Panton v Financial Institutions Services Ltd (Jamaica)

• Jurisdiction: Jamaica
• Judge: FORTE, P.: , LANGRIN, J.A: , PANTON, J.A.:
• Judgment Date: 25 October 2001
• Neutral Citation: JM 2001 CA 59
• Judgment citation (vLex): [2001] 10 JJC 2509
• Date: 25 October 2001
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE LANGRIN, J.A THE HON. MR. JUSTICE PANTOS, J.A

BETWEEN

DONALD PANTON

1 ^ST DEFENDANT/APPELLANT

AND

JANET PANTON

2 ^ND DEFENDANT/APPELLANT

EDWIN DOUGLAS

8 ^TH DEFENDANT/APPELLANT

AND

FINANCIAL INSTITUTIONS SERVICES LIMITED

PLAINTIFF/RESPONDENT

Walter Scott Miss Karene Stanley

Michael Hylton, Q.C. Valerie Alexander

CIVIL PROCEDURE - Stay of execution - Application to set aside - Order sought to stay proceedings until certain criminal proceedings are completed - Constitution of Jamaica, s. 20

FORTE, P.:

1 I have read in draft the judgment of Langrin, J.A. and agree with his conclusion and reasons therefor.

2 It is only necessary for me to add, for emphasis that Smith v. Selwyn [1914–15] All E.R. (Reprint) 224 should not be followed in this jurisdiction. Instead, the dicta of Carey, J.A. in Bank of Jamaica v. Dextra Bank v. Trust Co. Ltd , [1999] 31 JLR 361 cited by Langrin J.A. discloses the correct approach that should be taken in these matters. I would confirm that the rule is that the Court in exercise of its inherent jurisdiction to control its own proceedings should balance justice between the parties taking of course all relevant factors into account. In determining the balance of justice between the parties in the civil case, the Court must be cognizant that since it is the appellants who seek the stay, then the burden must be on them to show that the respondent's right to have its claim proceed, should await the conclusion of the criminal proceedings.

3 For the reasons stated in the judgment of Langrin, J.A. with respect to the points raised by the appellants, I am of the view that the appellants have failed to discharge that burden.

LANGRIN, J.A:

4 This is an appeal from the order of Karl Harrison, 3 made on 23 ^rd July 2000 whereby he dismissed an application by the appellants for a stay of proceedings of the civil matter. The appellants are seeking to have that Order set aside and to have this Court make an order staying the civil action until certain criminal proceedings have been completed. On June 27, 2001 the appeal was dismissed with costs to the respondents to be agreed or taxed. We promised then to put our reasons in writing. This we now do.

5 The genesis of these proceedings began with the plaintiff which was incorporated by the Government of Jamaica to oversee the winding down of the operations of certain financial institutions. Blaise Building Society, Blaise Trust Company and Merchant Bank Ltd. and Consolidated Holdings Ltd. (Blaise Financial Entities) were among these financial institutions. The plaintiff has assumed certain liabilities of these financial institutions including the sums due to the depositors in these institutions. It is therefore seeking to liquidate its assets and to pursue claims against various persons and entities to recover sums which were due to those financial entities.

6 The first and second defendants were directors of the Blaise Trust Company and Merchant Bank. The eighth defendant was at all material times an auditor of the Blaise Financial Entities.

7 In 1995 the plaintiff filed suits against the defendants seeking to recover damages for fraud, damages for and by reason of unjust enrichment and an injunction restraining the defendant from removing from the jurisdiction or otherwise disposing of or dealing in any way with any of their assets until after the trial of this action. The actions were consolidated pursuant to an Order of the Court dated November 5, 1999.

8 In essence, the claim by the plaintiff arose out of a breach of the defendants' fiduciary duties to the Blaise Financial Entities which caused or allowed the entities to enter into transactions resulting in loss.

9 The transactions which are the subject of the claims by the plaintiff are conveniently labelled in the Statement of Claim as the TPP transaction; the DOJAP Loans, the Workors Trust transaction;- the UNIJAM Loans; the QJNJ Loan; Greenlight Car Rental and Transport Ltd. Loan; Navy Island Share Transactions; the L.S. Panton Transactions; the Deposit Liability Transport Transaction; The West Euro Transaction and the Blaise Industrial Park Transaction.

10 The defendants filed their Amended Defence and Counterclaim denying or not admitting the claims. Both parties have completed the process of Discovery and the matter has been placed on the Cause List.

11 On the 1 ^st August, 1996 the defendants were arrested on several counts of conspiracy arising out of their alleged involvement with the Blaise Financial Entities. Subsequently, the Director of Public Prosecutions indicted the defendants on counts of conspiracy to deceive, conspiracy to defraud and a count for falsification of accounts.

12 It seems clear that the charges in the criminal proceedings and the claim in the civil action are founded on the same matter. The trial of the criminal proceedings has not yet started.

13 On June 30, 1997 the first and second defendants filed an action in the Constitutional Court claiming an injunction staying the criminal proceedings pending the hearing of the action. The substantive constitutional action is yet to be heard by the Full Court since only an interlocutory matter has been heard by the Full Court and the Court of Appeal.

14 The interlocutory application made by the appellants in the constitutional action sought an interlocutory injunction to prevent the Director of Public Prosecutions and the Attorney General from making use of the statement given by Raymond Clough to the Police and for a stay of the criminal proceedings pending the hearing of that action. The Full Court refused to grant the injunction and the Court of Appeal upheld the decision. It is therefore unlikely that there will be a trial of the criminal proceedings until the constitutional action is heard and determined.

15 In an affidavit sworn to by the defendant Donald Panton the points were made in these terms:

"...I will be greatly prejudiced in my defence in the criminal matters if I am forced to proceed with the action herein before the Criminal charges are tried.

That I am advised by my Attorneys-at-Law and verity do believe that as I am presumed to be innocent of the said conspiracy charges and as the Burden of Proof is on the Prosecution, and the Standard of Proof is proof beyond a reasonable doubt, that arising there from I have a right of silence at the trial of the said criminal charges.

That I am further advised by my...