An application by Attorney General Anil Nandlall to join a landmark case over an unlimited guarantee from the parent company of ExxonMobil has been unanimously rejected by the Guyana Court of Appeal.
This is according to a release yesterday from the attorneys for Fred Collins and Godfrey Whyte, the two plaintiffs in the High Court who secured an historic judgment from Justice Sandil Kissoon that ExxonMobil was in breach of its insurance obligation and requiring it to comply.
The judgment has since been appealed by the Environmental Protection Agency (EPA) and Nandlall had applied to join the appeal.
The release on behalf of Collins and Whyte said that Justice of Appeal Rishi Persaud read the first written judgment followed by Justice of Appeal Dawn Gregory and finally the Chancellor (Ag) Yonette Cummings-Edwards and all three agreed to dismiss the AG’s Application to join the Appeal. The Court of Appeal unanimously upheld the submissions made by Seenath Jairam SC, leading Melinda Janki and Abiola Wong-Inniss on behalf of Collins and Whyte, “strenuously” objecting to the joinder of the Attorney General.
In the decision on May 03, Justice Kissoon had ordered the EPA to obtain from Exxon Guyana, an environmental liability insurance as is customary in the petroleum industry along with an unlimited parent company guarantee to cover all costs of an oil spill, in accordance with the environmental permit issued to ExxonMobil Guyana Ltd.
Both the EPA and Exxon Guyana appealed the decision.
The EPA is being represented by Francis Carryl and Sanjeev Datadin. Exxon Guyana is represented by Edward Luckhoo SC, Andrew Pollard SC, and Eleanor Luckhoo. The Attorney General was represented by a battery of lawyers including the Attorney General himself, who led the arguments, Darshan Ramdhani, KC, and Nigel Hawke.
According to the release, the Attorney General had sought to join the appeal in the Court of Appeal on the side of Exxon Guyana and oppose the orders made by Justice Kissoon at first instance. It said that Jairam made a number of legal arguments as to why the AG should not be allowed to join but in particular pointed out that the Attorney General has no place in judicial review proceedings – a legal position that has now been judicially endorsed by the Court of Appeal. In response to Jairam’s points, Nandlall relied on a number of cases from the Commonwealth but Jairam rebutted those cases.
The release noted that the EPA’s attorneys took the position of not opposing the AG’s application to join and so too did Exxon/Esso’s attorneys.
On June 08, Justice Rishi Persaud granted a stay of Justice Kissoon’s order, ordered Exxon Guyana to produce a guarantee for US$2 billion within a fixed timeframe instead, and stayed the requirement for insurance.
Subsequently, on July 05, Collins and Whyte filed a Motion for an urgent hearing to vary or discharge the Order made by the learned Justice of Appeal. In his Affidavit in Support of the Motion, Collins pointed out that as a result of the stay granted by Justice Persaud, Guyana is now on the hook for damage caused by an oil spill and warned that “The potential harm to Guyana’s economy cannot be overstated. Liability for clean-up, restoration and compensation following an oil spill, well blow out, or tanker accident, from Esso’s operations is unlimited and uncapped and could run into billions of US dollars or trillions of Guyana dollars, far exceeding the National Resource Fund and Guyana’s biggest ever annual budget, and even exceeding the amount of said fund and budget combined.”
As such, on behalf of Collins and Whyte, Janki wrote several letters to the lawyers for the EPA and Esso requesting a copy of the US$2 billion guarantee but none was produced. On November 01, a summons was filed for orders directing the EPA and Esso to produce a copy of the US$2 billion.
Neither the motion nor the summons has yet been heard, however, following the hearing on December 19, the Court of Appeal directed Wong-Inniss to follow up with the Registrar with regard to obtaining a copy of the US$2 billion guarantee and dates for the hearing of the appeal and other applications, the release added.
