Bridgeton Management Services Ltd v Mayberry Investments Ltd

• Jurisdiction: Jamaica
• Judge: Batts J
• Judgment Date: 07 April 2017
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2016 CD 00329
• Date: 07 April 2017

[2017] JMCC Comm 09

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE COMMERCIAL DIVISION

Cor:

Batts J

CLAIM NO. 2016 CD 00329

In the Matter of the Arbitration Act

and

In the Matter of the appointment of an Arbitrator

Between

Bridgeton Management Services Limited

Claimant

and

Mayberry Investments Limited

Defendant

Ransford Braham QC and Jeffrey Foreman instructed by Brahamlegal for the Claimant

Jerome Spencer and Vanessa Young instructed by Patterson Mair Hamilton for the Defendant

Arbitration — Margin agreements — Arbitration clause — Application to appoint arbitrator — Whether claim statute barred — Whether issue for court and not arbitrator to determine — Whether jurisdictional issue — Arbitration Act.

IN CHAMBERS

1 By a Fixed Date Claim filed on the 30 ^th September 2017, the Claimant, pursuant to Section 6 of the Arbitration Act, seeks to have Justice Roy Anderson (Retired) appointed sole Arbiter of a dispute between the parties. The Defendant opposes the application. The Claimant relies on the affidavit of Mr John Jackson filed on the 30 ^th September 2017 whilst the Defendant filed an affidavit of Mrs Vanessa Young on the 16 ^th February 2017. There were however no issues of fact for my determination. Each party filed written submissions and authorities; each was also allowed to make oral submissions before me.

2 Having carefully considered the authorities cited it is clear to me that the Claimant must prevail in this application. I shall state my reasons for this conclusion without a too detailed reference to the arguments presented.. In so doing I intend no disrespect to counsel whose urgings were well researched and consequently of great assistance.

3 The dispute between the parties concern contracts which are called “margin agreements”. The details of which thankfully I need not go into for the purpose of this decision. Suffice it to say that margin agreements relate to monetary investments in securities. One party is allowed to borrow against the value of eligible securities provided the investment / deposit is retained at a certain level The interest charged on the amounts borrowed is called the margin rate. In this matter there is a difference of opinion between the parties as to whether the appropriate investment/deposit was maintained, the interest to be paid, whether the circumstances for payment of interest arose and how that interest is to be calculated, among other things. This dispute continued for several years and the exchange of correspondence exhibited attests to that.

4 The Claimant and Defendant agree that both margin agreements contain arbitration clauses. The wording in each is similar, but not identical, to that in the other. I will therefore quote both of them.

The 2004 agreement:

“The undersigned agrees, and by carrying an account for the undersigned you agree, that all controversies which may arise between us concerning any transaction or the construction, performance or breach of this or any other agreement between us, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration. Arbitration is final and binding on all parties.”

The 2006 agreement:

“The undersigned agrees, and by carrying an account for the undersigned, Mayberry agrees, that all disputes, differences or controversies which may arise between us concerning any transaction or the construction, performance or breach of this or any other agreement between us, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration. The choice of Arbitrator shall be in the first instance chosen from a panel of three persons by Mayberry from whom the undersigned shall select one.”

5 There is no dispute that the Claimant has called on the Defendant in the manner required to satisfy section 6 of the Arbitration Act. The relevant notices are attached as Exhibits JJ5 to the affidavit of Mr John Jackson.

6 The Defendant's objection to an order pursuant to section 6 is one which they term “jurisdictional”. It is alleged that the, or any alleged, breach of contract by their client is now barred by statute of limitation. It is submitted that it is therefore an exercise in futility to appoint an arbitrator. In any event, contends the Defendant, an arbitrator cannot be asked to determine issues related to his own jurisdiction. Therefore, since the question whether or not the claim is time barred will in this case turn on whether the parties had entered into a settlement...