Senior (Marcia) v Derrick Rochester and Southern Fruits and Food Processors Ltd

• Jurisdiction: Jamaica
• Judge: Campbell, J.
• Judgment Date: 31 July 2008
• Judgment citation (vLex): [2008] 7 JJC 2506
• Docket Number: CLAIM NO. HCV 2004/HCV 02338
• Court: Supreme Court (Jamaica)
• Date: 31 July 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 2004/HCV 02338

BETWEEN

MARCIA SENIOR

CLAIMANT

AND

DERRICK ROCHESTER

1 ^ST DEFENDANT

AND

SOUTHERN FRUITS AND FOOD PROCESSORS LIMITED

2 ^ND DEFENDANT

CRIMINAL PROCEEDINGS - Criminal prosecution - Agreement to compromise - Whether illegal as against public policy - The doctrine of waiver

Campbell, J

Agreement to Compromise Criminal Prosecution Whether Illegal as against Public Policy The Doctrine of Waiver

An Adjourned Pre-Trial Review

1 At a Pre-Trial Review in the claim brought for malicious prosecution on the 31 ^st July 2007,1 ordered that the parties should consider;

• i. Whether Paragraph 5 of the Agreement to Compromise dated 6 ^th April 2004 is a bar to the prosecution of the case by the claimant.

• ii The parties were further ordered to reduce their legal submissions on preliminary point to writing and have them filed on or before 13 ^th August 2007

2 The claimant had worked with the 2 ^nd defendant as an Accountant Administrative Manager from 1992 until her employment was terminated in 2003. The 1 ^st defendant is Managing Director of the 2 ^nd defendant. On the 29 ^th August 2003, the 2 ^nd defendant instituted criminal proceedings against the claimant that she fraudulently converted $49,499.55 to her own use and benefit.

3 On the 6 ^th April 2004, the claimant and the 2 ^nd defendant entered into an "Agreement to Compromise" in which the following terms were agreed;

• (1) Maxine Senior will withdraw Pliant no. 323/2003 against Southern Fruits & Food Processors Limited.

• (2) Southern Fruits and Food Processors Ltd. will withdraw its counterclaim against Maxine Senior in the said Plaint no.323/2003.

• (3) Southern Fruits & Food Processors Limited will pay to Maxine Senior the sum of $100,000.00 in settlement of her claim in Plaint no.323/2003 within 7 days of the date hereof.

• (5) Southern Fruits and Food Processors Ltd. hereby agree to withdraw and discontinue their complaint against Marcia Senior in the criminal suit of R v Marcia Senior for fraudulent conversion which is set for hearing on the 20 ^th July 2004.

4 On the 9 ^th day of August 2004 a "no order" was made at the request of the defendants in pursuit of the Agreement to compromise in the said Resident Magistrate Court for the Parish of St. Elizabeth in respect of the criminal proceedings brought by the 2 ^nd defendant against the claimant.

5 On the 5 ^th October 2004, the claimant initiated an action in the Supreme Court for malicious prosecution against the 1 ^st and 2 ^nd defendants; the claim was particularized inter alia;

On the 29 ^th day of August 2003, the defendants unlawfully, maliciously and without reasonable and probable cause instituted criminal proceedings against the claimant, namely, that the claimant "being entrusted by...