The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge has given the Water & Sewerage Corporation two weeks to either file a defence or pay Branville McCartney’s law firm $40,000 in a dispute related to a defamation action launched by ex-chairman Adrian Gibson.

The former Democratic National Alliance (DNA) leader, in an interview with Tribune Business, slammed what he branded as “stalling tactics” by the Government-owned water utility and its former attorneys, Harry B Sands & Lobosky, over his Halsbury Chambers firm’s demand that it be paid outstanding fees owed to it in relation to collecting on delinquent accounts.

Mr McCartney’s description was backed by Justice Indra Charles, who in a March 16, 2022, written ruling blasted Supreme Court deputy registrar, Carol Misiewicz, for focusing solely on the Water & Sewerage Corporation’s demands that Halsbury Chamber produce proof of its partnership status rather than the law firm’s application for summary judgment given the utility’s failure to file a defence.

“It seems to me that the deputy registrar did not see the forest for the trees,”Justice Charles wrote. “Had she done so, she might have realised that both applications by Water & Sewerage appeared to be tactical with a view to delaying the matter.

“In the present case, the deputy registrar concentrated on an application which was not even given a hearing date and which was the last to be filed on 25 May, 2021.... No mention was made of Halsbury’s application for summary judgment which, if granted, might have disposed of the matter in its entirety especially in the absence of the outstanding defence by Water & Sewerage.”

Justice Charles, in granting the appeal by Mr McCartney and Halsbury Chambers, also lifted the “stay” that had prevented their claim from progressing until they provided proof that the law firm was indeed a partnership. “I’m very happy with the outcome but quite disappointed in the attorneys who brought these stalling tactics,” the former DNA leader told this newspaper of the appeal brought against the deputy registrar’s decision.

“The Water & Sewerage Corporation tried to put up all sorts of stuff. They put up some allegations that my firm was not a real firm and she [the deputy registrar] stayed the proceedings. She demanded that I produce my partnership agreement. The Water & Sewerage Corporation brought these preliminary applications to the claim my law firm has against them. I appealed it, was successful and was awarded costs of $10,000.”

Justice Charles, in trading the dispute’s origins, noted how relations between Mr McCartney and his law firm, and Water & Sewerage, allegedly broke down after they refused to pursue a defamation case on behalf of then-executive chairman, Adrian Gibson. The ex-DNA leader and his firm claimed they told the now-Long Island MP that he himself, rather than the utility, needed to cover all legal expenses incurred.

“Halsbury alleged that, on or about January 2019, Water & Sewerage (through its then-chairman, Adrian Gibson), engaged Halsbury to act on its behalf in the collection of monies from its delinquent customers. Halsbury commenced collection proceedings against delinquent customers on or about February 2019, and alleged that the chairman publicly commented on the success of the exercise,” the judge wrote in her ruling.

“On or about July 2019, Mr Gibson allegedly requested Halsbury to institute defamatory proceedings against one Gregory Miller, president of Apex Underground and Utilities Company. Pursuant to Mr Gibson’s request, a demand letter was issued and served on Mr Miller requesting a public apology and retraction of statements made in the media about Mr Gibson.

“Mr. Miller was given 7 days to comply. Mr Miller did not respond to the demand letter. Halsbury alleged that Mr Gibson insisted that a defamation action be instituted against Mr Miller, and that the legal fees relative thereto be paid by Water & Sewerage and not by him personally.”

Justice Charles said that when Halsbury Chambers informed him Mr Gibson he would have to foot the legal bill, and not Water & Sewerage, “he stopped all communication and wilfully refused and/or neglected to pay legal fees regarding the collection of delinquent accounts to Halsbury”.

Mr McCartney and his firm alleged that former Water & Sewerage general manager, Elwood Donaldson, agreed that fees were owed to them and would be paid in two installments. One payment was made in February 2020, and another $20,000 that September, which the utility said represented settlement of all sums owed. Halsbury Chambers denied this, but its demand for the remaining $40,221 said to still be outstanding was not met.

The law firm initiated legal action. While Water & Sewerage has yet to file a defence, it moved to try and strike out the action and also asserted that Halsbury Chambers was not a partnership at the time the lawsuit was filed. It thus argued that Mr McCartney and his company “lacked the capacity to commence the action” and demanded that the matter be halted until this was addressed - something the Supreme Court deputy registrar agreed to.

Overturning that verdict, Justice Charles ruled: “It will be difficult to see how Water & Sewerage could escape liability having engaged Halsbury in the collection of monies from its delinquent customers. Water & Sewerage was a party to the contract and intended to create legal relations with Halsbury....

“To my mind, the issue of whether or not Halsbury was a partnership at the material time is not relevant to the crux of the action since Water & Sewerage contracted with Halsbury...... Further, the deputy registrar should have entered final judgment for Halsbury in the sum claimed, or alternatively, directed Water & Sewerage to file its defence so that this matter may be proceeded with in a fair and efficient manner.

“In my opinion, the deputy registrar took irrelevant matters into consideration when she concentrated on the application by Water & Sewerage for specific discovery of the partnership agreement instead of focusing on the failure of Water & Sewerage to file and serve its defence notwithstanding that the time for doing so had long expired.”