Stewart (Hon. Gordon) v Senator Noel Sloley, Jr., Noel Sloley, Jr. and Sharon Sloley

• Jurisdiction: Jamaica
• Judge: CORAM: ANDERSON: J
• Judgment Date: 18 May 2010
• Judgment citation (vLex): [2010] 5 JJC 1802
• Court: Supreme Court (Jamaica)
• Date: 18 May 2010

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2009HCV 00133

BETWEEN

HON. GORDON STEWART, O.J.

CLAIMANT

AND

SENATOR NOEL SLOLEY, SR.

1 ^ST DEFENDANT

AND

NOEL SLOLEY, JR.

2 ^ND DEFENDANT

AND

SHARRON SLOLEY

3 ^RD DEFENDANT

CIVIL PROCEDURE - Contempt - Application to commit for contempt in relation to alleged breach of Search Order - Order directed to body corporate, its directors, servants and/or agents - Application to commit instituted against defendants in Claim as well as against body corporate and its legal advisors, attorneys-at-law - Preliminary objection that proceeding by way of notice of application for court orders is in breach of Civil Procedure Rules, Rule 53 - That there is no claim and that existence of a claim is condition precedent to issue of Search Order and so Search Order is a nullity - That penal notice is fatally flawed as not being directed to particular defendants with their names thereon

CORAM: ANDERSON: J

1 1. This is an application by Hon. Gordon "Butch" Stewart. O.J., by way of Notice of Application for Court Orders to commit for Contempt of Court the persons listed as defendants in the application, as well as a company, Jamaica Tours Limited ("JTL") and two of its legal advisors, attorneys-at-law Mr. Gordon Brown, and Miss Deborah Lee-Shung, partner and associate respectively, in the Montego Bay office of the law firm, Rattray Patterson Rattray. The background to the application is the grant of a search order made by His Lordship, the Hon. Justice Donald McIntosh on March 10, 2009 whereby he granted a Search Order against the company, JTL, for the cloning and search of all its computer equipment, hard drives and servers, in its Montego Bay offices at 1207 Providence Drive, Ironshore P.O. Box 227, Montego Bay in the Parish of St. James. The Search Order granted by his lordship, in relevant part, provided as follows:

"The Respondents allow a Search Party consisting of Miss Carlene Larmond ("the Supervising Attorney-at-Law"), Jerome Spencer, Attorney-at-Law in the firm of Patterson Mair Hamilton (the Applicant's Attorneys-at-Law) and up to five (5) representatives of Credence Corp. Inc to enter the Respondent's premises located at 1207 Providence Drive, Rose Hall, St. James so that they can copy, or clone, all data from the Respondent's computers, servers or other data storage devices wherever located and deliver same into the safekeeping of the Supervising Attorney who shall make available the clone (s) for search to be conducted by Credence Corp Inc. That search is to relate only to documents and files which contain the names Paulette Robinson and Gordon "Butch" Stewart or any combination of the said names or any of the names contained in Exhibit "GS 4" of the Second Affidavit of Gordon Stewart during the periods and times October 16, 2007 at 7.15 p.m. GMT, October 25, 2007 at 1.13 EDT, October 31, 2007 at 15.25 and May 10, 2008 at 10.55 a.m. and within an hour before or after the times specified."

2 The application and the grounds upon which it is based are set out fully below:

3 2. The claimant/applicant, Gordon Stewart, a businessman whose address for the purpose of these proceedings is care of 35 Half Way Tree, Road, Kingston 5, seeks the following orders:

• 1. The assets of Jamaica Tours Limited be confiscated.

• 2. The directors, servants and agents of Jamaica Tours Limited, to wit, the 1 ^st to 3 ^rd Defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown be committed to prison for a period not exceeding two months.

• 3. Alternatively, the assets of l ^st to 3 ^rd Defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown Respondents be confiscated.

• 4. The costs of and consequent on the Orders dated March 10, and April 7, 2009 be paid by Jamaica Tours Limited and the 1 ^st to 3 ^rd Defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown.

• 5. The Costs of this application to be paid by Jamaica Tours Limited and the 1 ^st - 3 ^rd defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown.

4 AND THE GROUNDS UPON WHICH THIS APPLICATION IS MADE ARE:

• 1. By Order dated March 10, 2009, this Honourable Court ordered inter alia that:

  • a. Jamaica Tours Limited, its Directors, officers, servants and/or agents ("its representatives") permit upon service of that Order a named Search Party to immediately enter Jamaica Tours Limited's premises and to copy all data from the Jamaica Tours Limited's computers, servers or other data storage devices and deliver same into the safekeeping of the Supervising Attorney-at-Law;

  • b. Jamaica Tours Limited and its representatives must immediately give the Search Party access to its computers, servers and other data storing devices with all necessary passwords; and

  • c. Jamaica Tours Limited must allow the Search Party to remain on the premises until the search is complete.

• 2. Jamaica Tours Limited was served with the Order dated March 10, 2009 on March 12, 2009, while the directors, servants and agents of Jamaica Tours Limited, to wit, the l ^st to 3 ^rd Defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown were shortly thereafter notified of the terms of the said Order.

• 3. The 1 ^st to 3 ^rd Defendants and Lisa Sloley and George Dawkins are Directors of Jamaica Tours Limited. Deborah Lee Shung and Gordon Brown were Jamaica Tours Limited's Attorneys-at-Law at all material times and specifically during the execution of the Order dated March 10, 2009.

• 4. The execution of the Order dated March 10, 2009 commenced on March 12, 2009 and present were Miss Carlene C. Larmond, the Supervising Attorney-at-Law; Mr. Jerome Spencer, Attorney-at-Law for the Claimant; and two representatives from Credence Corp. Inc., the Court appointed Information Technology Forensic Consultants ("the Search Party"). Miss Deborah Lee Shung of Rattray Patterson Rattray, Attorneys-at-Law for Jamaica Tours Limited was also present. On March 13, 2009 before the Search Party had completed copying all data from Jamaica Tours Limited's computers, servers and/or other data storage devices, Jamaica Tours Limited through its Attorney-at-Law, Deborah Lee Shung, ordered that the Search Party discontinue copying data from its data storage devices and leave the premises of Jamaica Tours Limited as set out in paragraphs 106 – 125 of exhibit "CCL 1" of the Affidavit of Carlene C. Larmond filed and sworn on March 17, 2009 and paragraph 3 of the Third Affidavit of the said Carlene C. Larmond filed and sworn on March 23, 2009.

• 5. Between March 16 and April 2, 2009, discussions between the Claimant's Attorneys-at-Law, Messrs. Trevor Patterson and Jerome Spencer, and the said Gordon Brown and Deborah Lee Shung of Rattray Patterson Rattray, Attorneys-at-Law for Jamaica Tours Limited, ensued about the completion of the aborted search, and in addition to the terms Order made on March 10, 2009, the following orders were agreed and embodied in a Consent Order dated April 7,2009:

  • a. The Supervising Attorney-at-Law shall file and serve on the parties a further written report on or before May 27, 2009.

  • b. The cloning of all data from the Respondent's computers, servers or other data storage devices wherever located shall be completed on or before April 14, 2009. The clones shall be delivered into the safekeeping of the Supervising Attorney-at-Law who shall make the clones available to Credence Corp. Inc. for the search to be conducted at Credence Corp. Inc.'s laboratory at 3215 NW 10 ^TH Terrace, Suite 210, Ft. Lauderdale, Florida, USA in the presence of an observer from Verasys LLC, the Respondent's Forensic Information Technology Consultant.

  • c. Credence Corp. Inc. and Verasys LLc. shall agree a written protocol for the search of the clones which shall be conducted Credence Corp. Inc.'s laboratory. This protocol is to be agreed on or before April 14, 2009.

  • d. This search of the clones shall be completed on or before May 6, 2009.

  • e. This Order shall terminate on May 6, 2009 unless further extended by Order of the Court.

  • f. Liberty to apply.

• 6. The search was resumed on April 8, 2009 at the offices of Jamaica Tours Limited. In attendance were Miss Carlene C. Larmond, the Supervising Attorney-at-Law; Messrs. Jerome Spencer and Cleveland Allen, Attorneys-at-Law for the Claimant; and two representatives from Credence Corp. Inc., the Court appointed Information Technology Forensic Consultants. In addition, Miss Lee Shung and the 2 ^nd Defendant were present on behalf of Jamaica Tours Limited. Between April 9 and 10, 2009, Miss Lee Shung and Gordon Brown, as well as the 2 ^nd Defendant, voiced their opposition to the continuation of the cloning unless the Claimant agreed to give a further undertaking as to damages before a particular server would be allowed to be cloned and stopped the cloning when the Claimant refused to give this further undertaking. This is set out in paragraphs 4–6 of the Executive Summary and paragraphs 100– 132 of exhibit "CCL 4" of the Fourth Affidavit of Carlene C. Larmond filed on April 27, 2009.

• 7. The effect of Jamaica Tours Limited, l ^st to 3 ^rd ...