Gorstew denied again

A second effort by the Gorstew Limited for the Privy Council to grant permission for an appeal against the acquittal of three former ATL executives in a fraud case adjudicated more than three years ago has been blocked by the London-based panel, which said the company should pay special legal costs for its continued pursuit of the case.

Gorstew was effectively appealing a previous decision of the Privy Council, which had refused its first application for leave to appeal a ruling in the criminal courts by Senior Resident Magistrate Lorna Shelly-Williams.

The Privy Council, which is Jamaica's final court of appeal, said Gorstew's application for review of the first decision it made on December 13, 2017 was "not based on any ground which could justify a further review", according to communications with the parties earlier this month.

The Privy Council added that if the respondents - RM Shelly-Williams and former ATL executives Patrick Lynch, Catherine Barber and Dr Jeffrey Pyne - have incurred costs arising out of the application for review, the applicant, Gorstew Limited, should pay those costs on the indemnity basis.

Indemnity costs may be awarded where the court determines there are exceptional circumstances that justify a higher rate for legal expenses. The losing party in a court case typically pays the legal costs of the victor.

Attorney Bert Samuels of the firm Knight, Junor and Samuels, which represented Lynch and Pyne, said indemnity allows for a more liberal computation of costs and are, therefore, much higher.

It was the second time Gorstew was ordered to pay indemnity costs. Supreme Court Justice Carol Lawrence Beswick made a similar order in a written decision in 2016, having earlier refused Gorstew's application for permission to seek judicial review.

In November 2016, the Full Court upheld Lawrence Beswick's decision, saying that permitting judicial review of the case would be an exercise in futility. In May 2017, the Court of Appeal upheld the Full Court's ruling.

AIMING FOR RETRIAL

Gorstew's ultimate aim in appealing the matter in the local courts as well as at the Privy Council was to have a retrial of the case.

Gorstew and ATL Group are principally owned by Gordon 'Butch' Stewart. The Financial Gleaner awaits comment from Gorstew's attorney Hugh Wildman, on whether the company will continue pursuing the case.

Lynch, Barber and Pyne were tried for fraud between April 2013 and early June 2014. At the heart of the case against them was the contention that they fraudulently paid out funds from ATL's pension fund, of which Gorstew was the founder, without the company's consent.

On June 3, 2014, Shelly-Williams upheld a no-case submission and dismissed all charges against the executives. The RM ruled that the prosecuting attorneys had not made out a case for which a reasonable jury could have found the executives guilty.

At the outset of her ruling, which was given orally, Shelly-Williams is reported to have said: "Let me just say, first of all, that I think I have given myself too little time in relation to this matter. I had hoped to give persons copies of the decision. It's not going to be possible. In fact, we do have a court reporter in court so whatever is going to be said will be recorded. So you can, in fact, get it from the court reporter. Okay?"

Three months later, on August 28, 2014, Gorstew filed an application for judicial review of the resident magistrate's decision by way of, among other things, a declaration that her statement that she needed more time to go through the evidence and that it was a work in progress amounted to jurisdictional errors, rendering her findings and the subsequent verdict null and void.

The case made its way up to the Court of Appeal, where Justice Dennis Morrison agreed with rulings in the Supreme Court that Shelly-Williams had given the case proper consideration.

mcpherse.thompson@gleanerjm.com

UPDATE: This story has been updated to remove the name of Douglas Leys as one of the attorneys representing Gorstew.