Akeem Morgan v Tavia Dunn
| Jurisdiction | Jamaica |
| Judge | Jarrett, J |
| Judgment Date | 15 May 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. SU2021CV01869 |
[2023] JMSC Civ 77
Jarrett, J
CLAIM NO. SU2021CV01869
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
The supervisory jurisdiction of the court over its officers — whether the jurisdiction is limited to undertakings given by attorneys-at-law — whether it is compensatory or punitive — whether the fixed date claim form discloses reasonable grounds for bringing the claim — whether defendants waived their right to make the preliminary objection by filing an affidavit in answer — whether a cause of action needed for declaratory relief — whether undertaking given to the court merged into the final judgment
Mr. Richard Reitzin, instructed by Messrs Reitzin & Hernandez for the claimant.
Mr Charles Piper KC and Mr Immanuel P.O. Williams instructed by Charles Piper & Associates for the defendants.
The defendants are partners in the law firm Nunes Scholefield Deleon & Co. By way of fixed date claim form, the claimant seeks a declaration that they have been complicit in the breach of an undertaking given to the court by their client. He also seeks orders pursuant to the supreme court's inherent jurisdiction to discipline attorneys-at-law in their capacities as officers of the court. The defendants filed a notice of preliminary objection to the claim asking that it be struck out on several bases, including that there is no cause of action known as “being complicit in the breach of an undertaking” and, that the claim discloses no reasonable grounds for bringing it. This is my decision on the preliminary objection.
By the time this matter came before me, Mr Donovan Jackson, one of the named defendants in the claim, had died. Before the start of the hearing of the preliminary objection, I granted an application by Mr. Lowell Morgan, another named defendant, to be appointed administrator ad litem for Mr Jackson's estate and for him, in that capacity, to be substituted for Mr Jackson as a party to the claim.
An outline of the claim will put the preliminary objection in perspective.
The following are the remedies sought by the claimant in his fixed date claim form filed on April 16, 2021: -
And Orders that -
-
1. A declaration that the defendants acting in their capacities as Attorneys-at-law and partners in the law firm Messrs Nunes Scholefield Deleon & Co., were complicit in the breach, in or about August 2019 by their client, Owen George Porter, of his undertaking to the court dated November 16, 2009 and filed on December 9, 2009 not to sell his property at Lot 121 Darien Drive, Marine Park, Portmore in the parish of St Catherine.
-
2. The court exercises its inherent supervisory jurisdiction over the defendants.
-
3. The defendants, and each of them be sanctioned for their complicity in the breach of the undertaking.
-
4. The defendants compensate the claimant for the losses incurred by the claimant resulting from -
-
i. the sale of Owen George Porter's property, including but not limited to the difference between the sale price and the best price which was reasonably obtainable.
-
ii. the claimant being deprived of the opportunity to sell the property on his own terms in accordance with his pending application to the court for an order for sale;
-
iii. the claimant being deprived of the opportunity to manage the property for his benefit pending sale and completion; and/or
-
iv. the claimant's legal cost thrown away in his having sought orders from the Supreme Court for the sale of Owen Porter's property.
-
-
5. The defendants pay the costs of, occasioned by and thrown away by reason of the claimant's application for orders for the sale of Owen Porter's property.
-
6. Damages
-
7. Interest pursuant to s.3 of the Law Reform (Miscellaneous Provisions) Act.
-
8. Costs
-
9. Such further or other order or orders as this Honourable Court deems fit.
In support of the claim, the claimant relies on his affidavit filed on April 16, 2021. He says that in 2009 when he was 12 years old, he was in a shop on Lakes Pen Road in St Catherine where he was injured when a motor vehicle driven by Constable Owen Porter, crashed into the shop. He suffered serious injuries which included post-traumatic stress disorder, the amputation of his entire ring finger and the partial amputation of the right middle and index fingers. By his mother and next friend, he commenced Claim No 2009 HCV04301 against Constable Owen Porter and obtained an ex parte freezing order in relation to his assets which included property at Lot 121 Darien Drive, Marine Park, Portmore in the parish of St Catherine. That order was not extended at the interpartes hearing. Constable Owen Porter was represented throughout the proceedings by the law firm of Nunes Scholefield Deleon & Co., with Miss Tavia Dunn, one of the defendants in the matter before me, being counsel with principal conduct. At the interpartes hearing, after Miss Dunn told the court that her client was willing to give an undertaking to the court that he would not sell his property pending the determination of the proceedings, the court ordered that he put this undertaking in writing. The claimant exhibited a copy of the written undertaking dated November 16, 2009, and filed on December 9, 2009.
On December 7, 2012, D. Fraser J (as he then was) awarded the claimant damages in the amounts of J$20,722,329.42 (inclusive of interest to that date), and US$ 5,720.00. Thereafter, the claimant said that his attorneys-at-law filed several applications for the sale of Constable Owen Porter's Portmore property. The filing dates of these applications are March 14, 2011, October 22, 2012, November 15, 2012, January 23, 2013, June 3, 2016, and September 11, 2018. According to the claimant, on each occasion that these applications came on for hearing, they were resisted by Miss Dunn.
On April 3, 2019, the claimant's attorneys-at-law received letter dated April 3, 2019, from the defendants under the hand of Miss Dunn. In that letter, reference was made to their client's undertaking, and an indication was given that he was desirous of selling his property. The letter also stated that the defendants undertook to pay over the net proceeds of sale; to make an application to the Supreme Court for their client to be released from his undertaking; and to serve that application upon receipt of a hearing date. This was followed by another letter from the defendants, written by Miss Dunn and dated October 23, 2019, in which his attorneys-at-law were asked for their banking details so that the proceeds of sale of Owen Porter's property could be transferred to them. According to the claimant, it was by this letter that the defendants intimated that their client's property had been sold.
By letter dated November 15, 2019, the claimant's attorneys-at-law wrote to the defendants, observing that searches had revealed that Owen Porter's property was sold in breach of the undertaking he gave to the court, which undertaking, the letter said, was in force in August 2019 when the property was sold. The claimant exhibited a copy of this letter as well as a copy of the title search results. Miss Dunn responded in a letter dated November 25, 2019, alleging that the undertaking was interim in nature and had merged into the judgment. His attorneys-at-law in a reply dated December 2, 2019, said that the undertaking had no temporal nature; was an unqualified unconditional undertaking not to sell the property; and there was no prior discussion that the undertaking would be discharged upon judgment being delivered. Besides, the letter continued, such an undertaking would have defeated its purpose which was to secure the enforcement of judgment which was expected to take a very long time. It was also stated that the defendants were complicit in their client's breach of his undertaking.
According to the claimant, the defendants did not respond to his attorneys-at-law's letter of December 2, 2019. After a further letter dated December 10, 2019, which enquired of the defendants why the funds they undertook to remit in theirs of April 3, 2019, were not forthcoming, the defendants explained their reasons for failing to forward the funds, in a letter of the same date. This letter, which was exhibited by the claimant was written by Miss Dunn, and in it she explains that the failure to remit the funds was because she was out of office on account of ill health and had not seen the letter dated December 2, 2019, from the claimant's attorneys-at-law, until after she returned to office. She advised that instructions were given to the defendants' financial institution to remit the sum of $5,629,611.10, inclusive of interest, to the claimant's attorneys-at-law. It is the claimant's further evidence, that by letters dated January 21, 2021, and March 25, 2021, the defendants sent the sum of $60,000.00 and $20,000.00 respectively, on account of the judgment to his attorneys-at-law.
The defendants' response to the claim is in an Affidavit of Tavia Dunn filed on July 19, 2021. Miss Dunn says that at all material times she was the attorney-at-law and partner in the firm of Nunes Scholefield Deleon & Co., with conduct of Claim No 2009 HCV 04301 Akeem Morgan v Owen Porter. On October 20, 2009, the court granted an exparte freezing order for a 28-day period. At the interpartes hearing, on her client's instructions she informed the court that he was willing to give an undertaking...
To continue reading
Request your trial