The electricity rate application decision appeal has taken a new turn in the High Court.
Barbados Light & Power Company (BLPC) and the Fair Trading Commission (FTC) have received approval to engage in unspecified discussions that are pertinent to the case.
Justice Barry Carrington, presiding in Supreme Court No. 12 yesterday, granted a BLPC application asking for an adjournment of the proceedings so that the talks could take place between the two parties only.
In doing so, Carrington made it clear that the public’s interest would be protected because whatever agreements BLPC and the FTC reached would have to be communicated to the court for its ruling.
After attorneys Tricia Watson, representing herself and co-intervenor David Simpson, and Ralph Thorne, KC, counsel for intervenor Kenneth “Ricky” Went, argued against their exclusion from the discussions between the utility company and its regulator, the judge also assured them of their opportunity to make submissions once the matter resumed in court.
Judge’s decision
“Whatever discussions are held, whatever decisions are arrived at, they must be communicated to the court and as is the law and more so my practice, I will ask the intervenors to make comments. Once the matter is before me, then I will exercise the authority, the jurisdiction, that I have in relation to determining the matter,” Carrington said before adjourning the proceedings.
The appeal, which was filed in December 2023 after BLPC was dissatisfied with aspects of the FTC’s electricity rate application decision in February 2023 and the motion to review ruling in November of that year, was expected to resume hearings yesterday, before continuing on November 17 and 18.
With the adjournment, submissions in the case have been rescheduled to January 26, and February 2 and 9.
Senior Counsel Ramon Alleyne, lead attorney for BLPC, told the court yesterday that with his client and the FTC involved in certain discussions, “the likelihood, or the hope is, that in the context of those discussions, . . . some of the more troubling aspects of this matter may be simplified” for the court’s benefit.
Thorne and Watson both argued against the intervenors’ exclusion from the talks.
“You can’t make light of the fact that sometime ago . . . the jurisdiction of this court gave locus standi to two intervenors . . . not as an expression of courtesy or privilege, it became a . . . right to be present and a right to be heard, and here is a party, here is an attorney-at-law, coming to the court and saying that they will prepair to negotiation, to discussion, and that the matter will be resolved,” Thorne submitted.
“What state secret will be discussed that the intervenor Mr Kenneth Went should be excluded? And if you are reaching agreement in a matter in which he has been an intervenor at the hearing, a party at the trial, should Mr Went, not as a matter of courtesy, but as a matter of right, had been invited to those discussions? He is a relevant party.”
Watson said that while she did not object to a short adjournment if the court deemed it to be reasonable, her concerns included that intervenors were not involved and that “the application does not explain the why beyond saying ‘we are having discussions’”.
“The parties, all of them, have to be in the room so long as the matter pertains to an open case, whether it is an appeal . . . or an active review application. And the intervenors are lawful parties to these proceedings and we have to be invited,” she asserted.
Watson also noted that “any resolution that [the FTC and BLPC] put to the court must be tested against whether it is fair to rate payers present and future”.
“It is not enough for them to be content with whatever resolutions they are discussing in secret. I am offended . . .that [BLPC and the FTC] think it is proper to have private discussions on a matter that they know involves other approved interested parties,” she said.
Her view was that if BLPC and the FTC were able to set rates outside of the public process, it would affect the FTC’s statutory responsibilities, defeat the Commission’s duty to consult and breach procedural propriety and natural justice.
In response, Alleyne said there was nothing that BLPC and the FTC could discuss relevant to the proceedings that would not be before the court.
This, he told the court, was because the intervenors “will have the right within these proceedings to comment on anything that is brought to you for consideration”.
“There is no danger to the process, there is no danger to the public interest. This is not the end of the proceedings, we have to come back to court. All of the parties are protected,” Alleyne said.
“Anything that is discussed has to come to this court. Any resolution has to come to this court, and neither [BLPC or the FTC] is of the view . . . that there can be a resolution without reference to [the court].” (SC)
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