Winston Finzi and Another v JMMB Merchant Bank Ltd

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA,F Williams JA,P Williams JA
• Judgment Date: 14 June 2016
• Neutral Citation: JM 2016 CA 60
• Docket Number: CIVIL APPEAL NO 60/2015
• Court: Court of Appeal (Jamaica)
• Date: 14 June 2016

[2016] JMCA Civ 34

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mrs Justice McDonald-Bishop JA

The Hon Mr Justice Williams JA

The Hon Miss Justice Williams JA (AG)

CIVIL APPEAL NO 60/2015

Between:

Winston Finzi

1st Appellant

Mahoe Bay Company Limited

2nd Appellant

and

Jmmb Merchant Bank Limited

Respondent

Written submissions filed by Ballantyne , Beswick & Company for the appellants

Written submissions filed by Hylton Powell for the respondent

PROCEDURAL APPEAL

(Considered by the Court on paper pursuant to rule 2.4 of the Court of Appeal Rules 2002)

McDonald-Bishop JA

1 This is a procedural appeal brought by Mr Winston Finzi and Mahoe Bay Company Limited (Mahoe Bay), the appellants, against the decision of Sykes J, delivered orally on 5 May 2015 in the Commercial Division of the Supreme Court, in favour of the respondent, JMMB Merchant Bank Limited.

2 On 4 May 2015, the first day fixed for the trial of the claim brought by the respondent against the appellants, the respondent sought orders, that, inter alia, portions of the witness statements of Mr Abraham Dabdoub and Mr Finzi that were filed on behalf of the appellants in the claim be struck out. The basis of the application was that the impugned portions of the witness statements in question referred to ‘without prejudice’ communication that is privileged and the privilege has not been waived. Therefore, the communication is not subject to disclosure and use in the trial of the claim.

3 At the conclusion of the hearing, Sykes J, among other things, struck out the impugned portions of the witness statements of Messrs Dabdoub and Finzi and granted the appellants leave to appeal. He also ordered one day's costs to the respondent. It is these aspects of the order that are the subject of this appeal.

4 Unfortunately, the court has not had the benefit of an agreed memorandum of the oral judgment delivered by the learned judge. The substance of the decision is gleaned only from the amended notice of appeal filed on 20 May 2015, in which the appellants have set out the details of the decision appealed against. There is nothing from the respondent challenging the details provided by the appellants and so the appellants' record of the details of the decision is accepted as a true representation of the learned judge's decision.

5 The details of the decision appealed against are set out as follows:

• ‘a. That the Electronic Mail Communication dated 23 ^rd May, 2012 is a Without Prejudice Communication.

• b. That the Electronic Mail Communication dated 23 ^rd May, 2012 and the details of the discussion to which it refers are subject to Legal Professional Privilege

• c. That the Electronic Mail Communication dated 23 ^rd May, 2012 and the details of the discussion to which it refers are not admissible and cannot be relied on in the trial by the Appellants as the other party has not waived privilege.

• d. That the paragraphs of the Witness Statements of Winston Finzi and Abraham Dabdoub filed on the 29 ^th April, 2015 which reference the Electronic Mail Communication dated 23 ^rd May, 2012 and the details of the discussions to which it refers be struck out.

• e. Costs of the Application is one day's Costs to the Respondent.’

The grounds of appeal

6 The grounds of appeal are:

• ‘a. That the Learned Judge erred when he found that the Electronic Mail Communication dated 23 ^rd May, 2012 was a Without Prejudice Communication;

• b. That the Learned Judge erred when he found that the Electronic Mail Communication dated 23 ^rd May, 2012 and the details of the discussions to which it refers were subject to Legal Professional Privilege.

• c. That the Learned Judge erred when he found that the Electronic Mail Communication dated 23 ^rd May, 2012 and the details of the discussions to which it refers are not admissible and cannot be relied on in the trial by the Appellants as the other party has not waived privilege.

• d. That the Learned Judge erred in finding that discussions and related communications between the Appellant and a third party were without prejudice and were subject to Legal Professional Privilege.

• e. That the Learned Judge erred when he found that any discussions regarding settlement of an issue between parties who subsequently become involved in litigation are subject to Legal Professional Privilege and cannot be referred to in subsequent litigation, even if at the time of the discussions there was no litigation in progress or contemplated between the parties.

• f. That the Learned Judge erred when he found that discussions between the parties prior to the commencement of litigation was subject to Legal Professional Privilege even though said discussions took place at a time when the parties had no dispute with each other and further had no relationship capable of giving rise to a cause of action against each other.

• g. That the Learned Judge erred in concluding that the discussions and resulting correspondence was subject to Legal Professional Privilege when there was no evidence from any party that such a claim had been made at the relevant time or afterwards, and the Court had no jurisdiction to rule on the application without actual sworn evidence from a party claiming Legal Professional Privilege.

• h. That the application did not consume one day of Court's time since a significant portion of the court's time was consumed with setting up, instructions and submissions in relation to the Digital Recording Pilot Project.

• i. That the application did not consume one day of Court's time since the Respondent consumed time explaining and submitting why an adjournment was needed and why trial bundles had not been finalised.’ (Emphasis as in original)

7 The appellants seek orders in these terms:

• ‘a. That the appeal is allowed;

• b. That the Order of Mr Justice Sykes is set aside in part;

• c. A declaration that the Electronic Mail Communication dated 23 ^rd May, 2012 is not a Without Prejudice Communication;

• d. A declaration that the Electronic Mail Communication dated 23 ^rd May, 2012 and the details of the discussions to which it refers are not subject to Legal Professional Privilege.

• e. A declaration that the Electronic Mail Communication dated 23 ^rd May, 2012 and the details of the discussions to which it refers are admissible and can be entered into evidence and otherwise referred to in the trial of the claim in the Court below.

• f. That the paragraphs in issue in the Witness Statements of Winston Finzi and Abraham Dabdoub filed on 29 ^th April, 2015 be allowed to stand.

• g. Costs of this appeal and the application below are awarded to the Appellants and are to be taxed if not agreed and taxation authorized for both sets of costs.’

Background

8 As is gleaned from the grounds of appeal, at the heart of the dispute between the parties in these proceedings is an email correspondence of 23 May 2012 between Jamaica Money Market Brokers Limited (JMMB) and Mr Finzi. The circumstances giving rise to that email correspondence are outlined in the submissions filed on behalf of the appellants, but according to the submissions filed on behalf of the respondent, the appellants had set out a number of ‘facts’ that were not in evidence in the Supreme Court. Regrettably, those facts have not been highlighted by the respondent for the benefit of this court and so the court does not know the extent to which new facts are being stated on appeal and the extent to which, if any at all, the facts stated by the appellants are disputed facts. However, in an effort to gain an insight into the factual background to the issues that have arisen for determination in these proceedings, care had to be taken to extract what would appear to be the least controversial facts outlined by the appellants in their submissions. This had to be done because the originating documents in the proceedings below have not been forwarded for the attention of this court so that a distinction may be made between pleaded facts (in the substantive matter) and new facts being relied on appeal.

9 What is clear is that the matter has its genesis in a dispute between Mr Finzi and a Mr Ryland Campbell concerning the purchase of shares in Capital and Credit Merchant Bank Limited (CCMB) in or around 2005. At the time, CCMB was a subsidiary of Capital and Credit Finance Group Limited (CCFG), of which Mr Campbell was Group President and Chief Executive Officer. This dispute led to court proceedings in Saint Lucia between Mr Finzi and Mr Campbell. The appellants contend that based on orders made by the court in those proceedings, Mr Finzi is entitled to a portion of shares that were held in CCMB by Weststar International (Weststar), a company owned by Mr Campbell.

10 JMMB subsequently became interested in purchasing the controlling interest in CCFG and commenced discussions with Mr Finzi concerning their interest in acquiring shares in CCMB in which Mr Finzi was claiming an interest. At the time of those discussions, JMMB was not the owner of CCMB and neither was it associated with Mr Finzi, Mr Campbell nor Weststar.

11 On 23 May 2012, during the course of those discussions between JMMB and Mr Finzi, concerning the shares in CCMB, Ms Patricia Sutherland, Director of JMMB, sent the email communication in issue to Mr Finzi. On Thursday 24 May 2012, JMMB submitted a formal offer to the CCFG Board of Directors to acquire CCFG. JMMB subsequently succeeded in acquiring the controlling interest in CCFG and thereby acquired CCMB. CCMB was later ‘rebranded’ as the respondent.

12 In the claim filed in the Supreme Court by the respondent against the appellants concerning loans made by CCMB to the appellants, Mr Finzi sought to rely on the email communication between him and Ms Sutherland. He averred that based on the...