Keyser et Al v Morrison et Al
| Jurisdiction | Bahamas |
| Judge | Fraser, J. |
| Judgment Date | 03 February 2015 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2014/CLE/gen00745 |
| Date | 03 February 2015 |
Supreme Court
Fraser, J.
2014/CLE/gen00745
Jeffrey Lloyd for the plaintiffs
Oscar Johnson for the Third defendant
Civil practice and procedure - Whether the third defendant should be allowed to represent themselves in the action — Conflict of interest — Whether the third defendant should be granted an Order for security for costs — Plaintiffs ordinarily resident outside of the jurisdiction.
This is an application by the Third defendant seeking to have the instant action strike out against them pursuant to Order 18 rule 19 (a) and/or (b) of the Rules of the Supreme Court (“RSC”).
By Summons filed on 25 June, 2014 the Third defendant applied seeking inter alia:
“1
(i) the Originating Summons filed herein on 4th June, 2014, discloses no reasonable cause of action as against the Third defendant; and/or
(ii) that the instant action is frivolous and/or vexatious as the action is statute barred.
2. Alternatively, an Order, pursuant to Order 15 rule 6 of the RSC, that the Third defendant be disjoined from the instant action on the ground that the Third defendant is not a proper party to the instant proceedings.
3. Alternatively, that the Originating Summons be struck out or otherwise Amended as it fails to comply with Order 7 rule 3 of the RSC as it fails to provide sufficient particulars to identify the cause of action for which the plaintiffs seek relief against the Third defendant; and/or
4 An Order, pursuant to Order 28 rule 6 of the RSC, and/or pursuant to the inherent jurisdiction of this Honourable Court that this action continue as if it had begun by Writ on the ground that there is a material dispute of fact between the Third defendant and the plaintiffs in relation to the subject matter of the instant action; and/or
5. An Order, pursuant to Order 23 rule 1 of the RSC, that the plaintiffs provide security for the Third defendant's cots of the instant action on the ground that the plaintiffs are not ordinarily resident within the jurisdiction.
6. That the costs of and occasioned by this application be paid by the plaintiffs to the Third defendant in any event, to be taxed if not agreed.
7. Such further or other relief as this Honourable Court may deem just.”
On 9 December, 2014 Counsel on each side presented their submissions only on the point of relief (5) of this application. I gave instructions that I would reserve my ruling on the issue and I do so now.
The plaintiff commenced this action by Originating Summons filed on 4th June, 2014 supported by an affidavit of Sandra Keyser filed on 17 June, 2014.
Mrs. Keyser avers that she and her husband (Second plaintiff) became interested in a property on Port Royale, South Bimini, advertised by the First defendant. The Trio entered into oral negotiations for the sale of land upon which the plaintiffs required certain conditions to accompany the terms of the agreement.
According to Mrs. Keyser the oral agreement was confirmed in emails with the First defendant through an Attorney from the Third defendant. Mrs. Keyser further avers that the plaintiffs relied on the Third defendant to act on their behalf in the legal transactions.
In response to Mrs. Keyser's averments, the Third defendant filed an affidavit of Ms. Alexandra Hall on 6 August, 2014.
Upon hearing Counsel for the Third defendant, Mr. Lloyd, Counsel for the plaintiff objected to the Third defendant representing themselves in this action alleging that it creates a conflict of interest in accordance with Rule V of The Bahamas Bar Code of Professional Conduct.
Mr. Lloyd's position appears to be predicated on the fact that the plaintiffs were former clients of the Third defendant in the substantive issue before this Court for determination; as such it is a conflict of interest which is prejudicial to the plaintiffs. Conversely so, Mr. Johnson for the Third defendant argues that Rule V is not applicable in the circumstances as the Third defendant never acted on the plaintiffs' behalf, therefore if the Court is to be minded to accept the plaintiffs' position resulting in the Third defendant seeking independent Counsel, then the matter of Security for cost becomes predominantly an issue because it would put the Third defendant in a position where they fear that they would be unable to recover cost if they are successful against the plaintiffs.
The plaintiffs in their submissions dated 18th November aver that they were unfamiliar with doing business in The Bahamas and therefore relied on the advice of the First defendant that Higgs & Johnson chambers would handle the legal transactions for both parties. The plaintiffs further aver that there are several glaring discrepancies in relation to the land transaction between themselves and Higgs and Johnson upon which they relied on as a client to have been performed in their favour.
The law is clear concerning Attorneys representing conflicting interest of clients in particular matters where it is contentious. See Smith v. Mansi (1962) 3 All ER 858.
Arguably, I am not...
To continue reading
Request your trial