An­other set­back for Gorstew in pen­sion case

Jamaica Gleaner - - BUSINESS - Mcpherse.thomp­son@glean­

ASUPREME Court judge has or­dered Gorstew Lim­ited to pay ‘indemnity costs’, a rul­ing one lawyer said was un­usual, af­ter re­fus­ing the com­pany’s ap­pli­ca­tion for per­mis­sion to seek ju­di­cial re­view of the ac­quit­tal of three for­mer ex­ec­u­tives in the bil­lion­dol­lar ATL pen­sion fund fraud case.

Indemnity costs may be awarded where the court de­ter­mines that there are ex­cep­tional cir­cum­stances that jus­tify a higher rate for le­gal ex­penses.

The or­der was made in favour of for­mer ATL ex­ec­u­tives Pa­trick Lynch, Cather­ine Bar­ber and the late Dr Jef­frey Pyne, af­ter Gorstew named them, along with then Res­i­dent Mag­is­trate Lorna ShellyWil­liams, as re­spon­dents in ju­di­cial re­view proceedings aimed at chal­leng­ing the rul­ing of Shelly-Wil­liams in June 2014 when she up­held a no-case sub­mis­sion and tossed out the crim­i­nal proceedings against them.

In De­cem­ber 2014, Supreme Court Jus­tice Carol Lawrence Beswick re­fused Gorstew’s ap­pli­ca­tion for leave to ap­ply for ju­di­cial re­view. Pyne has since passed away.

Lawrence Beswick’s judg­ment re­gard­ing the award of indemnity costs was handed down three weeks ago on Oc­to­ber 19.


In an­other set­back for Gorstew, last Fri­day, Novem­ber 4, the Full Court — to which Gorstew had re­sorted af­ter its ap­pli­ca­tion for leave to ap­ply for ju­di­cial re­view had been re­fused — up­held the de­ci­sion by Jus­tice Lawrence Beswick, say­ing per­mit­ting ju­di­cial re­view of the case would be an ex­er­cise in fu­til­ity.

“I find that the ap­pli­ca­tion is vex­a­tious for be­ing so against the weight of au­thor­ity that there could have been no rea­son­able ex­pec­ta­tion that it Bert Sa­muels, Dr Jef­frey Pyne. lawyer

would have suc­ceeded,” wrote Jus­tice Thomp­son-James, on be­half of the Full Court.

Hugh Wild­man, one of the at­tor­neys for Gorstew Lim­ited, told Gleaner Busi­ness on Mon­day that they would be fil­ing an ap­peal in the Court of Ap­peal. rep­re­sent­ing the late

“We in­tend to go as far as the Privy Coun­cil ... be­cause we know we are go­ing to win this case. We are very con­fi­dent that we are go­ing to win this ap­peal,” Wild­man as­serted.

“The court has not ad­dressed the is­sue that we raised in the mat­ter,” he said, while chastis­ing Hugh Wild­man, lawyer for Gorstew Lim­ited. the court for tak­ing more than a year to deal with an ap­pli­ca­tion on a point of law.

“If there was no merit, why take one year and two months?” he asked.

Speak­ing with Gleaner Busi­ness ahead of last Fri­day’s rul­ing by the Full Court, At­tor­ney Bert Sa­muels, who rep­re­sented Pyne, said indemnity costs are higher than nor­mal le­gal costs and are un­usual.

“It’s not often given by the courts in Ja­maica. It’s the first time I’ve ever had indemnity costs awarded in my favour, and it’s the sec­ond time I’m hear­ing about it,” said Sa­muels.

“The first time was (against) Shahine Robin­son,” he said, ref­er­enc­ing a le­gal bat­tle over what was then the Mem­ber of Par­lia­ment’s dual cit­i­zen­ship sta­tus. Robin­son was or­dered to pay $15.3 mil­lion. The costs to be paid by Gorstew are to be de­ter­mined.

In her writ­ten de­ci­sion, Jus­tice Lawrence Beswick said Gorstew’s pur­suit of the is­sues raised in the ap­pli­ca­tion “es­capes my un­der­stand­ing. To me, this ap­pli­ca­tion was mis­con­ceived,” she added, while af­firm­ing that per­sons ac­quit­ted of a charge can­not be tried for it again.


“This ap­pli­ca­tion for leave for ju­di­cial re­view has as its ul­ti­mate aim/re­sult the re­trial of per­sons who had al­ready been ac­quit­ted. This, of course, would be con­trary to the con­sti­tu­tional pro­vi­sion and would, there­fore, be void of merit,” she said.

“I there­fore de­cide that, based on the gen­eral prin­ci­ple as to the award­ing of costs, in­clud­ing the un­rea­son­able­ness of this ap­pli­ca­tion, the costs should be paid by the los­ing party, that is, the ap­pli­cant,” Jus­tice Lawrence Beswick said.

It was Lynch, Pyne and Bar­ber who asked the court to set costs on an indemnity ba­sis, hav­ing ar­gued that the cir­cum­stances of the case were ex­cep­tional. The judge agreed.

“It ought to have been clear that they should not be made party to this ap­pli­ca­tion,” Jus­tice Lawrence Beswick said of the three ex­ec­u­tives.

“They have be­come par­tic­i­pants in an ap­pli­ca­tion which, even if suc­cess­ful, could not have re­quired any ac­tion by any of them. In those cir­cum­stances, in my view, indemnity costs be­come ap­pro­pri­ate.”

The judge awarded costs to the ex­ec­u­tives for one coun­sel each — a sum to be agreed by the par­ties or oth­er­wise de­ter­mined by the court’s reg­is­trar.

Com­pany to pay ‘un­usual’ le­gal costs

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