Supreme Court
Action No. 152 of 2002
Blackman, J.

Mrs. Lois Young-Barrow, S.C., for the Applicant.
Eamon Courtenay, S.C., for the 1st and 2nd Respondents.
Denys Barrow, S.C., with Christopher Coye, for the 3rd Respondent.

Judicial Review - Application that leave to apply for judicial review previously granted be set aside - Applicant not disclosing all material facts when applying for leave - Effect of non-disclosure - Whether leave granted after an inter partes hearing can be set aside due to material non-disclosure by Applicant - Delay - Effect of delay on applications to set aside leave to apply for judicial review previously granted - Need for Applicant to exhaust alternative remedies before applying for judicial review.

J U D G M E N T

1. On the 2nd of April, 2002 the Applicant applied ex parte, for leave for judicial review of contracts dated the 15th day of November, 2000 and the 25th day of September, 2001, entered into by the Government of Belize and/or the Minister of Finance, Foreign Trade and Economic Development with LGS Services Limited and International Telecommunications Limited (hereinafter called Intelco) to provide certain telecommunications services to and/or on behalf of the Government of Belize.

Given that on the face of the documents, the application appeared to be
outside the three month period required by Rules of Court which stated that:

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made,"

I directed at the hearing of the ex parte application on April 12th, that notice of the Application be served on the 1st and 2nd Respondents.

2. The application for leave was supported by the affidavit of Edibert. Tesecum, the Chief Executive Officer of the Applicant, and was sworn on the 2nd of April, 2002. The following paragraphs of that affidavit are reproduced hereunder:

   2. "In January, 2002, I heard rumors about a contract involving the Government and ITL and/or LGS Services Limited, for the provision by one or both of telecommunications services in Belize.

   3. On the 30th January, 2002, legal counsel for BTL wrote to the Minister of Budget Management, Investment and Public Utilities, asking for a copy of this contract or agreement. A copy of this letter dated 30th January, 2002 is now produced and shown to me and marked E.T. (1) for identification.

   5. By a reply dated 15th day of February, 2002 Legal Counsel in the Ministry of Budget Management, Mr. Gian Ghandi, refused the said application on the basis that "in our view" the agreements were exempt documents under section 31 of the Freedom of Information Act as their disclosure would constitute a breach of confidence.

   6. In his response, however, Mr. Gian Ghandi informed BTL's legal counsel of the parties to and the dates of the two agreements, namely:

   "Government of Belize entered into two agreements - one with LGS Services Limited on the 16th November, 2000 and the other with LGS Services Limited and International Telecommunications Ltd., on 25th September, 2001 amending the first agreement."

   7. Mr. Ghandi also notified BTL's legal counsel that "both agreements have been reviewed by the Contractor General and I enclose for your information a copy of his letter containing his observations on the agreements". A copy of Gian Ghandi's letter dated 15th February, 2002 is now produced and shown to me and marked E.T. (2) for identification.

   9. Both agreements were made without the knowledge of the Applicant. At no time was the Applicant aware of the agreements."

   18. In addition, in mid 2001, I have been informed by Phillip Osborne, and verily believe that, an offer was made by the Michael Ashcroft Foundation, an educational non-profit foundation, of which he is an officer, to the Government of Belize, for a donation of 5,000 computers to Government aided educational institutions in Belize. This offer was rejected by the Government of Belize.

   24. The Applicant has applied for relief since becoming aware of the agreements and now seeks relief from this Court."

3. On 16th of April, 2002, after hearing submissions from Counsel for the Applicant and the Solicitor-General on behalf of the 1st and 2nd Respondents, and having taken into account the affidavit of Mr. Tesecum sworn on April 2nd, and the statement in support of the Application for leave to apply for Judicial Review, in particular the material facts set forth at paragraph 3.2 of the statement which was essentially in similar terms as deposed by Mr. Tesecum in the affidavit of 2nd April, leave was granted for judicial review in the following terms:

   "That the time for applying for leave to apply for Judicial Review be extended to include the 2nd day of April, 2002.
   That the Applicant Belize Telecommunications Limited do have and is hereby granted leave to apply for Judicial Review in the form of:

   (i) A Declaration that the Decisions of the Government of Belize and/or the Minister of Finance, Foreign Trade & Economic Development on the 16th day of November, 2000 and on the 25th day of September, 2001, to enter into contracts with LGS Services Limited and International Telecommunications Limited to provide telecommunications services to the Government of Belize, are ultra vires the Financial Orders 1965, irrational and illegal.

   (ii) An Order of Certiorari to remove into this Honourable Court and quash the contracts with LGS Services Limited and International Telecommunications Limited.

   (iii) An Order of Mandamus to direct the Government of Belize and/or the Minister of Finance, Foreign Trade & Economic Development to comply with its/his statutory duties under the provisions of the said Financial Orders before entering into a contract for telecommunication services."

4. The hearing of the substantive application was fixed for the 2nd of September, 2002. However, on 23rd August, 2002 almost five months after being granted leave for Judicial Review, the Applicant filed an Application seeking:

   (i) leave to amend the Originating Notice of Motion and the Statement in Support;

   (ii) an order that all proceedings be stayed until the trial of, and decision in this Action, and;

   (iii) an order that Intelco produce the contracts referred to at 1 above, and which are the subject matter of this application for judicial review.

5. On August 26th, Intelco filed a Notice of Motion seeking leave to join the proceedings as an interested party. In the affidavit filed in support of this application, Mr. Juan McKenzie, its C.E.O., deposed that as a result of the contract dated 25th September, 2001 with the Government of Belize, Intelco had invested the sum of U.S. $28,900,000.00 and that his company was directly affected by the proceedings.

6. The Notices of Motion from the Applicant and Intelco were heard on 2nd September, and on the conclusion of submissions by all Counsel, orders in respect of (i) and (iii) of the Applicant's Summons as shown at 4 above were made, and leave granted for Intelco to be joined in the proceedings. Directions were given as to the time frame for the filing and exchange of documents between the parties, as well as for the filing of skeleton arguments and supporting authorities, and it was ordered that trial of the matter be set for 18th September, 2002. Prior to the adjournment on the 2nd September, both Mr. Courtenay and Mr. Barrow intimated that they would be applying to have the grant of leave to the Applicant for judicial review set aside, as in their view, the application "was entirely misconceived."

7. On 13th September, 2002, Counsel for the First and Second Respondents
   and Counsel for the Third Respondent filed separate Notices of Motion, returnable on 18th September, 2002, that sought an Order that the Leave to apply for Judicial Review granted on the 16th day of April, 2002 be set aside (inter alia) on the grounds that:

   (1) the Statement and the Affidavit in Support of the Statement contained material misrepresentations;

   (2) the Applicant withheld from the Court material matters of fact and law which they were under a duty to disclose;

   (3) the Applicant failed to draw to the attention of the Court the fact that there existed an alternative remedy under the Contractor General Act.

8. On September 16, 2002, Counsel for the Applicant filed six (6) Notices of Motion also returnable on the 18th day of September, 2002, that sought an Order of Committal against the First and Second Respondents and Glenn Godfrey, Roberto Young, Hector B. Knight and Herman Contreras four of the Directors of the Third Defendant, for their joint and several contempt of the Court in failing to produce the contracts referred to in 1 above of this Decision. Affidavits of service verifying that the Order dated 2nd September, 2002, had been served on each of the above named persons on the 13th of September, have been exhibited.

9. At the start of the proceedings on 18th September, Counsel for the Applicant referred to the Notices of Motion dated the 16th day of September, hereinbefore referred to, and sought to obtain orders for committal. However, I ruled that the Motions dated the 13th of September, that sought to have the Leave for Judicial Review set aside, should be heard first on the basis that if those Motions succeeded, then the Motions for committal for contempt would be of mere academic significance.

10. Following this ruling, Ms. Lois Young sought leave to file out of time affidavits, opposing the applications to set aside leave, tendered by Mr. Tesecum and by Lord Ashcroft, the CEO and Chairman of the Applicant's Board respectively. Permission was granted for the affidavit of Mr. Tesecum, which had been sworn, to be filed and served on all parties. After hearing Counsel for the Applicant and the Respondents, I refused leave for the filing of Lord Ashcroft's affidavit, as at the time of the hearing, it had not been sworn.

11. Mr. Denys Barrow SC, Counsel for Intelco, in support of his application that the grant of leave to apply for judicial review should be set aside, relied on the affidavit evidence of Glenn Godfrey, Juan McKenzie and Roberto Young to support his contention that BTL knew of the existence of the contracts in issue from as early as May, 2001, and that it was a material and gross misrepresentation on its part, to advance its application, as averred by Mr. Tesecum in his affidavit of the 2nd April, on the ground that:

    "In January 2002 I heard rumors about a contract involving the Government and ITL and/or LGS Services Limited, for the provision by one or both of telecommunication services in Belize."

12. An examination of the affidavit evidence of Roberto Young, as appears from extracts of his affidavit sworn on the 13th September, 2002, and set out hereunder, is instructive:

    (1) "I was an employee of LGS Services Limited (hereinafter "LGS") when LGS was carrying on business operations in the years 2000 and 2001.
    (2) Belize Telecommunications Limited (hereinafter "the Applicant") is and was, at all material times, a subsidiary of Carlisle Holdings Limited (hereinafter "Carlisle").

    (4) During my period of employment, LGS on or about the 16th November, 2000 entered into the contract mentioned in the title of this action (hereinafter "the said contract") with the Government of Belize in respect of telecommunications services.

    (5) In or about May 2001, employees, services, agents, and/or members of the Board of Directors of the Applicant entered into negotiations with LGS for purchase by Carlisle and/or the Applicant of the property, equipment, assets and goodwill of LGS including the goodwill associated with the said contract between the Government and LGS Services Limited (hereinafter "the LGS Assets").

    (6) There were numerous negotiations and meetings from May to August of 2001 between LGS, Carlisle and/or the Applicant (hereinafter "the Negotiations and Meetings") with regard to the proposed purchase by Carlisle and/or the Applicant of the LGS Assets.

    (8) The Chairman of the Applicant, namely Lord Michael Ashcroft, and three Directors of the Applicant, namely Ian Pluthero, Philip Osborne, and Reginald Ross, each participated from time to time in the Negotiations and Meetings for the purchase of the LGS Assets including the said contract during the period, May to August, 2001.

    (9) Herman Contreras, then Financial Controller for and on behalf of LGS, and Christopher Coye, then Attorney-At-Law for LGS, and others each participated from time to time in the said Negotiations and Meetings on behalf of LGS.

    (10) A copy of the annual report 2000 - 2001of the Applicant showing (inter alia) the said Lord Michael Ashcroft as Chairman of the Applicant and the said Ian Pluthero, Philip Osborne and Reginald Ross as Directors of the Applicant is now shown to me, exhibited herewith and marked "RY-2".

    (12) A copy of a letter signed by the said Ian Pluthero, while he was a Director of the Applicant, and dated the 25th of May, 2001 is exhibited herewith, produced and shown to me marked "RY-3" wherein, inter alia, he acknowledged the existence of the said contract and the intent of Carlisle to purchase LGS Assets including the said contract.

    
    (13) A copy of a letter referring to (inter alia) the Negotiations and Meetings signed by the said Reginald Ross acting for and on behalf of the Applicant while he was an Executive Director of the Applicant and dated the 6th of June, 2001 is exhibited herewith, produced and shown to me marked "RY-4".

    (14) A copy of a letter signed by the said Philip Osborne, Director of the Applicant, sent the 20th of June, 2001 is exhibited herewith, produced and shown to me marked "RY-5" wherein, inter alia, he acknowledged the existence of the said contract and the intent of Carlisle to purchase the LGS assets including the said contract.

    (15) A copy of a "Letter of Understanding" signed by the said Lord Michael Ashcroft referring to a meeting on the 19th day of May, 2001 with respect to the intent of Carlisle to purchase the LGS Assets including the said contract is exhibited herewith and shown to me marked "RY-6".

13. I reproduce herein "RY-6", which is representative of the contents of "RY-3; 4 and 5" to indicate the matters covered by the Letter of Understanding.

    "RY-6"
    Letter of Understanding ("LOU") between Carlisle Holdings Limited ("CHL") and LGS Services Limited ("LGS").

This LOU is intended to provide a framework to record the LGS and CHL issues discussed at the meeting held between representatives of the above parties and the Government of Belize ("GOB") on Saturday, May 19, 2001 and in subsequent discussions between the parties.

• CHL would progress the opportunity to purchase the assets and goodwill associated with the GOB telecommunications contract with LGS ("The Contract").
• The value assessed by LGS for the goodwill of LGS arising under the Contract was US$10 m, being derived from LGS' estimate of 2 years loss of revenue stream.
• LGS and its subsidiaries, and all associated and affiliated entities and persons thereof, would within a period of 4 weeks from the conclusion of an agreement between the parties, withdraw from the telecommunications market and, for an agreed period of time, would not own, run, provide, or operate any telecommunications services to any third parties within or to and from the geographical territory of Belize.
• CHL needs to understand what assets they are buying in order to determine their usability and thereby evaluate the proposed business proposition.
• The value assessed by LGS for the assets acquired and monies already spent by LGS under the Contract was circa US$18m.
• LGS would produce a schedule to support the circa US$18m and this would form the basis for CHL proceeding with their due diligence review.
• All confidential information concerning the affairs of LGS and CHL and all discussions leading up to or concerning the entering into of any agreements between the parties, would be kept confidential.
• This document is the broad non-binding LOU discussed by the parties at the meeting and is not intended to constitute a commitment to or create any legal obligation between the parties, but is to be principally used to communicate CHL's interest in the assets and goodwill associated with the Contract to LGS' and CHL's shareholders.
• In order to address the concerns raised at the meeting by the principal of DataPro, it has been agreed that a suitable "carve out" with respect to DataPro's own existing business operations would be engineered in accordance with the spirit of the Hon. Said Musa's letter of June 8, 2001 to Lord Ashcroft, and more specifically, with respect to the provision by BTL of suitable telecommunications services to DataPro as mutually agreed by the parties.
  Acknowledged and agreed to by:

14. It has been further submitted that failure to draw to the attention of the Court, at the leave stage, of the existence of an alternative remedy under the Contractor General Act, Cap 6 of the Laws of Belize, R.E 2000 was a material and major omission. In support of this, reliance has been placed on the observation by Laws LJ in R (on the application of Bancoult) v. Secretary of State for the Foreign and Commonwealth Office [2001] 2 WLR 1219 at [27], letter h that:

    "judicial review is a legal recourse of last resort and an applicant must exhaust any proper alternative remedy open to him before the judicial review court will consider his case."

The position taken by Laws LJ had earlier been propounded by Lord Donaldson MR in R v. Panel on Take-Overs and Mergers, ex parte Guinness Plc [1989] 2 WLR 863 at 885F to 886 B, and followed by Popplewell J in R v. Ministry of Agriculture, Fisheries and Food, ex parte Live Sheep Traders Ltd [1995] COD 297.

15. Mr. Eamon Courtenay SC, in support of the application that Leave for Judicial Review be set aside, contrasted the disclosure by Mr. Ediberto Tesecum in his affidavit of 18th September, 2002 (the Third Affidavit) that he had, on 31st January, 2002 written to the Contractor General about the contracts, with the affidavit of 2nd April,2002 that suggested the information relied upon had been acquired through an application pursuant to the Freedom of Information Act.

16. In setting out below the relevant paragraph of the Third Affidavit, with extracts of the letter of 31 January, 2002, it should be noted that on the 17th of September, 2002, Mr. Robert C. Swift, the Contractor General of Belize, disclosed at paragraphs 5 and 6 of his affidavit that:

    (5) "On the 31st January, 2002 I was written a letter by Mr. Ediberto Tesecum, the Chief Executive Officer of the Belize Telecommunications Limited, requesting me as Contractor General, among other things, to conduct an 'immediate investigation... of the recently announced contract awarded by GOB to Intelco, to provide GOB with various telecommunication products and services.' A copy of the said letter is now produced and shown to me marked "RCS3".

    (6) On the 13th February, 2002, I replied to Mr. Ediberto Tesecum, pointing out in my reply that I had already conducted an investigation into the matter, my views in respect thereof were no doubt communicated to the Belize Telecommunications Limited, but that if the Belize Telecommunications Limited had other pertinent information which it was prepared to provide me relating to the contracts in question; I would be 'happy to again review the matter'. A copy of the said reply dated 13th February, 2002 is now produced and shown to me marked "RCS-4"."

17. The critical paragraphs of Mr. Tesecum's affidavit are as follows:

    3. The allegation by Intelco that the Applicant failed to exhaust the alternative remedy set out in the Contractor General Act is false. On the 31st day of January, 2002, I wrote to the Contractor General, Mr. Robert Swift, on behalf of the Applicant requesting "an immediate investigation by the Contractor General of the recently announced contract awarded by Government of Belize (GOB) to Intelco, to provide GOB with various telecommunication products and services."

    4. The letter went on to express that "BTL is also concerned as to the irregular manner in which this contract was awarded to Intelco, in that contrary to the norm in awarding public contracts, neither the general public nor BTL as the sole licensed telecommunications provider in Belize, were informed or invited to submit tenders for the award of the contract. Furthermore, no publication of the intention to award the contract was published in the local media prior to the announcement by GOB of the award to Intelco."

    A copy of this letter dated the 31st day of January, 2002, is now produced and shown to me and marked "E.T.-1" for identification.

    5. On the 14th day of February, 2002, I received a response from the Contractor General in a letter dated the 13th day of February, 2002. The Contractor General responded essentially as follows:

"On receipt of your letter I reviewed this matter carefully. Given the information available to this office at this time, I do not consider that any (further) investigation is necessary or desirable."

A copy of this letter from the Contractor General dated the 14th day of February, 2002, is now produced and shown to me and marked "E.T.-2" for identification.

18. Mr. Courtenay further submitted that notwithstanding evidence which contradicted that of Mr. Tesecum which had led to leave being granted in the Third affidavit, no explanation was offered or given with respect to the contracts or to the negotiations which Directors of the Applicant Company had with Intelco to acquire the underlying business of the company, and related to the contracts in question as stated by Mr. Young in his affidavit. In support of this, Mr. Courtenay referred to the observations of Lord Diplock in O'Reilly v. Mackman {1982} 3 All E.R. 1124 at p.1130j to1131a and to those of Leggatt LJ in R v. Lloyds of London ex-parte Briggs [1993] 5 Admin. LR 698, where at p.705 he restated the requirements of disclosure on an ex-parte application, which had earlier been summarized by Ralph Gibbons LJ in Brink's Mat Ltd.,v . Elcombe [1988] 1 WLR 130.

    "In considering whether there has been relevant non-disclosure and what consequences the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following:

    (1) The duty of the applicant is to make 'a full and fair disclosure of all material facts.' See R v. Kensington Income Tax Commissioners ex-parte Princess Edmond de Polignac [1917] 1 K.B., 514 per Scutton, L.J.

    (2) The material facts are those which it is material for the Judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: See R v. Kensington Income Tax Commissioners, per Lord Cozens-Hardy, M.R., at p. 504, citing Dalglish v. Jarview [1850] 2 Mac, & G. 231, 238 and Browne-Wilkinson, J. in Thermax Ltd., v. Schott Industrial Glass Ltd., [1981] F.S.R. 289, 295.

    (3) The applicant must make proper inquiries before making the application: see Bank Mellatt v. Nikpur [1985] F.S.R. 87. The duty of disclosure therefore applies not only to material facts known to the applicant, but also to any additional facts which he would have known if he had made such inquiries".

    (4) The extent of the inquiries which will be held to be
    proper, and therefore necessary, must depend on all circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which the application is made and the probable effect of the order on the defendant: see, for example, the examination by Scott, J., of the possible effect of an Anton Piller order in Columbia Pictures Industries Inc. v. Robinson [1987] Ch. 38; and (c) the degree of legitimate urgency and the time available for the making of inquiries: see per Slade, L.J. in Bank Mellai v Nikpur [1985] F.S.R. 87, 92-93.

    (5) If material non-disclosure is established the court will be astute to ensure that a plaintiff who obtains [an ex parte injunction] without full disclosure . . . is deprived of any advantage he may have derived by that breach of duty; see per Donaldson, L.J. in Bank Mellat v. Nikpur, at p. 91 citing Warrington, L.J. in Kensington Income Tax Commissioners' case [1917] 1 K.B. 486, 509.

    (6) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the Judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.

    (7) Finally, it is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded: per Lord Denning, M.R. in Bank Mellat v. Nikpur [1985] F.S.R. 87, 90. The court has a discretion, notwithstanding proof of material non-disclosure which justifies nor requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms."

19. Ms. Lois Young for the Applicant was dismissive of the significance of the non-disclosure of the correspondence between Mr. Tesecum and the Contractor General, and queried whether the non-disclosure was in fact, material. With respect to the proposition that there was an alternative remedy under the Contractor General Act, she submitted that in the circumstance where the Contractor General had advised her client "given the information available to the office at this time, I do not consider that any (further) investigation is necessary or desirable", the statement that "if you have additional pertinent information that you are prepared to provide me I shall be happy to again review the matter," was meaningless and that it would have been pointless to go back to the Contractor General as he had already made up his mind on the issue.

20. In support of this position, reliance has been placed on the statement by Lewis in Judicial Remedies in Public Law, (Second Edition) pages 351/352.
    
    "The position is not as simple as the dicta suggest. The exhaustion of remedies 'rule' is only a general principle governing the exercise of judicial discretion. There are qualifications on that principle, and different formulations and understanding of the rule can be seen in the case law. Judges have also exhibited '. . . varying emphasis on the reluctance to grant judicial review.' One recurrent theme is the extreme to which errors which could be corrected by way of judicial review should be left to the appellate system. Another important issue is the adequacy of the alternative remedy as a means of resolving the complaint. These issues can be seen as defining the scope of the 'exhaustion of remedies' principle, or as exceptions to the general rule. In addition, an alternative remedy which may normally be adequate may not on the particular facts of a case be appropriate, and that may justify allowing recourse to judicial review. In exceptional circumstances, which, '. . . by definition . . . defy definition,' judicial review may be used notwithstanding the availability of alternative remedies."

21. In resisting the application that the leave granted should be set aside, Counsel for BTL has submitted that the Respondents should have made the application promptly, or as noted in Supperstone and Goudie's Judicial Review at para 16.7 "it must be made timeously if it is to have any point at all." She observed that nearly five months had elapsed since the leave had first been granted and that the information relied upon at this hearing, could have been put before the Court when consideration was being given to the grant of leave. With respect to the evidence of Roberto Young that some of the Directors of Carlisle Holdings/BTL had been negotiating with representatives of Intelco in May 2001 about a takeover of Intelco's business, inclusive of the Contracts, it was her position that as the Applicant is a separate legal entity distinct from Carlisle, information acquired by Carlisle cannot be imputed to the Applicant and as a consequence to Mr. Tesecum, who as Chief Executive Officer is supposed "to know the affairs of the Company".

22. Attention has been drawn to the following passage in Wade & Forsyth (8th Edition) at pages 689/690, where it is stated that:

    "An applicant may lose his claim to relief because his own conduct has been unmeritorious or unreasonable. Examples of this have already been given in the context of natural justice. An applicant may also have raised his objection too late. It is a general rule that the court will not intervene in favour of an applicant who has allowed a court or authority to proceed to a decision without setting up an objection of which he was aware at the time - except perhaps upon an irresistible case, and an excuse for the delay, such as disability, malpractice, or matter newly come to the knowledge of the applicant."

23. In reply, Mr. Barrow for Intelco, has referred, on the issue of delay, to R. v. Eurotunnel Developments Limited, ex-parte Stephens [1995] 73 P& CR 1 where leave for judicial review, was set aside one year after the application had initially been granted. As to the separate legal status of Carlisle Holdings and BTL, it was his position that where X, a Director of Company A, and also a Director of Company B and Company A is the parent of B, it is neither logical or credible to believe that X would void his mind of any knowledge acquired in the course of negotiations/discussions for and on behalf of the parent and intended to be for the benefit of the subsidiary. In the instant case, the Annual Reports indicate that Ian Pluthero, Philip Osborne and Lord Ashcroft are some of the Directors of the Applicant Company as well as members of the Board of Carlisle Holdings. In that capacity, as apparent from the exhibits R.Y.-3 and RY4 of the affidavit of Roberto Young, they negotiated with the Directors of the Third Respondent for the acquisition of its business. Consequently, it was his submission that what the Directors knew, the Applicant Company must be deemed on all reasonable grounds to also know.

24. Mr. Courtenay, in elaborating on the submission made by Mr. Barrow that what the Directors knew, the Company must be deemed to also know, noted that companies cannot act on their own volition but by their Directors and officers, and that as a consequence, an examination of the exhibits to the affidavit of Roberto Young which carried the signatures of persons who were Directors and/or officers of BTL would confirm an awareness of the existence of the contracts as early as June 2001, by Directors and officers of the Applicant, rather than late January 2002, as alleged by Mr. Tesecum.

    Mr. Courtenay also referred to R (on the application of Holmes v. General Medical Council [2001], 63 BMLR 131 and R (on the application of Lichfield Securities Ltd) v. Litchfield DC 8 March, 2001, unreported) CA as authorities for setting aside a leave which had been granted inter-partes.

25. The submission that recourse to the Contractor General is an alternative remedy requires some consideration. In the letter of 13th February, 2002, the Contractor General advised the CEO of the Applicant that "He would be happy to again review the matter." This statement must be examined in light of the following provisions of the Contractor General Act, Cap. 6 of the Laws of Belize. Sections 15, 16, 17 and 20 state as follows:

    15. "The Contractor General shall, where it is necessary and desirable, conduct an investigation into any or all of the following matters:-

    (a) the selection of contractors;
    (b) tender procedures relating to contracts awarded by public bodies;
    (c) the award of any public contract;
    (d) any allegation of fraud, mismanagement, waste or abuse involving public contracts;
    (e) the implementation of the terms of any public contract;
    (f) the circumstances of and the practices and procedures relating to the grant, issue, use, suspension or revocation of any prescribed licence.

    16. (1) An investigation pursuant to section 15 of this Act may be undertaken by the Contractor General on his own initiative or as a result of representations made to him, if in his opinion such investigation is warranted.
    (2) The Contractor General may receive and investigate complaints or information from an employee of a public body concerning the possible existence of an activity constituting a violation of laws, rules, or regulations; or mismanagement, gross waste of funds, fraud, corruption or other impropriety relating to the award or termination of any contract; or the grant, issue, suspension or revocation of any prescribed licence.
    (3) The Contractor General shall not, after receipt of a complaint or information from an employee under subsection (2) of this section, disclose the identity of the employee without the consent of the employee, unless the Contractor General determines that such disclosure is unavoidable during the course of the investigation.

    17. (1) The Contractor General may adopt whatever procedure he considers appropriate to the circumstances of a particular case and, subject to the provision of this Act, may obtain information from such person and in such manner and make such enquiries as he thinks fit.
    (2) Nothing in this Act shall be construed as requiring the Contractor General to hold any hearing and no person shall be entitled as of right to comment on any allegations or to be heard by the Contractor General.
    (3) Regulations made under this Act may prescribe the practice and procedure to be adopted at any hearing.
    (4) Where, for the purpose of an investigation, the Contractor General requires a person to attend before him, that person shall be entitled to be paid for any expenses incurred by him by reason of such attendance and by way of compensation for the trouble and loss of time suffered by him.

    20. (1) After conducting an investigation under this Act, the Contractor General shall, in writing, inform the principal officer of the public body concerned and the Minister having responsibility therefor, of the result of that investigation and make such recommendations as he considers necessary in respect of the matter which was investigated.
    (2) Where any report of the Contractor General reflects adversely upon any person, the Contractor General shall, so far as practicable, inform that person of the substance of the report.
    (3) Where the Contractor General has made a recommendation under subsection (1) of this section, and within the time specified or a reasonable time thereafter, and he is of the opinion that no adequate action has been taken in pursuance of his recommendation, he shall expeditiously lay before the National Assembly a special report on the case."

26. As noted in Lewis', Judicial Remedies in Public Law quoted at 20 above with respect to alternative remedies, is the question of the adequacy of alternative remedies as a means of resolving the conflict. Lewis at p. 356 opined further that:

    "The courts are unlikely to insist that the applicant pursue an alternative remedy which is inadequate . . . Certain remedies are generally considered an inadequate alternative to judicial review. The opportunity to complain about a local authority decision to the local ombudsman does not affect the ability of an individual to seek judicial review of the decision, if grounds for doing so exist. The role of the local ombudsman is to supplement judicial review remedies, not replace them".

27. In light of the above provisions of the Contractor General Act particularly Section 20, it seems to me that judicial review must be the preferred alternative available to aggrieved persons as the determination by the Contractor General is by way of recommendation only which is not binding on the public body concerned. Indeed, the recourse of the Contractor General, if he is of the opinion that no adequate action has been taken in pursuance of his recommendations, is to lay before the National Assembly a specific report on the case.

28. Accordingly, I do not find that the Applicant needed to have looked to the Contractor General for relief before coming to the court for leave for judicial review, as the role of the Contractor General in the words of Lewis is "to supplement judicial review remedies, not replace them."

29. The remaining issue which has to be determined is whether there was full disclosure by the Applicant on the application for grant of leave for judicial review. Latham J in R v. Leeds City Council, ex parte Hendry {1994}6 Adm LR 439 at 444D, observed that:

    "it is of fundamental importance that applications for judicial review should be made with full disclosure (emphasis added) of all material available to the Applicant."

When the several affidavits in this Action filed on behalf of the Applicant are considered against those filed by the Respondents with their supporting Exhibits, particularly those attached to the affidavit of Roberto Young, it appears that there has been a significant lack of candour on the part of the Applicant.

30. As Dillon LJ in Lloyds Bowmaker Ltd v. Britannia Arrow Plc [1988] 1W.L.R 1337 at p.1348 f noted:

    "the applicant owes a duty of fullest and frank disclosure: if he puts in matters of prejudice he must put them in as fully as is necessary to be fair. He cannot pile on the prejudice and then when it is pointed out that he has told only half the story and has left out matters which give quite a different complexion, say, "Oh, well, it is not material. It is only prejudice, and so, on a strict analysis of the pleadings, does not have to be regarded."

31. The position stated by Ralph Gibbons LJ in Brink's Mat Ltd v. Elcombe earlier mentioned at paragraph 18 of this decision bears repetition.

    "The duty of the applicant is to make 'a full and fair disclosure of all material facts . . . The material facts are those which it is material for the Judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers (emphasis added)."

32. In the circumstances of the present case, I am of the view that the failure of the Applicant to fully disclose all matters including the abortive and unsuccessful negotiations with Intelco justifies the withdrawal of the grant of leave for judicial review. However, this view needs to be weighed against the contention on the part of the Applicant that there has been unreasonable delay on the part of the Respondents in seeking to set aside the grant of Leave. If there is any merit in this proposition, it could only be applicable to the First and Second Respondents, not Intelco, the Third Respondent, who was granted leave on 2nd September, 2002, to join the proceedings as an interested party. However, as noted at paragraph 4 hereof, as recently as the 23rd of August, 2002, the Applicant filed an Application seeking (inter alia) leave to amend the Originating Notice of Motion and the Statement in Support and thus is equally culpable.

33. On a review of all the facts of this case, I do not consider that there has been any unreasonable delay by the First and Second Respondents in bringing their application to set aside the grant of leave. In accordance therefore, with the criteria laid down in the authorities to which I have referred and for the reasons mentioned in the paragraph immediately preceding, I order and declare that the leave for judicial review granted on the 16th of April, 2002, be set aside.

34. The Applicant is ordered to pay the costs of the 3rd Respondent, to be taxed or agreed. No order as to cost for the 1st and 2nd Respondents.

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