'What are you hiding?'

A Supreme Court judge has asked lawyers "what are you hiding?" amid their resistance to his decision to allow an independent attorney to represent the fraud-hit Stocks and Securities Limited (SSL) in an upcoming hearing for the disclosure of documents to an investor. 

"What yuh hiding? What are you hiding? What are you hiding," Justice David Batts yesterday repeatedly asked Lisa White, the deputy solicitor general from the Attorney General's Chambers, who was questioning the decision.

She is representing the Financial Services Commission (FSC), the government regulator of the securities industry, which took temporary management of SSL when the multibillion-dollar fraud at the entity was reported in January.

Batts gave the 80-year-old retired librarian Jean Forde permission to apply for a court order to compel SSL to disclose information that could be key to the survival of her lawsuit against the investment firm.

The order was granted yesterday during a hearing in the case brought by the FSC to shut down SSL on the basis that it purportedly cannot pay its debts.

That matter is being heard alongside the case involving the fight between the FSC and SSL-appointed trustee Caydion Campbell over who has authority over the firm at the centre of a $4-billion fraud investigation.

The trial of that issue was set for February 6-8, 2024.

Before Batts could grant a new order halting all other court cases involving SSL until that case is settled, King's Counsel Walter Scott told the court that his client, Forde, was seeking a variation to allow her to get disclosure from SSL.

Forde is separately suing SSL and several former executives over the alleged defrauding of some $200 million from her accounts.

However, some of the executives have filed applications for her case against them to be struck out, claiming that it has no reasonable prospect of success.

Scott, who appeared with Weiden Daley and Shaydia Sirjue, told Batts that Forde needs information from SSL to respond to the strike-out applications, which another judge last week adjourned because of the disclosure-related issues.

A disclosure order was made from March, but those have not been honoured.

That judge said that based on the nature of Forde's lawsuit, information is needed from at least one of the defendants to properly argue why her claim should not be dismissed.

CHALLENGES FOR FSC

Batts adopted a similar posture yesterday despite opposition from the Government.

White said "some challenges" could arise for the FSC.

"Depending on the nature of the documents, there may be issues as to whether or not those documents should rightfully be disclosed at this juncture."

However, Batts said he was not making an order for disclosure but instead giving Forde the permission to make an application that will have to be considered by a judge.

Attorney Sundiata Gibbs, who is from the firm Hylton Powell, which the FSC retained to represent SSL under the temporary management of Kenneth Tomlinson, also opposed Scott's submissions, which he said were "cleverly worded".

Among other things, he expressed concerns that Tomlinson could be asked to act in a manner that could later be deemed improper and left exposed financially.

Batts was not convinced by the counter-arguments and insisted that the issue was "strictly a legal question".

He later said that a condition to the order for the disclosure application was for the independent SSL attorney Carlene Larmond, KC, to lead SSL's response, dislodging the role of the Hylton Powell in those hearings.

Gibbs sought to counter, arguing that SSL was entitled to a lawyer of its choice.

But Justice Batts hit back, asking "At this point in time, who is SSL?", before stating that, until the issue of who has authority over the entity, "this court is SSL".

White also intervened, noting that the FSC could end up paying Hylton Powell's costs for appearing to the disclosure matter.

Batts, though, was unmoved.

"That's for you to decide. If you want to continue to pay Hylton Powell in the disclosure proceedings then you do that. It's a simple [inaudible]."

Caroline Hay, KC, who represents the trustee Caydion Campbell, had raised concerns in previous hearings that Hylton Powell acting for SSL was really for the temporary manager who could not be separated from the FSC which has a lawsuit against the company.

It is in that context that the independent attorneys for SSL were appointed.

Noting that White's argument suggested that he was "missing something", Batts asked Larmond for her perspective.

Larmond said she would not say the court was missing anything but that "I would anticipate that in any application that the court wishes me to handle, that I would necessarily need to have the cooperation and assistance of Gibbs".

Batts later ruled that SSL was permitted to respond to the application for disclosure on condition that the independent attorney leads the response at the disclosure hearing and not Hylton Powell, which was retained by the FSC. 

jovan.johnson@gleanerjm.com

Editor's Note: The lead paragraph has been updated to make it clear that Justice David Batts' comments were in relation to any future hearing involving an application by Jean Forde for disclosure from Stocks and Securities Limited. The Gleaner is satisfied that Justice Batts' comments were accurately represented in the article.