Videos: Pettingill & Burt On Legal Settlement
[Updated with videos] The Opposition “are clearly at fault for misleading” the public in “what can only be seen as an attempt to cloud the truth” about their handling of the Court Building issue, Attorney General Mark Pettingill said today [July 26] in the House of Assembly.
Mr Pettingill cited questions last week in the House from various Opposition MPs and said they misled the public by making statements from a “document that were patently false and materially misleading.”
Mr Pettingill said, “Given the facts now disclosed with regard to the legal opinion and the lack of any formal technical reports as alleged by the Opposition they are clearly at fault for misleading this Honorable House and the Public in what can only be seen as an attempt to cloud the truth as it relates to their handling of the issues relating to the Court Building.”
The Attorney General specifically cited questions from Shadow Minister David Burt, and said: “The fact is that the Honourable Member entirely misled this House and the Public of Bermuda by making statements about, and making alleged quotes from a document that were patently false and materially misleading.
“Whether this was intended or negligent as based on what he heard as opposed to what he saw matters not. In my view, it is he who must apologise unequivocally for this and make a retraction to the media and the People of Bermuda,” said Mr Pettingill.
The Attorney General speaking on the matter today:
In response Mr Burt said, “The Attorney General’s statement today was merely an attempt to deflect the attention away from himself for not sharing with the people of Bermuda who he received external legal advice from for the controversial settlement that he agreed with CS&P.
“Not only do I stand by my statements last week, the Attorney General today confirmed my very position in his own statement. He confirmed the fact that Conyers Dill & Pearman advised the government that, “CS&P were not entitled to claim their entire fee to the end of the construction period”.
“My line of questioning was directly related the claim that was made against the government which contained in excess of 1 million dollars related to future work. The government received advice, and the Attorney General confirmed and today said he agreed with the advice received from Conyers Dill & Pearman, that CS&P were not entitled to claim their entire fee.
“There will be no apology from me for doing my job in keeping the OBA accountable. There will be no retraction for sharing important facts with the people of this country. The Attorney General confirmed my position today and I stand by my statement that I made last week,” concluded Mr Burt.
Mr Burt, wearing his Somerset colours in advance of Cup Match, speaking on the matter:
Mr Pettingill’s full statement follows below:
Mr. Speaker,
Two weeks ago, I made a Ministerial statement to this House explaining the settlement of the Government’s case with Carruthers Shaw and Partners Architects in connection with the construction of the Dame Louis Browne-Evans Building. Last week, Members of the Opposition were allowed to ask questions relating to the settlement. Having received prior approval from yourself, Mr. Speaker, I am now compelled to rise and correct certain factual errors stated by certain members when those questions were put to me.
Mr. Speaker,
Some of the questions asked by certain members of the Opposition contained statements of alleged facts about the background of the case. With your leave, I intend to address those particular assertions by quoting directly from the Hansard Record:
Mr. Speaker,
The Honourable Member from Pembroke West Central, Mr. David Burt stated:
“My first question, Mr. Speaker, is, in his statement last week the Honourable Attorney-General said, and I quote, that “CS&P’s claim against the Government was valid and would succeed”. In making that claim, did the Attorney-General, the Minister or the Cabinet take this view despite the advice that was received from Conyers Dill & Pearman, which was given to the previous Government.”
In a further question, the Honourable Member stated:
“Did the Attorney-General consider the advice given by Conyers Dill & Pearman that said CS&P admitted that over $1 million of the claim in respect of the BuildingProject was in relation to anticipated earning which were not due and therefore not owing?”
The Honourable Member continued in a further question, apparently quoting from the Conyers Dill & Pearman opinion [upon which his entire line of questioning was based]:
“Did the Attorney-General consider that in awarding, or agreeing to this settlement that CS&P claim consisted of a claim for approximately $182,000 for anticipated change orders, which had never been incurred, was valid in light of the advice given by Conyers Dill & Pearman that did not consider the claim valid?”
And finally, Mr. Speaker, the Honourable Member stated in his third question:
“Given the advice was received to the previous Government by Conyers Dill & Pearman, which directly contradicts the Attorney-General’s claim that CS&P’s claim against the Government would succeed, may I ask the Attorney-General what justification did he give the Minister of Finance and the Cabinet that he recommended that we spend money that, according to legal advice given to the previous Government, the Government did not need to spend?”
Mr. Speaker,
At the time these questions were asked, much was made of the alleged Conyers Dill & Pearman advice. I will come to comments made by other members, but let me first provide the factual background to this advice. The advice the Honourable Member relies on for his line of questioning was sought by Mr. Julian Hall acting on the Government’s behalf. It was provided by Conyers Dill & Pearman in a letter dated 20 January, 2009.
Mr. Speaker,
The fact is that CD&P advised the Government precisely the opposite of what the Honourable Member suggested. Quoting directly from paragraph 10 of that letter, Conyers Dill & Pearman advised:
“We think it likely that a Court would conclude that the Government was in breach of contract when it terminated the services of CS&P on 2 December, 2008. There was no allegation that CS&P were themselves in breach of their contract such as to justify termination; simply a statement that their services were no longer required.”
The opinion continues:
“This breach of contract gives rise to a claim by CS&P against the Government for such damages as they have sustained by reason of the early termination of their contract.”
Mr. Speaker,
The opinion does state, and I tend to agree, “…that CS&P were not entitled to claim their entire fee to the end of the construction period.” I note at this point that the attorneys for CS&P disputed this fact and were in fact seeking full damages for future loss had the matter gone to full trial, and they clearly had an arguable position on this point.
Mr. Speaker,
In light of this opinion, Mr. Hall subsequently proceeded to enter into negotiations with CS&P’s attorneys, and it is a fact that those negotiations nearly reached a settlement between the parties. I will return to this last point in due course.
Mr. Speaker,
In relation to the Honourable Member’s bold statement that CS&P’s claim contained a claim for approximately $182,000 for anticipated change orders, which had never been incurred, and which was valid, I can advise this Honourable House that nowhere in the opinion provided by Conyers Dill & Pearman is there a mention of such a claim or any mention of anticipated change orders.
Mr. Speaker,
From this it is crystal clear that the opinion provided by Conyers Dill & Pearman to the previous Government did not reflect what the Honourable Member asserted. He stated on record in this Honourable House that this opinion directly contradicted my view that CS&P’s case was valid, when it clearly did exactly the opposite. The fact is that the Honourable Member entirely misled this House and the Public of Bermuda by making statements about, and making alleged quotes from a document that were patently false and materially misleading. Whether this was intended or negligent as based on what he heard as opposed to what he saw matters not. In my view, it is he who must apologise unequivocally for this and make a retraction to the media and the People of Bermuda.
Mr. Speaker,
I now turn to certain statements made by the Honourable Member from Pembroke East Central, Mr. Michael Weeks. The Honourable Member asked:
“Did the Attorney-General, the Minister of Works and/or the Cabinet consider the advice given to the previous Minister by his technical experts that we hired namely Conyers and Associates, Woodbourne Associates, Entech Limited and Spectrum.”
He further asked the supplementary question:
“Was the Attorney-General made privy to that advice, that the Government had enough ammunition to file a counterclaim?”
Mr. Speaker,
These two questions imply that the Government’s counterclaim was based on extensive reports by these various experts, and further that I was in possession of those reports but did not consider them. Let me address this issue. For reasons I have been unable to establish, other than that they did not advise on the initial contract, the previous administration’s Attorney-Generaldid not act for the Minister in relation to this case.
Mr. Speaker,
I cast no aspersions on the previous Attorney-General in this instance, but the fact is that section 6.1. of the Ministerial Code of Conduct requires that the Attorney-General be consulted in good time, particularly on matters that might come before Cabinet, and further, under section 6.2 of the Ministerial Codes of Conduct, convention requires that written opinions of the Attorney-General should generally be made available to succeeding administrations. I have nothing from the previous Attorney-General at all in relation to this case by way of opinion or advice or technical reports of experts or a Cabinet Conclusion on the Minister proceeding to instruct outside Counsel.
Mr. Speaker,
It is a fact, however, that the previous administration’s Minister of Works and Engineering instructed a private law firm to act on the Government’s behalf following Mr. Hall’s passing at a cost of $111,400 to the taxpayer. I hasten to say that this is no reflection on that law firm; following the instructions of the Minister and disregarding protocol for the hiring of outside counsel is certainly not their issue to address.
Mr. Speaker,
In a letter to that firm dated 20 May, 2013 I wrote the Governments lawyers retained by the former Administration:
“I would appreciate some indication as to what evidence the Defendant (The Government) has to support the counterclaim.”
They responded :
“This analysis was carried out by Conyers and Associates, the final architects of record in respect of the Court House project for and on behalf of the Minister. Their analysis was also filed in the Supreme Court together with responses to the Plaintiff’s request for further and better particulars, and is included in this letter for your consideration. It should be noted that this analysis forms the basis of the most recent attempt to negotiate a settlement between CS&P and the Minister.”
Mr. Speaker,
There was no mention of any other form of technical report or advice. I say all of this to make the point that the legal pleadings filed on behalf of the previous administration only reference a single document, a mere spreadsheet entitled “technical analysis”. The contents of this document, in my considered legal opinion and others, would not have added anything to the case put forward by the Government. Additionally, it is significant to me that this “analysis” was prepared by the same architects that took over the contract from CS&P (at the direction of the Permanent Secretary and without tender) and were paid over $5 million for their services. That firm also continued to use the drawings created by CS&P to finish the job. Consequently, the new architect’s analysis, which cannot properly be described as a “report”, was not sufficiently independent or compelling to amount to “ammunition” as the Honourable Member suggested.
Mr. Speaker,
I am confident that had the attorneys instructed by the previous administration been provided with the numerous expert reports alleged by the Honourable Member to have existed they would have certainly brought them to my attention when I requested any expert evidence in May of this year. As a consequence, Mr. Speaker, the Honourable Member’s statements are grossly misleading, and not a reflection of the true legal position taken by the Government in this matter. There simply were no written expert reports brought to our attention or contained in any Government file relating to this matter.
Mr. Speaker,
Finally, I turn to certain statements made by the Honourable Opposition Leader, Mr. Marc Bean. In a question put to me last week, the Honourable Member stated:“Given the information that has come to light during question period today that the previous counsel had reduced the claim to less than $200,000, does the Minister wish now to take this opportunity to admit that he has misled this Honourable House, the Cabinet and the People of Bermuda when he said this agreement largely reflects the position reached in previous negotiations with CS&P?”
Mr. Speaker,
I stand by my answer of “no”, and further raise the fact that no previous counsel for the Government of Bermuda had ever reduced the claim to less than $200,000 in negotiation. It is also a fact that during initial negotiations between CS&P and the Government, which only contemplated CS&P’s claim under the Courthouse contract and not the Marsh Folly debt, Mr. Hall, who represented the Government, immediately offered $415,828 by way of settlement for the undisputed points in CS&P’s claim. The only outstanding issue between the parties at that time was the amount to which CS&P were entitled for payment of their services under the Court project contract. The Government’s initial offer was $223,024 (which amounted to 6 months payment of the administration fee under the contract), bringing the total potential settlement to $638,852 on Mr. Halls assessment. CS&P’s counter offer amounted to $798,852. Further agreement couldn’t be reached.
Mr. Speaker,
I can only assume that the Honourable Leader of the Opposition is mistaken in his understanding of the initial negotiations. I hope that this provides some clarity to him and the other Honourable Members opposite as to why a settlement of $700,000, which includes not just the claim under the Court House Contract, but also the debt claim under the Marsh Folly contract, is in fact a great savings to the taxpayer in the circumstances.
Mr. Speaker,
Given the facts now disclosed with regard to the Legal opinion and the lack of any formal technical reports as alleged by the Opposition they are clearly at fault for misleading this Honorable House and the Public in what can only be seen as an attempt to cloud the truth as it relates to their handling of the issues relating to the Court Building.
An apology, at least, is required.
Thank you, Mr. Speaker.
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Go away Burt your as annoying as Burch. Your views are so useless to me that it makes me sick to think you represent anything Bermuda. Sheep are sheep but wolves eat sheep so the way l see it is this- you keep talking out of your a** and soon the spotlight is going to be on all the accessories that got the hand outs, so keep talking Burt, your just upset you and you friends aren’t getting anymore government contracts
former liars,I agree with you the truth is just starting to come out about the former gov.
The scars of the PLP will be with us for a long time yet.
MP Burt you are a brillant young MP. You have spoken very powerful and found the incompetent AG on his toes. I am most proud of you and your smart intelligent approach to matters. You have shown the public just how incompetent this AG is.
The AG is now trying to win back the support of his OBA fans and MPs. He has MESSED up so much, it is a joke. How can the Premier continue to stand by his side, more so take advice from this AG? This man is a joke, and seems to falling down more and more each day. He will be the undoing to the OBA government and party, not the PLP. The OBA have much to be concern about right within their own party.
Well spoken MP Burt !!
Thanks for that Marc. Well pleased you’ve learnt how to spell now.
AG brilliantly exposed Burt as a rambling liar with a line by line analysis of the facts, and this is your analysis! Incompetent? Wow.
Hi Betty – you can’t hide your grammar.
Well done Mr. Penttingill! Keep making them (opposition) shaking and they should!! Bunch of liiars been misleading BDA for to long now!
Your incompetent AG is faking the information. He has been caught in his own lies. He fails to read the entire statement, and still refuses to answer key questions on the floor of the house. How in the world can you say keep making the opposition shaking. When in fact it is your incompetent AG that has been shaking on bad ground over the past several months, with his bad decisions and advice. This AG needs to go, he is the worst Bermuda has seen to date.
Also Mr Dunkley also lied to day, saying 9 firearms turned in when there was only 1…what a JOKE the OBA is …lies enough until, say it enough until folks believe it…sounds familiar to you…. political OBA spin at best.
What is worst is your figure-head leader, he is talking over himself in fear. He is the weakest leader I have seen in Bermuda’s political history so far.
Evidence?
So wha was Paula Cox!? To ME that was the weakest leader this country has ever seen!! For example: The FIRST Premiere to loss a seat!! FACT!
So where is Paula Cox? is she working at her former job?
I agree she will go down in history as the worst premier ever in Bermuda…. her father was a giant of a man loved and respected by all ,God bless Eugene Cox.
The PLP screwed us,and now we have to pay.
OBA is screwing you even more….taking care of their own and non-Bermudians why putting Bermudians last. “Friends and Family Plan” in full swing., not Sharing in the Scarfice, but taking from the small man only. This OBA government is worst than anything I have seen, UBP is rearing their ugly heads once again.
Evidence?
You aint seen nothin yet.
Anyone got a Green Card?
If they had those half of Bermuda would up and leave tomorrow.
I think Pettingill just took the PLP’s centre stump
Best comment of the day!
we are too gullible as a jurisdiction…
ya de truth hurts
He read out the documented FACTS line by line, uncontested…are you kidding???
Mr. Burt says, ““My line of questioning was directly related the claim that was made against the government which contained in excess of 1 million dollars related to future work.”
Mr. Pettingill stated, “The opinion does state, and I tend to agree, “…that CS&P were not entitled to claim their entire fee to the end of the construction period.” I note at this point that the attorneys for CS&P disputed this fact and were in fact seeking full damages for future loss had the matter gone to full trial, and they clearly had an arguable position on this point.”
I am not a lawyer and I had to read this several times in order to see the point Mr. Pettingill is making: that there is a difference between claiming for fees to the end of the construction period (future work) and claiming for damages for future loss. The first says, “you promised to pay me X amount of dollars from this date to that date. I want the money you promised me even though the work isn’t done yet.”
The second says, “You engaged in a contract with me, in light of which I made arrangements to clear my calendar, etc. in order to fulfil the terms of that contract. I operated in good faith, turning down other lucrative work, rearranging my life, etc., and now you have broken your word. You owe me for not only the time I would have spent doing your work, but also for the contracts I could have had, the relationships I interrupted, the possible damage to my reputation that a termination of contract might give rise to, etc. etc.
IMH, the second could have been infinitely more costly to us, yet much more likely to be successful than the first.
People talk about the possibility of damaging Bermuda’s reputation by pursuing legal remedies should we find there has been corruption and skulduggery with the public purse.
To me, this kind of careless disregard for contractual ethics was just as, or more damaging to our reputation. Canada already doesn’t think too well of us. I am glad that we settled the debt amicably and in what looks to me like an advantageous (to us) way. We didn’t pay as little as we wanted, they didn’t get as much as they wanted, a nice compromise.
Depending on if CSP did not break the terms of the contract in any way. If they did then the government will not have to pay for future work if CSP didn’t meet the specifications of the terms or even the deadlines.
Pettingill read out the relevant part of the CD and P opinion confirming his own conclusion that there was no breach by CSand P! What is more troubling is the developing facts about what was going on with this deal! $5 million for a new architect that does not have to review bills and sign off on them! Come on!!!
It needs to be made public, politicians do lie.
The cd andp opinion, the contract, and the reason gov fired the contractor we still don’t know that.
The Government didn’t fire the contractor they fired the architect without cause (follow the plot!), Derrick Burgess made a Ministerial statement on that fact in 2008! The CD and P opinion would be disclosed as a document to the Speaker of the House even if not tabled so there is no question it was valid. Given the fact that Pettingill sated that things on the COurt House are continuing one can clearly understand why he would not disclose the entire privileged opinion! The Conclusion was:
1) The Government had breached the contract.
2) CS and P had a good case.
3) They could not recover their ENTIRE fee (and they didn’t!)
End of story!!!!
If you wish to look the other way so be it.
The questions put on the floor last week are not the same as your incompetent AG is attempting to twist around this week. He knows the OBA followers would fall for it,and not question anything as they are so gullible. He has thrown a bone out to the diehards support base, and they have bitten it without full inquiry. This AG is the worst we have seen so far. He is falling again, and trying to win back the hearts of his OBA followers. This man is weak and not of great legal skills. Why do the OBA hold on to such a weak AG, is beyond me.
squirming like a worm !
Talking sense Pastor. Thanks!
Come on, lets be honest, PETTINGILL NAILED IT!!!
Pettingill is the worst AG Bermuda has ever had. He did not nail it, he has provided food to feed his support base, as he knows you OBA fans would not question any thing. He can tell you anything and you would believe it. RE-read what Mr Burt outlined, and the truth is staring you right in the face. This AG is incompetent and one of the worst Bermuda has ever seen.
Please explain why he is incompetent.
could it because the AG is the lawyer or was the lawyer for the former Premier !!!!!!!!!!!!!!!!!!!just asking.
The silence from the PLP talking heads is deafening.
Their continued and groundless calls for the AG’s resignation appear to be completely unfounded but their offensive and anti-community remarks continue unabated.
When will the PLP stooges decide to stand up instead of against Bermuda’s and Bermudians’ best interests? They are far more concerned with shouting the majority down with their irrational tirades and vacuous attacks.
Enough is enough.
This incompetent AG should have been fired weeks ago. ALL The errors he has made makes a unskilled lawyer look good against him. This man is no lawyer with any smart skills he is there struggling, and hoping the staff and other lawyers at the AG chambers can keep him afloat. He lacks the skills of a smart lawyer…he is sweating big time…he even looks like he has aged about 15 years since taking this job of AG, it is far our of his scope. I don’t understand how in the world OBA keeps just a poor quality lawyer in one of Bermuda’s top positions as AG. SAD IN DEED !!
I’m confused. What errors has he made? He has simply stated facts from a letter the PLP thought was destroyed. Makes you wonder though eh? What else did they think was destroyed?
SHHHH! Don’t ask for facts!
We’ve got propaganda to spread!
This is hilarious. Pettingill kicked their a$$. Admit it like a man.
So when are Weeks and Burt going to apologise? When are they going to resign?
“Transparency”! My my, what gull the P.L.P. has asking for cards to be placed face-up. I don’t believe they would want the public to hear what has taken place…
Well done! Mr Pettingill. Wonders never cease! Lots of soiled decisions sitting and collecting dust. The taxpayers need to know the facts. Keep pressing on as there are more revelations to come and bask ‘ under the sunshine of public scrutiny’ . No where to hide now. Their only recourse is to call for the head of the AG. Let the facts speak for themselves.
Would like to suggest the pee l pee rename their party to Ultimate Spin Party, Crooked Lies Party, or We don’t give a S**t about Bermudins party. Dig deeper Mr P all the way back to the infamous Spin Dr.
sorry Bermudians (not Bermudins).
Calling Pettingil out on being “incompetent” will only bait the pit bull in that guy. Any body who knows him at all should know better than to take that tack, he will dig deeper and harder and come out like he did yesterday, cool and calculated with the facts! You picked the wrong scrap there PLP, you must be worried about what he will uncover next…my guess is files are going to the police/DPP, we’ll see. At least you have the intellect of people like Laverne Furbert to back you up LOL… and the silky skills of Marc Bean to rouse the green zombies ,his days must be numbered! PLP only had 3 people left in the HOUse when it adjourned last night I hear…took the licks and scurried home…rats jumping off a sinking ship!
can anyone tell me why we paid DR.Renee Webb one hundred thousand dollars as a consultant ?
Friends and family.
Call her boss up there in MA.
It was a LOT more than than! All will be revealed I bet,,,AG is looking under stoned now…so o obvious why they keep attacking him!
Burt, you are very intelligent. Please use that brilliance and keep your mouth shut!
To win a battle you must understand the war and since you admitted to not being a lawyer, which we already knew, I suggest you find a playground full of kids and take your argument there. At least you will have a fighting chance there..albeit small.
Hint..hint…David does not always beat Goliath!
It’s amazing how some can look you in the eye and lie straight face…Now you figure out for yourself who it is I’m referring to.
Burt”s astoundingly good at that!