The company responsible for conducting annual safety and emissions inspections on vehicles in Bermuda yesterday failed to comply with a fresh summons to produce documents to the Commission of Inquiry.

And a lawyer for Bermuda Emissions Control Limited told the tribunal the company feared its contracts with the Government were at risk and could be put in further jeopardy if it was made to release the paperwork.

Eugene Johnston argued unsuccessfully that the latest subpoena, issued on October 7, was invalid and should be set aside.

The four-person panel rejected his claim but said leave needed to be obtained from the Supreme Court — where BECL has initiated ongoing proceedings in a bid to avoid investigation by the commission — for the release of the documents.

Lawyers for the commission will now make an application to the Supreme Court seeking the release of the documents and the tribunal will reconvene at 2pm on Friday to be told the outcome.

Mr Johnston, making his submissions on behalf of BECL, said: “The company is aware of suggestions inside and very close to Government that the contracts that it operates for the benefit of Government are under threat, meaning there is a desire to prise the company business from BECL. Should that documentation be out there in the general public for those who may have insidious motives?

“There are certain sensitivities or special circumstances regarding the emissions control contracts.”

The commission is investigating the misuse of government funds on a raft of projects, including the construction of the Transport Control Department building and three emissions testing centres.

Auditor-General Heather Jacobs Matthews concluded in a special report released in 2010 that the cost of that project tripled from $5.3 million to $15.2 million after control was “relinquished” by the Government to two linked private companies, one of which was BECL.

She found a disregard for normal financial controls.

BECL was awarded a five-year multimillion-dollar contract to carry out safety and emissions testing in 2009, without the project going out to tender, and the contract was renewed in 2014.

The company filed a writ in the summer against the Premier, the Attorney-General and members of the Commission of Inquiry. Mr Johnston argued at a hearing in September that the scope of the commission was too broad.

Chief Justice Ian Kawaley said the commission was lawfully established and could investigate the emissions project, but he conceded last week that an earlier subpoena’s requirement for BECL to produce documents to only one of the four commissioners could set a problematic precedent.

He suggested the matter be resolved by the issuance of a new summons, requiring BECL to show its documents to all four commissioners.

Yesterday’s hearing was told that lawyers previously agreed the documents in question could be placed under seal and held by Jan Woloniecki, lawyer for Delroy Duncan, who is a director of Trocan Management Limited, corporate agent for BECL.

Mr Duncan, appearing in person before the commission, described himself as being in a “hopeless position, really”.

He said BECL’s directors had threatened to sue him if he released the documents but he added: “I also recognise that if I don’t hand over the documents, the summons says I’m in peril”.

Mr Johnston later said: “The company has given express directions to Mr Duncan not to release the documents and if he does, we will sue him.”

The lawyer suggested the commission already had enough documentation to assess how financial instructions were violated in government and what needed to be done about that. He said to probe deeper into the “underlying reason for that” imposed the more “insidious question” of whether anyone was “up to tricks”.

“When the documents are obtained from the company compulsorily, you put the company directly in the frame,” Mr Johnston claimed.

Commission chairman Sir Anthony Evans said he was surprised Mr Johnston would draw a distinction between “how” and “why” something happened. “It’s elementary, isn’t it, that a person’s reason is relevant as to whether an event occurred?”

Sir Anthony said the summons was issued against BECL, not Mr Duncan.

Noting that the panel ordered the documents to be produced subject to leave from the court, he told Mr Johnston it was the panel’s hope that the matter could be “sorted out” before Friday. “If that’s a forlorn hope, so be it,” he added. The chairman said members of the public had until November 18 to make submissions to the commission. The next public hearings after Friday will be held during the week of November 28, with closing arguments on December 1 and 2.

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