The CLICO Mess: Pinochet Case Vs Leroy Parris

Augusto Pinochet (l) Leroy Parris (r)

If we are to judge from the back and forth in recent days there is the suggestion that a window of opportunity supported by the Pinochet Case (I,II) favours Leroy Parris. Is the claim that Leroy Parris and company had full knowledge of Patrick Toppin’s role as Receiver for Plantations Holdings – a subsidiary of CL Financial – and failed to challenge when along with Oliver Jordan they were appointed Judicial Managers to unravel The CLICO Mess? Did the onus of such disclosure rest with Patrick Toppin as a professional bonded to uphold the ethics of the accounting profession?  Bear in mind lawyers for Toppin have subsequently confirmed he disclosed his role to the Supervisor of Insurance and Minister of Finance. It is unclear if similar disclosure was made to the Courts which have jurisdiction in the matter.

For the benefit of  BU family who have demonstrated a healthily interest in the legal component of the argument.  Here is the Pinochet Case dissected:

Pinochet time lines:

• In October 1998, Pinochet arrived in the UK for medical treatment.
• In October and November 1998, Spain issued international warrants for his arrest and extradition to Spain.
• On 16 and 23 October 1998 Metropolitan Stipendiary Magistrates issued two provisional warrants for his arrest under section 8(1)(b) of the Extradition Act 1989. Pinochet was arrested.
• Pinochet immediately applied to the Queen’s Bench Divisional Court to quash the warrants.
• The warrant of 16 October was quashed and nothing further turns on that warrant.
• The second warrant of 23 October 1998 was quashed by an order of the Divisional Court of the Queen’s Bench Division (Lord Bingham of Cornhill C.J., Collins and Richards JJ.)
• Note however, the quashing of the second warrant was stayed to enable an appeal to be taken to the House of Lords on the question certified by the Divisional Court as to “the proper interpretation and scope of the immunity enjoyed by a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was Head of State.”
• It was heard on 4, 5 and 9-12 November 1998 by a committee consisting of Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hoffmann.

However, AFTER the committee had been named and before the main hearing of the appeal, there was an interlocutory decision and Amnesty International (“AI”), two other human rights bodies and three individuals petitioned for leave to intervene in the appeal. Such leave was granted by a committee consisting of Lord Slynn, Lord Nicholls and Lord Steyn (notice that Lord Hoffmann was NOT a part of this committee) subject to any protest being made by other parties at the start of the main hearing.

• Judgment of the House of Lords was given on 25 November 1998. The appeal was allowed the second warrant of 23 October 1998 was restored.
• Pinochet was therefore required to remain in the UK to await the decision of the Home Secretary whether to authorise the continuation of the proceedings for his extradition under section 7(1) of the Extradition Act 1989. The Home Secretary had until the 11 December 1998 to make that decision, but required anyone wishing to make representations on the point to do so by the 30 November 1998.
• On 30 November Lady Hoffmann’s position as having an interest in AI was raised and contained a detailed consideration of the relevant law of bias.
• It subsequently turned out that Lord Hoffmann was himself a director of AI for the purposes of fundraising.
• On 10 December 1998, Senator Pinochet lodged a petition asking that the order of 25 November 1998 should either be set aside completely or the opinion of Lord Hoffmann should be declared to be of no effect. The sole ground relied upon was that Lord Hoffmann’s links with AI were such as to give the appearance of possible bias. It is important to stress that Senator Pinochet makes no allegation of actual bias against Lord Hoffmann; his claim is based on the requirement that justice should be seen to be done as well as actually being done.
• On 17 December 1998, Lord Browne-Wilkinson appeared before the House of Lords in session and vacated the decision. The written reasons were provided on 15 January 1999.

We have a case that started on 16 October 1998. On 04 November 1998, the House of Lords empanelled its committee, which gave its decision on 25 November 1998 and not say 2008 as would be the case with the Barbados courts. On 10 December 1998, a mere 2 weeks after the judgment and just over a month after the committee had been empanelled, Pinochet objected to Lord Hoffmann. On 17 December 1998, the decision was vacated.

At no time did Pinochet “sleep on his rights” the technical term to read: Vigilantibus non dormientibus æquitas subvenit).

Accordingly, there is no application of the Pinochet case to that of CLICO and Leroy Parris – as suggested by An Observer -  in which, as separate and distinct from the Pinochet case, CLICO and Leroy Parris are estopped in law from claiming bias. The state of play is that Leroy Parris and co were aware of the composition of the judicial management team and given their active interest in the matter could have objected. Indeed, by their delay, they must be deemed to have acquiesced in the composition of the committee. Although, whether the principals of equitable estoppel have even been heard of by the Barbados judiciary is highly questionable.