Non-disclosure clause blocks release of NHT/Dexim settlement – Court Administration

The Court Administration Division (CAD) says it cannot release the settlement agreement between the National Housing Trust (NHT) and private developer Dexim Holdings because of a "non-disclosure clause". 

"Please be advised that we can only share the order but not the annexed schedule with the agreement because of the non-disclosure clause. Please be so guided," the CAD said in a statement to The Gleaner on Friday. 

Amid public backlash, the NHT had indicated the agreement could be accessed through the courts. 

The CAD provides administrative services to the judiciary. 

The Gleaner first requested the order on January 10, a day after the parties advised the Supreme Court that their dispute was settled. 

The order released today is dated January 15 and is signed by Justice Althea Jarrett, the law firm DunnCox, which represents the NHT, and attorney Dr Mario Anderson on behalf of Dexim.

“The claimant and the defendant, having agreed to the terms set out in the annexed schedule, it is ordered that all further proceedings in this action be stayed, except for the purpose of carrying such terms into effect,” it read. 

The NHT sued Dexim in September 2022 after alleging that the company failed to deliver 200 houses under a $2.5 billion contract guaranteed purchase agreement signed in August 2019.

Dexim has rejected the allegations and insisted that its efforts to meet the August 2022 deadline were impacted by COVID-19. 

Concerns about the settlement were triggered following a Sunday Gleaner report that the NHT signed to a non-disclosure clause, blocking the public entity from telling its contributors about the matter. 

The NHT was asked about the settlement terms from January 9 but no response has been forthcoming. 

In its first statement on the matter on January 30, the agency said the secrecy clause in the settlement was to comply with court rules on mediation, and pointed the public to the courts for access to the document.  

"The non-disclosure and confidentiality provision in the settlement agreement is consistent with those requirements from the rules of court as to the conduct of mediation. This does not mean that the terms of the settlement would be, or were intended to be, unavailable for viewing by members of the public. The very agreement provided for the material terms to be entered as a consent judgment in court," the Trust said in a second statement issued February 1. 

It continued: "After the settlement agreement was signed by the parties, the entire agreement, not just the material terms, was annexed to the consent order and filed at the Supreme Court..."

The trust also said it did not sign a non-disclosure agreement. 

The Gleaner obtained a copy of the settlement agreement, which is dated November 29, 2023. The non-disclosure clause stated that “the parties agree to maintain in confidence the content, terms, conditions, and the consideration for this settlement agreement”. 

It added: “Each party agrees to take every reasonable precaution to prevent disclosure to third parties and each agrees that there will be no publicity, directly or indirectly, concerning this settlement agreement, the discussions of the parties at mediation, or the matters in relation to the claim or the GPP (guaranteed purchase programme).”

The NHT is reclaiming $650 million that was advanced to the company. That money was secured by a bond through a local bank. 

Dexim is also to pay over $20 million to the NHT under the settlement. 

"There has not been any loss of NHT funds arising from the transaction," said the Trust, which is funded by a mandatory contribution on the income of employers and workers. 

The Opposition People's National Party has raised concerns about the NHT signing to a non-disclosure clause.

- Jovan Johnson

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