Thu | Sep 21, 2017

Sagicor Bank to take case to Privy Council

Published:Sunday | January 8, 2017 | 1:00 AMMcPherse Thompson
A branch of Sagicor Bank at Liguanea, Kingston.

Sagicor Bank Jamaica Limited will be applying directly to the Privy Council to overturn a Court of Appeal decision in its ongoing quest to reinstate a summary judgment involving a disputed loan.

The Court of Appeal had overturned the summary judgment issued by the Supreme Court three years ago in favour of the bank. And the appeal court later denied Sagicor Bank leave to appeal its decision.

However, the bank has said it still plans to ask the Privy Council to hear its case.

Last July, the Court of Appeal reversed the summary judgment and ordered a trial over the disputed loan.

Bank customer Marvalyn Taylor-Wright, a lawyer, alleges that the lawsuit, originally filed against her by RBTT/RBC Royal Bank in March 2011, was based on a forged promissory note. Sagicor Group later acquired RBC Royal Bank Jamaica in 2014 and eventually merged it with its existing banking unit, Sagicor Bank Jamaica.

INVESTIGATION REQUIRED

Appeal Court judge Hilary Phillips said in a July 1, 2016 ruling that issues surrounding the disputed promissory note and whether it was forged require investigation, and cannot be a basis for summary judgment.

Against that background, the appeal court set aside the April 2014 judgment of Supreme Court Justice Brian Sykes and ordered that the civil suit be tried by a different judge.

A summary judgment refers to a ruling without a full trial where one of the parties appears to have little prospect of success.

"We wish to point out that no date has yet been set for trial of the claim, which was originally brought by RBTT/RBC in the Supreme Court," said Sagicor Group's vice-president for Group Marketing, Ingrid Card, in emailed responses to Gleaner Business queries.

"In light of the Court of Appeal's denial of Sagicor's request for leave to appeal to the Privy Council, Sagicor will be applying directly to the Privy Council for leave to appeal. Sagicor (having acquired the undertaking of RBTT/RBC) continues to hold the view that this case raises an issue of general public importance to a bank's ability to effectively engage in banking business, namely its entitlement to summary judgment where the circumstances warrant," Card said.

It should be noted, Card added, that the Supreme Court and the Court of Appeal, having considered the same set of facts, have come to two different conclusions.

"The Supreme Court agrees with the bank's position; the Court of Appeal does not. In disagreeing with the bank's position on its entitlement to summary judgment, the Court of Appeal has indicated that the action ought to proceed to trial. It has not found that the fraud alleged against RBTT/RBC has been established," she said.

According to court documents, the claim has its genesis in an agreement whereby Taylor-Wright borrowed $21.76 million from RBTT Bank Jamaica Limited on July 27, 2007. RBTT was subsequently acquired by Royal Bank of Canada as part of a regional takeover, and rebranded RBC Royal Bank (Jamaica) Limited.

The loan was secured by a promissory note dated seven days before on July 20, as well as residential property in Stony Hill, St Andrew and commercial property at Duke Street, Kingston.

However, the bank holds a note dated July 27. Taylor-Wright contends that the signature on that document is forged.

The bank sued Taylor-Wright in March 2011 to recover $31.66 million in loan and credit card debt. It claimed that she last made a payment on the loan in December 2009.

Taylor-Wright subsequently paid off the credit card debt but disputed the loan, saying that under the July 20 promissory note, she owed no liability to the bank as the document was incomplete since it did not contain any agreed interest rate and the loan had been disbursed on July 27, 2007.

Following the July 2016 Court of Appeal ruling, Sagicor, on July 15, brought a notice of motion for conditional leave to appeal the decision to Her Majesty in Council, citing 'great general or public importance or otherwise'.

The issue, as Sagicor argued, was one that relates to "a commercial bank's ability to effectively engage in banking business, namely, that commercial banks must be allowed to utilise the legal procedure of summary judgment to recover from delinquent debtors overdue, acknowledged and undisputed borrowings".

Ransford Braham, QC, who represented Taylor-Wright, said the bank had not raised a clear question in supporting documents to justify granting the application for leave to appeal to Her Majesty in Council.

Sagicor's attorney, Sandra Minott-Phillips, QC, reformulated the question during oral submissions, and that was accepted by Justice Marva McDonald Bishop, who delivered the judgment.

However, the judge ruled that respondent Taylor-Wright was "correct in her observation that the question proposed is one that does not give rise to any issue worthy of serious debate to warrant the consideration of Her Majesty in Council".

In refusing the motion for leave, she said the bank has not shown that the question proposed to be submitted is one that arose from the decision of the Court of Appeal and is of great general or public importance.

mcpherse.thompson@gleanerjm.com