Jerome Forbes North Andros Food Services Ltd (t/a North Andros Seafood) and R&R Holding Investment Ltd v Scotia Bank (Bahamas) Ltd
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jones, JA |
| Judgment Date | 04 July 2018 |
| Neutral Citation | BS 2018 CA 102 |
| Docket Number | SCCivApp. No. 182 of 2016 |
| Court | Court of Appeal (Bahamas) |
| Date | 04 July 2018 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Jones, JA
SCCivApp. No. 182 of 2016
(Trading as “North Andros Seafood”)
Ms. Krystal Rolle, Counsel for the Appellant
Mr. Leif Farquharson with Mr. John Minns, Counsel for the Respondent
Fiona Trust and Holding Corp and others v Privalov and others [2017] 2 All ER 570 applied
National Justice Companie Naviera SA v. Prudential Assurance Co. Ltd. [1993] 2 Lloyd's Rep. 68 (sub nom. ‘The lkarian Reefer’) applied
Parabola Investments Ltd and another v Browallia Cal Ltd and others [2010] EWCA Civ 486 applied
R v Soto [1975] RTR 357 considered
Civil appeal - Assessment of damages — Damages — Loss of revenue and profits — Expert witnesses in civil cases
The appellants were in the business of purchasing, processing, wholesaling, retailing, exporting, and transporting seafood products between Andros and New Providence. In order to conduct their business the appellants established a banking relationship with the respondent at its Nicholls Town, Andros branch in 2006. On the 12 th August 2008, without warning, notice, or any reason whatsoever, the respondent froze the appellants' personal and business accounts. As a result of the freezing of the accounts the appellants brought an action against the respondent claiming loss and damage. The accounts remained frozen up to the 29 th January 2014 when all issues of liability were settled and the parties signed an agreement covering the amounts of damages and interest owed, except for the amounts due for loss of revenue and profits.
During the assessment hearing the appellant Forbes gave evidence and the appellants/plaintiffs relied on the expert opinion of accountant Kevin McDonald (McDonald); while the respondent/defendant relied on the expert opinion of accountant Edmund Rahming (Rahming).
The learned judge in the court below preferred Rahming's evidence to that of McDonald's and awarded the appellants $89,072.46 for loss of profits.
On appeal the appellants seek to set aside the order of the learned judge and ask this Court to undertake its own assessment of the appellants' loss of revenue and profits.
Held: appeal dismissed, judgment in the court below affirmed; costs to the respondent, to be taxed if not agreed.
The duties of expert witnesses in civil cases are as follows: “(a) The expert evidence should be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation; (b) The witness should provide expert unbiased opinion in relation to matters within his expertise and should never assume the role of advocate; (c) He should not omit to consider material facts which detract from his concluded opinion and he should make it clear when a question falls outside his own expertise; (d) The opinion should state if it is provisional only, or subject to any qualification; (e) If, after exchange of reports, the expert changes view, this should be communicated to the other side and the court without delay; (f) Where the expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents these must be provided to the other party at the same time as the exchange of reports; (g) A party who wished to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible.”
The learned judge was of the view that the appellants' expert McDonald placed reliance for his conclusions on source documents which lacked independence based on the aforementioned guidelines. From the tone of his judgment it was clear that the judge was plainly more impressed with and persuaded by the evidence of Rahming than that of McDonald as he felt that Rahming's opinion revealed a thorough analysis of the lost profits based on the level of profits recorded for the 4 years immediately preceding the freezing of the relevant accounts by the respondent. Both the statements by Rahming and that of McDonald were before the learned judge as a fact finder and he preferred the evidence of Rahming and gave reasons for his preference. Having read the judgment in its totality this Court cannot say that the judge was not mindful of the relevant principles as established by case law. Indeed, a trial judge may, in the face of competing expert reports, properly prefer the evidence of one expert to that of another. In the circumstances the judge was entitled to make the assessment of the facts that he did, and this court would be slow to interfere.
The appellants also complain that the judge failed to differentiate the losses suffered by each company. These contentions are contrary to the evidence that was before the judge as the first appellant's evidence did not distinguish between the Scotiabank accounts and the businesses to which they were connected. Furthermore, McDonald did not make reference to the appellants' businesses by the Scotiabank account numbers; McDonald referred to loss of profits only for “The Forbes Group of Companies”.
Judgment delivered by the Honourable
. Jerome Forbes, North Andros Food Services Limited and R&R Holding Investment Company Limited (“the appellants”), appeal a decision arising from an assessment of damages heard by Stephen Isaacs, Senior Justice (“Isaacs SJ”) (as he then was) in the Supreme Court on the 22 nd June, 2016.
. The assessment of damages arises from a consent judgment against Scotiabank (Bahamas) Limited (“the respondent”), for damages from the appellants' loss of revenue and profits, when the respondent froze the business bank accounts, and suspended the overdraft facilities of the appellants at the Nicholls Town, Andros branch of the respondent. The appellants operated several bank accounts with the respondent through which they supported a fishing business. The retail side of the fishing business was in Nassau, New Providence, but the purchasing of the seafood was done in Andros.
. At the conclusion of the assessment hearing, the learned judge awarded the appellants $89,072.46 for loss of profits. I find agreement with the basis of the assessment, and this appeal to be unmeritorious for the following reasons.
. The appellants are in the business of purchasing, processing, wholesaling, retailing, exporting, and transporting seafood products. Their central focus is the supply of seafood to local retailers and restaurants, and international retailers. They purchase all their seafood supplies wholesale and in cash from local fishermen in North Andros. In order to conduct their business, the appellants established a banking relationship with the respondent at its Nicholls Town, Andros branch in 2006. In periods when there were huge sales, the appellants wrote large cash cheques on their account with the respondent without objection.
. On the 12 th August 2008, without warning, notice, or any reason whatsoever, the respondent froze the appellants' personal and business accounts. The appellants say that they were only made aware that their accounts were frozen after they made attempts to transact banking business. The accounts remained frozen up to the date the matter was settled on the 29 th January 2014.
. Jerome Forbes (“the first appellant”) had a mortgage contract with the respondent for $900,000 to build a house in Westridge, New Providence. He had drawn down just over $640,000 and was not allowed access to the balance of $256,805.42. In an exchange of correspondence with the respondent, the first appellant was advised by letter of the 28 th October, 2008 that:
“… as a result of an ongoing review at our Nicholls Town Branch and in accordance with evidence on hand, we have frozen all accounts relative to Mr. Forbes…The investigation/review in the branch is still progressing, and we will advise you of any additional findings…as they are uncovered.”
. At the end of the fraud investigations at the respondent's branch in Andros and a criminal trial, three of the respondent's former employees were convicted of fraud related offences. However, the first appellant was neither charged nor convicted for anything arising from the investigation at the respondent's bank.
. The appellants began an action against the respondent, in the Supreme Court of The Bahamas, claiming loss and damage resulting from the freezing of their banking accounts. The respondent counter claimed against the first appellant, seeking to recover the outstanding balances on his outstanding mortgage and personal credit cards and on all the appellants' facilities with the respondent.
. On the 29 th January, 2014 the appellant and the respondent settled all issues of liability, and signed an agreement covering the amounts of damages and interest owed, except for the amounts due for loss of revenue and profits.
. Following the settlement, two outstanding issues remained unresolved. First, what was the extent of the loss of profits and revenue from the respondent's breach? Second, what was the appropriate rate of interest and the period of time required for the recovery of that interest?
. At the hearing before Isaacs, SJ, the first appellant gave evidence together with the experts for both the respondent and appellants. Both experts were extensively cross-examined. At the end of the hearing Issacs, SJ, assessed $89,072.46 as the loss suffered by the appellants in respect of both businesses. The learned judge based his assessment principally by...
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