Justin O'Gilvie and Others v Bank of Jamaica and Others

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 04 October 2013
• Neutral Citation: [2013] JMSC Civ 143
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013 HCV 01436
• Date: 04 October 2013

[2013] JMSC Civ 143

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2013 HCV 01436

Between

Justin O'Gilvie

First Claimant

and

Incomparable Enterprises Ltd

Second Claimant

and

Bulls Eye Security Services Ltd

Third Claimant

and

Bank of Jamaica

First Defendant

and

Asset Recovery Agency

Second Defendant

and

National Commercial Bank Limited

Third Defendant

and

Attorney General

Fourth Defendant

Paul Beswick , Carissa Bryan and Kayode Smith instructed by Ballaentyne, Beswick and Co for the claimants

Michael Hylton QC and Kevin Powell instructed by Michael Hylton and Associates for the first defendant

Sundiata Gibbs instructed by Michael Hylton and Associates for the second defendant

Sandra Minott Phillips QC instructed by Myers Fletcher and Gordon for the third defendant

Harrington McDermott instructed by the Director of State Proceedings for the fourth defendant

CIVIL PROCEDURE — APPLICATION TO STRIKE OUT CLAIM — NO REASONABLE GROUNDS TO BRING CLAIM — ABUSE OF PROCESS — RIGHT TO HAVE A BANK ACCOUNT — CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS

IN CHAMBERS

Sykes J

1 Mr Justin O'Gilvie is a businessman. In 2010 he was swept up by a current of events which ended with the voluntary departure for the United States of America by Mr Christopher Coke who has since been convicted of very serious offences. Mr O'Gilvie professes to be a friend of Mr Coke. This association caused the Assets Recovery Agency (“ARA”) to believe that the property held by Mr O'Gilvie, his family and his companies (the other two claimants) were derived, directly or indirectly, from criminal activity

2 One of the consequences of the events was that the Asset Recovery Agency (“ARA”), acting on information which ultimately proved to be deficient, secured a restraint order of various accounts of Mr O'Gilvie, his family and businesses. After two years, ARA conceded that it could not sustain the allegation that Mr O'Gilvie was in possession of property derived from criminal activity. The restraint orders were discharged on December 14, 2012.

3 Mr O'Gilvie may well have thought that the worst was behind him. That was not to be. By letters dated December 18, 2012, National Commercial Bank (“NCB”) informed him that they would be terminating banking relations with him by January 29, 2013. This notice came one week before Christmas and at the peak of the Christmas shopping period. The banking service to be terminated included all of Mr O'Gilvie's personal and business accounts as well as the accounts of the second and third claimants, his wife and children.

4 The accounts have now been closed. He and his companies have brought a claim against NCB alleging that they failed to give him reasonable notice to close his accounts (“Claim NO. 2013 HCV 00149/the first claim”). In that claim he tried, unsuccessfully, to secure an interim injunction preventing the bank from closing his account. That claim is to come to trial.

5 In the meantime Mr O'Gilvie and his companies filed another claim (“the second claim”), the instant claim, alleging that the Bank of Jamaica (“BOJ”), the (“ARA”) and (“NCB”) have committed various torts and unconstitutional acts against them. In respect of BOJ, it is the failure on the part of the BOJ to instruct NCB that it cannot discriminate against the claimants. By failing to do this, the BOJ breached its statutory duty to the claimants. As against ARA, the allegation is that it showed reckless disregard for the claimants in that it acted upon unreliable evidence and ARA knew that its actions in a small island nation like Jamaica would have adverse consequences on the claimants. In respect of NCB, the case is that it breached the constitutional rights of the claimants by discriminating against them on the basis of their social origins. The Attorney General is said to be liable vicariously for the various misdeeds of BOJ and ARA.

6 BOJ and NCB have moved to rid themselves of these claims on the bases that:

• (a) as against BOJ the claim is an abuse of process; discloses no reasonable grounds for bringing the claim and no statutory duties are owed to the claimants;

• (b) as against NCB the claim is an abuse of process.

Abuse of process

7 Both BOJ and NCB have submitted that this claim is an abuse of process and should be struck out. BOJ submits that it is an abuse of process because any challenge to the way in which BOJ exercises its statutory mandate must be by way of judicial review. Any other way of raising the challenge must of necessity be an abuse of process. BOJ relies on O'Reilly v Mackman [1983] 2 AC 237 and Bahamas Telecommunications Company Ltd v Public Utilities Commission and Systems Resources Limited PCA No 19/2007 (unreported) (delivered February 12, 2008) for this proposition.

8 NCB submits that the claim is an abuse of process because it rests on the same factual material as the first claim against NCB ( Justin O'Gilvie and others v National Commercial Bank 2013HCV00149).

The claimants' propositions

9 The submissions of BOJ and NCB have to be assessed in light of the claim and the underpinning legal foundations. The claimants, in essence, say that in the modern world and in Jamaica, access to financial services is fundamental to the realisation of your worth and dignity as a person. No person can function effectively without access to financial services. In particular no company or individual can conduct business effectively without the assistance of a financial service provider. If the company or individual does not have a bank account or an account at a financial institution, certain kinds of transactions or business opportunities cannot be undertaken. This means that financial institutions, in this case NCB, are no longer at liberty to deny persons the opportunity to hold a bank account. Financial institutions are providing a vital service, akin to water, electricity and other essential services.

10 Mr Beswick goes so far to say that the time has come for the law to say that a financial institution should not deny the opportunity to hold an account unless it has good reason. Good reason, for example, would be showing that the potential customer or an existing customer has breached some law relating to the operation of the account or has been convicted of a criminal offence.

11 In support of these propositions Mr Beswick relies on three sources of law: (a) the Constitution of Jamaica; (b) sections 5 and 34A of the Bank of Jamaica Act (“BOJA”) and (c) section 29 of the Banking Act (“BA”).

12 According to Mr O'Gilvie no reason has been given to him for terminating the relationship between NCB and himself, his family and his companies. The claimants say that they were customers of NCB for many years. So too were his wife and children. At no time did NCB say that it was unhappy with the way the accounts were operated. No hint of impropriety was suggested to him by the bank. His only “sins” were (a) being friends with Mr Christopher Coke who is now serving a term of imprisonment in a United States of America prison facility and (b) being from Tivoli Gardens/West Kingston. These are the only two reasons Mr O'Gilvie is able to come up with.

13 Mr O'Gilvie has come up with a conspiracy theory and has sought to put the notification of the closure of the account in what he believes to be the proper historical context. The notification that the accounts would close came after the event now called the Tivoli Incident. This was an operation mounted by the Jamaica Constabulary Force and the Jamaica Defence Force, over several days resulting in significant loss of life and damage to property, to take Mr Christopher Coke into the custody of the state. He was believed to be in Tivoli Gardens. This event took place in 2010.

14 According to Mr O'Gilvie, this incident was followed by ARA applying to freeze his account. These accounts remained frozen until December 2012 when ARA, rather shame facedly, admitted to a judge of the Supreme Court, after more than two years of freezing the accounts, that it did not have sufficient evidence to mount a civil recovery case. A civil recovery case is where the state alleges, at the civil standard of proof, that property in the possession of someone is derived, directly or indirectly, from criminal activity. In other words, from Mr O'Gilvie's standpoint, so hopeless and weak was the case against him that after two years of investigation ARA could not unearth a single link between the claimants' properties and any criminal activity.

15 Mr O'Gilvie strongly feels that it is his social origins and place of origin that led to his maltreatment at the hands, first, of ARA, and secondly, of NCB. He says, had he been born in a more affluent section of the society and had attended more socially acceptable schools with the consequence of hobnobbing with the more genteel, well-heeled members of the Jamaican society, he and his companies would be treated by ARA and NCB with more deference.

16 In relation to the BOJ, Mr O'Gilvie, through his counsel, wrote a letter dated January 22, 2013 to the Governor of the Bank of Jamaica indicating that NCB told Mr O'Gilvie that banking services were being terminated. The letter indicated that the claimants would find it virtually “impossible for the businesses to continue operating without a current account.” The dire consequences of the closing of the account were pointed out to the Governor. Mr O'Gilvie told the Governor that in over thirty years of banker/customer relationship he and the other claimants had met all the “know your customer” requirements and nothing can be said by anyone to impugn the claimants' character and business reputations. In effect, the BOJ was being asked to intervene.

17 The BOJ's position, as reflected in a letter from Mr Robin Sykes (no relation to the court) dated...