Sally Fulton v John Ramson

• Jurisdiction: Jamaica
• Judge: Batts, J.
• Judgment Date: 02 August 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2018CD00342

Between

Sally Fulton

Claimant

and

John Ramson

1 ^st Defendant

Susan Elizabeth Silvera

2 ^nd Defendant

Christopher Ramson

3 ^rd Defendant

Phillip Ramson

4 ^th Defendant

Noel Raymond Silvera

5 ^th Defendant

Chas. E Ramson Limited

6 ^th Defendant

[2022] JMCC Comm 26

CLAIM NO. 2018CD00342

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE COMMERCIAL DIVISION

Civil Practice — Appointment of expert witnesses — Disclosure of documents — Whether expert has to be independent — Whether expert qualified by experience — Whether two experts to be permitted to give evidence on same issue — Whether real likelihood of bias — Whether documents requested directly relevant — Observations on meaning of “legal vacation”.

Michael Hylton QC Stephanie Ewbank and Jacob Phillips instructed by Myers Fletcher & Gordon for the Claimant.

Georgia Gibson Henlin QC and Stephanie Williams instructed by Henlin Gibson Henlin for the 1 ^st to 5 ^th Defendants.

Ransford Braham QC and Ann Marie Layne instructed by Braham Legal for the 6 ^th Defendant.

In Chambers

By Zoom

Batts, J.

1 There were three applications before me. One is the 1 ^st to 5 ^th Defendants' Notice of Application, filed on the 8 ^th July 2022, seeking orders for the appointment of experts and matters related. Another is the Claimant's Notice of Application, filed on the 14 ^th July 2022, seeking the appointment of experts and related matters. The third is the Claimant's Notice of Application, filed on the 14 ^th July 2022, for specific disclosure. All three applications were heard at the same time. Each party filed extensive and detailed written submissions. Each was allotted equal time to make oral submissions. In the end I reserved to, and delivered my decision on, the 2 ^nd August 2022. I promised then to give reasons at a later date. This judgment provides those reasons.

2 I will treat firstly with the two applications to appoint experts. The Claimant's counsel indicated at the commencement of the hearing that, save for an objection to Mr. Anura Jayatillake, they had no objection to the 1 ^st – 5 ^th Defendant's application. An application the 6 ^th Defendant supported. It means that both Mr. Gladstone Lewars and Mr. Richard L. Downer will be appointed expert witnesses without objection. It will be ordered also that their written reports should be provided on or before the 13 ^th September, 2022. That application has a curious plea (#6) that:

“The fees for the expert witnesses shall be determined at the conclusion of the claim.”

I do not have the jurisdiction to tell an expert what fees he should charge nor can I compel an expert to undertake an assignment. Messrs Lewars and Downer, as far as I know, are not experts who have already given reports or statements and who are being subpoenaed to attend. The court can however limit the amount to be paid, by for example fixing the maximum amount, if a single expert is to be appointed, see rule 32.10 (4) (a). The court may also determine who ultimately bears the costs of an expert and what amount so ordered is to be paid by a party or parties (at taxation). There is, in any event, no evidence before me as to the likely fees to be charged or what is reasonable. I therefore permitted further submissions before giving directions in that regard.

3 The sole issue, on the 1 ^st to 5 ^th Defendant's application, is whether Mr. Anura Jayatillake (who I will reference as Mr. ‘J’ in the course of this judgment) should be appointed an expert and permitted to give evidence in this matter. His professional qualifications are not in dispute. He is a partner at Ernst & Young a well known firm of accountants. His areas of expertise are described as “ Business valuation, financial & economic analysis, share valuation. Fairness Opinion, Intangible Asset Valuation/Purchase Price Allocation, Costing, Financial Due Diligence, IPO Assistance, Liquidations and Receiverships, Merger/Acquisition assistance and, Divestment Assistance”, see exhibit AM 3 to the affidavit of Arianna Mills filed on the 8 ^th July 2022 (page 26 Judges Bundle). There is no issue taken with the relevance of this type of evidence. His experience in the area is impressive, see the same exhibit referenced earlier.

4 The Claimant objects to Mr. J. because it is said, in previous litigation not unconnected to this matter, he submitted a flawed report. It was submitted that in a report, attached to an affidavit of C. Silvera of the 7 ^th January, 2021, Mr. J referred to a letter which he did not disclose. Further that he referenced oral and written instructions he had not verified. Thirdly, that there was an offer in January 2020 which Mr. J had not disclosed because it had not been disclosed to him. The Claimant's counsel also indicated that, even if approved, Mr. J should not be the sole witness for the court and the Claimant wished to call her own expert.

5 On the matter of the suitability of Mr. J I agree with the Defendants' rebuttal. Mr. Braham QC, submitted that the matters complained of are of no real moment. They were actually brought to the attention of the court by Mr. J himself. In the impugned report he indicated the omission and invited a close scrutiny of his own conclusions. Furthermore, I do not see how it can be an indictment on an expert if he had not been provided with particular information that was relevant. In that case the criticism must be of those instructing him. I will return later in this judgment to a further consideration of Mr J and whether he should be the sole expert to give evidence.

6 The Claimant's application to appoint experts was opposed by all the Defendants. The Claimant wishes to have Mr. Eric Jason Abrahams and Mr. Christopher Fagan appointed expert witnesses. Their evidence is deemed necessary in the event a “ buy out” order is made by the court. Mr. Abrahams is an investment banker and financial analyst. He will speak on “issues arising in business and share valuations including the treatment of a company's real estate and brands in the share valuation process and the methodologies relevant to non-operating or non-core assets of a company”, see paragraph 5 of the affidavit of Amanda Montague filed on the 14 ^th July 2022. Mr. Fagan is a chartered accountant “highly experienced and qualified to speak on the applicable valuation methodology to be used in valuing the 6 ^th Defendant's business and shares”, see paragraph 6 of the affidavit just referenced. When I enquired of counsel as to the difference between the reports each would be required to give the answer, as I understood it, was that Mr. Abrahams would provide an opinion supporting the methodology for the valuation as well as a valuation of shares while Mr. Fagan would do a more forensic type accounting and valuation of shares.

7 The Defendants objected to Mr. Abrahams on the ground of bias. They point to an affidavit, dated 21 ^st January 2016 and, filed in earlier proceedings between these parties in which he gave expert evidence. In that affidavit he gave evidence that was not of an expert nature but concerned a factual question in issue which is the use to which certain property was put. The exact words he used when giving that evidence are worthy of repetition, see exhibit JR 1 to the affidavit of John Ramson filed on the 21 ^st July 2022:

• “ 8. I was surprised to be advised by Levy Cheeks that Coconuts was not beneficially owned by John Ramson, but is owned by a company in which SAF holds a 25% interest. Based on my observation over the years, Coconuts had always seem (sic) to be operated as the personal property of John Ramson. I cannot recall ever seeing Anne or Ian Fulton staying at Coconuts.

• 9. Over the years, I observed JR's family using Coconuts for recreational purposes on many occasions. I generally recall seeing JR and his family on the Strip for many of the standard vacations. Most of the villa owners use their villas during school vacations and public holidays, and there is a great deal of interaction between the villa owners and guests staying on the Strip

• 10….

• 11. I have never seen Coconuts used for any other purpose other than recreational purposes. Based on my observations when I was living permanently in Jamaica, I do not think it could reasonably be suggested that Coconuts was used principally for business purposes. On my less frequent visits to the Strip since my migration, I have never seen anything which changed this view.”

8 The Defendants submit as follows, see para 15 skeleton submissions of 6 ^th Defendant filed on the 25 ^th July 2022:

• “15. We submit, that he would have formed a view as part of the Claimant's team, and it cannot now be reasonable to argue that he would be either independent or impartial.

• 16. Further, Mr. Abrahams participation as a part of the Claimant's team was not limited to his professional obligations. He was a witness of fact as to the use of Coconuts and particularly who used the Coconuts property, this is demonstrated particularly in paragraphs 4, 8, 9 and 11 of Mr. Abraham's affidavit. We submit that this represents a complete alliance with the Claimant which cannot be cured by any mere statement to the contrary.

• 17. The matter as to whether Coconuts is a part of the 6 ^th Defendant's core business or whether it is integral to the 6 ^th Defendant's viability is an issue in the case. However, Mr. Abrahams has already determined this issue against the 1 ^st – 5 ^th Defendants based upon his alleged personal observations.”

9 This court has an inherent power to determine the evidence lead in proceedings before it. The decision on admissibility as it is called, although discretionary, is exercised in accordance with established rules and norms. A primary consideration in this regard is relevance. Rules peculiar to the admissibility of expert evidence have evolved over the years. Nowadays parties can no longer call an expert to give evidence without the...