Gillian Mullings takes former bankers case to Privy Council

November 2002

DONOVAN CRAWFORD, former head of the Century financial entities has chosen to by-pass the Court Appeal in his ongoing battle to overturn a court order that maintains that he must pay $2.2 billion to the Government-owned Financial Institutions Services Limited (FIS).

He has ignored a Court of Appeal ruling and has headed straight to the United Kingdom Privy Council for a determination of the $2-billion judgment which the Financial Institutions Services (FIS) obtained against Crawford and his companies.

Crawford's lawyer, Oswald James, who is instructing attorneys-at-law Patrick Bailey and Gillian Mullings of the law firm Patrick Bailey and Company will make the announcement in the Court of Appeal tomorrow.

The announcement will be made when the motion brought by FIS' lawyers, Myers Fletcher and Gordon comes for hearing in the Court of Appeal.

Documents were filed in the Court of Appeal Registry on Friday that Crawford's application for special leave is set for hearing in the Privy Council on January 13 or 14.

An appellant can apply to the Court of Appeal for leave to go to the United Kingdom Privy Council or go directly by way of special leave to the Privy Council.

FIS is contending that Crawford has not paid legal fees to its lawyers and is seeking an order to rescind the conditional leave which the Court of Appeal granted last year for Crawford to file the relevant documents to the Privy Council. The motion is set for hearing tomorrow.

After Crawford was granted conditional leave to go to the Privy Council FIS' lawyers had obtained an order from a Court of Appeal Judge that if Crawford did not pay the law firm's legal fees amounting to $7.6 million then FIS' lawyer could apply for an order to bar him from getting final leave to go to the Privy Council.

Court of Appeal Judge Henderson Downer had ruled in chambers in February this year, that Crawford should pay the legal fees within 60 days failing which FIS' lawyers could apply to the Court of Appeal to bar him from getting final leave.

An application was made in July this year to bar Crawford from going to the Privy Council because he did not pay the legal fees but when the matter came for hearing in the Court of Appeal, Crawford's lawyers informed the court that Crawford was appealing Justice Downer's ruling. The Court of Appeal then put off FIS' application until the appeal was heard.

Crawford is contending that the judge's ruling was a breach of his constitutional rights. He is contending that the judge had no legal authority to make such an order. Crawford's appeal is pending in the Court of Appeal.

Last year, the Court of Appeal upheld a Supreme Court ruling that Crawford and his companies must pay FIS nearly $2 billion owing to it as a result of loan transactions from the now defunct Century financial entities to Crawford and his companies.

Gillian Mullings gets compensation from school for hurt child

March 2004

A COURT has the power to amend the particulars of a claim in the interest of justice once the evidence shows that a litigant can be compensated for damages that are not pleaded.

This is what the Court of Appeal did last month when it amended the claim in an appeal brought by the Oracabessa Primary School, St. Mary. The claim was amended in favour of a student at the school.

The law is clear that the court can amend particulars of a claim in relation to damages. On the question of amending claims to add parties to a suit, some lawyers pointed out that the authorities show that a court cannot amend a claim to include a party which has not been duly served. The lawyers say all parties to a suit must be duly served so that they can be given an opportunity to defend the suit. If the proper party is not served then a suit can be declared a nullity.

The Court of Appeal last week amended the particulars in a claim and also amended the suit by removing the Oracabessa Primary School, which was named as the defendant to the suit. The court substituted the School Board of Management of the Oracabessa Primary School as the respondent.

NULLITY

There are some lawyers who have expressed the view that the suit should have been declared a nullity because the wrong party was sued and, therefore, a nullity cannot be amended.

The court, in amending the claim, pointed out that the school board was aware of the suit and had retained a lawyer to represent the school.

Resident Magistrate Sarah James-Thompson had ordered in February 2002 that the Oracabessa Primary School should pay $150,000 in damages for negligence to the father of a boy who was severely beaten by a bigger boy on February 16, 1999 when he was only six years old. On the day of the incident, the boy, who was a student at the Oracabessa Primary School, had gone on an excursion with teachers and other students to sports day activities at Galina Primary School, St. Mary. The boy was going to the bathroom in the afternoon when a bigger boy pulled him into bushes, beat him with a belt and robbed him of his money. When the boy returned to the playfield he did not see the buses in which they had travelled. The boy discovered that the teachers and the other students had left.

A resident saw the boy on the playfield in the evening and gave him money for his bus fare. The resident put him on a public passenger bus and asked the conductor to leave the boy at the police station.

WRONG ENTITY

Attorneys-at-law Audrey Reynolds and Gillian Mullings, who were instructed by Patrick Bailey and Company , represented Oswald Frazer and his son Ramon. They asked the court to declare the suit a nullity because the wrong entity was sued. The lawyers wanted the suit declared a nullity so that they could start over the suit because the six-year limitation in which to file a suit would not have expired in that case until 2006.

The lawyers, who were recently retained to argue the appeal, said it was the Oracabessa Primary School Board of Management and not the school, which should have been sued and, therefore, the court should declare the suit a nullity.

The court, comprising the Ian Forte, President of the Court of Appeal, Justice Paul Harrison and Justice Seymour Panton, took the decision that the suit did not have to start over because the court had the power to amend the claim. The court amended the suit and substituted the school board as a party to the suit. The court explained that attorney-at-law Huntley Martin, who appeared for the school, had said he was retained by the chairman, vice-chairman of the school board and the principal of the school. The court said that information led the court to the conclusion that from the beginning it was the school board which had been defending the action.

In amending the claim, the court placed reliance on section 190 of the Judicature (Resident Magistrates) Act which states that "the magistrate may at all times amend all defects and errors in any proceeding, civil or criminal, in this court, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made, with or without costs, and upon such terms as to the magistrate may seem fit; and all such amendments as may be necessary for the purpose of determining the real question in controversy between the parties shall be so made."

DAMAGES FOR FRIGHT

The court said it had the same power as that of the Resident Magistrate and the justice of the case demanded that the particulars be amended to include damages for fright. The court referred to the RM's finding that the boy was abandoned by the agents of the school, namely the teachers and must have been frightened when he discovered that the teachers had left him. The court held that the RM was correct in coming to that finding.

After amending the claim, the court set aside the Resident Magistrate's award of $150,000 for damages for negligence as a result of the injuries the boy suffered. The court said the school board could not have foreseen that a bigger boy would have injured the boy. The court found that the six-year-old boy was abandoned by the school board, which had responsibility to take care of him and that was a 'grave offence'.

The Court of Appeal awarded the boy $50,000 for the anguish suffered from fright.

In allowing the school board's appeal in part, the court awarded the school board $10,000 for costs against the respondents. The school board had appealed on the ground that the Resident Magistrate erred in awarding damages for negligence for the injuries the boy suffered.

Gillian Mullings deferred Audley Shaw against Joseph Issa

March 2004

OPPOSITION SPOKESMAN on Finance Audley Shaw and his wife Maureen were compelled early yesterday morning to give control of their Christiana gas station to their business partner Joseph 'Joey' Issa.

Issa and his company CoolOasis Christiana Limited took over the operations yesterday after the expiration of an injunction that had barred him from taking possession of the business.

The move was pre-emptive of new atttempts by the Shaws to bar Issa from the gas station.

The couple had obtained a one-week injunction against Issa and CoolOasis, which expired at midnight on Monday.

An application for another injunction was set for hearing yesterday in chambers in the Court of Appeal, but when the matter came up before Justice Clarence Walker, attorney-at-law Frank Williams informed the judge that the defendants were already in possession of the gas station.

Mr. Williams, who was instructed by attorney-at-law Harold Brady, argued on a preliminary point that under the Court of Appeal Rules 2002, a single judge could not grant the injunction which the Shaws were seeking.

Mr. Williams said the Shaws were asking the judge to decide a matter which was already scheduled to be decided by three judges of the Court of Appeal, and pointed out that damages would be an adequate remedy if the Shaws succeeded on appeal.

Justice Lawrence, in upholding the preliminary point, said if he were to grant the injunction, he would be acting in vain because the defendants were already in possession of the gas station.

And, "The court does not act in vain," he said.

The Shaws had taken the defendants to court in January this year after the defendants informed them that they were taking over the management of the company by February 1.

The gas station was run by CoolOasis Christiana Ltd. and Mrs. Shaw was responsible for the operation of the gas station.

BREACH OF AGREEMENT

The defendants contend that periodic reviews of her performance showed that there were returned cheques from the bank and overdue payments for supplies of petroleum products and telephone calling cards. The defendants said the gas station debts had amounted to $7.2 million in December as a result, in breach of their agreement.

In response to the defendants' claim, the Shaws said that there was substantial performance of the agreement. They said they owned the property on which the gas station was housed and when the property was transferred to CoolOasis Christiana Ltd. on March 16 last year, the property was worth $25 million.

FORMATION OF PARTNERSHIP

The parties became business partners last year after Issa and his company CoolOasis offset the Shaws' debt of $13.7 million to United Petroleum (Ja) Limited.

Under that deal, it was agreed that the property housing the gas station, which is owned by the Shaws, would be transferred to CoolOasis Christiana Ltd., a company formed to run the gas station.

After the defendants informed the Shaws that they were taking over the gas station by February 1, the Shaws filed a suit in the Supreme Court contending that they own 50 per cent of the gas station.

Attorney-at-law Gillian Mullings and Audrey Reynolds, instructed by attorney-at-law Patrick Bailey, represented the Shaws.

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