CASE HIGHLIGHT – DIPCON ENGINEERING SERVICES LIMITED –v– UDECOTT – [2025] UKPC 29
Delivered 25 June 2025 By John Paul Nahous Attorney at law at Pollonais Blanc de la Bastide & Jacelon. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL Lord Hodge, Lord Briggs, Lord Burrows, Lord Richards & Dame Janice Pereira PRACTICE AREAS AND CONSIDERATIONS This decision provides valuable learning on (a) the interplay between Clauses 53, 55.1, 56.1 and 70.1 of Part I and 5.2 of Part II of the FIDIC Conditions of Contract for Civil Engineering Construction 1987 Edition (“the FIDIC Conditions”); (b) whether a review of a claim by an employer’s employees/agents, who are not engineers appointed under the FIDIC Conditions, constitutes a determination of a claim for the purposes of these provisions when a contractor and employer deal with each other directly; and (c) whether such employees’ authority to carry out such an assessment are binding where approval to make such a payment is required from the employer’s board of directors. This case highlights the importance of contractors ensuring that they ascertain and appreciate the extent to which their employer’s employees/agents are given authority by its board of directors to make binding assessments and determinations under Clause 53.4 of the FIDIC Conditions (which allows an employer to directly assess and determine a contractor’s claim where there was noncompliance with the contractual procedure). It also re-enforces the need for an employer’s board of directors and their employees/agents to understand and ensure strict compliance with any delegation of the board’s power, and to communicate the extent of the same to a contractor. RELEVANT BACKGROUND In March 2003, Dipcon Engineering Services Limited (“Dipcon”) and the Urban Development Corporation of Trinidad and Tobago (“UDeCOTT”) entered into a written contract (“the Contract”) by which Dipcon was to carry out certain engineering and infrastructural works in relation to the Oropune Gardens Phase II housing development project being undertaken by UDeCOTT (“the Project”). The Written Contract incorporated Parts I and II of the FIDIC Conditions. In July 2006, Dipcon completed the works under the Contract and discussions were held between the parties’ representatives to settle the final accounts. These discussions ultimately resulted in UDeCOTT proposing to pay to Dipcon a lump sum (“the Final Account Sum”) in full and final settlement of all claims relative to the Project. During the course of settling the final account Dipcon submitted an additional claim in the sum of TT$11,255,800.00 plus interest on this sum (“the Additional Claim”) which it had requested that UDeCOTT consider this claim when it agreed to accept payment of the Final Account Sum. UDeCOTT paid the Final Account Sum to Dipcon by several instalments, the last of which was in April 2012. Then in March 2012, one of UDeCOTT’s officers advised Dipcon that the Additional Claim had been re-assessed at $11,686,956.25 by members of UDeCOTT’s team (none of whom were the engineer appointed under the Contract) and that the same was being submitted to UDeCOTT’s Board of Directors (“the Board”) for approval. The Board did not approve the payment of the Additional Claim and UDeCOTT denied that it was liable to pay the same. As a result, Dipcon filed an action in the High Court for payment of the Additional Claim. The provisions of the FIDIC Conditions on which Dipcon heavily relied in support of its appeal and which were ultimate considered in detail by the JCPC were as follows: “If the Contractor fails to comply with any of the provisions of this Clause in respect of any claim which he seeks to make, his entitlement to payment in respect thereof shall not exceed such amount as the Employer or any arbitrator or arbitrators appointed pursuant to Sub-Clause 67.3 assessing the claim considers to be verified by contemporary records (whether or not such records were brought to the Employer’s as required under Sub-Clauses 53.2 and 53.3)”; and “There shall be added to or deducted from the Contract Price such sums in respect of rise or fall in the cost of labour and/or materials or any other matters affecting the cost of the execution of the works as may be determined in accordance with Part II of these Conditions”. Proceedings Before the High Court In its action before the High Court, Dipcon averred that Clause 70.1 of Part I of the FIDIC Conditions stipulated that the Additional Claim was to be added to the price stated in the Contract, that UDeCOTT had quantified and assessed this claim, and that an oral agreement had arisen between the parties in April 2010 when one of UDeCOTT’s employees/agents agreed that the Additional Claim was payable to Dipcon. On 2 November 2017, Rahim J delivered a judgment in which he found that, inter alia, there was no oral contract and the Board’s approval was required for the Payment of the Additional Claim after it had been re-assessed as the employees who undertook this exercise had no authority to make an assessment under the Contract. He also found that Dipcon knew and acknowledged that the Board’s approval was required. For these reasons, the Judge ruled that, at the very most, UDeCOTT would have promised to revisit/re-assess the additional costs figure and seek approval for its payment and dismissed Dipcon’s Claim. Dipcon appealed. Proceedings Before the Court of Appeal On appeal before Smith, Kokaram and Wilson JJA, Dipcon abandoned its case of an oral agreement pursuant to Clause 70.1 of the FIDIC Conditions and mounted its appeal solely on the grounds that Clause 5.2 of the same enabled the determination of the Additional Claim to be made pursuant to Clauses 55.1 and 56.1 of the FIDIC Conditions. Although it was not contained in any grounds of appeal, during the course of submissions, Dipcon sought to rely on Clause 53.4 of the FIDIC Conditions to assert that no board approval was needed. The Court of Appeal found that a claim under Clause 70 must be determined in accordance with Part II of the same and must be assessed pursuant to Clause 53. In applying this test to Rahim J.’s findings of fact (with
Insurance is a (conditional) promise to pay
By Javed Mohammed Advocate Attorney at law at Pollonais Blanc de la Bastide & Jacelon. Introduction Insurance offers peace of mind that if disaster strikes, your losses will be covered. But many people do not realize that an insurance policy is not an unconditional guarantee. In reality, an insurance policy is a contract; it is a promise to pay claims only if certain conditions and warranties are satisfied by the insured. In simple terms, an insurer’s obligation to compensate you is conditional on you meeting your end of the bargain. This article explains why it’s vital for you to read and understand your policy, to be truthful and thorough in disclosing information, and to maintain good faith throughout the life of the policy. We focus on motor insurance, though the principles apply generally to all types of insurance. The Policy An insurance policy is a legal contract in which the insurer promises to pay you upon the occurrence of certain events, but only if the specific conditions of the policy are met. Those conditions can include obvious things like paying your premiums (the regular fee to keep your policy active), but they also include abiding by various terms and warranties written into the policy. If you breach those terms, even unintentionally, the insurer may have the right to decline your claim or treat the policy as void. For example, your motor policy might state that only drivers named on the policy are covered. If someone not named in the policy drives your car and has an accident, the insurer may deny liability. In Presidential Insurance Co. Ltd. v. Resha St. Hill [2012] UKPC 33, the Privy Council upheld the insurer’s right to refuse a claim where an unnamed person was driving. The coverage “will apply only when the vehicle is operated strictly by the person(s) named on the insurance policy”. Because insurance is a contract, courts generally enforce its terms. The fine print matters. Read and understand your Policy Many people don’t read their insurance policies until they face a claim. Insurance contracts are long and often technical, but you must read and understand the coverage, terms, conditions, and exclusions. Ask your insurer or broker for clarification if needed. It’s important to understand who you are dealing with. An insurance agent typically represents a single insurer, while an insurance broker acts as your representative to find the best terms from various insurers. At the very least, you ought to know the following as it relates to your policy: Full and Frank Disclosure (The Duty of Utmost Good Faith) Insurance contracts are based on “utmost good faith”. This means you must disclose all material facts when completing your proposal form. Material facts are any facts that would influence an insurer’s decision to insure you or on what terms. While proposal forms contain questions to guide you, the burden falls upon you to disclose any other matters you know of that might influence the insurer’s decision. When you fill out a proposal form, you sign a declaration that your answers are true and complete. Failure to disclose or a misrepresentation of facts can result in the insurer taking a decision to void the policy. For instance, in Civ. App. 58 of 2004 Alleyne v. Colonial Fire & General Insurance Co. Ltd, the Trinidad and Tobago Court of Appeal upheld the insurer’s right to avoid a policy on the basis of material non-disclosure. The appellant, Alleyne, who was blind in his left eye, answered “no” to a question on the proposal form asking whether he suffered from defective vision. The Court found that the loss of an eye was obviously material to assessing risk. The Court affirmed that the duty of utmost good faith required full disclosure of all material facts, even if the proposer did not appreciate their significance. The Continuing Duty of Disclosure The duty of good faith does not end once the policy is issued; it is a continuing duty. At each renewal, you must update your insurer about any changes in material facts. For motor insurance, this could include modifying your vehicle, changing its primary use from personal to business, or a new driver in your household. For property insurance, it might include starting a home business or undertaking major renovations. If you breach your duty of disclosure, the insurer may avoid the contract, treating the policy as void from inception. You may be refunded your premium, but your claim will not be paid. Making a Claim When an incident occurs, your duty of good faith continues. The insured is expected to report the claim as soon as reasonably practicable, honestly disclose all matters related to it, and avoid fraudulent or exaggerated claims. You must also comply with the claims procedure in your policy, which often includes a duty to not admit liability without the insurer’s consent and to cooperate fully with their investigation. A practical checklist to follow after an incident includes: What happens if a claim is denied? If your claim is denied, you have options. First, ask the insurer for their reasons in writing, referencing the specific policy condition they believe you have breached. If you disagree, you can initiate a formal complaint through the insurer’s internal dispute resolution process. Should that fail, you can seek advice from a regulatory body or a legal professional. The Insurer’s Duty The duty of good faith is mutual. An insurer must handle your claim fairly and promptly and not unduly reject claims on technicalities. In Ramsook v Crossley [2018] UKPC 9, while the insurer had the right to control the defence of a claim, the Board criticized it for failing to act in good faith by not keeping the insured informed, especially when she risked personal liability for sums beyond her coverage. Conclusion Insurance is a promise to pay, but a conditional one. The insurer’s duty to pay arises only when you, the insured, meet your responsibilities by disclosing material facts, complying with all terms, and acting in
Agentic AI and the Law: Preparing Trinidad and Tobago for the Next Digital Leap
By Javed Mohammed Advocate Attorney at law at Pollonais Blanc de la Bastide & Jacelon. IntroductionArtificial intelligence has rapidly evolved from a back-end tool into “agentic”[1] systems capable of autonomous decision-making. These AI agents can interpret data, make recommendations, or even take action with minimal human oversight. Such autonomy offers immense opportunities: automating customer service, optimising public services, and driving innovation. But it also introduces new legal and ethical complexities. Trinidad and Tobago is already confronting these realities. In May 2025, the Honourable Mr. Justice Westmin James criticised attorneys for submitting fictitious, AI-generated case law, warning that “irresponsible use of… generative AI tools undermines… the credibility of the legal system.” In May 2025, Pollonais, Blanc, de la Bastide & Jacelon attended the international webinar Agentic AI: Navigating Legal Risks of Autonomous AI Tools for In-House Counsel, hosted by In-House Connect. Presenters Brendan Palfreyman and Michelle Fleming, of Harris Beach Murtha-Attorneys at Law, respected experts in emerging technology law, explored how AI agents, unlike traditional generative tools like ChatGPT and Grammarly, plan and act autonomously in complex digital environments. Their insights into governance strategies, vicarious liability, intellectual property, and regulatory trends offered valuable perspectives aimed at the global momentum toward risk-informed AI adoption. As Fleming highlighted, AI agents are “not just predicting, but performing tasks”, thus creating urgent questions around operational control and legal responsibility for businesses adopting the technology, and their legal advisors. AI adoption has firmly entered the national conversation. The newly sworn Government of Trinidad and Tobago has signaled its commitment to the responsible adoption and integration of artificial intelligence with the establishment of the Ministry of Public Administration and Artificial Intelligence. This follows on from the previous administration’s creation of the Ministry of Digital Transformation, which had also been tasked with laying the groundwork for digital innovation and public sector reform. It shows a rare, but evident, meeting of the minds across the political divide that AI is here to stay, and adoption and implementation are key to survival. For example, in April 2024, Parliamentarians from both the government and opposition, participated in capacity-building workshops, and the Caribbean has collectively engaged with AI governance through initiatives such as the UNESCO Caribbean AI Policy Roadmap. The message is clear: as policymakers work toward formal regulatory frameworks, both public and private actors must prepare for compliance and accountability. AI and Legal Risk Globally, businesses are embracing AI to enhance efficiency and competitiveness, but not without accompanying legal risk. In Trinidad and Tobago, it is still unclear whether existing common law doctrines can effectively extend to AI-related harms. Tort law may apply where an AI-enabled tool causes injury or financial loss, whether through negligent deployment or defective design. While no local decision has yet ruled on AI liability, jurisdictions such as the UK, under the Automated and Electric Vehicles Act 2018, have begun allocating responsibility to manufacturers and insurers in cases involving autonomous technologies. In the local context, this signals those organisations deploying AI must exercise care in testing, monitoring, and mitigating potential harms. Fleming and Palfreyman noted during the IHC webinar that as AI autonomy increases, so too does the scope of vicarious liability, which suggests that local courts, which have declared “in the absence of legislative amendment, the common law should evolve”, may eventually treat AI-induced errors under stricter liability standards through the common law, until statutory guardrails are implemented. Contract law presents equally complex challenges. Trinidad and Tobago’s Electronic Transactions Act, Chapter 22:05, sections 20(1) and 20(2), recognises contracts formed by electronic agents, meaning, a chatbot or algorithm can legally bind a company in contract, whether with a consumer or another AI. Businesses must therefore clearly define the scope of authority of their AI systems and ensure that disclaimers, consent language, and governance policies are in place to prevent unintended obligations. The risk of misrepresentation, particularly in consumer-facing AI tools, makes it essential that companies have protocols for correcting erroneous outputs and limiting liability through carefully worded terms of use. These concerns were flagged in the Moffatt v. Air Canada 2024 BCCRT 149, discussed during the webinar, where the Court ruled that Air Canada was liable for negligent misrepresentation after its website chatbot inaccurately informed a customer that bereavement fare refunds could be applied for retroactively. The tribunal emphasized that companies are responsible for all information presented on their websites, including that provided by automated systems like chatbots, and ordered Air Canada to compensate the customer for the fare difference. Perhaps the most immediate compliance risk lies in data protection. AI thrives on data, especially OpenAI and personal data, yet the legal framework surrounding data use in Trinidad and Tobago is still evolving. The Data Protection Act (DPA), Chapter 22:04, has only been partially proclaimed, but when it is fully operationalised, it is expected to reflect international best practice. Sections 6 and 69, read together for example, provide stricter guidance to companies to ensure that personal data used to train AI models is collected lawfully, stored securely, and processed with transparency and consent. With AI’s reliance on cloud computing and offshore platforms, local businesses will also need to navigate cross-border data transfer rules. As enforcement intensifies, proactive compliance with the DPA will become a key element of AI governance and businesses will be well advised to ensure they are fully educated in these matters to avoid treading upon the fine line between the learning algorithms that AI thrives upon to improve the delivery of the output, and the guardrails set by the DPA. AI’s reach into intellectual property (IP), employment, discrimination, and cybersecurity law is also growing. IP laws currently do not recognise AI as an author or inventor, so companies must contractually secure rights over AI-generated outputs. Let’s say AI generates the lyrics for a calypso, or a new “soca riddim”, the question becomes, who owns the IP, and is it copyrightable? In the IHC webinar, the presenters emphasised that copyright protection is generally not available for content generated solely by AI, unless there
Adverse possession –did the clock stop during the pandemic?
The High Court’s decision in CV 2021‑01098 Seenath & ors v Ramlakhan & anor delivered on 8 April 2025, at first glance reads like a straightforward landlord‑and‑tenant/adverse‑possession contest. Yet paragraphs 55–56 of the Honourable Westmin J’s judgment contain a thought‑provoking obiter dicta that may give both landowners and occupiers pause. Justice Westmin James noted that the COVID‑19 pandemic effectively shut the doors of the courts for a considerable time. While the Limitation of Certain Actions Act was formally suspended by ministerial orders, no similar orders were made in relation to claims under the Real Property Limitation Act. His Lordship suggested that “the common law should evolve” so that the running of limitation periods for adverse‑possession claims is likewise suspended when litigants are legally barred from bringing an action. Although strictly obiter—and therefore not binding—this comment signals judicial sympathy for arguments that pandemic‑era delays ought not to prejudice a paper‑title holder. Future defendants relying on adverse possession may now face the added hurdle of establishing that time continued to run uninterrupted between March 2020 and May 2022, despite widespread court closures. Conversely, claimants may be emboldened to plead a pandemic “stop‑clock” even in the absence of express statutory authority. The discussion in paragraphs 55–56 carries several broader implications. Parties whose 16‑year limitation period under the Real Property Limitation Act happened to straddle the pandemic may now argue—drawing on Justice James’s comments—that the clock should be regarded as paused during the months when lockdowns effectively closed the courts. For litigators, the dicta invites a more cautious approach to pleadings and a renewed emphasis on documenting the practical hurdles to commencing or serving proceedings between 2020 and 2022. At a policy level, the judgment exposes a legislative gap: while emergency regulations extended limitation periods for many civil claims, property disputes under the RPLA were left untouched, prompting questions about whether a targeted statutory amendment is now overdue. Caveat: These reflections and statements from the Judge remain persuasive at best, no more than a marker of where the common law could go. For now, the statutory position under the RPLA still governs, with the period being 16 years to establish adverse possession.
AI in the courtroom: a timely reminder for the Caribbean bar
AI in the courtroom: a timely reminder for the Caribbean Bar The judgment on 30th April 2025 in CV2023-04039 Nexgen Pathology Services Ltd v Darceuil Duncan is already sparking debate across the legal profession. In a trenchant passage, James J condemned the reliance on “non-existent” authorities—apparently drawn from an unchecked AI search—and stressed that “irresponsible use of internet sources or generative AI tools undermines not only individual cases but also the credibility of the legal system as a whole.” This judgment is a timely reminder that while generative AI can sharpen our research pencils, it can just as easily ink in “hallucinations”. The Court condemned the citing of non-existent authorities that appear to have been lifted wholesale from an unverified AI search, and has referred the matter to the Disciplinary Committee under s 37(2) of the Legal Profession Act. The decision lands barely two months after the Caribbean Court of Justice issued Practice Direction No. 1 of 2025 on the Use of Generative AI. The CCJ expressly prohibits AI-generated content in affidavits and witness statements and reminds practitioners that every citation must be independently verified. It also empowers courts to demand disclosure of any AI assistance and to impose costs sanctions for non-compliance. Together, these developments mark a watershed for the Caribbean bar: AI can enhance speed and insight, but only when tempered by rigorous human oversight and ethical safeguards. Pollonais, Blanc, de la Bastide & Jacelon advocates the use of legal-tech innovation, but never at the expense of professional integrity. We remind all fellow practitioners that while we as a profession embrace training, to ensure attention is placed on governance so that use of generative AI augments, rather than erodes, the high standards on which our clients and the Courts rely. The future of law is intelligent; but, as the Nexgen judgment reminds us, it must never be blindly artificial.
Privy Council to decide on legality of levy for local Motor Insurance Bureau
Privy Council to decide on legality of levy for local Motor Insurance Bureau The Court of Appeal’s order of 25 April 2025 granting conditional leave for the Motor Insurance Bureau Association (MIBA) to take its ongoing dispute with the State to the Privy Council has thrown a long-simmering issue back into the national spotlight. At the heart of the case lies more than TT $1 billion in levies collected from motorists since 2008—money explicitly earmarked to fund a Motor Insurance Bureau (MIB) that has never been created. The MIB model is anything but novel. In 1946, the United Kingdom’s insurers entered into an agreement with the government that established the Motor Insurers’ Bureau to compensate people injured by drivers who carried no insurance or fled the scene.Trinidad & Tobago formally embraced the same idea in the 2008 Budget, introducing a levy on motor-insurance premiums to capitalize a local MIB. The levy was duly collected— and according to the pleadings in the aforementioned case, has amassed over a billion dollars by 2017—but the institutional machinery to pay claims was never enacted. In 2017 the MIBA and a private citizen sought judicial review, arguing that the continued collection and retention of the levy without establishing the Bureau was unlawful. Both the High Court and, in 2024, the Court of Appeal held that policy statements alone cannot create a legal duty; only Parliament can establish the MIB and authorize payouts. The leave now granted to appeal to the Privy Council offers one last judicial avenue to compel action—or at least provide clarity—on the status of the fund. If the Privy Council rules in favor of the Motor Insurance Bureau Association, the government may be compelled to take swift action, either by enacting the legislation to begin disbursing the funds to claimants, or by halting the collection of the levy (which has largely already stopped). On the other hand, if the Privy Council upholds the lower courts’ decisions, the issue will squarely return to the realm of policy. Regardless of the judicial outcome, the need for a functioning Motor Insurance Bureau in Trinidad & Tobago remains evident. The status quo leaves too many road users vulnerable and undermines the mischief that statutorily-required motor insurance represents. Victims of uninsured motorists remain in a precarious position: they could sue the driver, but any judgment is worth little against an impecunious defendant, and hit-and-run victims have no practical remedy at all. Bringing Trinidad & Tobago’s MIB to life would align our country with well-established international practices that safeguard road victims. At Pollonais, Blanc, de la Bastide & Jacelon, we will be closely following the developments of this case and any legislative changes that might ensue. Follow our page for updates when the Privy Council lists the hearing and hands down judgment.
