Prime Minister and Head of Cabinet v Comprehensive Nephology (T&T Court of Appeal) (Civ Appeal 161 of 2021)

Mr Tom Poole KC and Mr Ramesh L Maharaj SC, leading Mr Ronnie Bissessar , instructed by Mr Varin Gopaul-Gosine for the Respondents.

1.The appeal before us traverses the occasionally elusive intersection between public and private law. Generally, it concerns whether an allegedly breached contract between a public health authority and three private sector entities that was publicly endorsed and obliquely enabled by the executives of three successive governments, is amenable to public law remedies, and, if so, what remedies are available to the private sector entities. At the heart of the dispute is the appellants delay to approve certain variations proposed to them by two of the respondents.

The parties
2. The first appellant, a defendant in the court below, is the Prime Minister and Head of the Cabinet of Government of the Republic of Trinidad and Tobago representing himself and all other members of the Cabinet (collectively referred to as “the Cabinet”). The second appellant, also a defendant in the court below, is the Minister of Health (“the MOH”), who is tasked with oversight of Trinidad and Tobago’s health care system, including each of its Regional Health Authorities.

3. The third appellant, a defendant in the court below, is the North Central Regional Health Authority (“the North Central RHA”), a body corporate established under the Regional Health Authorities Act , Chap 29:05, (the “RHA Act”) and is responsible, among other things, for the provision and development of health care in the north central districts of Trinidad, subject to the direction of the MOH. For reasons that become clear in the paragraphs that follow, it is important to note that the North Central RHA is the lessee of the State of the Eric Williams Medical Sciences Complex, a vast property in Champs Fleurs, Trinidad (“the Eric Williams Medical Centre”).

4. It is also important to note that the South-West Regional Health Authority (“the SWRHA”), though not a party to these proceedings, but remotely linked to the appeal before us, is another body corporate established under the RHA Act and that the SWRHA likewise is the lessee of the lands on which the San Fernando General Hospital stands (“the San Fernando Hospital”).

5. In this judgment the Cabinet, the MOH and the North Central RHA are collectively referred to as the appellants.

6. The first respondent, a claimant in the court below, is Comprehensive Nephrology Services Ltd previously known as Happy Heron Holding Ltd (“Nephrology Services”). It is a limited liability company incorporated under the Companies Act. Chap 81:01, whose main business is the provision of contracting services. The second respondent, also a claimant in the court below, is Biomedical Technologies Limited (“Biomedical”). Its principal business is stated to be in the field of project management and it is locally incorporated pursuant to section 8(1) of the Companies Act. Biomedical holds all of Nephrology Services’ shares. Nephrology Services and Biomedical are therefore affiliated companies for the purposes of section 5(1)(a) and (b) of the Companies Act.1

7. The third respondent, another claimant in the court below, is the Caribbean Kidney Disease Society (“the Kidney Disease Society”), a not-for-profit company incorporated pursuant to section 9(1)(g) of the Companies Act. Members of the Kidney Disease Society are limited by guarantee. The Kidney Disease Society’s mandate is to advocate for patients who suffer from kidney disease by encouraging the provision of adequate renal services to the citizens of Trinidad and Tobago and the wider Caribbean.2

8. In this judgment, the respondents Nephrology Services, Biomedical and the Kidney Disease Society are collectively referred to as the respondents.

9. Fresenius Medical Care (Holdings) Limited (“Fresenius”) is not a party to these proceedings. However, the company features prominently in the chronology of events that follow. Fresenius is a limited liability company incorporated under the laws of Great Britain and has well-known and recognisable international experience (which has not been disputed) in the construction and operation of full-service renal dialysis centres around the world. Fresenius was Biomedical’s joint venture partner.

10. In a nutshell, the dispute concerns the public law obligations of the Cabinet to promptly decide whether to approve certain variations to a contract to establish two publicly funded dialysis centers at the Eric Williams Medical Centre and the San Fernando Hospital. The Cabinet contends that this dispute is purely contractual and does not involve any public law remedies, as there are adequate private law remedies for the delay to approve the proposed variations under the contract signed on 6 May 2010 (“the master contract”), including arbitration.

Download and read the full Judgment here.

1 See Application for Leave to Apply for Judicial Review, [4]-[5], Record of Appeal (ROA) Vol 1, 189-190.
2 ibid, [6].