Wed | Dec 19, 2018

Letter | But wait, there’s more

Published:Friday | October 19, 2018 | 12:00 AM

THE EDITOR, Sirs:

I write with reference to your published article 'Judge's retirement nullifies $29b lawsuit: Richard Lake Case against NCB to be tried again' in last Friday's issue of the Financial Gleaner.

Your article is bereft of certain pertinent facts which form the substratum of this case. These facts, which ought to be noted, are as follows.

Fundamentally, after 25 years, the outstanding four certificates of title which have implications to the rest of the development have still not yet been delivered to claimant companies.

The Supreme Court found that there had been a breach of contract by the vendor in its failure to deliver the duplicate certificates of title to the claimant companies.

The judge ordered minimal damages; and in so doing, refused the claimants' claim that the contract should be rescinded and the companies refunded the purchase price, plus interest at commercial rates, in exchange for the return of the titles received.

The judge refused to award significant damages as a result of the breach of contract by the vendors.

The failure to award significant damages was substantially based on the judge's application of a 19th-century rule of English common law known as the Bain and Fothergill rule of 1874. In our view, the rule, even if accepted, is not applicable in this case. It should further be noted that the rule has been abandoned in several jurisdictions which follow English law and is difficult to justify in Jamaica, which operates under a system of registered title.

The claimant companies were prepared to argue the appeal against the judge's decision. However, the litigants and the appeal court agreed that in light of the prior decision of the Court of Appeal in the Chen-Young case, that such arguments would have been redundant. Hence the decision of the Court of Appeal to declare the previous trial a nullity.

Deniesha Buchanan

Attorney for claimants

Caricom Investments Ltd,

Caricom Hotels Ltd and

Caricom Properties Ltd

dbuchanan@bkjm.com