Re Jamaican Redevelopment Foundation

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 08 April 2009
• Judgment citation (vLex): [2009] 4 JJC 0801
• Docket Number: CLAIM NO. 2008 HCV 5029
• Court: Supreme Court (Jamaica)
• Date: 08 April 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2008 HCV 5029

BANKING LAW - Declaratory judgment - Order for discovery - Whether Jamaica Redevelopment Foundation subject to Banking Act - Civil Procedure Rules 2002, Rule 6.6 - Financial Institutions Act, s. 44

SYKES J.

1 Before me is an application by Jamaican Redevelopment Foundation, Inc. ("JRF") for a declaratory judgment asking that I declare that:

• 1. Jamaican Redevelopment Foundation Inc. is hereby allowed to comply with the order for discovery contained in the Agreed Confidentiality and Protective Order dated the 11 ^th of September 2008 and any subsequent discovery order made ("the said order") in Cause No. 380-00037-2008, in the District Court of Collin County, Texas ("those proceedings") in the United States of America on the ground that:

  • a. JRF not being a bank is not subject to the provisions of the Banking Act and JRF not being a financial institution is not subject to the provisions of the Financial Institutions Act; or

  • b. JRF being a person who by reason of its capacity has access to certain records of banks and financial institutions in relation to various receivables purchased, is subject to section 45 of the Banking Act and section 44 of the Financial Institutions Act and/or the common law principles of confidentiality, but is permitted to comply with the said order because -

    • i. the disclosure by JRF ordered in those proceedings constitutes circumstances such that it is in the interest of JRF that the information be disclosed either at common law or under subjection (k) of the Fourth Schedule of the Banking Act or subsection (k) of the Fourth Schedule of the Financial Institutions Act, and

    • ii. the exceptions to section 45 of the Banking Act found in the Fourth Schedule and the exceptions to section 44 of the Financial Institutions Act found in the Fourth Schedule do not derogate from the common law exceptions to the duty of confidentiality; and

    • iii. the disclosure required by the said order amounts to such compulsion of law as permits the disclosure ordered by JRF pursuant to the common law.

• 2. The Applicant and its duly authorised agents are therefore entitled to disclose for the sole purpose of those proceedings, all information and records in accordance with the said order, from January 30, 2002, being the date of JRF's acquisition of the Jamaican loans referred to in the said order.

2 I have decided to treat this application as one in which a litigant approaches the court to ask for guidance because it is uncertain of its legal obligations and does not wish to take the risk of running afoul of the law. The declaration sought was granted on March 31, 2009. These are the reasons for granting the declaration.

3 JRF is a company incorporated in the state of Texas in the United States of America with its registered office at 6000 Legacy Drive, Plano, Texas. It is registered in Jamaica as an Overseas Company (#896 overseas).

4 JRF is a debt collector. In pursuance of this business, it purchased debts owed to Jamaican financial institutions by many and varied borrowers. It will be recalled that long before the current world crisis, Jamaica experienced its own financial sector difficulty in the 1990s. Part of the strategy of the government was to take over these institutions by way of the statutory powers vested in the Minister with responsibility for finance by the Banking Act and the Financial Institutions Act. After taking over the institutions, the debt was removed from them and then sold as debt free institutions to private interests who wished to invest in them.

5 JRF took some of this debt by assignment. This was done by deed of assignment, dated January 30, 2002, between Financial Institutions Services Limited, Workers Savings and Loan Bank and Refin Trust Limited (together called "the sellers"), and JRF ("the purchaser"). In the case of Workers Savings and Loan Bank, the debt was sold directly to JRF whereas in the case of Financial Institutions Services Limited and Refin Trust Limited, they had acquired the debt and then sold it to JRF.

6 By purchasing the debt, JRF now has documents that were previously in the possession of institutions licensed under the Banking Act and Financial Institutions Act. I shall explain more about these statutes later and why Mrs. Minott-Phillips felt that this application was necessary.

7 JRF is now a party to litigation in the United States of America. It brought a claim in the District Court of Collin County, in the state of Texas, against Dennis Joslin Jamaica Inc., Dennis Joslin & Company, Roellen Gin, Inc., Dennis Joslin. The defendants in the claim are alleged to be independent contractors contracted by JRF to provide services in its debt collection efforts in Jamaica.

8 The Texas action was precipitated by a claim brought against JRF in the Circuit Court of Mobile County, Alabama, in the United States of America...