Yap (Dalton) v Jamaica Citizens Bank Ltd

• Jurisdiction: Jamaica
• Judge: FORTE, P: , BINGHAM, J.A.: , WALKER, J.A.:
• Judgment Date: 30 November 2000
• Judgment citation (vLex): [2000] 6 JJC 1501
• Court: Court of Appeal (Jamaica)
• Date: 30 November 2000

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P HON. MR. JUSTICE BINGHAM, J.A HON. MR. JUSTICE WALKER, J.A

SUPREME COURT CIVIL APPEAL NO. 121/97

BETWEEN

DALTON YAP

APPELLANT

JAMAICA CITIZENS BANK LIMITED

RESPONDENT

Hilary Phillips, Q.C. Christopher Dunkley Wright, Dunkley Company

B. St. Michael Hylton, Q.C. Hilary Reid Myers, Fletcher Gordon

EMPLOYMENT LAW - Telemarketing accounts - Opening and re-opening by appellant as employee of bank - Loss to respondent resulting from operation of accounts - Whether breach of contract of employment

FORTE, P:

1 I have read in draft the judgment of Walker J. A. and agree with his reasoning and conclusion therein. There is nothing further I could usefully add.

BINGHAM, J.A.:

2 I also agree.

WALKER, J.A.:

3 This is an appeal from a judgment given by Panton J in the Supreme Court in favour of the respondent (the plaintiff at the trial) against the appellant (the defendant at the trial) for the sum of US$106,226.04 with interest at a rate of 12% per annum from June 30, 1994 and costs to be agreed or taxed. The sum awarded represented the extent of the loss sustained by the respondent bank in respect of the operation of a telemarketing account in the name Worldwide Marketing Limited (the "WWM" account). The account was opened by the appellant in his capacity as General Manager, Technology aid Operations employed to the bank.

4 The case made by the plaintiff at the trial rested substantially upon the evidence of the following witnesses:

• 1. Mr. Lloyd Wiggan

  He was Managing Director of the plaintiff bank having assumed that position in November, 1992. Prior to that time he had been General Manager for Technology and Operations, a position which he had held for 4 years. He had been replaced in that position by the defendant. He said that curing the first quarter of 1993 the defendant raised the issue of telemarketing as part of the business of the bank and that the matter was discussed at a meeting of executives of the bank. At that meeting it was decided that telemarketing was a risky business with which the bank should not become involved. Subsequently he proceeded on vacation leave and upon his return to work on July 14, 1993 he learnt that the bank had become engaged in telemarketing. As a result of correspondence which was brought to his attention he had a discussion with the defendant during the course of which he told the defendant that there was widespread concern about the operation of the bank's telemarketing accounts. At this time he was assured by the defendant that all the accounts had been closed. Subsequently he was advised by an officer of the bank, Mrs. Alarene Knight (formerly Wong) that all such accounts had in fact been closed. He said that he recruited the defendant whom he regarded as a highly competent person. Between 1988 and 1993 the defendant's performance in his work at the bank was of a high level.

• 2. Mr. Ewart Scott

  He was appointed General Manager, Retail Banking and Marketing at the plaintiff bank in 1993. During that year he had overall responsibility for the marketing department which included credit card marketing and the credit card operations of the bank. In 1993 Mrs. Knight was the Manager of that area of the bank's business. The credit card operations division of the bank was responsible for opening and closing accounts. He was present at the meeting held in early 1993, of which Mr. Wiggan gave evidence and he confirmed that it was decided at that meeting that the business of telemarketing was too risky for the bank to undertake. He had nothing to do with the opening of telemarketing accounts at the bank and only became aware that such accounts had been opened by virtue of a memorandum dated May 3, 1993 sent to him by Mrs. Knight On August 9, 1993, he ordered the immediate closure of two of those accounts, namely the Worldwide Marketing and Rick Greenlese accounts.

  On the following day a letter was faxed to him by Visa's Vice President, Mr. Dawson, urging him to "insure that Worldwide Marketing is terminated as a Visa merchant". On August 17 he replied to Mr. Dawson advising that certain named merchant accounts had been closed, and that although the Worldwide Marketing account was not one of those closed, no further transactions were being processed on that account.

• 3. Miss Marcia Green

  She was the current Manager of the Credit Card Centre, having earlier in 1993 been a supervisor in the credit card operations section of the bank. In 1993 she supervised the opening of the telemarketing accounts as to which the defendant gave the necessary instructions. The instructions to open new merchant accounts would usually come from the marketing department of the bank but in relation to these telemarketing accounts no such instructions had been forthcoming.

• 4. Mr. George Beckford

  In 1993 he was Assistant Manager, Credit Card Centre of the plaintiff bank and in that capacity reported directly to the defendant. In March, 1993 telemarketing accounts were opened on the instructions of the defendant. His (Mr. Beckford's) evidence is summarized in part as follows in the judgment of the trial judge:

  "By a memorandum dated May 3, 1993, VISA International advised Mr. Beckford that Travel Connection was 'possibly... accepting fraudulent transactions'. A form was attached to the memorandum, and Mr. Beckford was asked by the writer of the memorandum to investigate the matter and complete the form and return it to VISA.

  Mr. Beckford said that he discussed this memorandum with the defendant who called the representatives of the merchants regarding this issue ad then he (defendant) called VISA. Whereupon, according to Mr. Beckford, 'we were comfortable that everything was working alright'... In Mr. Beckford's view, the defendant had taken appropriate action.

  At a meeting attended by the witness, Mrs. Knight, Miss Green and one George Laing (Lumsden) on July 19, 1993, there was a proposal to open a merchant account in the name Worldwide Marketing using a local address. VISA International, he said, had asked them to dease processing transactions that did not originate in the region where the processing was being done. That, he said, was the reason for the local address so that the transactions would originate locally so they would be able to process it. The defendant, he said, was the person who gave the instructions for the account to be opened.

  During cross-examination by learned attorney-at-law, Mr. Wright, the witness Beckford said that he was not in a position to say whether the defendant, in giving instructions for the opening of the accounts, had been acting pursuant to instructions from the Marketing section."

• 5. Mrs. Alarene Knight (formerly Wong)

  She was employed to the plaintiff bank from 1990 to 1996. Between 1990 and 1992 her job title was Credit Card Centre Manager. In 1992 her position changed to Credit Card Centre Manager, Marketing with responsibility for selling the bank's services to merchants desirous of accepting credit cards in the course of doing business. Merchants had to be visited before entering into an agreement with the bank for the provision of credit card service. Her evidence as it continued is...