The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Cable Bahamas is alleging that Rubis is making “a desperate attempt to thwart” its $15 million summary judgment bid over the Robinson Road gas leak by continuing to argue that key evidence cannot be used at trial.

John Gomez, the BISX-listed communications provider’s vice-president of engineering, denied in an April 24, 2015, affidavit that several documents were subject to “without prejudice privilege”.

Rubis Bahamas, though, is holding to its position that Cable Bahamas’ summary judgment bid against it “rests substantially, if not entirely” on three documents that were handed to it in ‘good faith’.

As a result, Rubis is arguing that these documents - exchanged on an allegedly ‘without prejudice’ basis - are inadmissible before the Supreme Court, and cannot be used by Cable Bahamas to argue its case at trial.

The disputed documents, as previously revealed by Tribune Business, consist of a letter, powerpoint presentation and agreement allowing Rubis to access Cable Bahamas’ property to remediate the fuel leak’s impact.

“Cable’s application rests substantially, if not entirely, upon an alleged admission of liability by Rubis,” the petroleum multinational argued in its April 23, 2015, submissions to the Supreme Court.

It added that “reliance was, again, almost entirely placed” upon Rubis’s February 5, 2013, letter to Cable Bahamas, and a powerpoint presentation it gave to the latter’s executives on the Robinson Road gas leak on June 11 that year.

Rubis alleged that the February 5 letter, and the February 13, 2013, response from Cable Bahamas contained “notable features.... which clearly evidence the context in which, and the understanding/agreement surrounding, the communication which was exchanged”.

Rubis’s letter contained the phrase ‘we appreciate the spirit of collaboration between your team.... and our team’, while Cable Bahamas’ response allegedly said: ‘Though we are cognisant of your situation and this period of uncertainty, we urge you to be sensitive to our business needs.’

“Therefore, as clearly can be seen even from the brief excerpts referred to, the parties communicated within, and engaged upon, a basis which was specifically intended to amicably resolve the perceived or actual dispute which had surfaced between the two parties,” Rubis alleged.

The company then claimed that the powerpoint presentation was given “in circumstances where a comprehensive confidentiality agreement was prepared to govern the disclosure to Cable of the information contained in the presentation”.

Rubis alleged that the confidentiality agreement was sent to Mr Gomez on July 9, 2013, the day it was supposed to give the presentation. It claimed that “Cable subsequently reneged upon executing”.

Mr Gomez, though, denied Rubis’s ‘confidentiality agreement in an affidavit sworn the day after the petroleum company made its latest submissions to the Supreme Court.

“Since the occurrence of the gasoline leak and its impact on Cable’s property, I have been privy to various meetings and communications between Rubis and Cable, and at no time during any of those meetings or communications did the parties proceed on a ‘without prejudice’ or ‘off the record’ basis,” Mr Gomez alleged.

“All in all, Cable denies that the impugned documents are subject to without prejudice privilege, and Rubis’ reliance on the said principle is a desperate attempt to thwart the overwhelming evidence that it has no defence on the liability issue.”

Mr Gomez said Cable Bahamas’ attorneys, Callenders & Co, had advised it that Rubis was using an “inappropriate” mechanism to argue that the evidence was not admissible before the Supreme Court.

The Cable Bahamas executive said Rubis’s disputed February 2013 letter detailed how the gasoline leak occurred, and the clean-up steps it had taken - and planned to take.

And Mr Gomez alleged that he was “unsure” what Rubis meant by its assertion that this letter was designed to ‘amicably resolve’ any dispute between the two companies.

“Either there was a dispute or there was not,” he responded. “In any event, (albeit without reference to this letter) I note that Rubis seeks to justify its assumption of responsibility for the remediation process on the basis that it was in keeping with its corporate philosophy, which contradicts the suggestion that the remediation process was assumed with the view to resolving some dispute mutually.”

Mr Gomez said Cable Bahamas’s response referred to the agreement by Rubis to pay the rental and utilities costs incurred by the BISX-listed company as a result of having to move its customer service department to then-temporary premises at the Mall at Marathon.

Cable Bahamas had received $820,000 from Rubis towards these costs by the time it filed its initial claim on July 3, 2014.

Gordon Craig, Rubis’s managing director, in a December 5, 2014, affidavit, alleged that these payments were again made on ‘a clearly understood and without prejudice basis’, meaning the company was not admitting liability for the gas leak.

“Cable categorically denies any such agreement or understanding,” Mr Gomez alleged.

“Further, Cable denies that at any time it understood or agreed that payment was on a temporary or conditional basis, or that Rubis could or would attempt to recover the payment in the future. As far as Cable was concerned, Rubis’s agreement, referred to in the February 15 letter, was a final, conclusive agreement.

“Just as in the case of its assumption of the remediation process, Rubis seeks to justify its payments to Cable as being ‘a matter of corporate policy’, which runs counter to the allegation that such payments were made pursuant to some without prejudice agreement or understanding.”

Rubis, in its submissions, effectively argued that if its evidence ‘strike out’ bid was granted, then Cable Bahamas would have no evidence to support its summary judgment application.

Mr Gomez, though, alleged that even if this happened there was “more than ample evidence” before the Supreme Court for it to rule in Cable Bahamas’ favour.

In particular, he pointed to the recently-released Black & Veatch report into the gasoline leak that was conducted on the Government’s behalf. Mr Gomez argued that “its contents mirror the contents” of the disputed evidence.

Rubis, meanwhile, pointed out that the Court of Appeal had effectively left the door open for it to appeal the inclusion of the disputed evidence should the Supreme Court determine it was admissible.

Cable Bahamas is arguing that neither Rubis nor the gas station operator, Fiorente Management & Investments, which is owned by Harcourt and Bianca Carter, has a defence to its “negligence and/or nuisance” claims, hence the summary judgment move.

It is arguing that the only issue to be determined is the amount of damages both, or just one, should pay for loss of its customer service building, associated expenses and impact to employees’ health.

Both Rubis and its gas station operator, Fiorente, are opposing this argument while, Supreme Court documents show, pointing the ‘finger of blame’ at each other for the 24,000-30,000 gallon gasoline leak that has impacted the environment and human health in the surrounding area. The Government subsequently suggested the leak is nearer 12,000 gallons.

In its initial claim, Cable Bahamas had alleged that the hazardous vapours from the gasoline leak had forced 43 staff to seek medical treatment before its customer service building was closed in late January 2013.

Pointing out that it had been denied use of this building ever since, Cable Bahamas alleged it would cost at least $8.6 million to either clean up the water table pollution or build a new customer service centre elsewhere.

And it is claiming $4.432 million in ‘special damages” to recover the costs, and revenue loss, associated with having to move its customer service operations and marketing arms to the Mall at Marathon and East Street, respectively, as a result of the gas leak.