Response of H.M.B. Holdings Limited ["the Company"] to the Chronology submitted by the Government of Antigua and Barbuda ["GOAB"]
A number of dates and events included in the Chronology submitted by the GOAB are not germane to the issue of Compensation or the purview of the Assessment Board. However, since they now appear on the record, the Company is responding to them, point by point.
Justin Simon’s Chronology:Responseand offer of proof by NQ
1.September 1995 - Hurricane Luis damaged Half Moon Bay Hotel.
1. Fact correctly stated.On September 5,1995Hurricane Luis demolished the Half Moon Bay Hotel.
It is to be noted at the outset that the Government of Antigua immediately proposed to the Company that it acceptthe services of the Prime Minister to sell the Half Moon Bay property to R. Allen Stanford forthwith.The Company’s choice to retain its property and to rebuild it has been challenged by the GoAB from that time forward.This sets the stage for the actions that followed.
2.December 1998- Resolution by House of Representatives authorizing Government
to submit for the approval of the Honourable House a comprehensive economic intervention programme including a package of economic incentives for the restructuring of HMB.
2.The Governmentnever produced the “comprehensive economic intervention program” which was the subject of the resolution passed by that House.“Restructuring of HMB” (presumably the private company which owned the property) is not within the legal purview of the GoAB.The Company’s Managing Director.accompanied by Company’s legal counsel, met with the Solicitor General in the Ministry of Legal Affairs and was told that the language was intended to convey the Government’s offer of assistance in providing the requisite financing.
3.January 19,1999 - HMB applied for stamp duty waiver on transfer of property and shares, maximum tax of 10% on interest earned, and a concession to carry forward taxes for 10 years following the negotiations with a potential joint venture partner: Regent Street Property Group Ltd.
3.The waiver of stamp duty referred to the transfer of property from the parent company into two fully-owned subsidiary companies -- where neither money nor shareholdings would be changing hands.This step was a condition of a reconstruction loan from aUK bank which also wished to limit its exposure to Antigua tax on the interest earned by the bank.The “potential joint venture” partner was not involved in the transfer of property or in the redevelopment of the Hotel.The interpretation provided by the AG is false.
4.January 20, 1999 - Cabinet declined application - HMB so advised by letter from Permanent Secretary dated May 14, 1999.
4.Selective facts are stated correctly but the picture is distorted by what has been left out. .Cabinet declined the application at a January 20 meeting, the day after the Directors met with the Prime Minister to discuss the matter and were told to make official application for Cabinet’s consideration, and BEFORE that application was officially received. The owners were not notified of that decision until late May.Between January and May,the GoAB made the Company and its attorneys expend time and effort by requesting documentation for various Cabinet members and Government officials.These included numerous letters and applications sent and resent to different ministries as per instructions of the Parliamentary Secretary; a Company Resolution which was requested and provided, telephone calls and personal “by-hand” deliveries of documents.This was apparently done with knowledge that our time and effort would be wasted.It is to be noted that no reason has ever been given for this refusal, including the present “chronology”.The Minister of Tourism who met with the Company’s Managing Director late May, after the announcement of the refusal to assist the Company,inquired: “NOW, will you sell the property?”
5.June 2, 1999 - Cabinet instructions to the Ministers of Tourism and Legal Affairs to take steps to acquire hotel for a public purpose due to concern over prolonged closure (Ex NQ4).
5.These instructions were not disclosed to the owners of the property until several years later, in documents provided by the Government in its defenseagainst the Company’s application for a Judicial Review of its actions.
6.February 7 2000 - HMB executed a lease with Trade Winds, a hospitality company out of Canada, to terminate February 28th on failure to obtain concessions; lease extended to April 16th and then to May 17th pending concessions grant.
6.Correct.No reason ever given for the delay in providing concessions which had been
promised Tradewinds as a basis for the budget that company needed to produce for its lenders.
The dates provided in paragraph 7 confirm that the concessions were not provided to secure the lease:notification was not made until after the expiry of the conditional lease agreement.Evidence is available that the GoAB was well aware of the extended deadlines and the critical consequences to its delays.
7.April 28 & May 17 - Cabinet granted concessions firstly to Trade 2000 Winds (sic) and HMB jointly and later to HMB only batches stipulating that the project must commence within six (6) months: (Ex JK3).HMB responded that the hotel would be reopened for occupation by guests by July, 2000.HMB advised on May 12th and 26th respectively.
7.The lease with Tradewinds was nullified in May 2000.There could not have been any indication by our Company of an opening date within three months, since the construction period could not be condensed into less than fifteen months.The letter referred to by ExJK3 is dated a year later. It states that every effort will be made to commence construction within six months but rejects all conditions including this one for the company to move forward.Paragraph #7 is therefore untrue and misleading.
8.June 5, 2000 - Second Court petition by Joseph Kelly (44% shareholder) to dissolve HMB Holdings dismissed (Ex. NQ5).First petition filed in 1994 had been dismissed in 1997.
8.The reason the legal action between Joseph Kelly and the Company is included in this “chronology” is because Justin Simon,acted as Kelly’s lawyer against our Company.This distraction is misleading, mischievous and malicious.
However, there exists a link between Kelly’s second petition and the GoAB. Joseph Kelly had committed major fraud while managing the Company’s business as its CEO during the 80’s -- a fact that was discovered by the owners of the property sometime in 1996.By the early 90’s, Kelly began agitating for the sale of the property in order to dissolve the Company, close the books and hide forever his misappropriation of Company funds.For his own purpose, he was anxious to sell the property and therefore willing to support the GoAB in strong-arming all the other shareholders who were unanimous and mutually supportive in their desire to retain and redevelop the property and the Company’s business.
9.December7, 2000 - Cabinet decided to acquire Half Moon Bay Hotel for a public purpose.
9.What is being left out is most significant.During the summer of 2000, an agreement was reached with a syndication of UK banks to loan the Company enough to pay off certain loans and rebuild and refurbish the Hotel.The terms were agreed, the documents were signed and submitted into escrow at the Barclays Bank, pending loan closure.A land-holding license was applied for the individual at the center of the transaction.The renovation of Half Moon Bay was imminent.THAT was when Cabinet “decided to acquire Half Moon Bay Hotel for a public purpose.”
10.December 8, 2000 - HMB obtainedan exparte injunction (suit 279 of 2000) to prevent the compulsory acquisition.
11.January 12, 2001 - High Court set aside the injunction after arguments from both sides.
12.January 16, 2001 - HMB filed a Summons for a Stay of execution and filed an appeal.
10 - 11 - 12 -All correct.HOWEVER,
An important development has been left out at this point in the Chronology by Justin Simon.
A number of United States Senators and Congressmen wrote to the GoAB during December of 2000 regarding the unprecedented step of expropriating the property of U.S. Citizens.Letters were also sent by them to the Department of State and to the U.S. Embassy in Barbados.These letters were clear and forceful as to the negative response such action would receive in the U.S. Congress.
13.January 19 2001 - Government advised HMB by letter that they were prepared to grant an extension of six (6) months from February 1, 2001 for commencement of construction with completion by November 2002. (Ex JK1)
14.January 22 2001 - Meeting by Querard and her attorney with Minister of Tourism and Attorney General where re-development plans were produced by HMB Holdings.
15.January 23 2001 - Lake & Kentish’s letter confirming that construction can commence well before six (6) months time frame with projected opening date of November 2002, and stating that “in the circumstances time is of the essence in respect of all governmental approval and licences required to carry forward the construction”: (Ex JR2)
13. 14. and 15.The Government did send a letter setting out six conditions -- all of which were refused during the meeting of January 22nd and by letter of Company’s legal counsel dated January 23rd, 2001.The time limit of six months before commencement of constructionappeared reasonable, but was never accepted as a condition which, if breached, would entitle the GoAB to proceed with a forced acquisition of our Company’s property. No such condition was entertained, let alone agreed to.The GoAB never responded to Company’s legal counsel refusal to accept any conditions.The circumstances of time being of the essence referred to by our Attorney’s letter cited inJustin Simon’s Chronology had to do with the delay in the closing of the loan pending since late November 2000,and the reason for that delay, which was not reassuring to international banks considering country risk as the first hurdle to overcome.
16. January 24 2001 Non-Citizen Landholding Licence granted to Moncrief-Scott and notified on February 5, 2001.
16.Non-Citizen Landholding Licence was initially granted for the wrong parcels of land, and had to be corrected.New Licence dated one week later -- February 12, 2001
17.February 5, 2001 Querard’s letter seeking confirmation that [previously granted incentives to HMB and Tradewinds (April 28 and May 1, 2000) are still available to HMB Holdings: (Ex.JK3).
17.Confirmation of some -- not all -- previously granted incentives delivered in two batches in May 2001.
18.February 12, 2001 - Consent Order by the Court of Appeal: the Attorney General gave an undertaking that the Government would not proceed any further with proceedings to acquire HMB lands for a period of six (6) months commencing February 1, 2001.
18.It was understood between the attorneys and so conveyed to the Company thatsix months was a benchmark, not a deadline.
19.February 12 2001 - Request by Querard for letter of comfort for Moncrief-Scott.
20.February 19 2001 - Request by Lake & Kentish of comfort letter “as final requirement forclosing on loan transaction”.
21.February 19 2001 - Letter of Comfort from Minister of Tourism that “Government has approved all incentives normally granted...... and in addition approved all licences and other permits required to ensure a smooth implementation of this development.”.
19, 20, 21.The Letter of Comfort brought little comfort by its vague reference to “all incentives normally granted”, as there is no established norm for such incentives, nor were any licenses or permits at all approved orgranted at the time. (or ever !)
22.March 142001 - Advice letter from Government that incentivies (sic) and concessions transferred to HMB Holdings by Cabinet decision ofFebruary 7, 2001(ExJK4)
23.May 14 2001 - Advice letter from Government of amendments made to April 28 2000
Cabinet decision granting additional incentives and concessions: (Ex. JK5)
22 & 23The delays between the granting of incentives and notification thereofpersisted throughout the period, delaying the loan closing well into May.In the aftermath of the unclear and untrue statements in the “letter of comfort”, this led to the withdrawal of the National Westminister Bank from the syndication, as reported in paragraph 24.
24.Late May 2001 - National Westminister Bank Limited withdraws from the syndicate of banks “because of lack of confidence in government support for HMB: - Joyce Kentish’s Affidavit quoting Moncrief-Scott.
24.Interestingto note that all reference to Government’s correspondence and/or rationale
is produced by the Attorney General quoting the Company’s attorney, Joyce Kentish,either directly or by reference to exhibits from her Affidavit in Support of the Company’s Application for a Judicial Review.
25.July 4 2001 - Querard advises Minister of Tourism of NatWest Bank’s withdrawal from syndicate of banks.
26.July 5 2001 - Querard writes to Minister of Tourism that “one and one only (banker) has withdrawn due to the delays and difficulties we have experienced.He/we are in the process of replacing this single entity and should be able to do so shortly.”
25 and 26.Correct.
At this point, another critical series of facts has been left out of the Chronology by Justin Simon.
The Company brought several representatives of potential lending institutions to view the property during the summer of 2001,all of whom wished to speak to the Prime Minister or the Minister of Tourism to see for themselves whether the Government was prepared to support the redevelopment of the Half Moon Bay resort.They were all turned away.No meeting was ever held.There are numerous letters requesting such meetings -- all left unanswered.
9/11 happened...The GoAB understood the U.S. Government would be too busy to notice the second attempt at expropriation of Half Moon Bay and went back to Parliament in December 2001,for another Declaration which would empower the Cabinet with the right of eminent domain under the Land Acquisition Act.The Antiguan House followed by the Senate passed the bill using the wrong identification for the property.
27.December 28 2001 - Galina Kluge (director/shareholder/mother of Querard) files claim for US$5,227,822.85 against HMB Holdings being monies loaned and secured by Promissory Notes issued between December 2000 to December 2001.
27.Michael and Galina Kluge, had been the financial support of the Company after the hotel’s closure in 1995.They had lent the Company over four million U.S. Dollars against
unsecured promissory notes between September 1995 and December 2001.The money was used to reduce third-party debt,to maintain and secure the property, to cover legal and accountingcosts and to develop and prepare plans for the renovation and additions to the hotel which was
the ultimate goal of the giant effort being made by all involved.After Mr. Kluge died in January of 2000,Mrs. Kluge continued to lend funds to the Company.After the second attempt by the GoAB to expropriate the property,Mrs. Kluge was advised by counsel that she should secure her loans to the Company against the property.The only way to do so was by obtaining a Judgment from the Court, which she proceeded to do.To suggest that this amount was loaned in a single year is intentionally misleading.
28.December 31 2001 - HMB Holdings through Querard admit claim and advises it will not defend action.
29.January 3 2002 - Judgment on Admission for US $5,227,822,85 (EC$14,167,077.87)
entered in favour of Kluge against HMB Holdings.
28. and 29.There was nothing else the Company could do except to confirm the debt and its own inability to pay it off on demand presented at the time.The granting of the Judgment was equally inescapable.
30.January 11, 2002 - Resolution approved by House of Representatives for compulsory acquisition, but lands incorrectly described. (HMB had caused a subdivision which altered the parcel numbers).
30.Wrong description of legislative events: the Resolution passed by the House of Representatives in December 2001 was approved by the Senate on January 11, 2002.However, the lands were indeed incorrectly identified.The red herring of the Company causing the Parliament to expropriate the wrong parcels by a subdivision of its property was put forth to cover ministerial embarrassment and to create another opportunity to malign the Company.
The redistribution of Company’s property into a new configuration was performed in 1999.A correction had to be made to the land-holding license produced by the GoAB in February 2001, as stated above. Once again, the GoAB made a mistake.The portrait of the Managing Director “running around, changing parcel numbers, while Parliament was in session dealing with the people’s business” has been repeatedly offered by the media and by several ministers running
for office.Simon has stopped short of repeating this caricature, but continues to suggest a complicity in the error
31.January 17 2002 - Application filed by Kluge for an Order for Sale of HMB Holdings property to satisfy judgment debt.
31.A necessary step to perfect the Judgment and the lien.Mrs. Kluge has never stopped her financial support of the Company and continues to this day to offer assistance with no more than promissory notes being issued in response.
32.February 6 2002 - Application by 44% shareholders (Estate of Joseph P. Kelly deceased) for an interim Order restraining Kluge from taking any steps to enforce judgment.
32.A legal action was filed by against the Company by Justin Simon, on behalf of Kelly’s executor, John Duggan, in support of the GoAB, asking for yet another winding-up; or a placement of the Company in receivership; a forcing of the Board and Shareholders to accept John Duggan as a shareholder, contrary to its articles and inclination; and finally asking for an order restraining Kluge from taking any further steps to enforce the judgment. The last request was the only one so ordered, but only until the final determination of the legal action at hand, which also claimed oppression,mismanagement, collusion -- and the kitchen sink!That action is now merged with the Company’s claim against the Kelly Estate and continues being delayed and adjourned, when the files are not simply “lost” by the Court Registrar.....
33.February 12 2002 -- Resolution approved by House of Representatives compulsorily acquiring Half Moon Bay lands (without Opposition support due to Government’s refusal to provide requested additional information in light of disclosures by Mrs. Querard).
33. The then Opposition (now the party in power ) recognized the hypocrisy of the administration claiming that it was forced to use eminent domain to develop the “defunct hotel business at Half Moon Bay” when it was in fact blocking the owners’ attempts to do so.The Opposition was also shown the letters from what was now twenty (20) U.S. Congressmen and Senators who warned the Government of Antigua that expropriation should not be taken lightly.Finally, it had been made public that R. Allen Stanford would be the beneficiary of the Government’s action --and that did not sit well with the United Progressive Party in Opposition.
34.February 21 2002 -- Resolution approved by the Senate, (without Opposition support).
34.The Opposition left the chamber in protest before the votes were taken, twice in the Senate and once in the House.
35.March 7 & 14 2002 -- Publication of the Resolution in the Gazette ”whereas the cabinet considers that the parcels of land described in the schedule hereto be acquired for a public purpose, namely to create a fresh environment for investment in the defunct hotel business at Half Moon Bay with a view to facilitate the revival of the tourist industry and provide jobs for the inhabitants of the Half Moon Bay and the surrounding villages”.
36. March 16 2002 - Order of High Court granting HMB leave to apply for judicial review and Government giving undertaking to refrain from entering or taking possession of HMB lands ”until the hearing and final determination of these proceedings”.
35. Had the publication of the Resolution occurred as stated on March 7 and 14th, 2002, the High Court Judge could NOT HAVE CONSIDERED OUR APPLICATION FOR JUDICIAL REVIEW, let alone granted it on March 16th.In fact, Justice Donald “Ian” Mitchell, specifically asked whether the second publication had occurred on Friday March 15th, before he could accept our application and was told by the then Attorney General that it had not.The ex parte application was then scheduled and heard on the following morning, Saturday, March 16th, with the Attorney General and legal counsel for the Cabinet invited and present at the hearing.No proof of second publication was offered at the time.Subsequently, the second publication was produced during the following week,BACKDATED and undisputed at the time, since it did not appear to be of consequence and because our applications had been made and accepted.It is equally important to note that the Government did not use the second gazetting as an argument against allowing us to file amended claims in the action.Nor did it use the second gazetting as an argument in its appeal to the Court of Appeal against the granting of the Judicial Review by the High Court.
36.An incomplete quotation of the undertaking given by the GoAB is offered in the Chronology by Justin Simon.“...the Respondents, whether by themselves, their servants or agents or by arms of the state whatsoever, do undertake to refrain from entering, taking possession of and / or in any way entering and / or disposing of the applicant’s lands in purported pursuit of the provisions of the Land Acquisition Act (Cap233 of the Revised Laws of Antigua and Barbed 1992) until the hearing and final determination of these proceedings. “
This should have stopped the “pursuit of the provisions of the Land Acquisition Act”, including the second gazetting.Unfortunately, this discrepancy was not pursued.
37.April 5 2002 -- HMB applied to High Court to quash the decision of Cabinet and the approval of Parliament.
37.On April 5, 2002the Company filed its Amended claim, in which, among other items, it asked the Court to quash the gazetting dated March 7 and 14, as it applied to the acquisition ofits land.The matter was never heard because of the Government’s application to have the Judicial Review struck out.It was that same Government’s application that was heard by Privy Council.
38.April 30 2002 - Government applied to have HMB Claim struck out as disclosing no reasonable grounds for bringing the application for judicial review or constitutional relief.
39.July 29 2002 - Government’s application was dismissed with costs after July 8th hearing. [It was an interlocutory application and not the main claim by HMB, which was adjourned to await ruling on Government’s application.]
40.July 31 2002 - Notice of Appeal filed.Appeal heard November 12th.
38, 39 and 40 are factually correct.
41.July 31 2002 -- Order of the high Court(after a hearing ) directing “that any and all further proceedings in claim by Kluge against HMB Holdings be stayed pending the determination of claim against HMB Holdings by 44% shareholder filed in 2002 alleging oppressive conduct by directors and failure of company to produce financial statements from 1994.
41.The reintroduction of an Order made in the case filed by John Duggan at this point of the Chronology is intentionally misleading.See response to paragraph 32.Furthermore, the quotation marks never closed imply that the Judge ruled on allegations stated in this paragraph.This is again false.The facts are that
1)neither Duggan nor Kelly ever owned 44% of the Company’s stock.
2) Duggan has never been nor ever will be a shareholder in H.M.B. Holdings Limited,
3) The alleged failure to produce financial statements is another red herring and not true.
4) Six years later, no substantiation of any allegations are forthcoming.
5)None of the above has any bearingon the issue of the Government's expropriation of privately owned property.
43.September 16 2003 -- Order granting final leave to apply to Privy Council
42 and 43.It took eight months for leave to apply to Privy Council to be granted.
By the middle of September 2003,elections were promised in December, only months away.Baldwin Spencer, UPP Leader ofthe Opposition,had sworn an Affidavit in support of our Company’s Application for Judicial Review.In that Affidavit, he made the following statements:
"This Affidavit is made voluntarily without fear or favour in the public interest and in support of the Applicant's application for judicial review....
As a practicing politician with a deep commitment to the political, social and economic development of Antigua and Barbuda, I am firmly of the view having carefully studied the relevant documents and issues concerning this mater, that the decision by the cabinet ofthe government of Antigua and Barbuda is fundamentally flawed.The decision must not be allowed to stand.The decision is pregnant with bias, unreasonableness and maladministration.The Court must intervene.
It is true that when this matter first came to the legislature members of the opposition lent support to the Government's intended scheme.However, members of the opposition soon discovered that material facts were suppressed by the Government thereby misleading the opposition into a position of support.The opposition took immediate corrective action.
We now prosecute the interest of the people of Antigua and Barbuda by opposing theGovernment's unlawful move to acquire the Applicant's property."
In the months preceding the election, it was agreed between the members of the Opposition and the Directors of H.M.B. Holdings that should the United Progressive Party win the upcoming election,the new administration would abandon the attempted acquisition and the Company would abandon its quest for a judicial review.It would be in everybody's best interest for the redevelopment of the resort at Half Moon Bay to move forward.The IFC was considering a financing package; MIGA and OPIC were discussing loan guarantees for the project.
Although the elections were delayed until March of 2004, The UPP won the election and Baldwin Spencer became Prime Minister.He named Justin Simon to the post of Attorney General.In spite of numerous meetings in which Spencer promised to reverse the GoAB's position,Simon succeeded in delaying the promised action, citing other pressing business and creating artificial problems to a simple Parliamentary resolution to abandon the forced acquisition and return the propertyto its previous status of unconditionally-owned private property, which the Company could then proceed to rebuild.
In February of 2005,almost a year after the new administration had taken over the government of the country,Simon asked that the Company transfer the title to their property to the Government, so that that Government could then officially return it to the Company.The Company refused,but continued meeting with the Prime Minister -- and the AG -- in order to resolve the process of reversing the actions leading to the acquisition initiated by the previous administration.These meetings were conducted in good faith and, in spite of the delays,with hope and positive expectations.
44.April 8 2005 - Crown registered as proprietor of HMB lands by order of Registrar of Lands upon application of Attorney General.
44.This action, taken by Justin Simon, was done without our knowledge and not as described in this paragraph.First, the transfer was made as of March 8th, not April 8th, although the application for the transfer was in fact relayed to the Registrar only on April 4th.Second, the transfer was made not to the Crown, but to the Government of Antigua and Barbuda -- which is constitutionally prohibited from owning land.Third,none of the lien-holders were notified of the transfer. ( Of course, the owners of the propertywere left totally in the dark. )Finally,this action was clearly in breach of the undertaking given by the Cabinet and the Attorney General as co-Defendants in our case against them for a Judicial Review, as this was clearly an act of "disposing of the applicant’s lands in purported pursuit of the provisions of the Land Acquisition Act" -- specifically forbidden until the final determination of the legal proceedings which had been suspended, but not abandoned.
45.July 18 2005 -- Resolution of the House of Representatives approving the decision of Cabinet to re-vest lands in HMB, on condition that:
(1) the appeal filed by HMB Holdings Ltd, which is pending before the Privy Council be withdrawn with no order as to costs whether in the Privy Council or the courts below;
(2) that HMB Holdings Ltd. give to the Crown an indemnity in respect of any claims which arise or may arise as a result of the acquisition;
(3) that HMB Holdings Ltd. proceed diligently to developing and restoring the property as a premier tourist resort said conditions to be accepted in writing within three (3) months of the
date of the passing of the Resolution by the House of Representatives.
45.This move for a ratification of the decision to "revest" the Half Moon Bay property in the owner-company was brought by Justin Simon to Parliament in July of 2005, during an interval of adjournment of what proved to be the last meeting between the owners and the Prime Minister.The owners were not notified of the content of the presentation. What proved to be its preamble, not quoted in this chronology, acknowledged and confirmed the legitimacy of the action taken by the previous administration.Both the preamble and the conditionshad previously had been discussed and rejected by the owners during meetings with the Prime Minister attended by the Attorney General, as well as in correspondence that was exchanged between the parties.By virtue of the positions stated through Affidavit and in discussions, the owners had been assured of the current administration's disagreement with the actions taken against the Company by its predecessor. The owners had always seen property ownership as unconditional, provided no laws were being breached and had been promised a return to this original status.Furthermore, it was discussed, understood and agreed that unconditional ownership of the property, such as existed prior to the GoAB's aggression, was a basic requirement for any financial assistance to the redevelopment of said property.
46.August 24 2006 -- Notification of Privy Council hearing fixed for April 23rd and 24th 2007.
46.The "Chronology" offered to the Privy Council stops here.The "Chronology" currently on the Government's web site, however, takes giant steps over much that followed, and creates a
misleading and false record of events.
During the debate in both Houses, the property was described as "vested in the Government of Antigua". For clarification, an Antiguan journalist went to the office of Land Registry and discovered the transfer of title to our propertydated March 8, 2005.
This action taken by the Attorney General, and one must assumewith the knowledge of the Cabinet,sounded a clear warning to the Company.This was inescapable proof of bad faith, which, coupled with thetwelve and a half hours of acrimonious debate on the subject in both Houses of Parliament, gave the Company new cause for concern.
Nevertheless, rather than rejecting the offer outright, the owners responded by an offer of mediation from Sir Louis Blom-Cooper, an outstanding and respected British jurist with previous experience in Antiguan politics and law.The Attorney General rejected this offer on the basis that there were no differences between the Government and the Company to mediate.
The Company then had no alternative to declining the proposal as stated in the Parliamentary Resolution and reluctantly proceeding with its appeal to the Privy Council.
The Company also filed an action against the Land Registrar for the improper transfer of title, requesting its restoration pending the outcome of the Judicial Review.
In spite of the above, the Company had not lost all hope of an out-of-court resolution to the matter and accepted yet another effort proposed by another eminent jurist, once an American Assistant Secretary of State.Of Counsel to Arnold and Porter, and now a vice-Chairman of Kissinger and Associates, the Honourable William Rogers traveled to Antigua in September of 2006, for a meeting with the Prime Minister. He was joined by the U.S. Ambassador, Mrs. Mary Kramer,who traveled from Barbados for that meeting with the Prime Minister the purpose of which was to determine whether an out-of-court agreement could be reached between H.M.B. Holdings Limited and the Government of Antigua..The Prime Minister welcomed the envoys and this opportunity to resolve the matter.He welcomed the Memorandum of Understanding which Mr. Rogers brought with him,in essence a counter - offerto theParliamentary Resolution of July 2005, giving a base from which a final agreement could be reached.
The Prime Minister read it, and agreed with the proposed approach.He indicated that he would seek advice from his Attorney General before signing it, but that he saw no impediment for such an agreement to be reached.It was clearly stated by the U.S. Ambassador that this was more than an effort to allow H.M.B. Holdings Limited the quiet enjoyment of their property, which is a constitutional right in both Antigua and the U.S.A.;it was also a diplomatic effort to avoid the political and economic consequences of breached treaties and international agreements by the expropriation of foreign-owned property by the Government of Antigua.
The Prime Minister asked that Mr. Rogers and Mrs. Kramer meet with Justin Simon, the Attorney General and with Harold Lovell, the Minister of Tourism,to continue the dialogue later that afternoon.Further diplomatic sentiments were exchanged on the willingness of the parties to deal with the matter expeditiously,since it was agreed that the matter needed to be concluded prior to the end of the year, when preparations would have to commence for the Privy Council hearing in April, 2007.
These negotiations never proceeded beyond one other short meeting in Washington. After a week's stay, the Attorney General called Mr. Rogers on his last day in that city, advising him that he had been very busy and could only meet with him within two hours of the call, for a short visit before departing to the airport.Mr. Rogers adjusted his own schedule and attended what proved to be a very short meeting at Simon's hotel.It was agreed that further meetings would be scheduled and that e-mail would be used to continue the discussion between them.
Meanwhile,the hearing of the case brought by our Company against the Land Registrar was finally fixed and a QC by the name of Joseph Archibald was given the task of representing the Company as barrister in that matter.His authority was expressly limited to the matter before the court, and that limitation had been repeatedly stated verbally and in writing, especially after he shared with us an invitation from the Attorney General to discuss "global settlement of HMB matters."There are numerous letters signed by the Managing Director of the Company expressly forbidding Archibald's entry into the arena in which the Company's interests were represented by an individual acting as a liaison between the Company and the U.S. State Department.
Nevertheless, whatever the inducement for direct contravention of his client's instructions, Archibald established a correspondence with the Attorney General, some of which he made available to the Company on November 15,2006.
These documents provided evidence leading to the immediate removal of Archibald from any and all representation of our Company.
Archibald and Simon had developed between them a new Resolution to be brought to Parliament re-vesting the Half Moon Bay property upon the fulfillment of four conditions precedent and the acceptance of a total ofeleven conditions attached thereto.
In summary, the three conditions presented by the Parliamentary Resolution of July 2005 were spelled out with greater detail --clearly exposing the pretence ofreasonable negotiations and the malevolent intent of the negotiators.
With regard to the first condition, the Company had to withdraw its appeal to the Privy Council before any consideration would be given to any agreement between it and the Government.
With regard to the second condition, it now occupied first place in the new Resolution.Far from the assertion that the indemnification was sought "for the Crown",the new "Condition" read as follows:
"HMB Holdings Limited by Resolution of its Directors and Resolution of its Shareholders passed and executed in accordance with law and its Articles ofAssociation and By-laws:firstly, give to the Attorney General for the benefit of the Crown, the Ministers of Government (whether individually or collectively)and the Government of Antigua and Barbuda and all its Departments and Public Officers an absolute indemnity against and in respect of all claims howsoever arising out of or in relation to any of the matters or things done or said directlyor indirectly related to the aforesaid compulsory acquisition..."
This represents an absolute indemnity to an unlimited number of individuals for an unidentified period of time.It also includes third-party liability, which is particularly important to individuals in government who had sold advice and rights-of-refusal for the Half Moon Bay property.
With regard to the third condition,a timetable was set with milestones of performance by the Company which began with providing the Government "with satisfactory proof of its financial capability to undertake substantial reconstruction of the said Half Moon Bay Hotel", continuing with a deadline to commence "substantial reconstruction ... said plans and designs having been approved by the Development Control Authority ..." and yet another condition (Identified as (9) ) as follows:
"Failure by HMB Holdings Limited to perform any or all of the conditions hereindue on its part shall render the re-vesting of all the said lands in HMB HoldingsLimited null, void and of no effect with the Registrar of Lands duly authorized hereby tocancel the said re-vesting ...."
As if that were not enough, two more conditions have been added.One requires the Company"to accept and acknowledge... that any extension (of time) shall only be by mutual agreement made in writing on the authority of the Cabinet..."
The other grants the Government the right to file and maintain a Caution on the property "prohibiting the sale or lease of the said lands or any portion thereof without the Government's consent pending substantial hotel reconstruction thereon but permitting the registration of a charge or charges by any approved financial institution...."
Archibald responded by letter and by telephone to this draft, which was faxed to him from the Ministry of Justiceunder cover of a letter dated November 6, 2006, signed by Hon. Justin L. Simon, QC Attorney General and Minister of Legal Affairs.He offered minor corrections of language to the draft and only one substantive change, namely that condition (9) "may hinder financial institutions from lending development monies when they consider that their security could be jeopardised by an automatic cancellation of the re-vesting.... We should discuss this change by telephone."
In a letter dated November 9, 2006, also faxed to Archibald and signed by Simon, the following change is proposed:
"Further to your letter of November 7, 2006 and our subsequent telephone call,I forward a revised draft Resolution for discussion with your client.We expect the terms of the deleted item (9) to be the subject of a side letter from the Government with the Company signing its approval."
By any standards,what the Attorney General proposedwas and is lending fraud.That Simon offered it as a condition to an out-of-court settlement of a politically charged matter receiving international attention speaks for itself.
The feigned indignation quoted in paragraph 50 of the Chronology submitted by Justin Simon, was a disingenuous excuse to abort the negotiations with William Rogers.There could not have been any confusion over the interests represented by Rogers.An e-mail to Simon dated November2006 states unequivocally
Dear Mr. Attorney General,
The Department of State is pressing me to know where we are in our jointattempt at settlement effort. The U.S. Department of Commerce is also getting involved.MIGA and OPIC as well.(They are no more anxious as I am myself).
May I safely assume that you have received my letter of almost a month ago? I would be most grateful if you could give me a call.
We are prepared to press forward and have been in touch with the international financial agencies.They are ready to cooperate, interested in doing a project in Antigua,and will be vexed because the matter cannot be resolved because of an expropriation.
The letter is signed with My very best regards,William D. Rogers
The response to this e-mail advised that Archibald was now dealing with the "global issue" of settlement and asked for clarification.Subsequent letters from William Rogers remained unanswered.No further efforts were made by the U.S. Government, as the Company was left with no choice but to proceed with its appeal to Privy Council.
This episode is presented in Simon’s Chronology as follows:
47.Aug/Sep/Oct 2006Meetings with William Rogers of US law firm and Attorney General towards settling the matter of the acquisition.
47.Only September and only two meetings, one in Antigua and the other in Washington.
48.Oct/Nov 2006 - Contact by and Meeting with Dr. Joseph Archibald Q.C. of Tortola Bar and Attorney General re global settlement of HMB matters.
48.Note the misrepresentation of the two individuals in 47 and 48.
49November 9 2006 - Letter to Dr. Archibald advising that I have informed Mr. Rogers of his similar efforts on behalf of HMB.
49.Nothing similar about it.Mr. Rogers was authorized to deal with the matter of expropriation and a liaison with the US State Department.Archibald was a local attorney, with clearly established limited authority to deal exclusively with the matter of improperly transferred title to Company’s property.
50.November 22 2006 - Letter to HMB local Counsel: “The situation is untenable as regards who represent your client.Kindly advise me in writing as to your client’s instructions on the way forward and which of the two firms is to represent the company”.This followed communication from Mr. Rogers that Dr. Archibald had no such remit.
50.A disingenuous commingling of separate issues, cases and claims.
51.December 7 2006 - Dr. Archibald advises that he no longer acts for HMB.
52.January 11 2007 - Letter from local Counsel advising that William Rogers of Arnold and Porter LLP are the attorneys retained to discuss the acquisition.
It may be interesting to note that the issue of the improper transfer of Title was initially placed in the hands of an English barrister and sometime judge, the Honourable Gavin Millar,QCpracticing from the Doughty Street Chambers in London.He arrived on Antigua, accompanied by his solicitor, several days in advance of the hearing to allow for his credentials to be reviewed and was subsequently instructed that his admission to the Antigua Bar would take place one hour
before the commencement of the hearing.On that day, after a long wait, he was told that the Antigua Bar Associated had found that he was not qualified to try a case before the local High Court and the Company was advised that it had the choice of an adjournment or a hearing without the participation of its lead counsel.
The loss of lead counsel required that another “acceptable” senior counsel be brought in to represent the Company’s interest – hence the appearance of Dr. Joseph Archibald, QC, with chambers in the British Virgin Islands, and the ensuing delay and backroom unauthorized negotiations described above.When the proposed “settlement” was presented to the Directors, and Dr. Archibald was removed representing the Company,Joyce Kentish, now practicing in Anguilla, returned to Antigua to deal with this matter.
In spite of further protests from the AG that the Company had no locus standito continue the action, the claim was finally heard late in 2007. Justice David Harris handed down a decision in favour of the Government.No corrections to the Title were recommended.The fact that the title read “GOVERNMENT OF ANTIGUA AND BARBUDA”, which, by specific Constitutional decree, may not own property, was determined to be a matter outside of the Company’s concern and therefore irrelevant to the case.The issues of the backdated Gazetting or of the Undertaking given and breached by the Government were never discussed.
The Chronology offered by the Government of Antigua and Barbuda ends at 2006.So does this response.
In subsequent events:
A Privy Council issued a Decision in June 2007,allowing the Government of Antigua to apply the power of eminent domain, as defined and granted by the Antiguan Land Acquisition Act, to the forced acquisition of the Half Moon Bay property, provided the owners’ constitutional rights to “fair compensation within a reasonable time” are observed and dealt with.
The Government took physical possession of the property in July 2007.
No compensation has been paid to-date.The Company has had to take the Government to court repeatedly for orders of mandamus, to compel the AG to follow the statutory process laid out by the Land Acquisition Act leading up to compensation.
Currently, two legal actions initiated by the Company in 2010 are moving forward, in spite of delays mounted by the AG.They deal with the property value established by a Board of Assessment ( 40% of the value established by CB Richard Ellis), and the breach of the owners’ constitutional rightsto “fair compensation within a reasonable time”.
The Government is pleading inability to pay any amount – a non-legal argument, especially in the case of a deliberate, optional action such as a “forced acquisition” of private property.
There is little doubt that the matter is headed for the Privy Council in London.