United General Insurance Company v Marilyn Hamilton
| Jurisdiction | Jamaica |
| Judge | Brooks JA |
| Judgment Date | 13 April 2018 |
| Neutral Citation | JM 2018 CA 64 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 7/2017 |
| Year | 2018 |
| Court | Court of Appeal (Jamaica) |
[2018] JMCA App 5
IN THE COURT OF APPEAL
SUPREME COURT CIVIL APPEAL NO 7/2017
APPLICATION 71/2018
Lord Anthony Gifford QC and Andre Sheckleford instructed by Hart Muirhead Fatta for the applicant
Captain Paul Beswick and Jason Mitchell instructed by Ballantyne Beswick and Co for the respondent
This is an application by United General Insurance Company Limited (UGI) in which it seeks a stay of execution of orders made by Edwards J in the Supreme Court on 9 March 2018. The orders arose from an assessment of damages due to Mrs Marilyn Hamilton resulting from a judgment, handed down on 13 December 2013, by Sinclair-Haynes J (as she then was) against UGI.
The amount currently due to Mrs Hamilton has been calculated by her to be in excess of $16,000,000.00. That sum does not represent the entire amount due under the judgment. Edwards J had stayed the execution of other aspects of the judgment, which would result in further payments. The stay is operative until the determination of the appeal. By this application, UGI seeks to have the payment of amount currently due, save for a sum of $40,000.00, stayed.
UGI has appealed from the judgment of Sinclair-Haynes J. The appeal, though filed on 12 February 2014 has still not been heard. It is however set for hearing during the week of 14 May 2018.
The background to the litigation is that, on 28 July 2006, UGI dismissed Mrs Hamilton from her employment as its Information Systems Manager. She sued UGI for breach of the contract of employment. She claimed damages not only for the dismissal, but for the manner and circumstances thereof, and the effect that it had on her. There were other aspects to her claim but these need not be outlined here.
UGI resisted the claim on a number of bases. It denied that it was in breach of contract. Among other bases for its defence, UGI contended that it terminated Mrs Hamilton's contract in accordance with the manner stipulated in the contract. It further asserted that the established law in respect of termination of employment prevented her from recovering damages for the manner of her dismissal.
In her written judgment, Sinclair-Haynes J rejected UGI's position. She set out the bases on which Mrs Hamilton's damages were to be calculated, and she set the case for assessment of damages at a later date. The assessment exercise required information that was not then available to the court. Edwards J assessed the damages.
The relevant orders made by Edwards J are as follows:
“1. For damages for wrongful termination – Salary and emoluments for 12 months from July 2006 to June 2007, inclusive of employer's contribution to pension, motor vehicle upkeep, gas allowance and lunch subsidy with an increase of 8.25% from January 2007 to June 2007 of $3,567,836.88 with interest at 19.52% from the 28 th July, 2006 to the 13 th December, 2013 the day of judgment. Thereafter at 6% until payment;
2. For damages for handicap on the labour market, 2 years salary and emoluments, inclusive of motor vehicle upkeep, gas allowance and lunch subsidy, reflecting an increase of 8.25% per year as follows:-
a. From July 2007 to June 2008 the sum of $3,779,449.49;
b. From July 2008 to June 2009 the sum of $4,116,211.49;
Total Salary and emoluments awarded for the three (3) years being $11,463,497.86 with interest at 19.52% from the 28 th July, 2006 to the 13 th December, 2013 the day of judgment. Thereafter at 6% until payment;
3. Employer's contribution to pension to be refunded from January 2000 to June 2006 being $740,000.700 [sic] with interest at 19.52% from the 30 th November, 2009 to the 13 th December, 2013 the date of Judgment. Thereafter at the rate of 6% until payment;
4. Motor vehicle allowance of $40,000 with interest at 19.52% from 28 th July, 2006 to the 13 th December, 2013 the date of judgment. Thereafter at 6% until payment;
5. Health and Life insurance of $1,785,355.56 with interest at 19.52% from 28 th July, 2006 to the 13 thDecember, 2013 the date of judgment. Thereafter at 6% until payment;
6. The payment for one month notice already paid to the claimant is to be deducted from the judgment sum;
7. Costs of the assessment awarded to the Claimant to be agreed or taxed;
8. Stay of execution of orders number 2 and 3 until the determination of the appeal in the Court of Appeal;
9. Stay of execution granted on the award of 2/3 rds of the costs of the assessment until the determination of the appeal in the Court of Appeal;
10. Claimant's Attorney-at-Law to prepare, file and serve Court orders made herein.”
As set out in order 8, Edwards J stayed the execution of orders 2 and 3.
The present application is supported by an affidavit of Mr Andre Sheckleford, one of the attorneys-at-law representing UGI. In that affidavit, Mr Sheckleford asserted that the appeal has a real prospect of success and that there is a real risk that UGI may not be able to recover the monies from Mrs Hamilton if they are paid over to her.
In addition, he emphasised that the appeal is soon to be heard. Mr Sheckleford contended that in the circumstances there is a risk of injustice to UGI if it were to be obliged to pay over the sum to Mrs Hamilton.
Lord Gifford QC, on behalf of UGI, argued that there was a strong likelihood that the appeal would be successful. He argued that the orders, which the current application affect, were the subject of two of UGI's strongest bases of appeal, namely:
-
a. the proper interpretation of the termination clause in Mrs Hamilton's contract of employment, favoured UGI's position, and
-
b. the established common law principle established in Addis v Gramophone Company Limited [1909] AC 488, prevented the award of damages for the manner of dismissal.
Learned Queen's Counsel further argued that one of the orders sought to be stayed, namely order 5, was so closely aligned to order 2, which had been stayed by Edwards J, that it ought also to have been stayed by her. He submitted that order 5, should, by logical extension, be now ordered to be stayed.
Lord Gifford accepted that there was no evidence to support an assertion that Mrs Hamilton would not be able to repay the monies if they were paid over to her. He however asked that the court consider that it is a large sum and there would be a risk that UGI would have difficulty recovering it. He argued that the risk of injustice to UGI if the stay were not granted, was greater than the risk of injustice to Mrs Hamilton if the stay were granted. That, he submitted, was the real test to be satisfied in this application.
In support of his submissions, learned Queen's Counsel referred to a number of decided cases, dealing with applications for stay of execution. These included Watersports Enterprises Limited v Jamaica Grande Limited and Others, (unreported), Court of Appeal, Jamaica, Supreme...
To continue reading
Request your trial