In The High Court of Justice

Transcription

1 The Republic of Trinidad and Tobago In The High Court of Justice Claim No. CV Between ATIBA CHARLES CYD GRAY IAN COX CORNELL GLEN SHAKA HISLOP AVERY JOHN STERN JOHN KENWYNE JONES KELVIN JACK COLLIN SAMUEL BRENT SANCHO AURTIS WHITLEY EVANS WISE ANTHONY WOLFE And Claimants THE TRINIDAD AND TOBAGO FOOTBALL ASSOCIATION (Also known as THE TRINIDAD AND TOBAGO FOOTBALL FEDERATION ) First Defendant And OLIVER CAMPS (Trading as THE TRINIDAD AND TOBAGO FOOTBALL FEDERATION ) Second Defendant Before The Honourable Mr. Justice Devindra Rampersad Appearances: Mr. Lamont instructed by Mr. Dave de Peiza for the Claimants Mr. Mc Cormick for the 1 st Defendant and intended 3 rd Defendant JUDGMENT Page 1 of 11

2 Table of Contents The Cause of Action The Parties:... 3 The Application Filed by the Claimants for Joinder:... 4 The Court's Power to Add a Party Part 19 of the CPR:... 5 The Law on Agency:... 6 The Resolution of the Issue At hand:... 7 Is There a Conflict of Interest in the Legal Representation?... 8 The Court's Inherent Jurisdiction:... 9 The Order: Page 2 of 11

3 The Cause of Action The Parties: 1. On 29 th June 2007, the claimants filed the claim form in these proceedings seeking the following reliefs: 1.1. An account of all sums due from the first defendant to the claimant under an agreement made at a series of meetings, between the representatives of the claimant of the one part and the representatives of the firstdefendant of the other part the first of which was held on the 9 th November 2005 at the Crown Plaza Hotel, Wrightson Road, Port-of-Spain; the second meeting of which was held on the 8 th January 2006 at the Mandarin Oriental Hotel, London; the third of which was held on 9 th January 2006 at the Hilton Hotel, Dartford, England, and by telephone conference, and the fourth of which was held on the 12 th day of June 2006, in the team hotel in Rothenburg, Germany, including sums received by: Any company, or companies that were owned by the first and/or second defendants, or, were owned and controlled, legally or beneficially, individually or together, by Jack Warner and/or the second defendant and /or Richard Groden or any nominee of any of them; Jack Warner and/or the second defendant and/or Richard Groden individually or together, legally or beneficially, and/or by to an agent acting on their behalf; or Any other party under the effective ownership or control of or serving as agent of the first defendant, the second defendant, Jack Warner and/or Richard Groden An account of all sums paid to the second defendant of the type referred to under the Agreement An order for payment by the first defendant and/or second defendant to the claimants of all sums found to be due from the first defendant and/or second defendant to the claimants on the taking of the account under 1.1 above Payment of the Charity Withheld Sum, being Twenty-Six Thousand, Six Hundred and Eight and Seventy Cents, United States Currency. (US $26,608.70) Payment of the Tax/Insurance Withheld Sum, being CHF 755, Further, or alternatively, damages for breach of contract Interest Costs. Page 3 of 11

4 1.9. Further of other relief, including all further necessary or appropriate accounts, inquiries or directions. 2. It is plainly obvious that even though, in the statement of case, the claimants contemplated that sums were received by the second defendant and/or Jack Warner and/or Richard Groden, neither of the latter two were added as parties. So from very early on, despite their names being mentioned, a conscious decision was made to exclude these two parties from being named in these proceedings. 3. Instead, the reliefs sought an account of all sums due from the first defendant and/or the second defendant and a consequential order for payment by the first defendant and/or second defendant of any sums found to be due. The Application Filed by the Claimants for Joinder: 4. On 7 th September 2011, the claimants filed the subject application for the joinder of Austin Jack Warner as a party to these proceedings as the third defendant, and for an account and the disclosure of documents against the said Austin Jack Warner. Clearly, the only relief being sought against Mr. Warner is that he be joined as a party to provide an account and disclosure of documents. 5. In support of the application, Mr. Dave de Pieza deposed to an affidavit on the 7 th September, 2011 and Mr. Austin Jack Warner deposed to an affidavit in opposition on the 17 th October, In Mr. Warner's affidavit, he indicated at paragraph 13 that he was prepared to provide to the first defendant the information or documentation relevant to the taking of the account between it and the claimants in so far as the same was within his knowledge or control. 6. It is plainly obvious, therefore, that the claimants are not satisfied with this assertion that the information and documentation be provided to the first named defendant but, instead, they prefer that Mr. Warner be made a party to provide an account directly to them through this court in these proceedings. 7. In this regard, Mr. Warner's attorneys-at-law have countered by saying that it is improper for a party to be joined merely for the purposes of disclosure and, in any event, part 34 of the CPR provides the procedure for the enforcement of Mr. Warner's attendance as a witness in these proceedings through the issue of a witness summons should it be deemed necessary. Page 4 of 11

5 The Court's Power to Add a Party Part 19 of the CPR: 8. It is indubitably true that the court has the power to add a new party to proceedings after the case management conference on the application of an existing party providing that party can satisfy the court that the addition is necessary because of some change in circumstances which became known after the case management conference. 9. It is therefore the applicant's burden to satisfy the court that the addition is necessary because of some change in circumstances revealed only after the case management conference. That change in circumstances upon which the claimants rely is in respect of the statements made by the second named defendant in his affidavit deposed to in these proceedings on 24 th August 2011 and filed on even date in which he said: 5. At all material times special advisor to the first named defendant, Mr. Jack Warner had been given the authority by the executive of the first defendant to transact all business in respect of all matters relating to the claimant's participation in the 2006 World Cup held in Germany and all records, accounts and agreements were in his possession and the items reflected in the accounts and supplemental accounts filed herein are what was provided to the first named defendant by him. 6. In respect of accounts and supplemental accounts for LOC Germany I have had no information or records for this company as this was a company/organization under the control of special advisor, Mr. Jack Warner. The executive and I have made repeated requests for Mr. Warner to provide accounts for LOC Germany and to provide a full account of monies of the claimant's participation in the 2006 World Cup, however to date we have only been provided with the items as shown in the account filed herein on the 30 th June The failure by Mr. Warner to provide the full account as referred to in the second defendant s affidavit despite the first named defendant's executive s repeated requests forms the basis for the claimants application. It is very interesting to note, however, that no cogent evidence of these so-called "repeated requests" were provided by the second named defendant in his affidavit. 11. Had those requests been complied with earlier, this application may not have been necessary since it must be said that it was always in the contemplation of the claimants that: The first named defendant was the body responsible for all of monies arising out of the 2006 World Cup in relation to the Republic of Trinidad and Tobago s participation therein; Page 5 of 11

6 11.2. Monies so arising out of the 2006 World Cup were received by the first named defendant and/or of the second named defendant and/or Mr. Austin Jack Warner and/or Mr. Richard Groden; At all material times, Mr. Austin Jack Warner was acting as the duly appointed agent of the first named defendant with the necessary authority inter alia to enter into agreements and collect monies on behalf of the first named defendant. This, in fact, is the basis of the substantive claim made by the claimants All such monies received by Mr. Austin Jack Warner were received in his capacity as the first named defendant's agent with the consequential fiduciary duty to account to the first named defendant for all such monies received. 12. Now, Mr. Austin Jack Warner has deposed in his affidavit that he is prepared to provide to the first defendant the information and documentation relevant to the taking of the accounts". The second named defendant in his affidavit referred to accounts due and requested from LOC Germany but there is no application to join LOC Germany in these proceedings. 13. So, in those circumstances, have the claimants satisfied this court that the addition of Mr. Austin Jack Warner is necessary? The Law on Agency: 14. There is no doubt that the intended third defendant is the agent of the 1 st defendant that is the claimants pleaded case. 15. Halsbury's Laws of England 1 states that: The receipt of money from a third person by an agent on his principal's behalf does not in itself render the agent personally liable to repay it when the third person becomes entitled as against the principal to repayment, whether the money remains in the agent's hands or not 1. If, however, a third person pays money to an agent under a mistake of fact 2, or in consequence of some wrongful act 3, the agent is personally liable to repay it 4, unless, before the claim for repayment was made upon him, he has paid it to the principal or done something equivalent to payment to his principal 5, or where the principal is a foreign sovereign immune from suit 6. Where, however, the agent has been a party to the wrongful act 7, or has acted as a principal in the transaction 8, in consequence of which the money has been paid to him, he is not discharged from his liability to make repayment by any payment over to his principal Of course, the claimants have made no claim against Mr. Warner for the repayment of any monies by him. Nevertheless, this exposition of the law demonstrates where and to whom the duty to account lies in relation to monies received by an agent. 1 Halsbury's Laws of England/AGENCY (VOLUME 1 (2008) 5TH EDITION)/7. RELATIONS BETWEEN AGENT AND THIRD PERSONS/(1) LIABILITIES OF AGENT/(iii) Money Received by Agent/162. Liability to repay to third person Page 6 of 11

7 17. As referred to above, part 19 of the CPR applies. 18. The claimant's attorneys at law have relied upon the following decisions from our court of appeal in support of the application: Alan Dick & Co Ltd v Fast Freight Forwarders Ltd CvA 214 of Anthony Murray v Dorothy Vierra Procedural App 142 of Technovision Investments Inc v Moosai Hardware Co Ltd CvA 68 of in this case, a third-party was allowed to intervene in proceedings between the plaintiff and defendant companies which were both owned and operated by the same family and in which judgment had been taken up in default of appearance allegedly to deprive the proposed intervener s fruits of a judgment in other proceedings thereby raising the issue of collusion between the plaintiff and defendant to avoid a judgment creditor. In those "exceptional circumstances", the court of appeal determined it proper for a judge to exercise his discretion to allow the Joinder to prevent improper vexation or oppression and to do justice between the parties and secure a fair trial between them in circumstances when it is just and equitable to do so. At present, there is no suggestion by the claimants in these proceedings of collusion. 19. Clearly, this court may add a new party in the circumstances referred to at part 19.2 (3) of the CPR. Part 19.2 (3)(a) refers to the desirability of adding a new party so that the court can "resolve all of the matters in dispute in the proceedings". Part 19.2 (3) (b) applies where "there is an issue involving the new party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue." 20. Mr. Warner's attorneys-at-law have correctly, to my mind, stated the principle, backed by legal authorities, that parties ought not to be joined to proceedings merely for the purposes of discovery. They referred to the cases of Burstall v Beyfus (1884) 26 Ch D 35, Gould v National Provincial Bank (1960) Ch 337 and Douihech v Findlay (1990) 1 WLR 269. Clearly, in this matter at this time, there is no substantive claim against Mr. Warner other than the claim for discovery and there is no application for an amendment. The Resolution of the Issue At hand: 21. It is this court s view at this time that it is not satisfied that, in the circumstances mentioned at present, that it is necessary to add Mr. Warner. Page 7 of 11

8 22. The order made for accounts in respect of the first named defendant would necessarily include a collation of all accounts due and owing to it from all parties including Mr. Warner and LOC Germany. It would have been in the contemplation of the first and second named defendant since the filing of these proceedings in 2007, if not before, that it would have been necessary to properly marshal those accounts and have it brought before the court. Yet, the first named defendant has done absolutely nothing to call in and prepare the final accounts. 23. It is remarkable, and quite astounding that, to date, no steps have been taken by the first named defendant to obtain those accounts by compulsion if, as the second named defendant has deposed, repeated requests have been denied. As has been mentioned, the fact of those repeated requests has not been substantiated on the evidence by way of correspondence or any other independent means of verification other than the bold statement made in the affidavit. This court is of the view that the receipt of, and the accounting for, these substantial sums of money would necessarily have been a very serious matter, yet the first and second named defendants have taken no steps whatsoever to bring Mr. Warner or LOC Germany to account. Is There a Conflict of Interest in the Legal Representation? 24. Even more remarkably, both Mr. Warner and the first named defendant have retained the same attorneys-at-law to deal with this matter before the court. Mr. Mc Cormick, who appears for the first named defendant and the intended third defendant, says the issue has been considered and there is no conflict. I could not disagree more. To me, there is an obvious conflict of interest in circumstances where there exists an order of the court for the provision of accounts and the accounting party throws the blame for failing to fully comply with the order upon its agent both of whom are represented by the same attorneys - yet takes no assertive steps whatsoever to bring the defaulting party to account other than the empty statement that "repeated requests" for the information were made without success. Had independent attorneys been secured for the first named defendant, it is likely that a greater sense of urgency may have materialized to aggressively ensure that an order of the High Court was obeyed and complied with not for the first named defendant to just come to the court, throw their hands up in the air and say We asked him for the accounts and he did not provide it to us so what are we to do? That is simply not good enough in light of the existence of an order of the court. The first named defendant had a duty to comply and has not. It is an utter disregard for the sanctity and integrity of the court process to shift the blame for its obvious deficiencies and inefficiencies on its agent who is not before the court - without taking any firm step to marshal that agent s accounts. The suggestion from the first named defendant s/intended third defendant s attorney that the claimants should take the necessary steps to enforce compliance Page 8 of 11

9 does not sit very well with this court especially where the same attorneys advise both the principal and the agent. The first named defendant is in default of an order of the court yet inexplicably seems satisfied to retain the same attorney as the offending party despite the intended third party s continuing default. 25. There may come a time when this court may have to consider making an order under Part 26.1(1)(t) of the CPR for the separate representation of the principal and the agent but, for now, that does not arise. The Court's Inherent Jurisdiction: 26. To my mind, something does not seem right in these circumstances. As yet, there has been no claim of collusion with the intent to defraud or deprive the claimants on the pleadings so that it does not arise as an issue for determination in this matter. The claimants attorney at law was hard pressed to point to a single allegation of collusion in the supporting affidavits. However, Hamel-Smith JA in Technovision said: [28] Apart from finding that the issue raised by the appellant falls within the rule, there is the question of the inherent jurisdiction of the court. It is said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. (see 37 Halsbury s Laws of England 4 th Ed. para. 14). 27. What is of concern to this court is that the first named defendant, who is entrusted by order of the court with the duty to drive the accounting process with Mr. Warner and/or LOC Germany, continues to sleep on that duty and may very well adopt the same nonchalant and lackadaisical approach in pursuing any accounts from the intended third party which has persisted since the monies were received and not accounted for. We are now in 2012 almost six years since the World Cup in The court is mindful of statutory time limits with respect to accounting and notes with concern that those time limits are fast approaching. This court cannot compel the first named defendant to bring accounting proceedings against Mr. Warner or LOC Germany especially since, up to now, the first named defendant seems to have no interest whatsoever in doing that despite the fact that no accounts have been provided to date in relation to matters in which monies were paid several years ago. 28. If the issue of the production of the accounts by the first named defendant agent is not addressed, it is likely that these proceedings would languish before the courts as the first named defendant continues in its contented failure to call for the accounts. If even they were to file an action now for those accounts, there is the possibility that considerable time would Page 9 of 11

10 be lost once again, depending on the approach taken by the first named defendant s attorneys in that account action. The intended third party has indicated in these proceedings that he is willing to supply those accounts. What is perplexing about this indication, while it is welcomed, is why did it take an application such as this to have such a commitment put on the record especially when it ought to have been known that the accounts were being called for? Further to that, why has no step been taken to provide those accounts earlier especially since the intended third defendants attorneys are the same as the first named defendant and who surely would have known of the need to provide those accounts without having to resort to this application? 29. The court is concerned with the management of the case before it and the maintenance of the overriding objectives inter alia to justly deal with cases, save expense and ensuring that the case is dealt with expeditiously. To allow the provision of accounts by the first named defendant s agent at his own time and pace without some sanction would, to my mind, be counterproductive to these objectives and frustrate the process. 30. In Dadswell v Jacobs 2, the English Court of Appeal recognized that a principal has a general right to the production of documents in the hands of his agent to any person appointed by him unless that person is an improper person. In Re Ellis and Ellis 3, it was directed that vouchers in the possession of a solicitor relating to payments made on behalf of a former client must, on the bankruptcy of the client, be handed over to his trustee. 31. In these proceedings, the court has the conduct of this case and finds that it is necessary to have this matter dealt with in an expeditious manner to bring closure to it under the court's case management powers set out in part 26.1 of the CPR. To date, the first named defendant continues to default on orders made by this court including orders made for the payment of monies in the interim. The reason proffered by the attorneys at law for the first named defendant for the failure to make the interim payments was the inability to make those payments. If interim payments, at this stage, cannot be met due to financial difficulty being experienced by the first named defendant, it is not unreasonable to assume that the first named defendant would not have the financial wherewithal to diligently monitor and supervise any accounting process involving its agent. 2 (1887) LR 34 Ch D [1908] WN 215 Page 10 of 11

11 The Order: 32. In the circumstances, this court would not join Mr. Warner as a defendant in these proceedings as there is no claim for relief made against him but would make the following order bearing in mind Mr. Warner's evidence on affidavit that he is willing to produce information and documentation relevant to the accounts: The claimants application for the joinder of Mr. Austin Jack Warner is dismissed The first named defendant shall direct Mr. Austin Jack Warner in writing (copied to the claimants attorney-at-law) by 12 th January 2012 to file, in these proceedings, an account of all monies received by him as the first named defendant s agent in relation to all income, donations, gifts, grants or benefits whatsoever and all expenditure therefrom arising out of the World Cup 2006; such account to be verified by affidavit deposed to by Mr. Warner exhibiting all relevant documentation and to be filed and served in these proceedings by 10 th February The court requires further submissions in writing in respect of whether or not the court can make an order for costs against the first name defendant in respect of this application. In that respect, the claimants, the first and intended third names defendant's shall file and exchange their submissions by the 10th of February 2012; soft copies to be forwarded to the court by on the date prescribed for filing This CMC is adjourned for that to 14 February 2012 at 9:30 AM in POS 09. The attorney at law for the first name defendant undertakes to ensure that a representative from the first name defendant attends court on that date. Devindra Rampersad Judge Page 11 of 11