Assets Recovery Agency v Andrew Hamilton and Others

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 30 September 2013
• Neutral Citation: [2013] JMSC Civ 136
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013 HCV 03440 (NO 2)
• Date: 30 September 2013

[2013] JMSC Civ 136

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2013 HCV 03440

(NO 2)

Between

In The Matter of an Application By the Assets Recovery Agency for a Civil Recovery Order Pursuant to Section 57 of the Proceeds of Crime Act, 2007

The Assets Recovery Agency

Applicant

and

Andrew Hamilton

First Respondent

and

Dorothy Hamilton

Second Respondent

and

Andre Hamilton

Third Respondent

and

Andrew Hamilton Construction Limited

Fourth Respondent

and

Andrehan Seafoods Company Limited

Fifth Respondent

and

Devon Cleary

Sixth Respondent

and

Janet Ramsay

Seventh Respondent

and

Paulette Higgins

Eighth Respondent

and

Annmarie Cleary

Ninth Respondent

Ian G Wilkinson QC and Shawn Wilkinson instructed by Wilkinson & Co for the first, second, third, fourth and seventh respondents

Anthony Pearson and Dawn Satterswaite for the sixth and ninth respondents

Roxann Mars instructed by Knight, Junor and Samuels for the fifth and ninth respondents

Nateline Robb Cato , Suzanne Watson Bonner and Charmaine Newsome for the Assets Recovery Agency

CIVIL PROCEDURE — ABUSE OF PROCESS — STRIKING OUT CLAIM ON GROUNDS OF ABUSE OF PROCESS — DISCHARGING RESTRAINT ORDER ON THE GROUND OF ABUSE OF PROCESS

IN CHAMBERS

Sykes J

1 The Assets Recovery Agency (ARA) believes that the respondents are in possession of property derived from drug trafficking, money laundering and gun-running. In August 2012, consistent with this view ARA, without notice, applied to restrain several parcels of real estate, freeze dealing with a number of motor cars and to freeze accounts at various financial institutions. Campbell J granted the order. The grounds for the order and accompanying affidavit spoke to investigations being conducted with a view to making a civil recovery application. No civil recovery claim was ever filed in this matter. In November 2012, Donald McIntosh J extended the order to May 2013. In January 2013, the order was varied by Marsh J to facilitate the sale of two parcels of land.

2 On May 27, 2013, Marsh J declined to extend the order on what was said, in the order, to be an oral application for extension of the restraint order.

3 ARA took the view that in light of Marsh J's decision, the proceeding regarding that restraint order (now called the first restraint order) was at an end. ARA had received permission to appeal but eventually decided against it in light of its analysis and interpretation of what took place before Marsh J in May 2013.

4 ARA's analysis and interpretation of the sequence of events led it to apply for another restraint order (now called the second restraint order) which, this time, was supported by a claim form and particulars of claim. Sykes J granted the restraint order on a without notice application. At the hearing involving all the parties, some of the respondents submitted that the second restraint order was an abuse of process. Indeed, they submitted that the entire process surrounding the second restraint order was an abuse and consequently the claim form and particulars of claim should be struck out and the restraint order should also be discharged. This judgment is about deciding whether these submissions are acceptable.

5 Arising from Marsh J's decision, a total of JA$82,660,000.00 were to be released to two firms of attorneys (JA$67,590,000.00 to the firm of Wilkinson & Co and JA$15,070,000.00 to Knight, Junor & Samuels). Both sums were to be handed over on or before June 7, 2013. These sums represented the balance of the proceeds of sale of property which were sold after the variation of the restraint order in January 2013. Marsh J's May order had this first paragraph:

The oral application for an extension of restraint order granted on the 29th day of August 2012, extended to the 7th day of November 2012 and further extended on the 29th day of January 2013 is refused.

Whether the second restraint order was an abuse of process

6 The Court of Appeal of Jamaica in S & T Distributors Limited v CIBC Jamaica Limited SCCA No 112/04 (unreported) (delivered July 31, 2007) and Honourable Gordon Stewart OJ v Air Jamaica Acquisition Group Limited [2012] JMCA Civ 2 approved Johnson v Gore Wood & Co (A Firm) [2002] 2 AC 1 (HL), the leading case from England and Wales on abuse of process. In Gore Wood Lord Bingham and Lord Millett dealt with abuse of process. Lord Goff, Lord Cooke and Lord Hutton expressly agreed with Lord Bingham's analysis of the law and facts as well as his conclusion. Lord Millett gave his own analysis in arriving at the same conclusion as Lord Bingham.

7 A brief account of the Gore Woods facts is necessary to understand the case. Mr Johnson conducted business through a number of companies. Over the years he had used the defendant firm of solicitors to advise him and to manage his affairs. In respect of one of his business ventures he, through his company, W Ltd, decided to exercise an option to purchase land his company had leased. He so advised his solicitors. The solicitors exercised the option but did so in a manner that led to litigation between W Ltd and the vendor. W Ltd prevailed, eventually, but at a very high cost. W Ltd sued the firm of solicitors. At the time of this claim, Mr Johnson also had a personal claim against the solicitors but it was not filed at the same time as the company's claim. The company's claim was settled. When the personal claim was brought, the solicitors took the point that it was an abuse of process because the very same facts or substantially the same facts were being relied on to ground the personal claim. From these premises, the solicitors argued that both claims should have been brought at the same time and to have successive claims arising from the same facts and circumstances was an abuse of process. The trial judge disagreed and dismissed the application. The Court of Appeal reversed the trial judge, holding that, the personal claims should have been brought at the same time as the company's claims and that there was no good reason not do so because the basis of the personal claims “encompasses practically the whole of the ground traversed for six weeks in the company action” (page 21 H). The Court of Appeal had applied what it understood to be the rule in Henderson v Henderson which was that where a person could have brought all his claims in one action and failed to do so, that would amount to an abuse of process unless there were special reasons for not doing so. Up to this point in the litigation saga, the Court of Appeal of England and Wales were saying that failure to bring the two claims which were based on the same facts was an abuse of process.

8 In this regard the Court of Appeal was in distinguished company. The Judicial Committee of the Privy Council in Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 583 held that a litigant who brought a claim on one ground which was dismissed would not be allowed to bring the same claim on another ground against the same defendant in the absence of some special reason. The Henderson rule was applied.

9 The House of Lords unanimously reversed the Court of Appeal. For Lord Millett, a vital consideration was the risk of denying a litigant the right to have a matter litigated. At page 59 his Lordship stated:

It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.

10 His Lordship drew a clear line of demarcation between re-litigating a matter which was properly within the doctrine of res judicata and circumstances falling short of that doctrine. In the case of res judicata, the second matter would have to be stopped as a matter of law because they parties had already litigated the same issues between the same parties. There was no discretion to apply. Of course, this seemingly absolute statement has to be qualified in light of Arnold v National Westminster Bank [1991] 2 AC 93 where a party was able to come re-litigate an interpretation of the clause of lease where a decision of a higher court cast doubt on the interpretation given by a lower court. If the second matter fell squarely within the doctrine then it must be dismissed. In circumstances falling short of this, then more refined analysis is necessary having regard to the right of access to the courts so that matters can be resolved. If the parties have not in fact litigated the matter through to final judgment then that is a powerful factor pointing away from a dismissal of the matter on the ground of abuse of process.

11 Lord Millett then went on to look at the facts of the case and noted that Mr Johnson and the company were separate legal persons and the interests of the company were quite different from his personal interest. His Lordship also held at page 60:

It was not in the company's interest for his personal claims to be joined with its own much simpler claim, or for its case to be delayed until Mr Johnson's own case was ready for trial. Had the company been in liquidation and its action brought by the liquidator, he would have been well advised to insist on separate trials and to object to any delay in...