Maurice O. Gunton & Company v Robert K. Adams
| Jurisdiction | Bahamas |
| Judge | Winder, CJ |
| Judgment Date | 18 September 2023 |
| Docket Number | 2021/CLE/gen/01115 |
| Court | Supreme Court (Bahamas) |
IN THE MATTER of an engagement as counsel and attorneys of record for and in relation to various and sundry civil court proceedings designated 2018/Cle/gen/No. 0252 and 2018/SCCiv. App. No. 0182, respectively;
AND IN THE MATTER of two Certificates of Taxation made in 2018/SCCiv.App.No. 0182, dated the 22nd October 2019 and 14th November 2019, respectively;
AND IN THE MATTER of a demand letter dated 14th January 2020.
and
Hon. Chief Justice Sir Ian R. Winder
2021/CLE/gen/01115
IN THE SUPREME COURT
Common Law and Equity Division
Maurice Glinton KC with Meryl Glinton for the Claimant
Dawson Malone with Raven Rolle, Ebonesse Bain and Miquel Cleare for the First Defendant
Leif Farquharson KC with Gabriel Brown for the Second Defendants
This is my ruling on an application for summary judgment brought by summons filed by the Claimant (“MOG & Co”) on 23 November 2021 (the “Summary Judgment Summons”) and an application to strike out the claim and to dismiss or stay the action brought by summons filed by the First Defendant (“Mr. Adams KC”) on 6 December 2021 (the “Strike Out Summons”). There is also before me an application for time to serve a defence filed by the Second Defendant (“Graham Thompson”) on 12 November 2021.
The Summary Judgment Summons is supported by the Verifying Affidavit of Maurice O. Glinton (“Mr. Glinton KC”) filed on 23 November 2021 and the Supplemental Affidavit of Mr. Glinton KC filed on 5 July 2022. The Strike Out Summons is supported by the Affidavit of Mr. Adams KC filed on 20 January 2022. Graham Thompson filed the Affidavit of Adrian Hunt on 24 January 2023 in opposition to the Summary Judgment Summons and in support of the grant of an extension of time to serve a defence.
Notwithstanding the submission that the Supreme Court Civil Procedure Rules, 2022 (the “CPR”) do not apply to the applications, I am satisfied that the provisions of the CPR do apply by virtue of preliminary rule 2 (which stipulates to which proceedings the CPR applies) and preliminary rule 3 (which revokes the Rules of the Supreme Court, 1978). By virtue of preliminary rule 2(1)(a) and preliminary rule (2)(a), as amended by the Supreme Court Civil Procedure (Amendment) Rules, 2023, the CPR applies to all proceedings commenced before the commencement date of the CPR in which no trial date has been fixed without any transitional period or discretion to disapply the CPR's provisions.
This action was commenced by MOG & Co, who is suing via the principal and sole proprietor of the firm, Mr. Glinton KC. A specially indorsed writ of summons was filed on 29 September 2021. The writ of summons was served on Graham Thompson on 14 October 2021 and served on Mr. Adams KC on 8 November 2021. A memorandum of appearance was filed on behalf of Graham Thompson on 28 October 2021 and filed on behalf of Mr. Adams KC on 16 October 2021. Neither defendant has filed and served a defence.
Pursuant to the Summary Judgment Summons, Mr. Glinton KC has invoked the jurisdiction of the Court to grant judgment without a trial on the ground that the Defendants have no defence to any of the claims contained in MOG & Co's writ of summons. Mr. Glinton KC seeks:
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(a) a declaration confirming MOG & Co's right of lien,
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(b) a declaration confirming MOG & Co's right to receive payment directly of the taxed costs subject to the lien,
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(c) a declaration confirming the Defendants cannot impose conditions on payment of the taxed costs subject to the lien,
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(d) a declaration confirming the Defendants are jointly and severally liable for tortious interference with MOG & Co's contract with the late Julius Trevor Bethel JTB to provide legal services (of which the lien is allegedly a part),
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(e) damages for tortious interference with MOG & Co's right of lien,
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(f) an order for restitution of MOG & Co's right of lien over $67,717.85 and $19,958.91,
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(g) an order for payment of exemplary damages,
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(h) interest at the rate of 6.75% from the date of judgment to the date of payment, and
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(i) costs.
Conversely, Mr Adams KC seeks to arrest or terminate the progress of this action by seeking to have MOG & Co's statement of claim struck out and the action dismissed as against him on the ground that the statement of claim discloses no reasonable cause of action, is scandalous, frivolous, vexatious and/or otherwise an abuse of the process of the Court and may prejudice, embarrass or delay the fair trial of the action or, alternatively, to have the action stayed pending the determination of the interpleader proceedings in Supreme Court Action No. 2021/Cle/gen/01273 (“the Interpleader Action”) on the ground that it is likely to dispose of this action.
The essential background facts may be summarized as follows.
MOG & Co (and thus Mr. Glinton KC) were engaged by JTB to provide legal advice and representation in connection with two proceedings in this Court, Supreme Court Action No. 2010/CLE/gen/1137 (the “Trust Action”) and Supreme Court Action No. 2018/CLE/gen/0252 (the “Writ Action”) (collectively, the “Actions”).
While a partner at Graham Thompson, Mr. Adams KC represented Patricia Ruth Bloom (“Patricia Bloom”) and Amy Bloom Clough (“Amy Bloom”) in the Trust Action. Mr. Adams KC also represented Patrica Bloom and Amy Bloom in the Writ Action, together with Michael Clough, Sarah St George, Grand Bahama Port Authority, Limited (the “GBPA”) and Port Group Limited (“PGL”).
JTB appealed a decision that I made on 4 September 2018 refusing an injunction application in the Writ Action to the Court of Appeal (SCCiv App. No. 182 of 2018) (the “Writ Action Appeal”). JTB succeeded in the Writ Action Appeal on 28 January 2019 and was awarded his costs in the Court of Appeal. Each of Mr. Adams KC's clients was thereby ordered to pay the costs of the appeal (the “First Costs Order”). Another costs order was made in JTB's favour when a motion seeking leave to appeal to the Judicial Committee of the Privy Council was struck out (the “Second Costs Order”) (collectively, the “Costs Orders”).
A Deputy Registrar of the Court of Appeal issued Certificates of Taxation dated 22 October 2019 and 14 November 2019 in respect of the Costs Orders in the respective amounts of $18,873 and $64,340.50 (the “Certificates of Taxation”). Neither the Costs Orders nor the Certificates of Taxation purported to impose a personal obligation on Mr. Adams KC or Graham Thompson to pay costs nor did they provide for costs to be paid directly to MOG & Co.
Mr. Adams KC ceased to be a partner at Graham Thompson with effect from 31 December 2019 and transitioned to a role as a consultant at Delaney Partners (“DP”). Around this time, Graham Thompson ceased to act for the persons Mr. Adams KC represented in the Actions. Graham Thompson claims that it was not privy to the exchanges that subsequently took place between Mr. Adams KC and Mr. Glinton KC.
MOG & Co wrote a demand letter to Mr. Adams KC dated 14 January 2020 upon receipt of the Certificates of Taxation in the post. MOG & Co transmitted the demand letter to Mr. Adams KC via email on 16 January 2020. The demand letter made no mention of any attorney's lien although Mr. Glinton KC contends that no demand was strictly necessary and, if one was, this letter sufficed so far as Mr. Adams KC was concerned.
Mr. Adams KC responded to MOG & Co's demand by email the same day it was received stating, inter alia, that he was awaiting receipt of the file pertaining to the matter from Graham Thompson and that he did not “ anticipate enforcement proceedings will be necessary”. The Supplemental Affidavit of Mr. Glinton KC confirms that it was clear to Mr. Glinton KC at this point that Mr. Adams KC no longer worked for Graham Thompson.
JTB died in The Bahamas on 17 January 2020 from undetermined causes.
On 19 January 2020, Mr. Glinton KC wrote to Mr. Adams KC regarding the interest he claimed was payable on the amounts stated to be due in the Certificates of Taxation.
On 31 January 2020, Edward J Marshall II (“EJM”), a partner at DP, transmitted a draft Deed of Release to MOG & Co (the “Draft Deed of Release”) between Mr. Glinton KC and MOG & Co as Releasors and Patricia Bloom, Michael Clough, the GBPA, PGL and Sarah St. George as Releasees “… in relation to the costs awarded to [JTB] in the Court of Appeal”. The Draft Deed of Release was stated to be under review by DP's clients (the parties liable to pay costs) and, therefore, possibly subject to amendment. Recital (F) of the Draft Deed of Release provided:
(F) Subsequent to the demand by the Releasors for payment of the Certificates of Taxation JTB passed away. The Releasors have made representations to counsel for the Grand Bahama Port Authority, Port Group Limited and Sarah St. George that:-
(i) the costs awarded to JTB in the Court of Appeal Action, and payable to him by virtue of the said Certificates of Taxation, represent unpaid monies and or fees that are now and have been due and owing to the Releasors by JTB both prior to and at the time of his death for legal services duly rendered to JTB by the Releasors in connection with the Court of Appeal Action; and
(ii) The Releasors are duly authorized to collect and or receive the sums payable by the Releasees pursuant to the Certificates of Taxation on the basis that such monies are and have been due and owing to the Releasors for legal services that were duly rendered to JTB prior to his death.
The claimed rationale for the Draft Deed of...
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