Early victory for SSL victim

JEAN FORDE, an 80-year-old retired librarian, has won her bid to have the Supreme Court adjourn hearing applications to strike out her $200-million lawsuit against the fraud-hit Stocks and Securities Limited (SSL).

Justice Cresencia Brown Beckford’s ruling is a blow to some of the defendants Forde is suing over the alleged defrauding of US$830,000 from her accounts at the private investment and brokerage firm.

Forde is also seeking restitution in the sum of US$518,175 for SSL’s alleged unauthorised sale of bonds issued by the Jamaica Public Service.

SSL is the first defendant in the claim, followed by former Client Relationship Manager Jean-Ann Panton; founder Hugh Croskery, and his son, Mark Croskery, who once led SSL; former heads Lamar Harris and Zachary Harding; Jeffery Cobham, a former chairman; and Sarah Meany, the elder Croskery’s daughter.

Harris filed an application for Forde’s case to be struck or for summary judgment, claiming among other things that Forde did not have reasonable cause to bring the claim against her.

Several other defendants later filed similar applications or indicated that they intended to do so. Those applications were to be heard on October 23 and 24.

However, Forde’s attorney filed the application on October 19 for the strike-out hearings to be adjourned, arguing that SSL has failed to comply with certain disclosure orders, which have been resisted by most of the defendants.

Forde is being represented by King’s Counsel Walter Scott, Weiden Daley and Shaydia Sirjue, instructed by the firm Hart Muirhead Fatta.

In her ruling, Brown Beckford said that, based on the nature of Forde’s lawsuit, she needed information from at least one of the defendants to properly argue why the claim should not be dismissed.

Forde has, among other allegations, accused Panton of fraudulent misrepresentation and SSL and Hugh Croskery of negligent misrepresentation. She has also alleged negligence, breach of fiduciary duties, breach of statutory duties and conspiracy among the defendants.

“I believe it is clear, from the nature of the claim, that a great deal of evidence would be in the form of documentary evidence which would be in the possession of, certainly, the 1st defendant (SSL), and possibly the other defendants,” Brown Beckford said in a document which outlined her reasons.

She said the absence of disclosure would “hinder” Forde’s preparation. She also said Forde is “entitled” to present evidence in objection to the applications for her claim to be struck out.

LACK OF DISCLOSURE

Brown Beckford also argued that the situation of lack of disclosure accounts for why Forde has had to file additional affidavits of evidence as information became available.

“The claimant (Forde), in the circumstances where she could not by her own efforts access documents of the 1st, or any of the defendants, could not be said to be deleterious or contumelious of the court’s orders,” she said.

Noting that full disclosure is “imperative” for Forde’s claim, the judge said she considered that, at the time the order was made for the strike-out applications to be heard, it was expected that another court matter involving SSL would have been completed and disclosure issues addressed.

The other court matter involves a dispute between SSL and regulator, the Financial Services Commission, over the control of the firm. The commission took temporary management in January.

On October 2, Justice David Batts, who is presiding over that matter, stayed all other cases involving SSL until the dispute is settled. The trial is set for November.

Meanwhile, Brown Beckford said the court “appreciates” that an adjournment will increase the expenses of the defendants seeking to have Forde’s claim struck out.

She also said that, in the case of Harris, Forde’s claim against her “may be detrimental to her reputation in financial circles”.

“However, this is not the case where an adjournment would see several years before the matter could be heard. In balancing the interest of justice between the parties, it is my view that the claimant would be irredeemably prejudiced by their inability to present all the relevant evidence at the hearing of these applications for striking out the claim and/or summary judgment, in the absence of full disclosure from, in particular, the 1st defendant,” the judge said.

Though Forde got a favourable ruling, she will have to pay the legal costs incurred by lawyers for Harris, KC Tana’ania Small-Davis and Analiese Minott, because of the late notice of her application for adjournment.

Forde has argued that SSL was negligent in that it failed to, among other things, ensure that a secure system was in place to govern access and use of funds or other assets; provide clients periodically with accurate statements; and ensure proper supervision and accountability of employees and officers.

SSL, a 50-year-old company, has been rocked by an alleged $4-billion fraud that is reported to have been ongoing for at least a decade and has impacted at least 70 victims, including sports icon Usain Bolt.

Panton is the only person charged in the case so far. She initially confessed to stealing clients’ funds but later said she did so after Hugh Croskery made her an “offer”. He has rejected the claim.

A lawsuit by Welljen Limited, Bolt’s holding company, against SSL and Panton, is also being heard alongside Forde’s claim.