The Tribune

By LAMCEH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

AXED Chairman Gregory Moss fought a contempt application in Supreme Court yesterday brought against him by National Insurance Board Director Algernon Cargill.

After more than an hour of back and forth submissions by the lawyers involved, along with Moss’ audible commentary with legal associates throughout the proceedings, Chief Justice Sir Michael Barnett said he would reserve his decision on whether or not a breach had been made by Moss regarding a December 19, 2012 court order.

Mr Cargill, and his attorneys Alfred Sears and Jeffery Lloyd, had been granted permission on January 10 by the Chief Justice to make an application arguing for former NIB chairman Greg Moss to be imprisoned for contempt of court.

The basis of the claim of contempt is that Moss failed to obey a court order filed on December 19 forbidding him to publish the words that became the basis of the defamation claim that originally featured in an email of September 18 from Mr Moss and in a letter dated November 8, signed by Mr Moss.

Mr Cargill claimed that those words were included again in a press release issued by Mr Moss.

In yesterday’s proceedings, Moss’ attorneys Krystal Rolle and Shantelle Munroe, objected to the contempt application on the basis that a “proper application” had not been made.

Ms Rolle argued that the present proceedings should not have been happening because no “proper application” had been put before the court due to the plaintiffs’ filing their notice of motion within the regulated time frame “after” the court gives permission for them to make the application.

She noted that the plaintiff had filed notice of motion days before they had even been granted leave by the court, which she said, is not the lawful procedure.

“Ordinarily, I would ask you to dismiss this application, but there is nothing to dismiss,” she said, before asking that the plaintiff be required to pay the costs for the proceedings that was “depriving Mr Moss of his liberty.”’

Chief Justice Sir Michael, turned to Mr Sears and asked him: “How do you make a notice of motion without the leave of the court?”

Mr Sears argued that he had the authority and discretion to allow the proceeding to continue in light of matters between the two presently in court.

He referred to a case dating back 15 years to support his argument before noting that his “learned friend” had not made any reference of the application being prejudicial to Moss.

The Chief Justice asked the former attorney general if he conceded that procedure for the process had not been followed.

Mr Sears did not concede and said that even if that were the case, the law allowed for the Chief Justice to have discretion in such an event. He submitted that the application should be allowed to proceed.

“That may be your submission, but it may not be right,” Sir Michael said.

Mr Sears acknowledged the Chief Justice’s point, but said that “as counsel, I can only make submissions.”

“Some may be accepted, some may not,” he added.

He further said that allowing the application to proceed was just “upholding the administration of justice.”

Despite objection from Ms Rolle, who explained that the plaintiff had provided no reason as to why a proper application had not been made, the Chief Justice allowed the proceedings to continue and for the lawyers to argue as to whether or not Moss had breached the court’s order.

Mr Sears, referring to the press release issued by Moss at the beginning of the new year, read Mr Cargill’s complaints where “Mr Moss asserts that I provided him with an NIB credit card.”

He said that the allegations made in the press release were similar to the ones in the letter and email “to the extent that they contain erroneous accusations about our client.”

“What’s the allegation of the credit card contained in the letter?” the Chief Justice asked.

“That Mr Cargill had used the card for non-corporate purposes,” Mr Sears answered.

The Chief Justice, not seeing the relevance between the two, asked the attorney how he could make that argument “when the letter and press release say something different?”

He answered that his client’s name is involved in the transaction and they were defaming because the context of what was said implied an allegation of not only corruption, but ineptitude on Mr Cargill’s part.

He noted that the press release gave the impression that Cargill, in the normal course of business, provided the car and other material benefits the former chairman received, though “Mr Moss himself requested he be provided with these things.”

“How is that defamatory?” Sir Michael asked.

“The press release is giving the Bahamian public the impression that these things were given to Mr Moss in the ordinary course of business,” Mr Sears said, adding that the press release was essentially a rebuttal against the affidavit filed by the plaintiff that could have been placed in a counter-affidavit.

The Chief Justice asked the attorney if he and his client would have complained had Moss filed an affidavit. Mr Sears said “no”, but added that the plaintiff would’ve served notice that Moss be subject to cross-examination in the proceedings to come.

Ms Rolle, in response to Mr Sears’ submissions, argued that there was no breach of the court’s order by her client.

“The undertaking was not to repeat the words or similar allegations contained in the email or letter,” she said.

She added that if one were to read paragraph five of the press release highlighted by the plaintiff, it would be clear that the allegations, “each and every one related to the second defendant himself, no allegations were made against the complainant.”

“Whether or not the plaintiff gave him the card, I won’t get into whether or not it’s true,” she added. She maintained that a mere reference to a card in the press release does not mean and show there was a similarity with that of the letter or email.

“We say there hasn’t been a breach and even if this was an application before you, it is not one you should grant,” Moss’ lawyer concluded.

“I will take the matter under advisement and inform you of my decision at a later date” the chief justice said before adjourning court.

The former NIB chairman, who was talking with attorney Koed Smith and other associates throughout the proceedings, left the courtroom ahead of his legal team. The attorneys declined to comment on the proceedings.