George et Al v McIntyre et Al

• Jurisdiction: Antigua and Barbuda
• Judge: Mitchell, J
• Judgment Date: 24 June 2003
• Neutral Citation: AG 2003 HC 10
• Docket Number: ANUHCV2002/0545, ANUHCV2002/0546, ANUHCV2002/0551
• Court: High Court (Antigua)
• Date: 24 June 2003

High Court

Mitchell, J.

ANUHCV2002/0545, ANUHCV2002/0546, ANUHCV2002/0551

George et al

and

McIntyre et al

Appearances:

Dr Henry Browne, Sherfield Bowen and Kelvin John with him, for the claimants.

Stanley I Marcus QC, Carla Brooks-Harris with him, for the defendants.

Judicial Review - Application to challenge the findings by a Commission of Inquiry of criminal misconduct and other grave improperties — Whether the commission had the power to make assertions of criminal charges — There is a difference between the findings of a commission and a conviction of a court of law — The Commission did not find anyone guilty of an offence — The Commissioners were entitled in the course of their inquiry to inquire into the conduct of the claimants and express whether they considered that breaches of criminal law or professional duties had occurred — The Salmon letters were intra vires the terms of reference of the Commission — Application dismissed.

Mitchell, J

1 These three consolidated cases arise from separate challenges brought by the claimants against findings by a Commission of Inquiry of serious misconduct, including criminal misconduct and other grave improprieties, on their parts, in connection with the Medical Benefits Scheme of Antigua and Barbuda. The principal issue as submitted on behalf of the claimants is whether the Commission had the power to make assertions and/or findings amounting to charges of criminal conspiracy, fraud and other forms of criminal misconduct on their part. Other issues they raise are whether there was sufficient evidence of a probative value to make such findings; and, whether the Commission had given them a proper opportunity of answering the allegations made against them. At the hearing, Dr Browne also raised the question whether the findings of the Commission amount to a breach of the principle of separation of powers.

2 In Antigua and Barbuda, there is a medical benefits scheme established by law. It was set up in 1978 by the Medical Benefits Act, Cap 217, as later amended. All employers and employees, including Government, are supposed to contribute to it. The employer and the employee both contribute 3 ¹/₂% of wages paid. The Medical Benefits Regulations 1980 as later amended spell out the persons who are entitled to claim medical benefits. The Act provides for a Board of Control which is responsible for administering the Scheme. There is also a Superintendent who is responsible subject to the direction of the Board for the direction of staff and the management of the Scheme. The Minister of Health appoints the members of the Board and from among them the Chairman and Deputy Chairman. Section 3 of the Act defines the purpose of the Scheme as being the provision of such financial and other assistance towards the cost of medical benefits to such class or classes of persons in such circumstances and subject to such conditions as may be prescribed by Regulations.

THE REPORT

3 Over an extended period of time, public disquiet in Antigua and Barbuda began to be expressed concerning the conduct of certain officials in relation to the management of the funds of the Scheme. Radio talk-shows on the subject became heated. Articles in newspapers and letters to the editor became more and more extreme in their accusations. As a result of all this public criticism of the management of the Scheme, His Excellency the Governor General on 9 July 2001 appointed the three defendants as a Commission of Inquiry under the Commissions of Inquiry Act, Cap 91, to conduct an inquiry into the management of the Scheme. The Instrument of Appointment charged the Commissioners specifically: to inquire into the conduct and management of the Medical Benefits Scheme from the coming into effect of the Medical Benefits Act, Cap 271 of the Laws of Antigua and Barbuda on the first day of October 1978 and in particular to inquire into the question as to whether there have been any violations of the Medical Benefits Act and Regulations made thereunder and the Loans (Mount St John Hospital Construction and Equipping) Act 1998 and Standard Accounting Practices in respect of:

They were further charged:

to make a full, faithful and impartial inquiry into the matters aforementioned and to report upon all the facts relating to the same and any other matter connected therewith which may be brought to your notice and to submit such conclusions, recommendations and observations as you see fit …

• (i) The disbursement of funds from each account established and operated under the Medical Benefits Scheme;

• (ii) The procurement policies and practices of the Medical Benefits Scheme for administrative, medical and pharmaceutical supplies and equipment, with special regard to weakness and abuses of the said policies and practices;

• (iii) The disbursement of funds from any account held in the name of the Medical Benefits Scheme to the Mount St John Medical Centre, or its order, under the Loans (Mount St John Hospital Construction and Equipping) Act, 1998;

• (iv) The overall financing of the construction of the Medical Benefits Pharmacy building and Community Clinics, and in particular, to make inquiry as to whether the projected costs were exceeded and if so the reasons therefore;

• (v) The disbursement of funds to persons not qualified for benefits pursuant to the Medical Benefits Act and for purposes not in … [words missing]

• (vi) The overall operation of the Medical Benefits Scheme with a view to making recommendations for the improvement in the management of the Scheme.

4 The Commission was assisted by special counsel Dr Richard Cheltenham QC. It invited members of the public to testify before it and it issued a number of Salmon Letters and witness summonses. The hearing was held at the Multi-Cultural Centre and the proceedings were broadcast live over the local radio stations. The hearings began in December 2001, some five months after the Commission was appointed and began its investigation in July 2001, and ended in June 2002. Among the witnesses who were represented by counsel and testified were the 1st claimant, Mr. Dave George, of George & George Construction Ltd (on 16, 17, and 23 April 2002). George & George did construction work for the Scheme. Also testifying was the 2nd claimant, the Honourable Hilroy Humphreys, former Minister of Health (4 December 2001, and 17, 19, and 22 April 2002). He had held ministerial responsibility for the Scheme during a part of the period in question. Also testifying was the 3rd claimant, Mr. Wilbur Harrigan, Senior Partner in the accounting firm of Pannel Kerr Forster (10 and 11 December 2001, and 16 and 17 January 2002). Pannel Kerr Forster had been the external auditors of the Scheme from the date of its inception. The Commission tendered its Report to the Governor General on 25 July 2002. It was subsequently published and was widely circulated in the community. Due to an unfortunate typing error it mistakenly describes itself as the “Report of the Royal Commission of Inquiry into the Medical Benefits Scheme.” It was not a Royal Commission of Inquiry.

5 The Report makes findings on each of the various matters raised in the terms of reference. It recites what might be described as a scandalous state of affairs over the management of the Scheme going back for many years, from its inception. As an example, so far as contributions were concerned, the Commission found that the Scheme has been run on private sector contributions only. Government had never paid any of the deductions made from the salaries of civil servants, far less its own contributory share. This government debt as of December 1999 amounted to over EC$120 million, less any set-off that might exist. Meanwhile, ministers and senior officials had exercised little or no restraint in making claims on the funds of the Scheme. Management staff had approved and disbursed large sums of money without prior reference to the Board. The Minister and the management had mainly interacted with each other, leaving the Board outside of the loop. The most elementary accounting procedures had never been observed. Virtually no financial controls had been put in place. So, there had been no financial or accounting manuals to guide the management and staff of the Scheme. Cheques had been frequently issued without supporting documentation. Payments had been authorised and paid without checking whether the items ordered had been received.

6 So far as the three claimants are concerned, and without going into unnecessary detail, the principal findings of the Report were as follows. Dave George: Mr. George, we have seen, is the owner of George & George, one of the principle building contractors used by the Ministry of Health to construct clinics and do other construction work for which the Scheme was made to pay. The Commissioners found that he was a friend of Mr. Humphreys, the Minister. Over the period 1994 to 2001, the Scheme had financed through grants to the Ministry of Health projects involving a total cost of approximately EC$40 million. In the period 1996 to 2001 George & George had been awarded contracts totalling approximately EC$5.7 million (paragraph 2.4.2). None of the contracts awarded to George & George had been through the Tenders Board, a statutory requirement. George & George had received contract work for the Scheme essentially from Mr Humphreys, the then Minister. Some of George & George's invoices or cost estimates had been prepared by an employee of the Scheme. These had been approved by Mr. Humphreys for payment without any evidence of his Permanent Secretary having been involved. George & George's invoices had been paid without the appropriate Job Completion Certificates, merely a signature on an invoice approving payment. There was no evidence the Commissioners found of any checks by the officials of the Ministry of Works of the estimates proposed, or of...