Jones (Gresford) v Yvon Desulme, Thomas Desulme, Claudia Desulme and Myrtha Desulme
| Jurisdiction | Jamaica |
| Judge | HARRISON J |
| Judgment Date | 05 November 2001 |
| Judgment citation (vLex) | [2001] 11 JJC 0501 |
| Docket Number | SUIT NO. C.L. J 061 OF 1999. |
| Court | Supreme Court (Jamaica) |
| Date | 05 November 2001 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
CIVIL PROCEDURE - Summary judgment - Application - Issues of conflict - Champerty - Procedural flaws - Judicature (Civil Procedure Code) Law, s. 79 - Legal Profession Act, s. 21
The plaintiff seeks summary judgment against the first, third and fourth defendants pursuant to section 79(1) of the Judicature (Civil Procedure Code) Law in the sum of Five Million Seven Hundred and Fifty Thousand Dollars ($5,750,000.00) with interest thereon at the rate of 6% per annum from the 24 th day of June, 1999 to the date of judgment.
On July 11 th 2001 I completed hearing arguments and submissions in the matter and reserved judgment. I had promised to deliver judgment as early as possible but the legal vacation intervened. I do apologize for the delay in handing down judgment and now seek to fulfill this promise.
The statement of claim alleges inter alia, that by an agreement in writing made between the plaintiff and the defendants (the first Agreement), the plaintiff agreed to act as an Attorney at Law and to render professional services for and on behalf of the defendants and the defendants agreed to retain the plaintiff and to pay him for his professional services rendered on a contingency basis in connection with matters arising from the Estate of Thoams DeSulme, deceased. The First Agreement is contained in a Memorandum in writing dated the 30 th April, 1996, signed by the first, third and fourth defendants and which provided for a contingency fee of $3,000,000.00. Memorandum in writing dated the 30 th May, 1996 which was signed by the defendants had increased the contingency fee payable from $3,000,000.00 to $3,500,000.00. Memorandum in writing dated the 12 th September, 1996 which was signed by the defendants had further increased from $3,500,000.00 to $4,500,000.00.
It was a condition of the first Agreement that the contingency fee would be payable upon the Defendants' success in the said actions.
Pursuant to the first Agreement, the Plaintiff acted as Attorney at Law for the defendants in connection with the said actions. On the 5 th February, 1998 judgment was obtained in favour of the Defendants in suit No. E 352 of 1994 whereby the said Deed was held inter alia, to be null and void and was set aside. On the 16 th February, 1998 in relation to Suit No. E 287 of 1996 judgment was again entered in favour of the defendants whereby the Supreme Court ordered, inter alia, that the said Jean Marie DeSulme and Jeffrey Pattinson submit detailed accounts of their dealings..."
There was an additional agreement in writing between the parties whereby it was agreed that the defendants would pay the sum of $500,000.00 to the Plaintiff to act as an Attorney at Law and to render professional services for and on behalf of the defendants in connection with an action filed by the said Jean Marie DeSulme and Jeffrey Pattinson.
Appearances were entered by the first, third and fourth defendants respectively and a Defence was filed and served out of time. This Defence was returned and the defendants were advised to seek leave of the Court to file it. A proposed Amended Defence has now been exhibited to the Affidavit of the 4 th named Defendant sworn to on the 2 th day of November 2000.
The Defendants have alleged that they had entered into a contingency agreement with the plaintiff and that it was contingent upon whether the plaintiff enabled the defendants to access benefits under the will of the Defendants' father, Thomas DeSulme, deceased. They further allege that the plaintiff never enabled them to access such benefits and is therefore not entitled to collect the sum alleged or any sum at all.
It is further alleged that the agreement is void for lack of consideration and at the same time had been obtained through the use of undue influence on the defendants. They aver that at all material times they were without income and desperate when they signed the contingency agreements with the plaintiff under undue influence.
The Defence further alleged that the contingency agreement was champertous and therefore illegal and/or void and/or contrary to public policy and cannot be relied on. Accordingly, the defendants alleged that the Plaintiff was not entitled to recover the sum claimed or any other sum pursuant thereto.
They have admitted they had entered into the agreements referred to in the statement of claim which alleged that it was a condition that the contingency fee would be payable upon the defendants' success in the aforesaid actions. They also admitted that there was a judgment in their favour in two actions.
With respect to the alleged agreement for the $500,000.00 fees alleged in paragraph 5 of the statement of claim, the defendants denied this allegation and have asserted that the Plaintiff would only be entitled to reasonable payment, if any, for services rendered subject to taxation by the Court.
The affidavit evidence is voluminous. I have also had the benefit of seeing and hearing the fourth defendant being cross-examined upon her affidavit evidence. Counsel on both sides referred me to various aspects of the evidence and addressed me as well on these areas.
Let me summarize as best as possible what the deponents said.
The plaintiff deposed that he verily believes that the defendants have no defence to the action. He has denied exerting any undue influence upon the defendants and has asserted that they had expressed complete satisfaction with the efforts made by him on their behalf. He has also deposed that the lifestyle of the defendants is completely inconsistent with their allegation that at the time they entered into the various agreements they were "without income and desperate".
The defendants on the other hand, have contended in their affidavit evidence that they have a Defence to the Action and that they ought to be given leave to defend it. They have asserted that there was no consideration given for any of the agreements. They contend that a Ron Perry who had worked at their late father's company as a Consultant, had suggested to them that the plaintiff should be used as their Attorney in order to attain their objectives.
They further assert that they met with the plaintiff and disclosed to him at the outset that they did not have any money to pay him as they had already committed themselves to Messrs Rattray Patterson & Rattray who had filed a suit on their behalf and that they were impecunious. They also say that the plaintiff thereafter told them that he would do the matter on a contingency basis and all that they would require to pay at the outset was $15,000.00 as a retainer fee and that once they were put back in their positions he would collect his fees.
Accordingly, the agreements were subsequently formulated and prepared by the plaintiff and signed by them under undue influence. They were not allowed to have another Attorney at Law to peruse the agreements hence they were unable to receive independent legal advice.
They contend that even though the actions in the Supreme Court were determined in their favour, an appeal is still pending in one of the suits.
They also complain that the contingency has not crystallized since they have not received any benefit so far from the estate of their deceased father.
They further contend that the fees demanded by the plaintiff are unfair, excessive, oppressive and unreasonable having regard to the minimal work he has done. They also contend that they were influenced by Ron Perry who had indicated that in order to...
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