BTL/Ashcroft Alliance and The CCJ Last week, 7News told you about the Caribbean Court of Justice's big judgment in favor of the Ashcroft Alliance against the Government of Belize as majority shareholder in Belize Telemedia Limited.
As we told you, the CCJ delivered a conservative order restraining the BTL from issuing dividends until not before December 14, which expired on Friday. On the day before, Thursday, the Court of Appeal announced that they refused application for interim relief to restrain BTL from issuing dividends to take effect after Friday.
Well, seeing no legal boundary, the Board of Directors of BTL attempted to pay out the dividends, but the CCJ, after hearing this, immediately ordered GOB to ensure that an amount of equal value, which represented almost 12 million dollars, to be paid back into an escrow account.
So, with that slap down judgment, the Central Bank of Belize, the Social Security Board, and GOB were forced to refund the checks issued personally by the Executive Chairman himself.
Well, the matter went back to court early this morning, where via a 3-way video conference, the CCJ went a step further, and they ordered that there will be no further payment of dividends, which is an annual event, to those majority shareholder until the court says otherwise, or until the matter is heard to completion.
The effect of that is a major loss for GOB because their appointed board members are only able to use finances to cover expenses, run the company, and manage its bills. They are prohibited from doing anything else with the company's profits.
But, there was a minor positive development from today's proceedings; the CCJ granted an application by attorney for GOB, Denys Barrow, to allow the small shareholders, all 1400+ of them to be paid.
Both attorneys spoke to us outside of court and explained their position on the small shareholders who were getting crush by this fight between these 2 giants:
Denys Barrow - Attorney for GOB
"I think the central thing, the happy thing is that Christmas is here for the small shareholders. I think that is the fundamental thing, and I am very happy that we made the application. I sent a letter to on the weekend to counsel for the other side telling them that of my intention to make this application, and to seek instruction from their clients agreeing to an order carving out an exception in favor of the small shareholders."
Jose Sanchez - Channel 5 News
"Approximately, how many shareholders will be getting their dividends this Christmas?"
"Over 1,400, I think it's a very happy day. This is Christmas."
Rowland Parks - Reporter Press
"Would you say that Aschroft Alliance acted magnanimously when they did not object to the small shareholders?"
"Oh, they objected. You didn't realize that? What they wanted was to allow those who bought shares before the acquisition to get, but they wanted to punish those who had bought shares after the acquisition. So, there wasn't any magnanimity at all. The allowance in favor of those who had bought before was simply that it was not something logically or reasonably, they could have object to. But, when they could find any objections, there was not any magnanimity. So, no, I don't give them any credit for that."
Jose Sanchez - Channel 5 News
"In terms of Value, how much cash goes to the small shareholders, and what's left behind for the larger shareholders?"
"The amount that goes to the small shareholders is in the region - it's just under one million dollars."
Godfrey Smith - Attorney for Dean Boyce and Employee's Trust
"I have to clarify definitely a mis-statement of fact that occurred on Friday. On Friday, in looking at the evening newscast, I saw where my learned friend, Denys Barrow, said attorneys for Dean Boyce and the Trust - words to the effect that we were opposed to a carve out for the small shareholders. Now certainly, some of you were in court, and you will recall that on 2 occasions, Lord Goldsmith, who led the arguments on behalf of Dean Boyce and the Trust, went at great pains to point out that he was interested in stopping payment of dividends to the Government of Belize, the Central Bank of Belize, and to the Social Security Board, and that the issue of the small shareholders needed to be dealt with. What we are opposed to, are those small shareholders, like those members at the management level of BTL, who were given some small shareholdings after the nationalization. So, our position was always very clear. Small shareholders who held shares in 2009, prior to the illegal expropriation and nationalization, we have never had any problem with them getting their dividends. In fact, on Friday, that was our position, and we reinforced that this morning. So, it is completely incorrect to say that we were opposed, and that it is any kind of victory by the Government of Belize on behalf of the small shareholders. We were the first to call for that on Friday, and as we stand here speaking now, we have never been opposed to that."
"Does it mean then that the Board members are acting as sort of a house-sitter for the absentee owners?"
"That is a lovely question and a lovely way of phrasing it, and obviously, manifestly, this is what the applicants want to achieve. And the question is to what extent, to what degree have they achieved it? The answer to my mind is that there is some measure of success on their part because clearly the company, BTL, the directors cannot do exactly what they want to do. They are inhibited by this order. But then, the question is to what extent does that inhibit their actions, and it is not defined. It is not precisely crafted, but what we know is that the directors, the management can do the things that a company would normally do in the course of its operations. It is just that any extra-ordinary thing in terms of the finances of the company cannot be done."
And in the big appeal case at the Court of Appeal in October, the Ashcroft Alliance made a huge issue of Justice of Appeal Sammuel Awich sitting on the panel of judges.
As we we've reported numerous times, the Alliance made an attempt to get the newly appointed Justice of Appeal, Samuel Awich removed from the Court of Appeal.
That attempt failed, and they attempted to get Justice Awich to recuse himself as judge on the case. The Appeal Court, by majority decision, refused that application but granted them leave to appeal to the CCJ.
That issue came up today when the CCJ decided to forego the lunch break, and continued on with their session.
After a lengthy consultation with both sides, the CCJ ordered that the application be withdrawn allowing the Alliance to bring it up in the substantive appeal if the Court of Appeal rules against them.
We spoke to both sides about the apparent waste of judicial time and resources. Here's how they explained it:
Denys Barrow - Attorney for GOB
"That went very well as far as we are concerned. There was not any clear determination. Essentially what the CCJ did was to say, 'Let's leave this. If you want to bring this up if there is a substantive appeal against the main case itself, then bring it up in such an appeal. Do not proceed with it at this stage.' That is essentially what they proposed. We all agreed that that would be an appropriate way to deal with the matter."
"But sir, at this stage, the CCJ and the attorneys have wasted time and financial resources on this issue."
"No, no, very far from a waste of time and resources, it is something which the applicants were entitled to challenge. The merits of their challenge, I make no comment on it but that they have a legal right to make this challenge, to make this application. It is undoubted, and this really how the process of the development of the law takes place."
"Obviously, your clients thought that this was a more important issue to deal with now. Why do they feel so strongly about it?"
Godfrey Smith - Attorney for Dean Boyce and the Employees Trust
"It's really the fact of not taking - litigation as you have seen, and are now aware, can lead to some surprising results. We wanted to make sure that we were not in the position where it could ever be said, 'Well, you sat on your rights. You waived your rights; you didn't appeal it when you could have.' So we made sure that we brought it fully to the attention of the CCJ. They're aware of that point, and they've said to us, 'Look, you can't be prejudiced in any way. You can always raise that on appeal in front of us.' And that has given us enough comfort and satisfaction."
And in one final matter, the Alliance continues to press the courts to allow for international arbitration over BTL, while these proceedings are ongoing in the Belizean courts.
Viewers may remember that they took the matter before the Court of Appeal 3 months ago, but the ruled against them.
They made an application before the CCJ to allow them to hear an Appeal of the Appeal Court decision, and the CCJ allowed it.
We spoke to the Government attorney about that development, and here's what he told us:
Denys Barrow - Attorney for the GOB
"The Caribbean Court of Justice gave special for them to brink an appeal. So, before, they couldn't bring it because this is what you would call and interlocutory order that the Court of Appeal made, which is an order made in the course of proceedings, and not a final order. So, you need special leave to bring such an appeal. In this case, they obtained that special leave."
"Sir, can you tell us what the arguments advanced on behalf of that application?"
"The question was essentially whether there was a sufficiently substantial question which would justify the Caribbean Court of Justice, the highest court hearing such an appeal. The idea is that the highest court filters out appeals."
"An uninformed observer may posit that there already these matters before the Belizean courts. Why should we - or why should any client, GOB or otherwise - be faced with an international arbitration on the same issues?"
"Well, that is a major issue which was before the Court of Appeal of Belize, and they thought that it was vexatious and oppressive to allow international arbitration to proceed while there is local litigation before the Belize Court dealing with very much the same issues. Their view is that an international arbitration does not need to await a Belize court determination, does not need to be halted to allow that to happen. We accepted that it doesn't need to be halted, but we're saying that in certain instances, it is oppressive to allow the 2 of them to continue. So, the Caribbean Court of Justice will now decide whether that issue was properly decided by the Court of Appeal in Belize."
The court will consult with the attorneys from both sides about when these matters can be fully heard early next year.