Another setback for Gorstew in pension case - Company to pay 'unusual' legal costs

A Supreme Court judge has ordered Gorstew Limited to pay 'indemnity costs', a ruling one lawyer said was unusual, after refusing the company's application for permission to seek judicial review of the acquittal of three former executives in the billion-dollar ATL pension fund fraud case.

Indemnity costs may be awarded where the court determines that there are exceptional circumstances that justify a higher rate for legal expenses.

The order was made in favour of former ATL executives Patrick Lynch, Catherine Barber and the late Dr Jeffrey Pyne, after Gorstew named them, along with then Resident Magistrate Lorna Shelly-Williams, as respondents in judicial review proceedings aimed at challenging the ruling of Shelly-Williams in June 2014 when she upheld a no-case submission and tossed out the criminal proceedings against them.

In December 2014, Supreme Court Justice Carol Lawrence Beswick refused Gorstew's application for leave to apply for judicial review. Pyne has since passed away.

Lawrence Beswick's judgment regarding the award of indemnity costs was handed down three weeks ago on October 19.

EXERCISE IN FUTILITY

In another setback for Gorstew, last Friday, November 4, the Full Court to which Gorstew had resorted after its application for leave to apply for judicial review had been refused upheld the decision by Justice Lawrence Beswick, saying permitting judicial review of the case would be an exercise in futility.

"I find that the application is vexatious for being so against the weight of authority that there could have been no reasonable expectation that it would have succeeded," wrote Justice Thompson-James, on behalf of the Full Court.

Hugh Wildman, one of the attorneys for Gorstew Limited, told Gleaner Business on Monday that they would be filing an appeal in the Court of Appeal.

"We intend to go as far as the Privy Council ... because we know we are going to win this case. We are very confident that we are going to win this appeal," Wildman asserted.

"The court has not addressed the issue that we raised in the matter," he said, while chastising the court for taking more than a year to deal with an application on a point of law.

"If there was no merit, why take one year and two months?" he asked.

Speaking with Gleaner Business ahead of last Friday's ruling by the Full Court, Attorney Bert Samuels, who represented Pyne, said indemnity costs are higher than normal legal costs and are unusual.

"It's not often given by the courts in Jamaica. It's the first time I've ever had indemnity costs awarded in my favour, and it's the second time I'm hearing about it," said Samuels.

"The first time was (against) Shahine Robinson," he said, referencing a legal battle over what was then the Member of Parliament's dual citizenship status. Robinson was ordered to pay $15.3 million. The costs to be paid by Gorstew are to be determined.

In her written decision, Justice Lawrence Beswick said Gorstew's pursuit of the issues raised in the application "escapes my understanding. To me, this application was misconceived," she added, while affirming that persons acquitted of a charge cannot be tried for it again.

VOID OF MERIT

"This application for leave for judicial review has as its ultimate aim/result the retrial of persons who had already been acquitted. This, of course, would be contrary to the constitutional provision and would, therefore, be void of merit," she said.

"I therefore decide that, based on the general principle as to the awarding of costs, including the unreasonableness of this application, the costs should be paid by the losing party, that is, the applicant," Justice Lawrence Beswick said.

It was Lynch, Pyne and Barber who asked the court to set costs on an indemnity basis, having argued that the circumstances of the case were exceptional. The judge agreed.

"It ought to have been clear that they should not be made party to this application," Justice Lawrence Beswick said of the three executives.

"They have become participants in an application which, even if successful, could not have required any action by any of them. In those circumstances, in my view, indemnity costs become appropriate."

The judge awarded costs to the executives for one counsel each a sum to be agreed by the parties or otherwise determined by the court's registrar.

mcpherse.thompson@gleanerjm.com