Fri | Sep 22, 2017

Investors triumph in billion-dollar judgment against Panama incorporated outfit

Published:Friday | November 6, 2015 | 11:00 AM

A Panamanian-registered investment firm has lost its bid to reinstate an appeal against a judgment that allows a group of investors who sued the company to recover US$8.14 million, or just under $1 billion.

F1 Investments Inc and three other applicants - Steve Palmer, Christopher Kelly and Patrice Palmer - had filed an appeal in December 2010 against a Supreme Court judgment handed down by Justice Paulette Williams.

However, in January of this year, the appeal was struck out for non-compliance with court orders. The firm and its co-applicants tried to reinstate the case but a three-member Court of Appeal panel refused to extend the time to file submissions, saying the investors at some point should be allowed to consider the matter at an end.

"If ever there was a case in which a party sought to have this court revert to the days when it was the parties that dictated the pace of litigation, this is that case," said Justice Patrick Brooks in the appeal court decision that was recently handed down.

"The applicants have repeatedly flouted the rules and orders relating to the time in which they should perform their allotted tasks in their appeal," he added.

F1 Investments is incorporated in Panama, while Steve Palmer, Christopher Kelly and Patrice Palmer are Jamaican citizens who, up to the period covered in the lawsuit, conducted foreign currency trading in Jamaica.

The respondents - Peter Krygger, Garrie Don and Bradley Johns - claimed on behalf of 83 people, including themselves, that they had invested US$8,145,441.20 with F1 Investments based on false representations by the Palmers and Kelly.

The respondents sued to recover the money due to the investors, and on November 26, 2010 Justice Williams granted summary judgment for US$8,145,441.20 with interest at 9.09 per cent per annum from June 7, 2009 to November 26, 2010.

F1 Investments, the Palmers and Kelly appealed in December 2010, but failed to comply with the rules of the court in pursuit of its case and the appeal was struck out in January 2015.

Attorneys-at-law Paul Beswick and Carissa Bryan represented F1 Investments, the Palmers and Kelly, and according to Justice Brooks, the lawyers ought to have been aware of the defaults.

Of the applicants themselves, the appeals judge said "the history of their performance in the prosecution of this appeal ... has plainly been abysmal. Yet, in the face of default after default, failure after failure, with delay featuring in every step, Mr Beswick submitted that as long as each default had been previously cured, it cannot be said that the applicants have not been in general compliance with the previous orders of the court".

Justice Brooks rejected Beswick's reasoning, saying: "The mere fact that there has had to be several efforts to correct previous incidents of non-compliance, it would seem, is evidence that there has been no general compliance with the court's rules, orders and directions."

Beswick had also challenged the ruling on the basis of jurisdiction, saying the agreement between the applicants and the respondents specified that Panama was the country in which cases involving the contract should be tried.

But Attorney Kevin Powell, who represented Krygger, Don and Johns, argued that F1 and its co-applicants could only have insisted on the Panamanian jurisdiction if they had not previously submitted to the jurisdiction of the Jamaican courts. FI had done so on three occasions and, as such, was barred from arguing an entitlement to the Panamanian court, Powell said.

Justice Brooks noted that the judge in the lower court accepted a similar submission to that advanced by Powell, namely, that F1 and the other applicants had submitted to the jurisdiction of the Supreme Court in applying for security for costs from the respondents and an order for summary judgment.

mcpherse.thompson@gleanerjmn.com