Page 1 of 49

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2017-00129

BETWEEN

COLIN LUCAS

Claimant

AND

PORT AUTHORITY OF TRINIDAD AND TOBAGO

Defendant

Before the Honourable Madame Justice Margaret Y Mohammed

Date of Delivery 29 May 2020

Appearances:

Mr Douglas Mendes SC and Mr Michael Quamina instructed by Ms Gabrielle Gellineau Attorneys at

law for the Claimant

Mr Russell Martineau SC and Ms Amirah Rahaman instructed by Mr Joel Roper Attorney at law for

the Defendant

JUDGMENT

INTRODUCTION

1. In early March 2013 the Claimant found himself in a predicament. He was advised to cease

reporting to work at the Defendant’s office as he was no longer employed by the Defendant.

The Claimant complied with this directive but he felt aggrieved as he was under the

impression that he had a contract of employment to work with the Defendant as the CEO of

the Port of Port of Spain (“ CEO of PPOS”) commencing 1 March 2013 (“the 2013 Contract”).

He instituted this action claiming that he was summarily dismissed. The Claimant seeks

against the Defendant damages for breach of the 2013 Contract and the sum of

Page 2 of 49

$1,200,000.00 which represented his base salary of $50,000.00 per month plus allowances

in the sum of $252,000.00 representing allowances of $10,500.00 per month totaling the

sum of $1,452,000.00 for the period 1 March, 2013 to 28 February 2015. He also seeks

gratuity of 25% of his gross salary for the period 1 March 2013 to 28 February 2015; interest

and costs.

2. Fortunately, in this matter several of the facts and contemporaneous documents are not in

dispute between the parties. It is therefore prudent at this stage to set out the undisputed

facts and address the disputed matters where I set out each party’s respective case.

THE UNDISPUTED FACTS AND CONTEMPORANEOUS DOCUMENTS

3. The Defendant is a statutory body1 which manages and co-ordinates the operations of the

Port of Port of Spain. During the period 1977 to 1999 the Claimant was employed by the

Defendant in various positions ranging from Acting Internal Auditor to General Manager. In

March 2011 the Claimant returned to work with the Defendant when by contract dated 22

April 2011 ("the 2011 Contract"), he was engaged by the Defendant as CEO of PPOS from 1

March 2011 and General Manager of the Defendant (“GM of the Defendant”) from 21 March

2011 for a two-year period.

4. In the 2011 Contract it was agreed that the Claimant would be paid “an interim basic salary”

of $50,000.00 per month and certain interim allowances, until such time as the Defendant

sought and obtained the requisite approval from the Office of the Chief Personnel Officer

(“CPO").

5. The Claimant’s employment under the 2011 Contract was for a term of two years expiring

on 28 February 2013 and he was entitled to the following additional benefits:

i) vacation leave of 25 working days per annum;

1 Port Authority Act Chapter 51:01

Page 3 of 49

ii) sick leave of 14 days with full pay every 12 months;

iii) the use of a vehicle or in lieu a monthly travelling allowance of $5,000.00;

iv) a telephone allowance of $500.00 per month;

v) a housing allowance of $3,000.00 per month;

vi) an entertainment allowance of $1,500.00 per month;

vii) an overseas passage allowance of $500.00 per month;

viii) a gratuity of 20% earned over the period of engagement;

ix) membership in the Defendant’s Group Life and Health plans.

6. The approval of the Claimant’s salary and other allowances as set out in the 2011 Contract

was obtained from the CPO on the 26 August 2013, months after the 2011 Contract came to

an end on 28 February 2013.

7. Clause 15 of the 2011 Contract provided that three months prior to the expiry of the term

of employment, the Claimant was to give notice of his desire “to remain in (the Defendant’s)

employment”, whereupon the Defendant was to “decide whether it will offer him further

employment”, such “re-engagement” to be “on such terms and for such period as may be

mutually agreed.”

8. In compliance with Clause 15 of the 2011 Contract, the Claimant notified the Chairman of

the Board of the Defendant, Mr Joseph Toney, (“Mr Toney”) by memorandum dated 1

December 2012 of his “desire to remain in the Authority’s employ”.

9. On 11 January 2013 (“the January 2013 meeting”), the Claimant met with Mr Toney who

offered him employment with the Defendant as the CEO of PPOS. The Claimant accepted the

offer.

10. By letter dated 18 January 2013, the Claimant wrote to the Chairman of the Defendant

indicating that he has accepted the Defendant’s offer with respect to the position of CEO of

Page 4 of 49

PPOS and he provided information on his salary under the 2011 Contract. Mr Toney

acknowledged the said letter by email dated 22 January 2013.

11. By memorandum dated 16 January 2013, the Executive Manager Human Resources Ms

Lyrine Lewis (“Ms Lewis”) wrote to the Defendant’s Secretary Ms Erva Bruno (“Ms Bruno”)

indicating that the 2011 Contract would expire on 28 February 2013 and that the Claimant

would have an excess of 13 vacation days left once the 2011 Contract ended. Ms Lewis

recommended that the Claimant be paid for the 13 vacation days, and requested guidance

on how to proceed. The memorandum was passed to Mr Toney who noted “Not Granted-

Mr Lucas to have these 13 days roll over in future employment.”

12. By memorandum dated 21 January 2013, Ms Bruno wrote to Ms Lewis indicating that the

Mr Toney has indicated that the 13 vacation days are to be rolled over into the Claimant’s

next contract term commencing 1 March 2013.

13. By letter dated 24 January 2013, Mr Toney informed the Minister of Works and Transport

(“the Minister”) that the Claimant had proceeded on annual vacation leave from 22 January

2013 to 28 February 2013 and that during his absence his duties would be performed by Ms

Sharon Mark (“Ms Mark”) and Ms Trudy Gill.

14. By memorandum dated 21 February 2013, Ms Mark, the Acting General Manager informed

Mr Toney of the results of an exercise carried out to determine the remuneration package

for the CEO of PPOS. The recommended salary was between $40,000.00 – $45,000.00 “plus

allowances within official guidelines”.

15. By letter dated 24 February 2013, Mr Toney proposed to the Acting Permanent Secretary,

Ministry of Transport (“the Permanent Secretary”), a salary of $40,000.00 to $45,000.00 for

the CEO of PPOS, plus allowances.

Page 5 of 49

16. On 27 February 2013 (“the February 2013 meeting”) the Claimant was invited to a meeting

with Mr Toney, Ms Mark and Mr Dorant Jack (“Mr Jack”) a Commissioner of the Board of the

Defendant. Mr Toney instructed the Claimant to immediately embark on the 13 vacation

days leave from 1 March 2013.

17. By memorandum dated 28 February 2013 to Ms Bruno, the Defendant’s Secretary Mr. Toney

cancelled the previous direction that the 13 vacation days be rolled over into the Claimant’s

“next contract term”, and instead he directed that the Claimant be paid the unutilised

vacation leave.

18. On the evening of 1 March 2013, the Claimant received a letter from Ms Bruno indicating

that he would be compensated for the 13 vacation days and that this decision superseded

Mr Toney’s earlier directive to have the said vacation days rolled over.

19. The Claimant reported to work on 4 March, 2013. By letter of even date he wrote to Mr

Toney drawing his attention to the letter of Ms Bruno dated 1 March 2013. On 5 March 2013,

Mr Toney had a telephone conversation with the Claimant.

20. By letter of 5 March 2013, Ms Pamela Ford (“Ms Ford”), the Senior Legal Officer of the

Defendant, wrote to the Claimant requesting from him particulars of the 2013 Contract,

including the terms and conditions and with whom it was negotiated and agreed upon. The

Claimant provided Ms Ford the information by letter dated 7 March 2013.

21. Ms. Ford responded by letter dated 11 March 2013. She indicated that discussions were held

between Mr Toney and the Claimant whereby the Defendant was willing to offer the

Claimant employment subject to remuneration and other terms to be agreed after receiving

the requisite approvals. She indicated that Mr Toney was under the impression that the offer

of employment was yet to be negotiated as the terms and conditions would be different

from the 2011 Contract and that it would require the approval of the Board of the Defendant

Page 6 of 49

and the CPO. The letter also contained a cheque in the sum of $24,197.15 which represented

payment for the Claimant’s 13 days vacation leave.

22. The Claimant acknowledged Ms Ford’s letter in his letter dated 12 March 2013. He stated

that while he disagreed with the Defendant’s contention that the 2013 Contract did not exist,

he would refrain from continuing to report for work.

23. By letter dated 26 August 20132 the Permanent Secretary wrote Mr Toney indicating that

the CPO approved the remuneration package for the two posts held by the Claimant in the

2011 Contract and for the post of CEO of PPOS for a period of three years with effect from

the 1 March 2013.

24. A pre-action protocol letter dated 5 May 2014 was sent by the Claimant to the Defendant

calling upon the Defendant to pay the Claimant damages in the sum of $1,440,000.00 for

breach of the 2013 Contract.

25. The Defendant responded by letter dated 15 April 2015 denying liability on the basis that

there was no valid 2013 Contract and there was no intention to enter into a contract as:

there was no properly constituted Board of the Defendant; Mr Toney had no authority to

enter into the 2013 Contract; and no remuneration was agreed.

THE CLAIMANT’S CASE

26. The Claimant pleaded that at the January 2013 meeting, Mr Toney on behalf of the Board of

the Defendant offered him a further term of employment in the position of CEO of PPOS on

the same terms and conditions as the 2011 Contract, save for the term concerning

remuneration, which the Claimant accepted. The Claimant also pleaded that Mr Toney

indicated that he would like to adjust the remuneration only because the Claimant would no

longer hold the position of CEO and GM of the Defendant but solely that of CEO of PPOS3.

2 Exhibit “C.L.10” of the Claimant’s witness statement. 3 Paragraphs 23 and 24 of the Statement of Case and paragraph 6 of the Reply

Page 7 of 49

27. The Claimant asserted that at the February 2013 meeting he was informed by Mr Toney that

the 2013 Contract was to be put before a soon to be installed Board of the Defendant as it

related to the issue of remuneration only.

28. The Claimant reported for work on 4 March 2013 with the expectation that his remuneration

would be settled once the new Board of the Defendant was appointed but he was wrongly

terminated on the 11 March 2013.

THE DEFENCE

29. The Defendant denied that it entered into the 2013 Contract and that it is liable for any loss

and/or damage suffered as alleged by the Claimant.

30. The Defendant’s position was that at the January 2013 meeting Mr Toney offered the

Claimant the single position of CEO of PPOS subject to the remuneration and other terms to

be agreed and approved by the Board of the Defendant. Mr Toney did not offer and the

Claimant did not accept a further term of employment in the position of CEO of PPOS on

the same terms and conditions of the 2011 Contract as the latter was for two jobs while Mr

Toney’s offer was for only one job which was the CEO of PPOS.

31. The Defendant asserted that there was no discussion at the January 2013 meeting of any

term or duration of the proposed 2013 Contract and no terms and conditions were finalised

or agreed upon. Its position was that, the discussions were preliminary and subject to

contract. Mr Toney made it clear to the Claimant that he needed to discuss the matter with

the Board of the Defendant in order to obtain the requisite approvals before any contract

could be made. As such the Defendant asserted that there was no intention to create legal

relations and there were no certainty of terms for the 2013 Contract for the following

reasons

Page 8 of 49

(a) At the time, there was no Board of Commissioners of the Defendant to approve the

2013 Contract;

(b) Mr Toney did not have authority to enter into the 2013 Contract;

(c) There was no approval from the CPO of the 2013 Contract;

(d) The proper hiring procedures were not followed.

32. The Defendant also asserted that, at the February 2013 meeting, Mr Toney did not inform

the Claimant that a new Board of the Defendant was soon to be installed and that he wished

to have their input on the sole question of remuneration or that he was awaiting the

appointment of a new Board of the Defendant to finalise only the remuneration package.

The Defendant’s position was that Mr Toney indicated at the February 2013 meeting that

the Board of the Defendant’s approval was required for all terms and conditions of the 2013

Contract.

33. The Defendant contended that by letter dated 1 July 2013 it paid to the Claimant, the sum

of $9,306.58, which represented the payment for five additional days worked during his

vacation period. By letter dated 16 September 2013, the Defendant paid the Claimant the

sum of $90,000.00 which represented the gratuity for the 2011 Contract.

THE ISSUES

34. In order for the Claimant to succeed with his claim the following issues must be determined

in his favour:

(a) Did Mr Toney and the Claimant enter into the 2013 Contract at the January 2013

meeting?

(b) Was Mr Toney’s conduct after the January 2013 meeting indicative that there

was an intention to create legal relations at the January 2013 meeting?

(c) If the 2013 Contract is valid, is it enforceable?

Page 9 of 49

(d) What measure of damages is the Claimant entitled to if he proves he was

wrongfully terminated?

35. There were different versions of the January 2013 meeting and the events which took place

after. In resolving the disputes of facts in this matter, the Court has to satisfy itself which

version of events is more probable in light of the evidence. To do so, the Court is obliged to

check the impression of the evidence of the witnesses on it against the: (1)

contemporaneous documents; (2) the pleaded case; and (3) the inherent probability or

improbability of the rival contentions, (Horace Reid v Dowling Charles and Percival Bain4

cited by Rajnauth–Lee J (as she then was) in Mc Claren v Daniel Dickey5).

36. The Court is also guided by the Court of Appeal judgment in The Attorney General of

Trinidad and Tobago v Anino Garcia6 where it stated that any deviation by a party from his

pleaded case immediately calls his credibility into question.

THE WITNESSES

37. At the trial the Claimant gave evidence on his behalf and he called Ms Lewis as his witness.

The Defendant’s witnesses were Mr Toney, Mr Jack, and Ms Marcia Charles- Elbourne (Ms

Elbourne”) Acting Deputy General Manager of the Defendant at the time of the trial.

DID MR TONEY AND THE CLAIMANT ENTER INTO THE 2013 CONTRACT AT THE JANUARY

2013 MEETING?

38. It was submitted on behalf of the Claimant that at the January 2013 there was a fully

functioning Board of the Defendant. Mr Toney on behalf of the Defendant agreed to employ

the Claimant as the CEO of PPOS for a period of three years on the same terms as the 2011

4 Privy Council Appeal No. 36 of 1897 5 CV 2006-01661 6 Civ. App. No. 86 of 2011 at paragraph 31

Page 10 of 49

Contract but with regard to remuneration, on terms to be determined by the CPO which was

the agreed mechanism.

39. Senior Counsel for the Defendant argued that at the January 2013 meeting there was no

concluded 2013 Contract, as the Claimant and Mr Toney, did not agree on the remuneration

(which included salary, allowances and gratuity) for the post of CEO of PPOS which Mr Toney

said had to be adjusted from that in the 2011 Contract. The parties also did not agree to any

duration of the 2013 Contract.

40. The fundamental difference between the parties on the January 2013 meeting was that the

Claimant was of the opinion that he entered into a valid 2013 Contract while the Defendant’s

position was that at best it was an agreement to agree on the post of CEO of PPOS.

Relevant principles of law

41. It was common ground by the parties that an agreement to agree is not a valid contract.

42. The United Kingdom Supreme Court in Wells v Devani7 reiterated the words of Lord Clarke

in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH8where he explained the relevant

principles required for the formation of a valid binding contract as :

“The general principles are not in doubt. Whether there is a binding contract

between the parties and, if so, upon what terms depends upon what they have

agreed. It depends not upon their subjective state of mind, but upon a consideration

of what was communicated between them by words or conduct, and whether that

leads objectively to a conclusion that they intended to create legal relations and had

agreed upon all the terms which they regarded or the law requires as essential for

the formation of legally binding relations. Even if certain terms of economic or other

significance have not been finalised, an objective appraisal of their words and

7 [2019] UKSC 4, para 17 8 [2010] UKSC 14; [2010] 1 WLR 753, para 45

Page 11 of 49

conduct may lead to the conclusion that they did not intend agreement of such terms

to be a precondition of a concluded and legally binding agreement.” (Emphasis

added)

43. The general rule is that certainty and completeness of the terms of the agreement are

essential in order to enforce a contract. The authors of The Law of Contract at paragraph

2.157 stated:

“If an agreement is to be enforced as a contract the parties to it must have reached

agreement on all its essential terms which must be expressed with sufficient clarity

to permit enforcement. If the terms of an agreement are incomplete, unclear,

ambiguous or uncertain it will often be assumed that the parties did not intend their

agreement to be legally binding, or that they have not yet reached a final agreement;

and since an acceptance must agree to all the terms of the offer, it follows that the

offer must contain all the terms of the contract, so that a statement which contains

terms which are unclear or ambiguous is unlikely to be regarded as an offer. Similarly,

a statement which indicates that important issues remain to be agreed is unlikely to

be construed as an offer.”

44. At paragraph 2.158 it was stated that:

“A failure to agree on all the essential terms of a bargain is generally fatal to a finding

that there is a contract. It follows that in order to be regarded as an offer a statement

must contain all the essential terms of the proposed contract. As a minimum,

therefore, an offer will normally contain a statement of the offeror's proposed

undertaking and the price (consideration) demanded in return for that undertaking.

However, agreement on price will not be sufficient if there is an indication that other

terms remain to be agreed. Similarly, a proposal which indicates a price will not be

construed as an offer if there is any other explicit or implicit indication that the

Page 12 of 49

person making the proposal does not intend to assume a legal obligation if the

proposal is accepted.”

45. Senior Counsel for the Claimant relied on the principles of law in the cases of Brown v

Gould9, Cudgen Rutile (no 2) Pty Ltd v Chalk10, Anderson and ors v London Fire and

Emergency Planning Authority11,Premier Telecom Communications Group Ltd and anor. v

Webb12, Hughes v Pendragon Sabre Ltd13 and Green Deal Marketing Southern Ltd v

Economy Energy Trading Ltd and ors14. The cases concerned allegations of incompleteness

of a contract where there were outstanding terms.

46. The Defendant did not take issue with the principles of law enunciated in the aforesaid cases.

However, Senior Counsel for the Defendant submitted that when the said principles are

applied to the facts in the instant case the Court ought to find that the Claimant’s case is

without merit.

47. It is appropriate to address the principles of law in the cases referred to by Senior Counsel

for the Claimant at this juncture. I will deal with them in the order of chronology of the dates

of the decision.

48. In Brown, the issue before the Court concerned the validity of a renewal of a lease where

there was a clause in it providing for an option to renew "at a rent to be fixed having regard

to the market value of the premises at the time of exercising this option taking into account

to the advantage of the tenant any increased value of such premises attributable to

structural improvements made by the tenant during the currency of this present lease."

9 (1972) 1 Ch 53 10 (1975) AC 520 11 (2013) EWCA Civ 321 12 (2014) EWCA Civ 994 13 (2017) 1 All ER (Comm) 173 14 (2019) 2 All ER (Comm) 191

Page 13 of 49

49. Megarry J identified three possible types of option. The first was where the option simply

said "at a rent to be agreed". In such a case, he said, "no formula for quantifying the rent is

laid down, and prima facie the option will ... be void as being a mere contract to make a

contract, or, perhaps more properly, as being an agreement to make a contract, or a contract

dependent upon the making of an agreement." The second and third types of option he

identified were those "expressed to be exercisable at a price to be determined according to

some stated formula, without any effective machinery being in terms provided for the

working out of that formula", and those which provide "both a formula and the machinery,

as, for example, arbitration." Megarry J found that the option fell within the second category

and therefore he held that it was not void for uncertainty. In arriving at that position Megarry

J reiterated the principle that "the proper approach ... is that the court is reluctant to hold

void for uncertainty any provision that was intended to have legal effect." It is to be noted

that in Brown there was a formula for fixing the rent.

50. Cudgen Rutile was a decision of the Privy Council on an appeal emanating from Australia.

The Appellants were given the right to or an authority to prospect and mine for minerals

over the certain lands which included Crown lands by the Minister of Mines which was

renewable for a further period of one year from 1 July 1966. On their application for renewal,

the appellants were granted two authorities to prospect, one by the Governor in Council

under section 46 (1) (b) of the Mining Acts in respect of so much of the area as consisted of

reserves and the other by the Minister under section 23A (1) in respect of so much of the

area as consisted of Crown land and private land. The two authorities were for terms of four

years from July 1, 1966, and granted the appellants the right to prospect the land subject to

the authority for all minerals other than coal, mineral oil and petroleum and the right to the

grant of mining leases over any part of the subject lands. The appellants carried out extensive

prospecting operations incurring considerable expense and discovered large mineral

deposits. On 2 February, 1970, they applied for three special mineral leases in respect of the

minerals so discovered in lands within the subject areas, but not including any private land.

Page 14 of 49

The applications were heard by the Mining Warden who recommended that the leases

should be granted, but the Government refused to grant any.

51. The Appellants filed a claim seeking specific performance of the contract to grant them

leases or damages. The Respondent representing the Government of Queensland entered

demurrers on the grounds, inter alia, that the Appellants were not entitled to the grant of

any special mineral leases and that, if on a true construction of the authorities to prospect,

any provision purported to entitle the Appellants to the grant of a special mineral lease or

to oblige the Governor in Council to grant any such lease, the term was void as neither the

Mining Acts nor any other Act permitted the inclusion in an authority to prospect, a term

which would oblige the Governor in Council to grant a special mineral lease. The Full Court

allowed the demurrers.

52. On appeal to the Privy Council, the Board found that the demurrers were well founded on

the basis that the Crown in Commonwealth of Australia could not contract for the disposal

of any interest in Crown lands except in accordance with powers conferred by statute.

Accordingly, where a statute prescribed a mode of exercise of the statutory power it had to

be observed. It followed that the freedom of the Minister responsible for implementing the

statute could not be validly fettered by anticipatory action. The Minister, before granting a

mineral lease, whether in respect of reserves Crown land, had to make statutory decisions

and exercise statutory discretions, and any attempt to bind him in advance was beyond his

statutory powers, and no purported agreement could give rise to any contractual obligation

enforceable in the courts.

53. Although the Board arrived at the aforesaid position Lord Wilberforce stated the modern

approach to be adopted by the Court in determining the validity of a contract as :

"A further argument, against a conclusion that a valid and enforceable contract was

constituted by the authority to prospect of September 15, 1966, was put by counsel

for the respondent: this was that a number of essential terms, namely, the character

Page 15 of 49

of the lease, the areas to be included, and the term, were not fixed by the authority

to prospect but were left to be determined by the Minister. Where this situation

exists, it was said, there is no effective contract, or to use a phrase of Sir Frederick

Pollock, a contract which is illusory. Examples of the judicial use of this concept are

the judgment of Cussen J. in Beattie v. Fine [1925] V.L.R. 363, 369 and the judgment

of Windeyer J. in Placer Development Ltd. v. Commonwealth of Australia, 121 C.L.R.

353. Their Lordships consider that, in modern times, the courts are readier to find an

obligation which can be enforced, even though apparent certainty may be lacking as

regards some term such as the price, provided that some means or standard by which

that term can be fixed can be found (cf. Hillas & Co. Ltd. v. Arcos Ltd. (1932) 147 L.T.

503; Sweet & Maxwell Ltd. v. Universal News Services Ltd. [1964] 2 Q.B. 699 and

Godecke v. Kirwan (1973) 47 A.L.J.R. 543)." (Emphasis added)

54. Subsequently the English Court of Appeal in Anderson and Hughes adopted the aforesaid

approach espoused Lord Wilberforce in Cudgen Rutile.

55. In Anderson, the appellant employees (E) appealed against a decision that a collective pay

agreement with the respondent employer (L) enabled L to choose from two alternative pay

increases.

56. L had made the agreement with E's trade union for the years 2007 to 2009, and it was

incorporated into E's employment contracts. It provided for set pay increases for 2007 and

2008, and for 2009 it provided that pay would be increased by 2.5 % or by the NJC Local

Government Services settlement plus 1 per cent. In 2009 L took the view that it was not

obliged to implement an increase of 2.5%. E began proceedings claiming unlawful

deductions from wages.

57. The Court of Appeal found that a clause in a collective agreement that "pay will be increased

by 2.5% or by the NJC for Local Government Services settlement plus any uplift required to

ensure general pay increases for the period 2007-09 are 1% above the NJC settlements for

Page 16 of 49

the same period” was not "an agreement to agree or an agreement to negotiate" but was

"an agreement for a rate of pay to be determined in accordance with the agreed terms,

properly construed."

58. In arriving at this position, the principle of law which the Court of Appeal enunciated was

that it was necessary to consider what the agreement conveyed to a reasonable person

having all the background knowledge that would have reasonably been available to the

parties. The Court found in Anderson that there was a formula for the increased pay.

59. In Hughes, H had learnt that Porsche was to manufacture a limited edition of its 911 GT3 RS4

model. He emailed the dealer, stating that he would like to place an order for the new model.

A few days later, a sales executive advised H that he needed to visit the dealership premises

that day to pay an "expression of interest deposit" of £10,000 to increase his chances of

obtaining a vehicle. He did so and also signed a document headed "Vehicle Order Form"

which stated that he agreed to purchase the vehicle subject to the terms and conditions in

the form. The document stated: "This document contains the terms of a contract and

includes the Terms and Conditions attached". It also indicated that the seller was not obliged

to fulfil orders in the sequence in which they were placed. A few days after the customer

signed the order form, the sales executive emailed him, confirming that he had placed an

order and confirming that he would get the first vehicle which the dealer was allocated by

Porsche. The dealer subsequently received a vehicle, but supplied it to another customer.

60. The issue was whether in the circumstances of that case, there was a contract or an

agreement to agree. On appeal, the Court of Appeal applied the principle of law stated by

Lord Wilberforce in Cudgen Rutile and found that H had entered into a binding agreement

with the dealer, as the terms and conditions in the order form, had all the hallmarks of what

would be expected in an agreement to sell a vehicle. Notably in Hughes, although the

agreement was subject to terms and conditions, the Court of Appeal found that the express

statement at the foot of the form that the document contained the terms of the contract

which included the terms and conditions attached.

Page 17 of 49

61. In Premier Telecom the appellants (P and R) appealed against an order granting summary

judgment to the respondent company director (W). P was a successful private company, 60

per cent of whose shares were owned by R and 40 per cent by W. The success of its

operations depended heavily on personal relationships built up between R and senior

representatives of various companies with which it did business. R had no contract with P.

Everything depended on trust and good working relationships. W was a director of P and

employed by it until October 2011, when a dispute arose between him on the one hand and

P and R on the other. A compromise was reached whereby P and R were to buy out W's

shareholding, and they agreed to delegate the valuing of the shares to expert valuers (G). G

accepted the appointment on terms set out in a letter of engagement dated December 2012.

P and R took issue with G's valuation, which led to the commencement of an action in which

they sought to overturn G’s valuation. W issued an application for summary judgment on

the grounds that the claim had no real prospect of success.

62. P and R submitted that the parties had intended that the court should decide all questions

of law bearing on the valuation, with the result that the valuers' decision was not intended

to be binding on any of them. They argued that the valuation was flawed, as G should have

valued P by reference to the absence of a contract between R and P which was likely to have

reduced the amount a willing buyer would have agreed to pay for it.

63. On appeal, P and R’s application to overturn G’s valuation was dismissed. The Court of

Appeal took the position that the contract was valid as it provided a machinery for the

resolution of a disagreement by a third party expert. The rationale was that the scope of G's

mandate was defined by the letter of engagement, the terms of which were agreed between

the parties. It contained nothing that suggested that the parties intended the court should

exercise a close degree of control over the performance of their functions. The Court of

Appeal was of the opinion that parties who referred a matter to an expert for decision

usually did so in order to obtain a quick and relatively inexpensive decision of a binding

nature on a matter that called for informed judgment. They had to be taken to have

Page 18 of 49

recognised that mistakes might be made, both of fact and law, but they were prepared to

take that risk because they placed a high degree of confidence in their chosen expert.

64. The most recent case concerning allegations of incompleteness of a contract was Green Deal

Marketing Southern Ltd. The Claimant, (G) was an energy marketing company which

claimed damages at common law against the Defendants energy supply companies and their

respective directors for breach of contract and for compensation under a specific 1993

Regulation in the UK. The Defendants counterclaimed for loss of profits said to have resulted

from a breach of contract by G.

65. Between May 2015 and January 2017, G had been engaged by the Defendants to visit

households which took their gas and electricity from the larger energy suppliers to try to

persuade them to switch to the Defendants. Initially it did so under a written contract (the

Partnering Agreement). Its case was that, from June 2016, its relationship was governed by

a new written contract (the Heads of Terms Agreement). On 31 January 2017, the

Defendants summarily ended the relationship on the basis that G had failed to comply with

the agreed targets and that its field agents were guilty of large-scale misselling.

66. One of the issues before the Court was the validity of the contractual arrangement between

the parties. The Court found that even though parts of the Heads of Terms Agreement and

the Partnering Agreement had been left incomplete, they had been formally executed by

both parties at a meeting after lengthy negotiations. While not conclusive, that was strongly

suggestive of an intention that they should have legal effect with the Partnering Agreement

intended to govern only the initial three-month period

67. Kerser J stated the following:

"[97] A distinct ground on which an agreement may lack contractual effect is that

important points remain to be agreed and the agreement is insufficiently complete.

Incomplete agreement or vagueness in expression may itself be a reason for inferring

Page 19 of 49

that the parties did not intend to create legal relations; in such a case the agreement

will lack contractual effect for that reason. Even if the parties did intend to create

legal relations, however, their failure to agree important terms may frustrate their

intention because the agreement may be held void for uncertainty. The courts are

reluctant to reach this latter conclusion, particularly if the parties have acted upon

the agreement. In Pagnan Spa v Feed Products Ltd [1987] 2 Lloyd’s Rep 601, which

concerned the question whether a prolonged exchange of telexes had resulted in the

formation of a contract, Bingham J said at 611 (citations omitted):

“Where the parties have not reached agreement on terms which they

regard as essential to a binding agreement, it naturally follows that

there can be no binding agreement until they do agree on those terms

… But just as it is open to parties by their words and conduct to make

clear that they do not intend to be bound until certain terms are

agreed, even if those terms (objectively viewed) are of relatively

minor significance, the converse is also true. The parties may by their

words and conduct make it clear that they do intend to be bound,

even though there are other terms yet to be agreed, even terms which

may often or usually be agreed before a binding contract is made …

The parties are to be regarded as masters of their contractual fate. It

is their intentions which matter and to which the Court must strive to

give effect."

68. Senior Counsel for the Defendant referred the Court to the principle of law set out by

Mendonca JA in the local Court of Appeal decision in Barrow v the National Insurance Board

of Trinidad and Tobago15 to support his position that the Claimant cannot rely of the terms

15 Civ Appeal No 59 of 2001

Page 20 of 49

of remuneration under the 2011 Contract as the basis for his dismissal or alleged breach of

the 2013 Contract.

69. It was argued on behalf of the Claimant that the learning in Barrow is totally inapplicable to

the facts of the instant case as the Appellant in Barrow was unable to provide any evidence

whatsoever of a concluded contract either orally or by conduct.

70. In Barrow, the Claimant’s case was that when the contract by which he was employed as

Chief Accountant came to an end, he was employed in the higher post of Comptroller

Finance and Accounts. He alleged that by extending his acting appointment from time to

time the Defendant in effect promoted him to the position of Comptroller. There was

evidence that after his continuous acting in the post the Claimant offered his services on

terms which approximated a draft contract. He was seeking to negotiate special terms but

there was no response from the Defendant. There was also evidence that the Human

Resources Comptroller of the Defendant, a Mr. Lopez, prepared a Report (“the Lopez

Report”) for the Board of the Defendant which recommended that the Board consider the

Claimant’s draft contract. There was no evidence that the Board of the Defendant

considered and acted on the recommendations contained in the Lopez Report. The Claimant

contended that he was the Comptroller under an implied contract, which contract was to be

implied from the conduct of the Board including things said.

71. On the issue of whether the Claimant was appointed to the substantive post, Mendonca JA

stated at paragraph 35:

“It is of course trite law that if there is to be a binding contract there must be

consensus ad idem; that is to say a sufficient correlation between the offer and

acceptance. A contract will not be concluded unless the parties have agreed to its

material terms. An offer may be made by conduct and may be accepted by conduct

unless there is a prescribed method of acceptance that excludes it, which is not the

case here. Whether the offer has been accepted by conduct requires an objective

Page 21 of 49

test to be adopted. The test has been explained in this way in Chitty on Contracts Vol.

1 (31st Ed.) at para 2-002:

“Under this test, once the parties have to all outward appearances agreed in the

same terms on the subject matter, they neither can, generally, rely on some

unexpressed qualification or reservation to show that he had not in fact agreed to

the terms to which he had appeared to agree. Such subjective reservations of one

party therefore do not prevent the formation of a contract.”

72. The Court of Appeal concluded in Barrow that is was not prepared to accept the Appellant’s

written evidence that he was told that he was appointed to the position. Mendonca JA stated

at paragraphs 49 and 50:

“In my judgment when all the evidence is considered it leads inexorably to the

conclusion that the Appellant was not appointed to the permanent and substantive

post of Comptroller

The Appellant in his statement of case also advances the position that his offer of

April 4th, 1996 was accepted. But there is no evidence that the Appellant’s

employment, after the offer was made, was continued on the terms as contained in

the draft contract that accompanied the letter of April 4th, and on which the

Appellant offered his services as Comptroller. Indeed, according to the Appellant’s

case the Board did not agree on “pension matters” and the Board was yet to discuss

the matter with him. There was therefore no consensus ad idem on material matters.

Further, the Lopez Report itself invited the Board to consider the offer. That does not

support the contention that the offer was accepted. There is no evidence that the

Board accepted Mr. Lopez’s recommendation. Indeed, the subsequent letters of the

Appellant indicate clearly that it did not and he was still seeking the Board’s response

as to his contractual position within the Board.”

Page 22 of 49

73. I take no issue with the principles of law set out by Mendonca JA in Barrow. In my opinion,

Barrow, like the cases referred to by the Claimant all turned on the facts in each case.

74. The witnesses who were at the January 2013 meeting were the Claimant and Mr Toney. The

background knowledge which they parties had at the time is relevant in order to determine

the plausibility of the different versions of the discussions which took place at the said

meeting. In considering the background knowledge the evidence of other persons who were

not present namely Ms Lewis, Mr Jack and Ms Elbourne is also relevant.

The Evidence

75. The Claimant stated in his witness statement that on the 1 March 2011 he was employed by

PPOS as its CEO and on 21 March 2011, he also assumed duties as the Defendant’s

CEO/General Manager. The 2011 Contract with the Defendant was dated 22 April 2011 and

it was for a term of two years16. According to the Claimant, his remuneration in the 2011

Contract was stated as pending the approval of the CPO and that when he began to work

with the Defendant his salary was not yet finalised by the CPO. He stated that his interim

compensation, pending CPO approval, went to the Board of the Defendant by way of Board

Paper17, which was signed on 15 April 2011 and the Board of the Defendant approved the

interim remuneration package for him on 28 April 2011.

76. The Interim nature of the 2011 Contract was explained by the Claimant at paragraph 2 (a) of

his witness statement which stated that:

“Until such times as the Authority would have sought and obtained the

requisite approvals for an appropriate salary for the person engaged (such

salary to be paid retroactively from the commencement of the contract) he

shall be paid an interim basic salary of Fifty Thousand Dollars ($50,000.00)

per month, Trinidad and Tobago currency. In addition the person engaged

16 Exhibit “C.L.1” of the Claimant’s witness statement 17 Exhibit “C.L.2” of the Claimant’s witness statement

Page 23 of 49

shall be entitled to receive those Allowances set out at clauses 5 through 9

below. These Allowances are similarly interim applications, subject to

retroactive adjustment pursuant to representations as cited earlier in this

Clause.”

77. In cross examination, the Claimant accepted that the 2011 Contract was an Interim Contract

which was approved by the Board of the Defendant after a Board Paper was presented to it.

The Claimant agreed that he did not sign any Interim Agreement for the 2013 Contract as he

did with the 2011 Contract and that there was no Board Paper submitted for the 2013

Contract to the Board of the Defendant for consideration as was done for the 2011 Contract.

78. At paragraph 7 of his witness statement, the Claimant stated that for years he was aware

that there are clear guidelines for the determination of salaries and allowances for persons

employed at executive management level by the Defendant. He explained that the first step

in the procedure for a post such as CEO of PPOS, required the Defendant to make a proposal

for the remuneration for the said position to the CPO. The CPO would submit the proposal

with the recommendations to the Ministerial Committee responsible for salaries in the

public service. The Ministerial Committee would meet, make a determination and

communicate its position through the CPO who would then give the Defendant approval for

the said remuneration package. The Claimant noted that the process could take months and

in some instances years. He stated that it was not unusual for the Defendant to employ

persons at the executive management level in contract positions before receiving the

approval from the CPO for the salaries. He stated that he was first employed as CEO of PPOS

on 1 March 2011 and his remuneration was not finalised at the commencement of his

employment as there was no approval from the CPO.

79. During cross examination, the Claimant stated that once the terms of a new contract are

approved by the CPO the remuneration is implemented by the Defendant. He accepted that

Page 24 of 49

nothing prevented an employee of the Defendant from exercising his or her option not to

accept the terms approved by the CPO.

80. The Claimant relied on the evidence of Ms Lewis to support his evidence that it was not

unusual for the Defendant to employ persons on contract at the executive management

level before the approval of the CPO was obtained.

81. Ms Lewis testified that she was last employed with the Defendant in the position of Executive

Manager, Human Resources and that she retired in 2013. She testified that it was not

unusual for a person to be working with the Defendant while remuneration was not

approved by the CPO. She stated that there were two persons who were employed before

approval for remuneration was received from the CPO namely Ms Avagale Rajkumar (“Ms

Rajkumar”), the Head of IT and Mr Ramjattan Singh (“Mr Singh”), Head of Marketing. She

stated that they both had Interim Contracts and eventually the Defendant obtained approval

from the CPO for the contracts for the said persons.

82. The Claimant’s version of the January 2013 meeting was set out at paragraphs 13 to 15 of

his witness statement. According to the Claimant, at the time of the January 2013 meeting,

the Defendant had a valid subsisting Board as there was a Board meeting on the 15 January

2013 and a Special Board Meeting on the 17 January 2013. The Claimant stated that at the

January 2013, meeting Mr Toney indicated, that he had discussed with the existing Board of

the Defendant, about offering him the post of CEO of PPOS and that the Board of the

Defendant decided to offer him the 2013 Contract. Mr Toney also indicated to the Claimant

that he would like to adjust the remuneration because the Claimant would no longer have

the responsibilities as the GM of the Defendant. The Claimant stated that he accepted the

position of CEO of PPOS on the same terms and conditions as the 2011 Contract save for the

quantum of the remuneration which they agreed had to be discussed further as Mr Toney

was under the impression that he was in receipt of two salaries under the 2011 Contract.

The Claimant stated that he offered to set out a written explanation for the remuneration

structure under the 2011 Contract. Mr Toney agreed and they both decided that the

Page 25 of 49

Claimant would write to Mr Toney on the quantum of the remuneration under the 2011

Contract.

83. During cross examination, the Claimant accepted that his case is that he entered into the

2013 Contract with the Defendant on the 11 January 2011 at the January 2013 meeting. He

agreed that the arrangements for the 2013 Contract were based on a discussion he had with

Mr Toney at the January 2013 meeting.

84. The Claimant also testified in cross examination that (i) at the time of the January 2013

meeting he knew that the term of the existing Board of the Defendant was due to expire

shortly; (ii) it was not reasonable for a Board of the Defendant, which was about to demit

office, to finalise a contract for an important office as CEO of PPOS; (iii) Mr Toney would not

have known at the January 2013 meeting that he would have accepted the position of CEO

of PPOS; (iv) Mr Toney indicated that the salary had to change for the post of CEO of PPOS

and that the gratuity, travelling allowances and vacation leave would be the same as in the

2011 Contract; (v) there were no discussions on the individual terms of the 2013 Contract;

(vi) the remuneration and duration of the 2013 Contract were not agreed at the January

2013 meeting; (vii) the discussions were not about the renewal of the 2011 Contract but

continued employment with the Defendant; and (viii) there was no agreement on how his

outstanding vacation leave was to be treated.

85. There were two letters which the Claimant wrote to Mr Toney after the January 2013

meeting in which he referred to the discussions which he had with Mr Toney at the said

meeting. The Claimant annexed the said letters to his witness statement and they also

formed part of the Agreed Bundle of documents. They were dated 18 January 201318 and 7

March 201319.

18 Exhibit “CL 4” 19 Exhibit “CL15”

Page 26 of 49

86. The letter dated 18 January 2013 was written by the Claimant to address the issue that the

salary of the CEO of PPOS ought not to be adjusted downwards. It stated in the penultimate

paragraph that there is nothing to prohibit the Defendant from revisiting this initiative

through appropriate channels applying the appropriate methodology.

87. In the Claimant’s letter dated 7 March 2013 the Claimant referred to the January 2013

meeting and at paragraph 3 he stated that “…we both acknowledged that the determination

of the new package would require in any event, Board consideration and ultimately, the

sanction of the Chief Personnel Officer, a process with which I indicated both my familiarity

and comfort.”

88. Mr Toney’s evidence on the January 2013 meeting was set out at paragraphs 7 to 11 of his

witness statement. He stated that he called the January 2013 meeting, between the

Claimant and himself to discuss the Claimant’s memorandum dated 1 December 2012. He

did so after the Board of the Defendant had met informally in the absence of the Port

Secretary and any other executive officers of the Defendant to discuss the said

memorandum. At the January 2013 meeting, he told the Claimant that his memorandum

dated 1 December 2012, was discussed by the members of the Board of the Defendant and

that he can offer him the single position of CEO of PPOS, but that his present salary would

be revised. He stated that the Claimant was very concerned about the remuneration and he

insisted that he should be paid the same basic salary as that set out in the 2011 Contract for

the position of CEO of PPOS as an interim measure. The Claimant promised to provide a

written justification for the retention of his salary under the 2011 Contract in the now

offered single position of CEO of PPOS.

89. According to Mr Toney, there was no discussion at the January 2013 meeting of any term of

any proposed 2013 Contract and no terms and/or conditions were agreed upon or finalised

or settled. The discussions were only preliminary as he had no authority from the Board of

the Defendant to enter into any contract of employment with the Claimant. Mr Toney also

Page 27 of 49

stated that the tenure of most members of the Board of the Defendant was about to expire

and the latter had never decided to offer the Claimant a new contract of employment.

90. In cross examination, Mr Toney agreed that there was an agreement between him acting on

behalf of the Board of the Defendant and the Claimant to employ him as CEO of PPOS with

the Defendant on terms and conditions to be approved by the CPO. He also stated that those

terms and conditions which were approved by the CPO and which were received by the

Defendant in August 2013 were never communicated to the Claimant. In re-examination Mr

Toney stated that the Claimant’s employment at a future date were subject to the terms and

conditions to be agreed between himself and the Defendant.

91. According to Mr Jack’s witness statement he retired as an Assistant Divisional Manager,

Marine Division of the Defendant and he was appointed a Commissioner of the Board of the

Defendant from 13 October 2011 to 12 October 2013. He stated that he knew the Claimant

since the latter was working at the Defendant while he was working there and that the

Claimant was the CEO of PPOS and GM of the Defendant when he became a member of the

Board of the Defendant.

92. Mr Jack stated in his witness statement, the Board of the Defendant gave Mr Toney the

authority, to meet with the Claimant and have preliminary discussions concerning the single

position of CEO of PPOS, subject to terms and conditions and the approval of the Board of

the Defendant. Mr Jack’s evidence in cross examination was that the Board of the Defendant

authorised Mr Toney to meet with the Claimant and offer him the post of CEO of PPOS and

that the Claimant was interested in the said post. He agreed that in January 2013 there was

a properly constituted Board of the Defendant.

93. The Defendant relied on the evidence of Mrs Elbourne to support its case that there was no

concluded 2013 Contract as the process established by the Defendant were not followed.

94. Mrs Elbourne stated in her witness statement that she was the Deputy General Manager

(Ag) of the Defendant and since October 2014 and her substantive position is Port Secretary.

Page 28 of 49

According to Mrs Elbourne’s witness statement, the Board of the Defendant and the Human

Resource Committee, guide management on matters of recruitment of persons in key

positions of executive and senior management at the Defendant. She stated that the

remuneration packages for the Defendant’s executive and senior management positions are

determined prior to the recruitment/selection/retention of the individual(s). She stated that

an Evaluation Team/Committee is established by the Defendant to review current salaries

and allowances which would encompass the remuneration package and make

recommendations to either (a) maintain current levels or (b) to increase the quantum of

remuneration packages.

95. Ms Elbourne explained that if option (b) is chosen, a job evaluation exercise is conducted

and upon completion it is submitted to the Human Resource Committee for its

consideration. The Human Resource Committee may ask for it to be reviewed and re-

submitted, or if there are no concerns, the Job Evaluation Exercise Report will be submitted

with the Human Resource Committee’s recommendations to the Board of the Defendant for

approval.

96. According to Mrs Elbourne, the Board of Defendant’s approval of the recommendation of

the Human Resource Committee is submitted as the proposed remuneration package to the

Permanent Secretary for review, and onward submission to the CPO for approval. The

deliberations of the CPO are sent to the Human Resource Advisory Committee, which

determines the approved guidelines for the said positions. The advice is sent to the

Permanent Secretary from the CPO, and then conveyed to the Office of the General

Manager/CEO of the Defendant, who in turn advises the Senior Human Resources

functionary in the Defendant and the Port Secretary, who then communicates same to the

Board of the Defendant. She explained that it is only on the completion of this process that

the recruitment process can be progressed. She stated that the Job Evaluation Exercise in

respect of the post of CEO of PPOS, was completed on 21 February 2013.

97. According to Mrs Elbourne, the Defendant was not in the practice of employing persons in

posts where the salaries have not yet been approved by the CPO. To the contrary, the

Page 29 of 49

process of recruitment is usually progressed upon the completion of the fixing of

remuneration packages with the relevant approval of the CPO and the Board of the

Defendant.

98. In cross examination Mrs Elbourne accepted that there were two occasions when the

Defendant deviated from its established practice for entering into contracts of employment

with senior executives at management level namely with Ms Rajkumar the Head of IT and

Mr Singh, Head of Marketing.

Analysis and Findings

99. At the time of the January 2013 meeting, the relevant objective facts which must be taken

into account in determining whether the 2013 Contract was entered into at the January 2013

meeting were: the Claimant was a very senior officer who worked with the Defendant from

2011 to 2013 in the position of CEO of PPOS and GM of the Defendant. The Claimant was

very knowledgeable on the detailed process which was employed by the Defendant before

it entered into any contractual arrangement with any person in executive management

position at the Defendant. The Claimant was aware of the importance of obtaining the

approval of the Board of the Defendant for any contract of employment of an officer

employed at senior management level with the Defendant, even if it was an interim contract.

The Claimant was also aware of the importance of the approval from the CPO of any terms

and conditions in for any contract of employment for an officer at senior management with

the Defendant. Further, the Claimant knew that any Board of the Defendant whose term

was due to come to an end would be hesitant in making a decision on contracting an officer

in a senior management position such as CEO of PPOS. The Claimant was also aware that

there was a standard procedure which was used by the Defendant before entering into any

contract of employment with any senior executive or management level staff at the

Defendant and that the two exceptions of Ms Rajkumar and Mr Singh had interim contracts.

Page 30 of 49

100. In my opinion, when the aforesaid objective facts are considered in the context of the

evidence, the assertion by the Claimant that at the January 2013 meeting he entered into

the 2013 Contract is without merit.

101. First, it was not the Claimant’s pleaded case that he and Mr Toney agreed at the January

2013 meeting that the CPO would determine the remuneration for the 2013 Contract. With

respect to the events of the January 2013 meeting, the Claimant pleaded at paragraph 8 of

the Statement of Case that Mr Toney indicated that he would like to adjust the terms of

remuneration. At paragraph 10 of the Statement of Case, the Claimant pleaded that Mr

Toney indicated that the Defendant would have to revisit the remuneration. Paragraph 15

of the Statement of Case stated that the Claimant was informed by Mr Toney that a new

Board of the Defendant was soon to be installed and that he wished to have their input on

the question of remuneration only. Therefore, there was no pleaded facts by the Claimant

in the Statement of Case about the CPO determining the terms of the 2013 Contract. Indeed,

the Claimant’s case was that the Board of the Defendant had to determine the question of

remuneration only which is substantially different from his submission that the CPO had to

determine the terms of the 2013 Contract.

102. Unlike the facts in the cases of Brown, Cudgen Rutile and Anderson, the Claimant did not

plead that at the January 2013 meeting he and Mr Toney agreed on any formula or a

mechanism for the approval of the remuneration for the 2013 Contract.

103. Second, it was also not the Claimant’s evidence in his witness statement that he and Mr

Toney agreed at the January 2013 meeting that the CPO was the agreed mechanism for

determining the remuneration for the 2013 Contract. The Claimant’s evidence at paragraphs

13 to 15 of his witness statement was that at the January 2013 meeting he accepted the

position of CEO of PPOS on the same terms and conditions as the 2011 Contract save and

except for the quantum of remuneration which they agreed to be discussed further as Mr

Toney was under the impression that he was in receipt of two salaries under the 2011

Contract. In my opinion this aspect of the Claimant’s evidence in chief undermined the

Page 31 of 49

credibility of his assertion that he and Mr Toney agreed that the mechanism to determine

the remuneration under the 2013 Contract was the CPO.

104. Third, the contemporaneous documents namely the Claimants letters dated 18 January 2013

and 7 March 2013 also did not support his assertion that at the January 2013 meeting he

and Mr Toney agreed that the remuneration in the 2013 Contract would be determined by

the CPO. In the letter dated 18 January 2013 the Claimant accepted that the Board of the

Defendant could revisit the terms of the remuneration for the position of CEO of PPOS. He

did not speak about the CPO determining the remuneration in the said letter. Further, in the

letter dated 7 March 2013 the Claimant recognised that any remuneration package for the

post of CEO of PPOS had to be considered and approved by the Board of the Defendant

before any approval by the CPO. In neither letter the Claimant referred to he and Mr Toney

agreeing at the January 2013 meeting that the mechanism to determine the remuneration

for the 2013 Contract was the CPO.

105. Fourth, Mr Toney’s evidence in cross examination that there was an agreement between

him acting on behalf of the Board of the Defendant and the Claimant to employ the latter as

the CEO of PPOS on terms to be determined by the Defendant’s internal process and

approved by the CPO, in my opinion also did not assist the Claimant in proving his case, as

this was not his case. In any event, Mr Toney’s evidence in re-examination was that the

Claimant’s employment at a future date with the Defendant was subject to terms and

conditions to be agreed between the Claimant and the Defendant.

106. Fifth, the Claimant’s admission in cross examination that the duration of the 2013 Contract

was not agreed at the January 2013 meeting, in my opinion undermined his case that only

the issue of remuneration was outstanding. This admission was also important as the

Claimant pleaded a claim for damages and breach of contract for a period from 1 March

2013 to 28 February 2015 when he knew all along that there was no agreement on the term

of the 2013 Contract.

Page 32 of 49

107. Sixth, even the Claimant’s evidence in cross examination on the terms of the 2013 Contract

which were discussed at the January 2013 meeting were inconsistent which further

undermined the credibility of his case. At one point the Claimant stated in cross examination

that Mr Toney indicated that the salary had to change for the post of CEO of PPOS and that

the gratuity, allowances and vacation leave would be the same as the 2011 Contract yet later

he stated that at the January 2011 meeting there were no discussions on the individual terms

of the 2013 Contract.

108. Seventh, the Claimant was not being truthful with the Court when he stated in his witness

statement that when Mr Toney offered him the post of CEO of PPOS at the January 2013

meeting, the Board of the Defendant had offered him the 2013 Contract which he accepted.

Based on the Claimant’s background knowledge of the Defendant’s practice and procedures

for entering into a contract of employment with a person at senior management level, he

knew at the January 2013 meeting that the position of CEO of PPOS was new and that the

established process had not been followed. He was also aware that the 2011 Contract was a

written Interim Contract. Based on Ms Lewis evidence, although the established procedure

was not followed for Ms Rajkumar and Mr Singh, those persons had interim contracts and

therefore their circumstances were different from his for the 2013 Contract. In this regard,

the evidence of Ms Lewis and Ms Elbourne were consistent on the practice and procedures

followed by the Defendant in entering into contracts of employment with senior

management persons and their evidence did not assist the Claimant’s case. Unlike the cases

of Green Deal Marketing Southern Ltd and Hughes there was no documents which

contained the terms the Claimant asserted he and Mr Toney agreed to at the January 2013

meeting.

109. Eighth, the lack of the Claimant’s credibility was borne out by his admissions in cross

examination that at the time of the January 2013 meeting the term of the existing Board of

the Defendant was due to expire shortly and that it was not reasonable for a Board of the

Defendant which was soon to demit office to enter into any contract of employment for a

senior management position as CEO of PPOS.

Page 33 of 49

110. Ninth, based on the objective facts, the Defendant’s version is more probable which was

that when the Claimant met with Mr Toney at the January 2013 meeting the only offer from

Mr Toney which the Claimant accepted was the position of CEO of PPOS and there was no

agreement entered on that day for the 2013 Contract. At best, Mr Toney and the Claimant

were still in discussions on the terms and conditions for the said position as they both knew

that the position of CEO of PPOS was different from the position which the Claimant held

under the 2011 Contract. It was also not probable that Mr Toney on behalf of a Board

entered into the 2013 Contract with the Claimant since they both were well aware that the

Board of the Defendant was soon to demit office and such action was unreasonable.

WAS MR TONEY’S CONDUCT AFTER THE JANUARY 2013 MEETING INDICATIVE THAT THERE

WAS AN INTENTION TO CREATE LEGAL RELATIONS AT THE JANUARY 2013 MEETING?

111. It was submitted on behalf of the Claimant that Mr Toney’s conduct after the January 2013

meeting, and the correspondence which he wrote and which were written on his behalf

demonstrated that he intended at the January 2013 meeting, that the Claimant’s future

employment with the Defendant in the position of CEO of PPOS under the 2013 Contract

was supposed to commence on the 1 March 2013.

112. On the other hand, Senior Counsel for the Defendant argued that it was highly unlikely that

Mr Toney’s actions, subsequent to the January 2013 meeting, demonstrated that he entered

into the 2013 Contract at the said meeting. In particular it was submitted that none of the

correspondence which were issued by the Claimant and or Mr Toney or on his behalf

referred to the Claimant’s future employment with the Defendant was under the 2013

Contract as CEO of PPOS which was due to start on the 1 March 2013.

113. After the January 2013 meeting there were several correspondence which were written

concerning the Claimant’s status at the Defendant and there were also discussions which

Page 34 of 49

took place at the February 2013 meeting. I have already briefly referred to the

correspondence in the undisputed facts and each party’s respective case.

The Evidence

114. The Claimant stated in his witness statement that by letter dated 18 January 2013 he wrote

Mr Toney addressing the latter’s concerns about his remuneration package under the 2011

Contract. He stated that by email dated 22 January 2013, Mr Toney replied to him stating

“Thanks, I shall need to get advice on your note and get back to you.”

115. The Claimant continued in his witness statement that he was invited to the February 2013

meeting by Mr Toney. He attended and Ms Mark and Mr Jack were also present. The

Claimant stated that he was informed by Mr Toney that a new Board of the Defendant was

soon to be installed and that Mr Toney wished to have their input on the sole question of

the quantum of his remuneration for the post of CEO of PPOS. Mr Toney then instructed him

to embark on his 13 days vacation leave with effect from 1 March 2013. According to the

Claimant, Mr Toney also indicated that by the time this vacation was up the new Board of

the Defendant would be in place and the issue of the remuneration would be finalised. He

agreed to proceed on the said vacation leave as instructed.

116. The Claimant stated that on the evening of 1 March 2013 he received a letter from Ms Bruno

indicating that he would be compensated for his 13 vacation days leave instead of it being

rolled over into the new employment term. According to the Claimant, by letter dated 1

March 2013, he wrote to Mr Toney drawing his attention to Ms Bruno’s letter dated 1 March

2013. He indicated that it was not in accordance with Mr Toney’s previous instructions. He

said that he also indicated that he had begun working in accordance with the 2013 Contract

with the expectation that the issue of quantum of remuneration would be settled once the

new Board of the Defendant was appointed.

117. The Claimant continued in his witness statement that on 5 March 2013, Mr Toney called him

at his office phone at the Defendant, to enquire about his duties at the Defendant on the 26,

Page 35 of 49

27, 28, 29 and 31 January 2013. He said he informed Mr Toney that he was assisting the

Defendant’s Attorney at law with the Defendant’s response to an injunction brought by the

then Executive Manager, Finance, Ms Charmaine Lewis against the Defendant. During this

conversation, Mr Toney did not at any time indicate to the Claimant that the latter was not

working in accordance with the 2013 Contract. The Claimant also stated that by letter dated

5 March 2013 he wrote to Mr Toney confirming the conversation and setting out the duties

he had undertaken for the Defendant on the dates Mr Toney had requested.

118. According to the Claimant, on the morning of the 6 March 2013, he received a letter dated

5 March 2013, from Ms Ford who requested particulars of the 2013 Contract including the

terms and conditions and with whom it was negotiated. The Claimant stated he provided

the details by letter dated 7 March 2013. Ms Ford responded by letter dated 11 March 2013

terminating the 2013 Contract without notice. By letter dated 12 March 2013, the Claimant

acknowledged Ms Ford’s letter dated 11 March 2013 and noted that while he disagreed that

no 2013 Contract existed, he would refrain from reporting to work in accordance with the

Defendant’s wishes.

119. The Claimant was cross examined on a few of the correspondence. The Claimant testified

that the first and last paragraphs of the letter dated 18 January 2013 which he wrote to Mr

Toney, after the January 2013 meeting, on the explanation of his remuneration under the

2011 Contract, demonstrated that he had another contract with the Defendant which was

the 2013 Contract. He relied on the first paragraph which stated “Further to our discussions

last Thursday on the renewal of my contract but only with respect to the post of Chief

Executive Officer, PPOS (consistent with the initial intention when I was asked to return to

the Port in 2011), I wish, in accepting the Authority’s offer, to address your concerns/

questions with respect to the remuneration package attaching the post, both at present and

in the future.” He said that he also relied on the last paragraph which stated “I hope the

foregoing has adequately addressed your concerns, and I thank the Authority for the

opportunity to continue to serve for another contract term.”

Page 36 of 49

120. The Claimant accepted in cross examination that in the notation made by Mr Toney, at the

top of the memorandum dated 16 January 201320 from the Executive Manager Human

Resources of the Defendant, to the Port Secretary which stated “ Not granted. Mr Lucas to

have those 13 days roll over in future employment” Mr Toney did not state that the 2011

Contract was renewed but that he was referring to the Claimant’s future employment with

the Defendant.

121. The Claimant was referred to the letter dated 25 February 2013 sent by Mr Toney to the

Permanent Secretary which concerned the revised compensation packages for the positions

of: (1) CEO of PPOS and GM of the Defendant on contract; (2) the GM/ CEO of the Defendant

on contract and; (3) the CEO of PPOS on contract. The Claimant accepted in cross

examination that Mr Toney did not need the approval of the Board of the Defendant to send

the said letter and that the employment of the CEO of PPOS required the approval of the

Board of the Defendant.

122. The Claimant also accepted in cross examination that in the letter dated 26 August 2013

from the Permanent Secretary, the CPO’s approval for the 2011 Contract stated his name

but the approval for the remuneration package for position of CEO of PPOS for the period of

three years commencing 1 March 2013 did not state his name. The Claimant admitted in

cross examination that in most circumstances it was sensible to link the duration of the term

of a contract to the remuneration package.

123. Mr Toney stated in his witness statement that by letter dated 18 January 2013, the Claimant

wrote to him to address his concerns with respect to the remuneration package for the post

of CEO of PPOS. He also stated that after the January 2013 meeting, the term of office of the

members of the Board of the Defendant, save and except for his and Mr Jack’s came to an

end on 18 January 2013. According to Mr Toney, during the period 18 January 2013 to 13

October 2013 there was no quorum of the Board of the Defendant to transact the

20 Exhibit :C.L.6” of his witness statement

Page 37 of 49

Defendant’s business and no valid contract or any matter could have been entered into or

renewed by the Defendant.

124. Mr Toney also stated in his witness statement that he received an email from the Claimant

on 22 January 2013 with respect to the salary the Claimant was in receipt of under the 2011

Contract. He replied by email dated 22 January 2013, stating that “I shall get advice on your

note and get back to you.” Mr Toney stated that his response to the Claimant’s email dated

22 January 2013, was not an acknowledgement of the 2013 Contract as there was no

agreement on the remuneration and that no other terms or conditions were discussed or

settled at the January 2013 meeting.

125. According to Mr Toney, he wrote to the Minister on the 24 January 2013 informing him of

the Claimant’s approved annual vacation leave. He stated at that time the issue of the

remuneration to offer the Claimant for the position of CEO of PPOS was still undetermined.

126. Mr Toney continued in his witness statement that on 21 February 2013, Ms Mark wrote to

him concerning the proposed remuneration packages for CEOs of Companies under the

Defendant. On 25 February 2013, he wrote to the Permanent Secretary for clarification on

the revised compensation packages for the various executive positions within the

Defendant, including but not limited to the CEO of PPOS.

127. Mr Toney stated that he called the February 2013 meeting with the Claimant, Ms Mark, and

Mr Jack. At the said meeting, he indicated to the Claimant that he had received his advice on

the proposed remuneration for the post of CEO of PPOS as stated in the email dated 22

January 2013, and that the said advice would be considered by the Board of the Defendant,

when it was appointed because at that time there were insufficient members to make a

quorum. He also informed the Claimant that a new Board of the Defendant was soon to be

installed and he wished to have their input on the question of remuneration for the position

of CEO of PPOS. He said that he never advised the Claimant that the new Board’s input was

required on the question of remuneration “only”. He stated that he indicated to the Claimant

Page 38 of 49

that the new Board’s approval was required to approve any new contract and all its terms

and conditions.

128. Mr Toney explained that although the Port Secretary, Ms Bruno used the words “next

contract term” in her letter dated 1 March 2013 to the Claimant, he wrote at the top left-

hand corner of the memorandum dated 16 January 2013 the words in “future employment.”

According to Mr Toney, the letter dated 1 March 2013, issued by the Port Secretary, Ms

Bruno, pursuant to his instructions, but which did not include the instructions about a “next

contract term”, did not acknowledge the existence of the 2013 Contract and it did not

contain instructions to the Claimant to commence work in accordance with the 2013

Contract. Mr Toney stated that the letter dated 1 March 2013 ended the 2011 Contract. The

Claimant was paid and he accepted payment for his unused vacation leave.

129. Mr Toney stated that on 4 March 2013, the Claimant wrote to him with respect to “payment

in lieu of thirteen (13) days’ vacation leave.” It was only upon the receipt of that letter, he

realised that the Claimant was at the office of the Defendant and that he did not ask the

Claimant to report to work. On 5 March 2013, Mr Toney telephoned the Claimant to ask him

to submit details of the days he worked without compensation and Claimant replied by letter

dated 5 March 2013.

130. According to Mr Toney, by letter dated 7 March 2013, the Claimant acknowledged that “the

determinates of the new package would require in any event Board consideration and

alternatively, sanction of the Chief Personnel Officer, a process with which I indicated both

my familiarity and comfort.”21 Mr Toney stated that on the 7 March 2013 there was no

approval by the Board of the Defendant nor sanction of the CPO for the 2013 Contract for

the Claimant.

21 Paragraph 3 of Exhibit “J.T.15 of the witness statement of Mr Toney. Also Exhibit “C.L.15” of the witness statement of Mr Lucas

Page 39 of 49

131. In cross examination, Mr Toney accepted that on the 17 January 2013 when he wrote the

note “Not granted Mr Lucas to have those 13 days roll over in future employment’” on the

memorandum dated 16 January 2013, he meant that the Claimant would be employed with

the Defendant at a future date after the 17 January 2013. He stated that he received the

Claimant’s letter dated 18 January 2013 on the 22 January 2013 and he had seen it before

the February 2013 meeting. Mr Toney accepted that on the 24 January 2013 when he wrote

to the Minister with respect to the approval of the Claimant’s outstanding vacation leave, he

did not inform the Minister that the Claimant’s employment under the 2011 Contract would

cease by 28 February 2013. He stated that he informed the Minister that the Claimant was

not employed after 28 February 2013 in a letter dated 28 February 201322.

132. Mr Toney also stated in cross examination that at the time of the February 2013 meeting the

term of most of the members of the Board of the Defendant had expired. He accepted that

at the February 2013 meeting he had informed the Claimant to proceed on vacation leave

on the 1 March 2013 since the remuneration for the post of CEO of PPOS had to be

determined by the Board of the Defendant in the future. Mr Toney also accepted that on the

28 February 2013 he told the Port Secretary, Ms Bruno, that he cancelled his previous

decision with respect to the Claimant’s vacation leave and he instructed her to pay the

Claimant for his leave. Mr Toney explained that he changed his decision, as he realised

overnight, that he did not have the authority to contract with the Claimant to work with the

Defendant and if he had allowed the Claimant to proceed on vacation leave from the 1 March

2013, he would be contracting him to work at the Defendant. He accepted that in his last

conversation with the Claimant he did not tell him that he did not have any further contract

of employment with the Defendant.

133. Mr Jack stated in his witness statement that he was present at the February 2013 meeting

with the Claimant, Ms Mark, and Mr Toney. According to Mr Jack, at the said meeting the

Claimant indicated he wished to be paid for the 13 days vacation leave and he requested

22 Exhibit “J.T. 19” of Mr Toney’s supplemental witness statement

Page 40 of 49

payment of his gratuity owed to him for the 2011 Contract. Mr Jack stated that Mr Toney

never told the Claimant that he wished to have the input of the new Board of the Defendant

on remuneration “only” for the 2013 Contract. According to Mr Jack, Mr Toney told the

Claimant that the approval by the Board of the Defendant was required for all terms and

conditions of the 2013 Contract and there was no quorum of the Board at the time. Mr Jack

stated that Mr Toney indicated to the Claimant at the February 2013 meeting that nothing

could be done without a Board of the Defendant and he told the Claimant to proceed on his

vacation leave from 1 March 2013.

134. In cross examination, Mr Jack stated at the February 2013 meeting he was unsure if the

Board of the Defendant was properly constituted. He maintained that at the February 2013

meeting the Claimant stated that he wanted to be paid for his 13 days vacation leave and

that Mr Toney told the Claimant that once the Board of the Defendant was properly

constituted it would meet about the post of CEO of PPOS.

Analysis and Findings

135. It was submitted on behalf of the Claimant, that the following three contemporaneous

documents concerning the Claimant’s vacation leave, namely (a) the notation by Mr Toney

on the 16 January 2013 memorandum; (b) the memorandum dated 21 January 2013 from

Ms Bruno, the Port Secretary to the Human Resources Manager in the Defendant; and (c)

Mr Toney’s letter dated 24 January 2013 to the Minister, demonstrated that it was Mr

Toney’s intention from the January 2013 meeting that the 2013 Contract was due to start on

the 1 March 2013.

136. The notation made by Mr Toney on the memorandum dated 16 January 2013 stated “Not

granted Mr Lucas to have those 13 days roll over in future employment.” In my opinion, if

Mr Toney intended to enter into the 2013 Contract at the January meeting, it was more

probable that, he would have expressly stated so in his notation. Mr Toney’s notation of

“future employment” on the said memorandum was consistent with the Claimant’s evidence

in cross examination that Mr Toney was referring to his future employment with the

Page 41 of 49

Defendant and that the notation did not state that the 13 days were to rollover into the 2013

Contract or that it was supposed to start in the Claimant’s future employment which was

due to start on the 1 March 2013. It was also consistent with Mr Toney’s evidence in cross

examination that he was referring to the Claimant’s employment with the Defendant at a

future date after 1 March 2013.

137. The memorandum dated 21 January 2013 was written by the Port Secretary, Ms Bruno to

another officer employed by the Defendant and not the Claimant. It stated “The Chairman

has directed that those days (13 days) are to be rolled over into Mr. Lucas' next contract

term commencing March 1, 2013". This statement by Ms Bruno was inconsistent with Mr

Toney’s notation on the memorandum dated 16 January 2013 which stated “roll over in

future employment" as opposed to “next contract term commencing 1 March, 2013”. It was

also inconsistent with Mr Toney’s evidence in chief and cross examination. Mrs Bruno was

not called as a witness during the trial to explain the inconsistency between Mr Toney’s

expressed instructions and her memorandum. In the absence of Mrs Bruno’s evidence, it

would be purely speculative for me to assume that when she wrote this memorandum her

instructions were that there was a next contract term for the Claimant commencing 1 March

2013. As such I have attached little weight to the contents of this document concerning the

starting date of a next contract term for the Claimant.

138. I agree that the submission by Senior Counsel for the Claimant on the interpretation of Mr

Toney’s letter dated 24 January 2013 was probable. However it was equally probable that

Mr Toney was informing the Minister, that the Claimant, the CEO of PPOS and the GM of the

Defendant was proceeding on vacation leave and therefore away from office and that Ms

Mark and Ms Gill were performing the duties. In my opinion, it was material, that Mr Toney

did not state in the said letter that the Board of the Defendant and the Claimant had entered

into the 2013 Contract at the January 2013 meeting.

139. As stated previously, the Claimant wrote a memorandum to Mr Toney dated 18 January 2013

concerning the discussions at the January 2013 meeting. Senior Counsel for the Claimant

Page 42 of 49

argued that the failure by Mr Toney to respond, refuting the Claimant’s acceptance of the

Defendant’s offer to serve for another term as CEO of PPOS was indicative that Mr Toney

knew of the 2013 Contract after the January 2013 meeting.

140. It was not in dispute that in response to the Claimant’s letter dated 18 January 2013, Mr

Toney emailed the Claimant on the 22 January 2013 which stating that “Thanks I shall need

to get advice on your note and get back to you.”

141. In my opinion, there was nothing for Mr Toney to refute as the Claimant’s memorandum

dated 18 January failed to clearly indicate that the Claimant was speaking about a specific

contract, which was supposed to start on the 1 March 2013. The words used by the Claimant

in the first paragraph of the said letter were “Further to our discussions last Thursday on the

renewal of my contract, but only with respect to the post of Chief Executive Officer, PPOS”.

In any event, this was contradicted by the Claimant’s admission in cross examination that

that the discussion he had with Mr Toney at the January 2013 meeting was not about

renewal of the 2011 Contract but continued employment with the Defendant and there was

no agreement to continue the 2011 Contract.

142. The Claimant continued in the same paragraph of the said letter “I wish, in accepting the

Authority’s offer to address your concerns/ questions with respect to the remuneration

package attaching to the post, both at present and in the future”. In my opinion, if the 2013

Contract was entered into at the January 2013 meeting and the Claimant was due to start

on the 1 March 2013 as he asserted, he would have expressly indicated this in the said letter

and not refer to the remuneration package for the post of CEO of PPOS “in the future”. In

the last paragraph of the said letter, the Claimant stated “...I thank the Authority for the

opportunity to continue to serve for another contract term”. Again if the Claimant knew, as

he has asserted in this case, that the 2013 Contract was entered into at the January 2013

meeting, he would have expressly stated that his service for another contract term was to

start on the 1 March 2013. However, he failed to do so.

Page 43 of 49

143. In any event, the Claimant agreed in cross examination that Mr Toney’s email dated 22

January 2013 to him, never stated that he needed to get advice on remuneration only.

Therefore based on the Claimant’s own evidence, Mr Toney’s conduct up to the 22 January

2013 did not clearly demonstrate that the only issue outstanding in the 2013 Contract was

remuneration. Based on the said email, Mr Toney version was more probable, namely after

the January 2013 meeting the parties were still in discussion about the terms of the 2013

Contract.

144. The two correspondence which were written after the 24 January 2013 and before the

February 2013 meeting were the memorandum dated 21 February 2013 from Ms Mark to

Mr Toney, on the results of the exercise to determine the remuneration package for the CEO

of PPOS, and the letter dated 25 February 2013 from Mr Toney to the Permanent Secretary

with the proposal for the remuneration package for the post of CEO of PPOS.

145. Senior Counsel for the Claimant argued that the conjoint effect of the memorandum dated

21 February 2013 from Ms Mark to Mr Toney, Mr Toney’s letter dated 25 February 2013 to

the Permanent Secretary and Mr Toney’s evidence in cross examination were consistent

with the position that Mr Toney and the Claimant agreed at the January 2013 meeting that

the latter would be employed by the Defendant as the CEO of PPOS on terms to be

determined by the CPO.

146. As I have stated previously, it was not the Claimant’s pleaded case that he entered into the

2013 Contract at the January 2013 meeting on terms to be agreed by the CPO.

147. The contents of the memorandum dated 21 February 2013 to Mr Toney were instructive. In

my opinion, it did not support the Claimant’s assertion that Mr Toney and the Claimant

agreed at the January 2013 meeting that the Claimant would be employed by the Defendant

as CEO of PPOS with effect from 1 March 2013 for the following reasons. The subject matter

of the said memorandum was “PROPOSED REMUNERATION PACKAGES FOR CEOS OF

COMPANIES UNDER PATT”. It was not the proposed remuneration package for “Mr Colin

Page 44 of 49

Lucas, CEO of PPOS”. The first line of the memorandum stated that its purpose was to

determine the remuneration package for the position of CEO of PPOS. It did not state that

its purpose was to determine a remuneration package for the Claimant for the 2013

Contract. Further, the memorandum explained the reasons it did not only consider the

remuneration package for CEO of PPOS and the methodology used in determining the

remuneration package for the positions of CEO of PPOS, and two other CEO positions

namely, CEO of TTIT and CEO of POSINCO.

148. In my opinion if Mr Toney had entered into the 2013 Contract with the Claimant at the

January 2013 meeting, it is more probable that his instructions to Ms Mark would have been

to only determine a remuneration package for the Claimant as opposed to the post of CEO

of PPOS. Further, it was also more probable that if there was a 2013 Contract for the

Claimant, which was supposed to commence on the 1 March 2013, Ms Mark who was the

Acting GM on the 21 February, 2013 would have stated in the said memorandum that the

report was for the remuneration of the Claimant in the post of CEO of PPOS with effect from

1 March 2013. In my opinion, this notable omission in the memorandum dated 21 February

2013, supported the Defendant’s version that there was no 2013 Contract with the Claimant

which was supposed to commence on 1 March 2013.

149. The letter from Mr Toney to the Permanent Secretary dated 25 February 2013 dealt with

two matters. It stated that the Board of the Defendant had approved an interim

compensation package on 14 April 2011 for the combined positions of CEO of PPOS/

GM/CEO PATT on a two year contractual basis subject to ratification by the CPO. It also

stated its recommendation of the position of GM/ CEO of PATT on contract and CEO of PPOS

on Contract. In my opinion, this correspondence did not assist the Claimant’s case that he

entered into the 2013 Contract with Mr Toney at the January 2013 meeting since it did not

expressly state that the Board of the Defendant had approved any 2013 Contract for any

person, including the Claimant. It also did not state that any interim contract commencing 1

March 2013 was approved for the Claimant.

Page 45 of 49

150. Therefore, at its highest, the actions by Mr Toney in seeking out information concerning the

remuneration for the post of CEO of PPOS, which Ms Mark sent to him in the memorandum

dated 21 February 2013 and his letter dated 25 February 2013 to the Permanent Secretary

were all consistent with the Defendant’s established practice of seeking the CPO’s approval

for a remuneration package for an executive management position at the Defendant such

as for the post of CEO of PPOS, before the latter entered into any contract with any person

for the position. Mr Toney’s actions were also consistent with the Defendant’s case that

there was no approval from the Board of the Defendant for the 2013 Contract for the

Claimant.

151. The February 2013 meeting took place on the 27 February 2013. There was common ground

that at the February 2013 meeting, Mr Toney advised the Claimant that a new Board of the

Defendant was to be installed and that the former instructed the latter to proceed on 13

days’ vacation leave from the 1 March 2013. The dispute was what the new Board of the

Defendant was supposed to discuss. In my opinion, Mr Toney’s version that the new Board

of the Defendant was to consider and approve a new contract for the Claimant (as opposed

to the Claimant’s version that it was supposed to only settle the issue of remuneration) was

more plausible for the following reasons. Both the Claimant and Mr Toney were aware that

a contract for a senior manager such as the CEO of PPOS had to be approved by the Board

of the Defendant; there was no such approval from the previous Board and there was no

written notation in any of the contemporaneous documents of such approval.

152. Further, Mr Toney admitted in cross examination that at the time of the February 2013

meeting, he was in receipt of the Claimant’s letter dated 18 January 2013. In my opinion, if

the Claimant had clearly asserted in the said letter to the Claimant that he was of the view

that he had a contract to work as the CEO of PPOS from the 1 March 2013, it was more

probable than not, that Mr Toney would have addressed this at the February 2013 meeting.

However, there was no such assertion by the Claimant.

Page 46 of 49

153. At the February 2013 meeting, Mr Toney had instructed the Claimant to immediately embark

on the 13 days unused vacation leave from the 1 March 2013 but on the following day, by

memorandum dated 28 February 2013 from Mr Toney to Ms Bruno, he cancelled his

instructions and instead directed the Claimant be paid his unutilised vacation leave.

154. Senior Counsel for the Claimant argued that Mr Toney’s actions to cancel his decision for the

Claimant to take leave from 1 March 2013 and his direction to roll-over the unused leave,

were indicative that he knew, at the January 2013 meeting, he had already entered into the

2013 Contract with the Claimant to employ him as CEO of PPOS with effect from 1 March

2013, on terms to be determined by the CPO.

155. Mr Toney explained in cross examination that overnight, after the February 2013 meeting,

he realised that if he had told the Claimant to start his vacation leave by the 1 March 2013

he would have been finalising a new contract of employment with the Claimant, an authority

which he did not.

156. I accept Mr Toney’s explanation for cancelling the Claimant’s vacation leave and instead

directing him to be paid was reasonable as he acted quickly after realising his error. In my

opinion, this singular act by Mr Toney of approving the Claimant’s vacation leave and then

cancelling it within 1 day thereafter cannot be examined in isolation but must be taken in

the context of the nature of the discussions at the January 2013 meeting, the knowledge by

both the Claimant and Mr Toney that shortly after the January 2013 meeting there was no

quorum of the Board of the Defendant to make decisions and the contents of

correspondence which were written thereafter by both parties.

157. Further, I have not attached any weight to the letter of Ms Bruno dated 1 March 2013, which

she sent to the Claimant and in which she stated that “ Please be further advised that item

(2) [ie approval for payment for the balance of Mr Lucas’ vacation leave amounting to

thirteen (13) days] be rolled over into Mr Lucas’ next contract term” as she was not called

Page 47 of 49

as a witness and Mr Toney’s instructions stated "future employment" which was different

from stating a commencement date of 1 March 2013.

158. It was not in dispute that in response to Ms Bruno’s letter of the 1 March 2013, the Claimant

wrote a letter of 4 March, 2013 to Mr Toney in connection with the latter’s change of

instructions for the Claimant to go on leave. In that letter, he asserted that he had entered

into the 2013 Contract at the January 2013 meeting. It was not in contention that Ms Ford

replied by letter dated 5 March 2013 requesting the basis for the Claimant’s assertion of the

2013 Contract.

159. The Claimant’s evidence was that he had a telephone conversation with Mr Toney on the 5

March 2013 and Mr Toney did not indicate to him that he was not working in accordance

with the 2013 Contract. Mr Toney’s version of that conversation was that he asked the

Claimant to submit details of the days he had worked without compensation and that the

Claimant replied by letter dated 5 March 2013. In the Claimant’s letter dated 5 March 2013,

he indicated the days he worked certain days between 26 and 31 January 2013 and the

nature of is work.

160. Notably, there was no assertion by the Claimant that in the conversation he had with Mr

Toney on the 5 March 2013, Mr Toney indicated that he was working in accordance with the

2013 Contract. Indeed, the nature of the conversation between Mr Toney and the Claimant

on the 5 March 2013 was consistent with Mr Toney’s position that the Claimant was to be

paid for his unused vacation leave. In my opinion, given the sequence of events from the

January meeting up until this discussion, it was not important for Mr Toney to raise in any

conversation with the Claimant anything about the 2013 Contract. Rather, it was more

important for the Claimant to do so as he was the one who took the position that he had

entered into the 2013 Contract at the January 2013 meeting.

161. Further, in the Claimant’s letter dated 7 March 2013, to Ms Ford, he still recognised that the

2013 Contract was not approved by the Board of the Defendant which was consistent with

Page 48 of 49

Mr Toney’s version of the February 2013 meeting. In the said letter, the Claimant stated,

“the determinates of the new package would require in any event Board consideration and

alternatively, sanction of the Chief Personnel Officer, a process with which I indicated both

my familiarity and comfort.”

162. The Permanent Secretary replied to Mr Toney’s letter dated 25 February 2013 by letter

dated 26 August 2013. The letter dated 26 August 2013 indicated that the CPO approved a

compensation package to be paid to the Claimant under the 2011 Contract for the period 1

March 2011 to 28 February 2013; the compensation package to be paid to the GM/CEO PATT

at basic monthly salary of $45,000 to $50,000 for the duration of 1 March 2013 to 29

February, 2016 and CEO of PPOS at a basic monthly salary of $40,000 to $45,000 for the

duration of 1 March 2013 to 29 February 2016.

163. In my opinion, this letter assisted the Defendant’s case as it was more probable that the

approval for the 2011 Contract stated the Claimant’s name as there was an Interim Contract

which was approved by the Board of the Defendant. However, by the said letter not

expressly stating that the approval of the CPO for the post of CEO of PPOS was for the

Claimant for the period 1 March 2013 to 29 February 2016, this was consistent with the

Defendant’s position that there was no 2013 Contract and there was no approval by the

Board of the Defendant of any Interim Contract.

164. Therefore, I am of the opinion for the reasons set out aforesaid, that based on the evidence

and the contemporaneous documents after the January 2013 meeting, Mr Toney’s actions,

after the said meeting were not indicative that he had entered into the 2013 Contract with

the Claimant at the said meeting.

IF THE 2013 CONTRACT IS VALID, IS IT ENFORCEABLE?

165. Having concluded that there was no 2013 Contract this issue does not arise for

determination.

Page 49 of 49

WHAT MEASURE OF DAMAGES IS THE CLAIMANT ENTITLED TO IF HE PROVES HE WAS

WRONGFULLY TERMINATED?

166. There is no need for me to address this issue in any significant detail as I have found that

there was no valid and subsisting 2013 Contract. In so finding the Claimant failed to prove

the breach of any alleged 2013 Contract, therefore there was no loss suffered. In any event,

the Claimant did not dispute that he was paid for the days he actually worked after the

expiration of the 2011 Contract23.

COSTS

167. I have no exceptional circumstances to deviate from the general rule that the successful

party is entitled to its costs. In terms of quantum, on the 10 April 2018 a cost budget was set

for the action in the sum of $519,630.00. There were no submissions made by the parties to

reduce the sum set in the said order. Therefore, I order that the Claimant is to pay the

Defendant its costs in the sum of $519,630.00.

ORDER

168. The Claimant’s action is dismissed.

169. The Claimant to pay the Defendant’s in the sum of $519,630.00 as set by the budgeted cost

order dated the 10 April 2018.

Margaret Y. Mohammed

Judge

23 Exhibit PO1 attached to the Amended Defence