By Emanuel Joseph
The High Court will have to determine how the Barbados electricity tariff review hearing unfolds after a dramatic start to proceedings on Wednesday.
The session took an unexpected turn after the Fair Trading Commission (FTC), which was hearing a request from the Barbados Light and Power Company (BL&PC) for a base rate hike, denied a motion by the acting public attorney. Sharon Dean to have the proceedings adjourned for two months. The dismissal prompted Dean to immediately give oral notice of his intention to apply to the High Court for an injunction to stay proceedings, which are expected to last 12 working days, while the court hears and decides on his adjournment request.
Speaking on her motion, which also includes a request for an extension to file all relevant documents, the Acting Public Counsel argued that she only took the incumbent’s position on Monday and was therefore wrong. equipped to properly perform its statutory duties on behalf of the more than 200,000 consumers its office represents in this matter.
Dean told the panel that the substantive public counsel had still not returned from extended sick leave and that as acting public counsel it would be impossible to properly prepare a highly technical case in one day. which involved 3,500 pages of documents. She argued that a case had therefore not been prepared, nor had she been advised of the issues related to the application before the FTC.
The Public Counsel Office also represents the Barbados Association of Pensioners (BARP) and the Department of Energy and Business Development.
“My concern is that not providing us with this adjournment creates a situation where it is almost an abuse of discretion. This would be equivalent to a regulatory capture [which] suggests that there is no fairness. It’s almost as if there is no transparency…all parties are acting together without the real transparency required for such an exercise,” the acting public attorney suggested. The motions were supported by all intervenors except the Barbados Renewable Energy Association (BREA) led by Stephen Worme, who argued that while the public council office is important, if the council does not participate, there were others who could represent the interests of consumers.
BL&P rejected the decision to adjourn and extend the deadline for submitting documents. His lead lawyer, King’s Counsel Ramon Alleyne, said the commission sought to balance the issues of all parties and no one got everything they wanted.
“The reality is that the longer the procedure, the higher the costs that will be borne by the consumer,” Alleyne warned.
But four and a half hours after the panel returned from deliberating on the public counsel’s motions, commission chairman Dr Donley Carrington ruled that despite oral submissions, no sworn evidence had been presented to show that active efforts had been made to find a suitable replacement for the public counsel.
Dr Carrington said there was no such evidence as notice was given of the proposed hearing dates at the procedural hearing on August 22 this year.
“The Office of Public Counsel also says that the setting of hearing dates beginning on September 21, 2022 was an unreasonable or abusive exercise of discretion, a violation of the principles of natural justice and a failure to follow procedures established by law, but in no way conducted conscious evidence in support of the same,” the head of the commission said. He also drew attention to an email received on September 19, 2022 from the Department’s Business Development Division withdrawing an earlier adjournment request.
“The commission considered the various grounds and issues raised by the Office of Public Counsel and the Barbados Pensioners Association. He is aware of the broad interests that both bodies represent in this matter and that denial of the order they are seeking will likely affect their participation in the hearing,” said Dr Carrington. He noted, however, that “these issues” must be weighed against all other relevant factors.
He explains that BL&P’s rate revision application dated September 30, 2021 was filed on October 4 of the same year. “It has been almost a year since the application was filed. A request for revision of rates must be heard with reasonable dispatch.
“The rate review application was originally set for hearing from August 25, 2022 for 12 days. The Department of Energy and Business Development, by letter dated July 27, 2022, requested additional time to comply with procedural orders and to meet and instruct the consultants. The commission, on its own initiative, convened a hearing at which the original hearing dates were canceled and new hearing dates were given.
The president told the session that the initial hearing was adjourned in an effort to be fair to all parties by giving them time to comply with procedural orders.
“If this hearing were to be adjourned, this would be the second time the rate review application hearing has been adjourned,” the president said. “The committee is of the opinion that motions to adjourn are late in all circumstances. The commission has set those hearing days for August 22, 2022. Given the seriousness of the case, the requests for adjournments should have been made within the reasonable time of said order. The motions were made after arrangements were finalized for this hearing which begins today, and after the amended motion from the Office of Public Counsel was received by the commission,” Dr Carrington said.
He said that in arriving at its decision, the FTC considered the motions, affidavits in support of the motions, and submissions from the parties.
“To date, nothing has been presented to support the statements made by Ms Dean regarding her inability to perform the duties of a public attorney as identified in section 9 of the Public Service Regulations Act. While the commission is aware of the statutory duties of public counsel, the commission also has its own statutory duties which it is required to fulfill and is liable for any breach under them,” he stressed.
“The Commission did not prevent the Public Solicitor from participating in the proceedings and performing his duties under Section 9 of the Utility Regulation Act CAP 282 of the Laws of Barbados.
“The panel considers that an adjournment at this stage would cause significant disruption and inconvenience considering the number of witnesses, the number of people participating in the hearing as intervenors and the length of the hearing,” it said. he added. “An adjournment at this stage would result in a considerable waste of time and money, which would ultimately be borne by consumers,” he said.
Dr Carrington also “vigorously” disagreed with “slander” from some speakers that he does not apply the concept of fairness and transparency when deciding cases before him.
“The commission is of the opinion that it would be fair to exercise its discretion to deny the Office of Public Counsel and the Barbados Pensioners Association an adjournment of this hearing and the motions are therefore dismissed,” he said. he ruled.
The FTC Chairman also observed that the Office of the Public Counsel never requested intervenor status in this hearing.
“The Office of Public Counsel does not have standing to bring a motion on its own unless it has first obtained intervenor status. The Office of Public Counsel would have failed on this additional ground,” Dr Carrington said.
The hearing continues at 9am tomorrow at the Accra Beach Hotel and Spa during which it will hear motions from BL&P and the team of lawyers Tricia Watson and David Simpson. (EJ)
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