both highlighted that the statement contained several “hearsay" evidence, that the proposed new witness could not verify the newly disclosed documents or identify them or identify the makers of the documents.

Additionally, they pointed out that there are aspects of the evidence that the new witness could not speak to as he was not present in certain areas where the project took place.

They further submitted that it would be prejudicial to their case if the documents were tendered into evidence and also that their expert witnesses would not have had time to look at the documents.

Manning also underscored that FLOW had ample time to alert the defendants about the documents and to have them disclosed and also to sort out the issue with the witness as the first trial date was scheduled from February 2022 and delayed several times since.

“Fairness works both ways. Sometimes I think people tend to forget that there is another side that needs to respond and needs to prepare, needs to be alerted to what is coming in a timely manner,” Manning said, noting that it was unfair and prejudicial to have 1,200 documents dumped on them at the last minute.

Attorney-at-law Denise Kitson, KC, in FLOW's defefence, argued that she had disclosed a list with all of the documents to the defendants but that some of the documents could not be disclosed at the time because they contained sensitive innformation and needed to be redacted. Additionally, she said some of the documents were archived and were only now being made available.

While conceding that the defendants should have been alerted about the documents and the apparent challenges with disclosure at the time, Kitson argued that she has a duty for continuous disclosure and there should be no sanction with respect to not accepting the document.

The judge however said he could not accept the documents as it would be prejudicial to the defendants.

“FLOW has not been sufficiently diligent. Too many documents, too little too late and, about the witness statement, the complaint is that it is full of hearsay, it is very different and, worse, the gentlemen admits that he has no personal knowledge of three-quarters of the issue,” Batts said.

He subsequently ruled and rejected the application. He also denied FLOW permission to bring a substitute witness and instead ordered that a summons be issued for the original witness to give evidence in the trial.

Additionally, the judge also awarded the defendants' costs for two days, which were lost and should have been used for trial.

tanesha.mundle@gleanerjm.com