A former acting director of telecommunications has lost a claim that the Ministry of Finance is unlawfully withholding more than $150,000 from him.

Hiram Edwards was hired as an assistant telecommunications inspector on a temporary basis in 1997 after retiring from the Bermuda Police Service.

In a previous hearing, the Court of Appeal heard that he had been informed the position was part-time — despite involving a 35-hour work week — and he would be entitled to receive his full pension during his period of employment.

He received his full pension until May 2000, when the Accountant General determined that he had been classified as a part-time employee in error and began to make a series of deductions to recover what it considered overpayments.

Mr Edwards took the issue and others to the courts, arguing that the withdrawals had not been lawful.

In March 2014, the Court of Appeal found that the deductions from his pension were unlawful because Mr Edwards was not given an opportunity to make representations as to whether the deduction should be made and, if so, at what rate.

The matter was sent back to the Supreme Court to assess the amount payable, and in August of 2014 it was determined that a total of $114,192.17, plus 33 days interest at a daily rate of $21.90, were owed to the plaintiff for the unlawfully deducted payments.

However, that same year the Accountant General wrote to Mr Edwards stating that he was considering making a fresh decision to withhold the amount of the overpayment, which he estimated at $154,525.37, inviting Mr Edwards to make representations.

Through counsel, Mr Edwards argued in an August 2014 hearing that the decision was unlawful, citing the findings of the Court of Appeal. The court made no ruling on the matter at that time, but invited the Accountant General to give Mr Edwards another 14 days to make representations.

Mr Edwards made no representations, based on his view that the Accountant General’s actions were unlawful, and in September 2014 the Accountant General wrote to him to state that he was using his discretion to withhold the $154,525.37.

The decision sparked a new legal action by Mr Edwards, who argued that the withholding of the funds was an abuse of process.

In a judgment issued last Friday, Puisne Judge Stephen Hellman found that the Court of Appeal judgment did not expressly or by implication find that the Accountant General was prohibited from making a fresh decision after giving the plaintiff an opportunity to make representations.

“In the circumstances, and contrary to the plaintiff submissions, the Accountant General’s second decision to recover the amount of pension overpaid to the plaintiff did not offend against the principle of res judicata and was not an abuse of process,” Mr Justice Hellman wrote.

“The plaintiff has now had ample opportunity to make representations as to why the Accountant General should not have exercised his discretion to withhold the amount of the overpayment.

“He could have argued, had the facts so permitted, that as a result of the payment he had altered his position to his detriment, such that it would be unfair to recover the monies.

“Or he could have argued that at this remove in time he was not in a position to make the representations which he would or might have made had the Accountant General sought them when first considering whether to exercise his discretion. But the plaintiff did not do so.

“He has shown no good reason why he should be permitted to keep a windfall at the expense of the public purse.

“The obvious inference is that there is none.”

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