J'can Supreme Court rejects request to seal Butch Stewart's will

An acting registrar in the Jamaican Supreme Court has told Sandals hotel boss Adam Stewart and two siblings that he does not have the power to block public access to details of their late father’s will.

“For any registrar to seal or otherwise make confidential the records of the court, specific authority must be given,” said Dwayne Dixon, the acting registrar in the probate division, the section that deals with the administration of wills.

His comments are contained in a letter dated January 26, 2024, that he sent to King’s Counsel Ian Wilkinson, the attorney representing the late Gordon ‘Butch’ Stewart’s children Adam, Jaime Stewart McConnell and Brian Jardim.

Dixon was responding to a request from Wilkinson, on behalf of his clients, that files relating to their father’s will be sealed or treated as private because of “serious concerns our clients have for their security having regard, inter alia, to the size of the estate and also the fact that they have young children”.

The request has been opposed by the United States family of the late Sandals founder, which comprises his common-law widow Cheryl Hammersmith-Stewart and their children Gordon, Sabrina and Kelly.

Wilkinson submitted a request in August 2023. He wrote again in December 2023.

“I have no comment,” Wilkinson told The Sunday Gleaner when contacted on Friday for a response to Dixon.

In his seven-page letter, Dixon drew on a 2014 court ruling that indicated that a registrar gets power, first from the law and secondly from orders published by the chief justice.

“So, whilst the registrar can treat with various non-contentious probate proceedings and make orders in relation to same, the question of sealing or otherwise making such records confidential or private is not readily disclosed as being among the list of matters that the registrar can competently deal with. There is also no evidence that any chief justice has, by way of any order published in the Gazette, empowered the registrar to exercise such authority,” Dixon said.

‘PRINCIPLE OF OPEN JUSTICE’

Meanwhile, the acting registrar made it clear that restricting access to court records “is likely to require an examination about the extent and operation of the principle of open justice”.

“Sealing or otherwise restricting access to the records of the court is not necessarily a ‘mechanical’ or ‘box-ticking’ exercise ... It involves serious consideration and reflection of legal principles...,” he said, adding that given the level of discretion required, “the registrar would therefore not have jurisdiction to entertain such applications”.

He later added: “Consequently, I do not have the statutory power to grant your request to have the records in question sealed. You may therefore have to pursue a separate application to the court to obtain such an order.”

LEGAL BATTLE CONTINUES

News of the Jamaican registrar’s response comes as the legal battle between the US and Jamaican families over Butch’s multibillion-dollar estate is expected to pick up pace in The Bahamas.

The way was cleared following a ruling of the Privy Council late last year which thwarted Adam and his Jamaican siblings’ push to have court proceedings in The Bahamas conducted in private.

In September 2021, Cheryl filed a lawsuit for the removal of Cromwell Trust Company as trustee of two of Butch’s trusts – the Coral Ridge Trust, which holds the assets of Sandals, and the Hightree Trust.

She alleges that Cromwell is involved in conflicts of interest and may not implement Butch’s disputed wishes, which include her and her children getting the single largest stake in Sandals, reducing the control of Adam, the executive chairman. Her family is to get 42 per cent of the Sandals business, to Adam’s 16.67 per cent, she claimed were Butch’s wishes.

The case pitches Cheryl and her three children against the trustee, who has the support of Adam, Jaime Stewart-McConnell, and Brian Jardim – the Jamaican family.

A member of the Jamaican family, Robert (Bobby) Stewart, is named as a defendant as he is also a beneficiary of the trusts. He supports Cheryl's position. 

The trustee applied to the Bahamian Supreme Court for an order that Cheryl’s claim be dealt with in private and the documents sealed. Cheryl cited the publication of “sensitive” information by Sandals for withdrawing her support.

Cromwell argued through director Steven Carey that if the matter proceeded publicly, Cromwell and Cheryl “will be forced to disclose highly sensitive financial information concerning the trusts’ financial affairs”, as well as Sandals’.

The trustee also argued that the personal safety of Butch’s grandchildren, who are beneficiaries, would be put “at risk”.

ARGUMENTS ‘EXTREMELY UNCONVINCING’

But the Bahamian Supreme Court ruled against Cromwell’s request in May 2022, later saying that the arguments were “extremely unconvincing”.

It said the constitutionally protected open justice principle “cannot be displaced merely to avoid publicising some information that they would prefer not to be publicised in the interest of their business”.

“The trustee and the Jamaican family have not demonstrated that the sealing order is necessary in the interest of justice. Rather, they have merely proved that it is more convenient. It is not in the interest of justice to depart from the constitutional principle of open justice to keep confidential financial information merely because that financial information tends to attract publicity, thereby inconveniencing their lives or business,” the court said.

The court also said that it was “not satisfied” that publicity posed a real threat to the minor beneficiaries and their safety. “They themselves are aware that they are very wealthy and it is widely known, especially among the Jamaican public, that they are the potential shareholders of Sandals and that they are the grandchildren of Stewart. It is therefore difficult to see how the publicity of the litigation will have any material/substantial additional effect,” the court said.

Adam, according to an affidavit that the Bahamian courts cited, acknowledged that his social media posts “are carefully curated by the Sandals communications team and myself to humanise the brand with me as a family man with a wife (now deceased) and children who love the sun, sea and sand…”.

But Adam argued that “social media posts do not project an image of opulence of excess”.

Adam, Jaime and Brian, along with their children, appealed the Supreme Court’s decision to the Bahamas Court of Appeal, which also ruled against them in its decision of May 2023.

The Court of Appeal said the Supreme Court applied the correct tests and law to refuse to grant the privacy order.

“Open justice is so fundamental that it cannot be set aside because a litigant wants to keep his otherwise commercially sensitive financial information confidential. If that were the case, every wealthy or successful businessman would want any litigation concerning his business or his wealth held in secret,” the Court of Appeal said.

The Court of Appeal did not publish the full judgment, as the grandchildren applied to the Privy Council for permission to appeal the decision.

On November 20, 2023, the Privy Council dismissed the application, with a formal notice from Buckingham Palace issued on December 13.

That decision ended litigation on the privacy matter, paving the way for the full rulings of the Bahamian courts to be published and for proceedings involving Cheryl’s claim for the removal of Cromwell as trustee to resume.

Case management hearings are being held, with a trial to come later on.

editorial@gleanerjm.com