Meridian Investment Corporation et Al v Jamaica Export Credit Insurance Corporation et Al
| Jurisdiction | Jamaica |
| Judge | Kerr, J.A.,Carberry, J.A. |
| Judgment Date | 09 October 1987 |
| Neutral Citation | JM 1987 CA 58 |
| Docket Number | Civil Appeal No. 42 of 1987 |
| Court | Court of Appeal (Jamaica) |
| Date | 09 October 1987 |
Court of Appeal
Kerr, J.A.; Carberry, J.A.; Downer J.A. (Ag.)
Civil Appeal No. 42 of 1987
Carl Rattray Q.C., & Miss Hilary Phillips for the appellants.
R.N.A. Henriques Q.C., & Allan Wood for the respondents.
Documents - Interlocutory injunction — Appeal — Privileged documents — Trial judge made order on summons by defendant for injunction restraining plaintiff from disclosing or making use of confidential information in 3 documents referred to in statement of claim — Supporting affidavit from author of documents who described herself as attorney-at-law, secretary and legal officer of first defendant company — Deponent claimed that nature of her work entitled her advice to legal professional privilege and confidentiality — Purpose of documents in instant case — Protection to confidential documents does not extent to barring them from legal proceedings unless the confidentiality arose during lawyer/client relationship — Judge applied wrong principles of law in holding documents privileged — Documents not in category which would be protected — Appeal allowed.
I have had the benefit of reading the draft reasons for judgment of Carberry, J.A., and Downer, J.A., (Ag.) and I agree that the appeal should be allowed on the grounds that the documents are not privileged and do not fall within the mantle of legal professional privilege.
I have had the opportunity of reading in draft the judgment of Downer J.A.: (Ag.) and I agree with the conclusions to which he has come. However, the novelty of the situation in terms of Jamaican legal experience, and the tremendous development which has taken place in this area of the law in England (see: Lord Hailsham in D v National Society for the Prevention of Cruelty to Children [1977] 1 All E.R. 589 at page 602 c; [1978] A.C. 171 at page 226) have moved me into adding something of my own.
This is an appeal from a judgment of Bingham, J., on an interlocutory matter which has arisen in the main case.
The context of the application is as follows: a company called Antillean Food Processors Ltd, and henceforth referred to as Antillean was established in 1978 to operate a fish processing plant in the Kingston Export Free Zone. Some 90% of its shares were held by a company, Meridian Investment Corporation Ltd., henceforth referred to as Meridian; the remaining 10% of its shares being held by a company known as Trio Fabrikker A/S, a Norwegian company. Meridian is the major shareholder in two other related companies, Alcron Development Ltd., a company described as engaged in the business of property development, and Jamincorp International Merchant Bank Ltd., a company described as engaged in the business of merchant investment banking. The four Jamaican companies, Meridian, Alcron, Jamincorp and Antillean are the four plaintiffs in the main action.
It appears from the pleadings and affidavits that have been filed that Antillean, despite some technical assistance from Norway, did not do well. It was expected to buy fish from various world sources, and then to process the same into commodities that the consumer would buy, for example into sardines. This meant that much of its raw material would have to be bought abroad on the world market, and that so far as its sales went it seems to have been required to sell on the world market. When started Antillean had the blessing of the then Government and, was assured of being able to sell on the local market with some protection; however during the course of construction there occurred a change of Government, and also of policy, with the new Government being of the view that what was needed was a free market, which meant that it did not give Antillean the protection that it had hoped for or access to the local market on market on terms that would have enabled it to compete effectively with imported products, but required it to stand on its own feet on the world market. This Antillean apparently was unable to do, or to do effectively, without a home teased market. Antillean blamed the Government for its failures, while the Government apparently blamed Antillean for mismanagement and inefficiency.
It appears from the pleadings and affidavits that Antillean not only did badly but was heavily in debt. The first defendant, Jamaica Export Credit Insurance Corporation (now the National Export Import Bank of Jamaica) hereinafter called JECIC was or is a public company, a subsidiary of the Bank of Jamaica hereinafter called B.O.J. It appears to have been entrusted with arranging loans to local enterprises from funds made available by the Bank of Jamaica from foreign loans or lines of credit, and in doing so it lent substantial sums of money to Antillean totaling U.S. $7.394 million. This money was secured by a bill of sale and a guarantee from Meridian. Antillean also secured from JECIC short term loans for working capital running to some U.S. $3.904 million and this was not secured.
It should also be noted that the plant from which Antillean operated was on land leased by Alcron, and the plant was erected by Alcron and that Antillean was supposed to pay a monthly rental of U.S. $75,000.00 per month. This plant and building had been erected by Alcron on a mortgage loan from Jamaica Development Bank, which was also guaranteed by Antillean.
In May to June 1985 JECIC became dissatisfied with the performance of Antillean; Antillean was behind on its debt payments to that body, and the JECIC board decided to appoint a receiver to take over the affairs of Antillean. The receiver is the third defendant Mr. Leon Robertson. JECIC and B.O.J. are the 1st and 2nd defendants. As to subsequent events JECIC having ascribed the failure of Antillean to bad management and sent in a receiver, took steps both locally and abroad to see if they could find a purchaser or at least an operator of what they regarded as proven ability to take over Antillean, their declared aim being to protect their loan and see if they could still recover it. They also called in the guarantee by Meridian, and the Alcron Mortgage.
There are four other defendants: the Minister of Finance, the Minister of Industry and Commerce, Jamaica Commodity Trading Company Ltd and the Attorney General of Jamaica.
In short, to put it broadly, JECIC in their attempt to recover the money lent resolved to use all the various means which they could find to put pressure not only on Antillean, but on all the plaintiffs, they being an interlocking group.
On the other hand the plaintiffs blaming the powers that be for their failure, saw the efforts of JECIC as being a conspiracy to attack their group and to take over their enterprises. They blamed the Jamaica Commodity Trading Company, (J.C.T.C.) a Government agency or corporation responsible for the importation of most food staples, for not buying their product but preferring to import (perhaps more cheaply) from abroad.
The plaintiffs also blamed the Ministers involved as joining with JECIC efforts to put them out of business and to take away from them what was a potentially most profitable enterprise, given a chance to find a local market for its home base. Their principal complaint appears to have been that they were denied access to the local market to sell their products, while J.C.T.C., the island's principal importer, supplied that market with fish and fish products bought abroad from foreign companies. The plaintiffs perceived the events that took place as a conspiracy deliberately aimed at injuring their interests. For example they complain that the receiver, the third defendant, has by his bad management increased their indebtedness and also failed to realize such assets as there were and also failed to reasonably operate the plant at Antillean.
In paragraphs 19 to 21 of the Statement of Claim the plaintiffs allege that on the 23rd October, 1985, the JECIC and B.O.J. by its officers met certain creditors and the minority shareholder Trio Fabrikker in London and attempted to formulate plans for putting in new management into Antillean, and replacing the plaintiffs. In paragraph 21 the plaintiffs pursue this theme by referring to three documents specified as:
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(1) A status report issuing from JECIC to the Minister of Finance; (dated 24th September, 1985);
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(2) The aide memoire (a minute of) of meeting in London of 23 rd October, 1985; (it is dated the 11 th November, 1985); and
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(3) A memorandum to the governor of the Bank of Jamaica from Mrs. Mordecai, also dated 11th November, 1985.
It is these three documents that lie at the heart of this particular appeal.
The Statement of Claim concludes with prayers for:
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(1) a. An injunction restraining the first, second, third and sixth defendant from ‘interfering or attempting to interfere with the plaintiffs’ business.
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b. The plaintiffs also seek a declaration against the fourth, fifth and seventh defendants (i.e. the two ministers and the Attorney General) that ‘the plaintiffs are entitled to carry on their business without interference in the lawful conduct thereof.
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(2) The plaintiffs seek damages, interest and costs.
It is not necessary at this stage to express any view as to the viability of the proposed action and the relief sought. It does not appear to deal with the alleged indebtedness of the plaintiffs, nor specify what is meant by ‘interfering with the plaintiffs’ business’. Be that as it may, the Statement of Claim filed on 6th January, 1987, was followed by a summons for an interlocutory injunction dated 16th January for hearing on the 12th February, 1987.
This summons was supported by an affidavit by Mr. E.A.E. Williams, Chairman of the Board that ran Antillean, and a director of the first, second and third plaintiff...
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