Harold Morrison and Robert Woodstock Associates Ltd v Marjorie Morrison
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Sinclair-Haynes JA,Foster-Pusey JA |
| Judgment Date | 19 November 2020 |
| Neutral Citation | JM 2020 CA 142 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 17/2018 |
| Date | 19 November 2020 |
[2020] JMCA Civ 55
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Mrs Justice Foster-Pusey JA
SUPREME COURT CIVIL APPEAL NO 17/2018
(Legal Guardian of James Morrison)
and
(Mother and Next Friend of Zoe Morrison)
and
(Mother and Next Friend of Zara Morrison)
and
(Administrator Ad Litem of the Estate of Harold Eustace Melville Morrison, deceased)
Written submissions filed by Ransford Braham QC instructed by Brahamlegal for the appellant
Written submissions filed by Ms Sherry Ann McGregor instructed by Nunes, Scholefield, DeLeon & Co for the 1 st, 2 nd and 3 rd respondents
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read in draft the judgment of my sister Foster-Pusey JA. I agree with her reasoning and conclusion and there is nothing that I could usefully add.
I too have read the draft judgment of my sister Foster-Pusey JA and agree with her reasoning and conclusion.
This is a procedural appeal brought by the appellant, Harold Morrison and Robert Woodstock Associates Limited, challenging the orders of Palmer Hamilton J(Ag) (as she was then), (“the judge”), made on 2 February 2018. On that date, in exercise of the jurisdiction of the court established in Norwich Pharmacal Co & others v Customs & Excise Commissioners [1973] 2 WLR 164, which empowers the court to make orders for disclosure against a person who is not a party to the proceeding (“ Norwich Pharmacal orders”), having heard submissions by counsel, the judge ruled in favour of the first, second and third respondents (hereinafter called “the respondents”) and made the following orders:
“1. [The 4 th respondent] shall specifically disclose receipts, invoices and/or estimated figures in respect of the liabilities identified in paragraph 8 of the Affidavit of Lourice Morrison that was sworn to on May 24, 2017.
2. [The appellant] shall disclose copies of its audited or draft financial statements for the years 2015 and 2016.
3. [The appellant] shall disclose all documents pertaining to the income generated or derived by the firm as at 2015 and 2016.
4. [The appellant] shall disclose all documents pertaining to the debts owed to the firm as at 2015 and 2016.
5. …
6. Costs to [the appellant] in the Application to be taxed if not agreed. Costs to be costs in the claim with respect to [the 4 th respondent].
7. Leave to appeal to [the 4 th respondent] and [the appellant].”
Discontented with the judge's orders, the appellant, on 12 February 2018, challenged them on the following grounds:
“(a) The Learned Judge in Chambers erred in granting the orders made against the Appellant.
(b) The Learned Judge in Chambers failed to appreciate that the Appellant was not a party to the claim and could not properly be made a party to the claim.
(c) The Appellant not being a party to the claim ought not to be required to provide discovery.
(d) The Learned Judge in Chambers erred in the interpretation and application of the principles enunciated in Norwich Pharmacal Co & others v Customs & Excise Commissioners [1973] 2 WLR 164.
(e) The Learned Judge in Chambers failed to appreciate that the conditions precedent required for the making of a Norwich Pharmacal order did not exist in the instant case.
(g) 1 [sic] The Learned Judge in Chambers failed to appreciate that the orders made against the Appellant are oppressive, excessive, onerous, unjust and unfair.”
The appellant therefore asks that this court set aside the orders made by the judge, dismiss the first to third respondents' application, and award it costs of the application and of the appeal.
In considering this appeal, this court will be required to closely examine the basis on which a Norwich Pharmacal order may be granted, and whether the necessary preconditions were satisfied in this case.
The orders granted by the judge were as a result of an application made by Marjorie Morrison on her own behalf, as well as on behalf of James Morrison and Sjaun Morrison. It should be noted, however, that the notice of appeal has not named Marjorie Morrison as a respondent to the appeal in her own right. It appears, though, that the appellant is challenging the grant of the orders to all of the applicants in the court below and the appeal has been approached on that basis.
Lourice Morrison was included as the fourth respondent to the appeal. However, at the case management conference, the appellant indicated that it will be withdrawing
the appeal against her. She has, therefore, not appeared or filed submissions in the appealThe appellant is an architectural firm. Harold Morrison, now deceased, (“HM”), was a renowned architect who owned 51% of the shares in the firm. He died on 4 March 2016, leaving his entire estate to Lourice Morrison (“Lourice”), his then wife. Since all the parties bear the same surname, with no disrespect intended, I will refer to them by their Christian names from hereon for ease of reference.
On 17 June 2016, Marjorie, the first respondent and ex-wife of HM, along with Sjaun, filed a fixed date claim form (“the claim”), pursuant to the Inheritance (Provision for Family and Dependants) Act (“the Act”), seeking declarations that Marjorie, James, Zoe and Zara are entitled to receive financial provision from HM's estate. Marjorie provided the factual basis of the claim in her affidavit, which was also filed on 17 June 2016. She stated, among other things, that she had been married to HM and they divorced on 2 November 2001. Immediately prior to his death, HM was paying her $150,000.00 per month for maintenance. James, son of HM, up to the time of HM's death, was receiving financial assistance from his father as, although an adult, he suffers from a number of mental and other challenges, and is incapable of managing his own affairs. James is married to Sjaun and they have two children, Zoe and Zara. Although Sjaun has commenced divorce proceedings against James, HM, up to the time of his death, paid the school fees for Zoe and Zara.
Lourice has, therefore, inherited HM's 51% share in the appellant.
At paragraph 29 of her 17 June 2016 affidavit, Marjorie asserted:
“In all the circumstances, I verily believe that James, his daughters and I are entitled to receive reasonable financial provision from the … estate in light of the likely size and nature of the … estate.”
Lourice, in an affidavit filed on 24 May 2017, which is not a part of the record of appeal, but to which reference is made in the judge's reasons, provided details of the assets and liabilities of HM's estate. Insofar as liabilities are concerned, she referred to his funeral expenses, credit card bills, testamentary fees, taxes and the litigation costs emanating from the claim. She also referred to real estate which, following HM's and Marjorie's divorce proceedings, was declared to be jointly owned by HM and Marjorie as tenants-in-common. Importantly, for the purposes of this appeal, she also stated at paragraph 8 of her affidavit:
“(iii) In relation to the request for the audited financial statements of the firm, the current articles adopt Articles 35 to 38 from Table A, schedule 1 of the Companies Act of Jamaica, 2004, which provide that on Harold's death I would not automatically become a member of the firm but would first have to be elected and registered as a member. Since election and registration have not taken place, I do not have a right of access to the firm's documents including statements or accounts.”
By way of a comment, it is clear that the obstacle to which Lourice has referred would not be difficult to surmount. However, the matter has to be approached on the basis of the facts before the court and Lourice has not participated in this appeal.
Apparently also in that May 2017 affidavit, Lourice, in reliance on a valuation prepared by Mr Ashburn Simon, a chartered accountant, who was the independent accountant and external auditor of the appellant for many years, had indicated that HM's 51% shareholding in the appellant valued between $27,000,000.00 and $30,000,000.00. Marjorie, however, describes that valuation as an estimate.
The respondents were dissatisfied with this ascribed value of the shareholding and consequently, on 2 June 2017, filed a notice of application for court orders seeking several orders for the disclosure of the appellant's financial information, including audited financial statements, debts owed to it and its liabilities for the years 2015 and 2016. Importantly, the appellant, although not a party to the claim, was made a respondent to the notice of application. The grounds on which the respondents relied in the notice of application were as follows:
“1. The substantive claim is made pursuant to the provisions of the Inheritance (Provision for Family and Dependents) Act for reasonable financial provision to be made for the maintenance of [the respondents] from the net estate of the deceased.
2. In determining that claim, the Court must determine, inter alia, the size and nature of the net estate of the deceased as defined in section 2 of the Inheritance (Provision for Family and Dependents) Act.
3. The most substantial asset in the deceased's estate is a 51% shareholding in the [appellant].
4. The estimate prepared by Mr. Ashburn Simpson [sic], Chartered Accountant, to which [the fourth respondent] has referred to say that the value of 51% of the shares in the firm is worth between...
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