Panton (Donald), Janet Panton, Jeffrey Panton and DOJAP Investments Ltd v Financial Institutions Services Ltd
| Jurisdiction | Jamaica |
| Judge | HARRISON, P. , SMITH, J.A; , K. HARRISON, J.A: |
| Judgment Date | 07 April 2006 |
| Neutral Citation | JM 2006 CA 20 |
| Judgment citation (vLex) | [2006] 1 JJC 2702 |
| Court | Court of Appeal (Jamaica) |
| Date | 07 April 2006 |
IN THE COURT OF APPEAL
APPEAL - Procedural
This is being treated as a procedural appeal as defined in the Court of Appeal Rules 1.1(8). Leave to appeal is granted and in keeping with Rule 2.4(3), the appeal is being considered by me on paper. The procedural requirements in 2.4 are waived in order that the matter be dealt with now. Having read the relevant documents, it seems that the attorneys and the first, second, third and fourth respondents have come to a parting of ways. A continued relationship between them may not be forced. The learned judge was in error in ordering that they remain together. The question is whether on the date scheduled for the hearing the judge should or should not grant an adjournment to these respondents to allow for new representation.
The order of the learned judge is set aside and the application to remove the name of Chancellor and Co. from the records is granted.
CIVIL PROCEDURE - Adjournment - Application
This is an appeal from the order of Mcintosh, J on 6 th February 2006 refusing to grant an application for an adjournment to a reasonable date in the matter that had been fixed for trial on 30 st January 2006.
The facts are that these five actions, involving several financial transactions and take-over of financial institutions, were commenced in 1995 and 1997 and consolidated on 5 th November 1999.
The appellants were represented since 1996, by Chancellor & Company, a firm of attorneys-at-law. The first and second appellants filed a joint defence on 24 th May 2000. The third appellant filed his defence, settled by Mr. A. Dabdoub, on 1 st February 2000. The 4 th appellant, the directors of which are the first, second and third appellants, filed its defence on 1 st February, 2000.
On 22 nd March 2000 when an order for directions and for further and better particulars were made Mr. Dabdoub appeared for all the appellants.
Between March 2000 and 2004, there were several interlocutory applications and appeals, including an application to stay this matter until the termination of related criminal proceedings against the 1 st and 2 nd appellants. This latter appeal was ultimately dismissed by the Judicial Committee of the Privy Council in December 2003.
On 3 rd March 2004, as a result of the introduction of the Civil Procedure Rules 2003, a case management conference was held and a trial date fixed for 8 th November 2004. A previous trial date had been fixed on 9 th October 2001 for 10 th June, 2002. On 16 th September 2004 at a case management conference a trial date was fixed for 30 th May 2005, Mr. Dabdoub appeared for the appellants.
On 10 th March 2005 the appellants applied to vary the case management schedule and on 8 th April 2005 the trial date of 30 th January 2006 was fixed. Mr. Henriques, Q.C. appeared for all the appellants. He also appeared as counsel for the first appellant on 3 rd February 2004 when the trial date of 8 th November 2004 had been fixed.
The affidavit of Miss Wanda Josephs reveals that her firm Chancellor & Company had briefed Messrs. Henriques, Q.C. and Dabdoub, as counsel in the matter.
After April 2005, negotiations for a settlement of the matter, at the request of the first appellant, commenced and was ongoing between the parties, that is, Mr. Walter Scott of Chancellor & Company and the Solicitor General for the respondent. In August 2005, the negotiations continued.
No brief nor documentary exhibits were sent to either Mr. Henriques, Q.C. nor to Mr. Dabdoub, to date.
On 5 th December 2005 Mr. Scott presented to the first and second appellants the proposed settlement agreement. They disagreed with some of the proposals and consequently rejected the agreement. (See affidavits of Donald Panton and Janet Panton each dated 7 th February 2006). The first appellant instructed Mr. Scott to continue the negotiations for a settlement and to involve therein counsel Mr. Henriques, Q.C. and Mr. Dabdoub.
On the said 5 th December 2005 Mr. Scott wrote and delivered to the first appellant, a letter stating (i) that his firm would not appear to represent them at the trial on 30 th January 2006 and (ii) that if the matter was not settled he would remove Chancellor & Company from the record of the case by 31 st December 2006. On 19 th December 2005 the first appellant again requested Mr. Scott to continue the negotiations in order to effect a settlement of the actions.
On 4 th January 2006 Chancellor & Company filed an application to remove their name from the record. On 16 th January 2006 Miss Justice Beckford was told by the appellants that they had lost confidence in their attorneys Chancellor & Company and that they were not happy with the settlement agreed on their behalf. The learned judge adjourned the matter to 23 rd January 2006, having encouraged the parties to make an attempt to effect a satisfactory settlement of the matter. The parties met at the Attorney-General's office on 19 th January 2006 pursuant to the urgings of the learned judge. No settlement was reached. On 23 rd January 2006 the said judge dismissed the application refusing to allow Chancellor & Company to remove its name from the record.
On 23 rd January 2006 in the afternoon Mr. Dabdoub advised the first appellant that he would be prepared to represent the appellants as instructing attorney and brief counsel in the matter - see affidavit of the first appellant dated 23 rd January 2006 at page 50 of volume 1 of the record. The said appellant at paragraph 20 of the said affidavit said:
"Mr. Dabdoub also stated as a condition that adequate arrangements would have to be made which gave his firm access to monies set aside for the payment of Counsels' fees who were instructed by Dabdoub, Dabdoub & Co. and a retainer and monies for pre-trial preparation would have to be paid to Dabdoub, Dabdoub & Co. ..."
On 27 th January 2006 on appeal to this Court, Panton, J.A. granted the order removing the name of Chancellor & Company from the record as attorneys for the appellants.
On 30 th January 2006, the trial date, Mr. Dabdoub advised the learned trial judge:
"I am here because my firm has been approached to take over the matter from Chancellor & Company, but they have not yet been provoked. Not only that, sir, I understand counsel who had represented them before is deceased and Mr. R.N.A. Henriques, Q.C. took his place but with the withdrawal of Chancellor..."
Mr. Dabdoub, maintaining that he appeared amicus curiae, said of the appellants, at page 78 volume 1 of the record:
"Well, they are unrepresented this morning, and I am certainly not in a position, M'Lord, to even, were I willing to commence this matter without the provocation which is necessary, I would not be in a position to do so, because I understand there are. some 29 bundles which the firm and counsel will have to get acquainted, whichever counsel is now going to be retained, in order for this matter to proceed. So that in the circumstances the interest of justice would require that the Defendants be given an opportunity to obtain new counsel."
He said that he did not then represent the appellants and applied for an adjournment on behalf of the appellants "... in order (for them) to put their representation in place." He stated further that negotiations had been ongoing up to the Friday before with the Solicitor General with a view to an amicable settlement, but he had been retained only for the purpose of such negotiations.
The learned judge pointed out the number of years that the case had been before the court, that the rules stipulate that "only lawyers who will be representing the clients at the trial can or should be involved in these case management and pre-trial fixtures," and that he Mr. Dabdoub was unable to say until what date he desired the adjournment.
Mr. Dabdoub then applied for an adjournment until Friday of that week"... for them to be able to obtain legal representation." The learned trial judge adjourned the matter until 6 th February 2006 and indicated that he would commence the trial then.
On 2 nd February 2006...
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