The construction company sacked from the new Berkeley Institute project is seeking to appeal against a decision understood to have left it owing Government millions of dollars.

Pro-Active Management — fired from the massively over-budget building project in August, 2004 — has applied for permission to challenge the outcome of an arbitration between itself and Government in the Court of Appeal.

If it is granted leave to appeal, The Royal Gazette understands the company's lawyers will argue that arbitrators made an error of law in their conclusion.

Taxpayers have been left in the dark about how much the long-running legal wrangle between the two has cost since the arbitration was held behind closed doors at the request of Government and the outcome remains shrouded in secrecy.

This newspaper quoted sources close to the arbitration last December as saying that it left Pro-Active owing Government $13 million, with a subsidiary owned by the Bermuda Industrial Union (BIU) being liable for $6.5 million of that amount.

Government has consistently refused to comment on the outcome, as has Pro-Active.

The Royal Gazette, as part of its A Right to Know: Giving People Power campaign, is urging Bermuda's leaders to tell the public the amount spent so far on fighting the case.

The Supreme Court writs book shows that on January 4 this year, Pro-Active's lawyers at Bean & Associates launched legal proceedings "in the matter of an arbitration" with Government.

No one at Bean & Associates could be contacted for comment yesterday.

A Government spokesman said: "The Ministry of Works and Engineering confirms that there is an appeal by Pro-Active against the arbitration award. However, the outcome of the arbitration award is confidential."

This newspaper has come across a document which sheds some light on the debacle which led to an overspend of more than $50 million on the new Berkeley building.

A two-page document on Bermuda Industrial Union (BIU) headed paper pinned up in a local bar purports to give readers "the facts" about the row.

The leaflet is thought to have been published before the arbitration proceedings.

It states that the BIU — which has also refused to discuss the results of the arbitration with this newspaper — could ultimately lose out to the tune of almost $11 million because of Government's treatment of itself and Pro-Active.

The document explains that the BIU — through its wholly owned subsidiary Union Asset Holdings Limited — put up $6.8 million as a surety for Pro-Active on the Berkeley building.

It also injected some $4 million into the project because, it claims, the Ministry of Works and Engineering took an "arbitrary approach" to making monthly payments to Pro-Active.

It states that it expects Pro-Active's sacking from the project to be deemed unlawful by arbitrators and that Government "has consistently ignored the rights" of the union as surety to complete the work itself or receive full disclosure on any other arrangements.

"Ultimately the BIU may be called on to foot the bill to the extent of $6.8 million (together with the $4 million already advanced)," says the document.

The leaflet reveals how the bungled Berkeley project — which ended up costing taxpayers about $125 million rather than the budgeted-for $70 million — created a deep rift between the union and the Progressive Labour Party.

The union says it supported the project and the awarding of the contract to Pro-Active, a company only incorporated in February 2000, because "of the stated intention and desire by various Government Ministers at the time to support the principle of black economic empowerment and redistribution of economic opportunities in Bermuda".

It goes on to say that in order for Pro-Active to succeed it needed the "consistent and unwavering support of Government" but was thwarted by civil servants.

The union alleges that Government ignored Pro-Active's complaints about "sabotage".

The union leaflet reveals that Government and Pro-Active agreed that the former would pay the latter $13 million as a settlement in February 2004, adding "not all of which has been paid as agreed".

It claims Pro-Active completed 80 percent of the work and had a legitimate claim for $21 million but wrote off $8 million in the interests of moving forward amicably.

The document further alleges that the parties agreed to monthly meetings to schedule the completion of the Pembroke secondary school but Government "refused to meet".

Then Works and Engineering Minister Ashfield DeVent handed Pro-Active a letter firing the company on August 24, 2004.

The union claims Government held secret negotiations with Somers Construction Co. and other entities to complete the school.

The final paragraph states: "These are direct assaults on the financial security of the Bermuda Industrial Union and constitute a backdoor attempt to bankrupt the BIU and to reverse many decades of struggle and development."

BIU president Chris Furbert did not respond to questions sent late yesterday afternoon about whether the union intended to pay the $6.8 million and whether to do so could lead to bankruptcy.

It is hard to ascertain the current state of the union's finances since when Mr. Furbert became president in 2006 the BIU had not filed accounts at the Registry General, as it is required to do by law, since 1999.

Mr. Furbert promised in July 2006 that they would be filed the following month.

Neither the Registrar General or Assistant Registrar General responded to a query yesterday as to when BIU last filed accounts.