The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Chief Justice has shown mercy to a Freeport couple who lost their home in Hurricane Dorian by not dismissing their battle against a commercial bank and top insurance broker over a Supreme Court order breach.

Sir Ian Winder, in an August 9, 2023, verdict decided after lengthy deliberations not to impose sanctions against Andrew and Sophia Smith even though the violations could have resulted in their “negligence and breach of contract” claim against both CIBC First Caribbean International Bank (Bahamas) and Insurance Management being dismissed.

The couple, whose Devonshire subdivision home was deemed “a total loss” after it “sustained significant damage” from Category Five Dorian in September 2019, are alleging that the BISX-listed lender failed to pay the necessary property insurance premiums on their behalf and/or notify them of this. As a result, insurance coverage was purportedly cancelled without their knowledge and they cannot make a claim for funds to rebuild or construct a new home.

The couple are represented by Beryn Duncanson, an attorney from the Turks & Caicos Islands, who has filed at least two similar claims against CIBC FirstCaribbean International Bank (Bahamas) and Insurance Management. However, the two corporate entities and their attorneys last year took the position that the Smiths’ claim “stood dismissed” because they had failed to comply with the Supreme Court’s case management instructions

These were issued in the form of an ‘Unless Order’, which means that an action can be struck out or dismissed if the instructions - and specific dates by which they must happen - are not complied with. Mr Duncanson, in a July 25, 2022, e-mail to Viola Major, Insurance Management’s attorney, accused the broker of using “the merest of excuse to attempt to shut out our poor clients from justice” and pledged that would take “delight in that particular flight”.

After Ms Major informed him that he and his clients were in breach of the ‘Unless Order’, and that their claim “stands dismissed”, Mr Duncanson retorted: “It is unfortunate that your clients are so eager to use the merest of excuse to attempt to shut out our poor clients from justice in finally having their day in court. 

“Should you wish to waste costs from your clients’ doubtlessly bottomless bank account on a special application to dismiss for alleged ‘lateness in receiving the actual stamped/filed copy, or not having a document headed ‘Expert’s Report’ in an affidavit, that is your prerogative. Just know that we are prepared for and shall delight in that particular fight. Bring it.”

Mr Duncanson asserted similar arguments when he appeared before the Chief Justice, arguing that “a dangerous precedent has built up whereby opposing counsel can simply assert slight non-compliance with an Unless Order and thereby derail and progress towards trial until the other side obtains relief from sanctions..... This is a tactic used by deep-pocketed corporate defendants, and the Civil Procedure Rules were intended to discourage it”.

Nevertheless, while finding that Mr Duncanson’s clients were in breach of the Unless Order, Sir Ian declined to punish them or dismiss the case and granted their motion for relief from any Supreme Court sanctions to allow the dispute to proceed towards trial.

The two Unless Order terms that the Smiths were alleged to have breached were that they needed to file and serve the “list of documents”, or evidence they intended to rely upon, by June 10, 2022, while the report by their “expert” witnesses had to be filed and served by July 22 last year. The Order also stipulated that failure to comply with these conditions would result in their claim being struck out and dismissed.

Mr Duncanson, on his clients’ behalf, sent an “unfiled” list of documents to attorneys for CIBC FirstCaribbean and Insurance Management on June 10, 2022. And, on July 22, 2022, he sent them “an unfiled draft affidavit” that was supposed to be sworn by Brian Hanna as the Smiths’ “expert witness”. Neither submission met the requirement that they be filed by that date, leading Insurance Management’s attorney to argue that the action should be dismissed.

This prompted Mr Duncanson’s filing of a motion requesting that no sanctions be imposed on the Smiths. However, Sir Ian found there was “no room for reasonable debate” that they had not complied with the Unless Order, even though the couple’s attorney argued that CIBC FirstCaribbean and Insurance Management’s objections were “over form and not substance, and it is a ‘new day’ with ‘new rules’” via the Civil Procedures Rules.

They also argued that it was in “the public interest for this case to be resolved as expeditiously as possible”, and urged that the Supreme Court not pursue procedural justice by ‘throwing out the baby with the bath water’. CIBC FirstCaribbean, though, argued that the order breaches were “serious and significant” because they inhibited trial preparations, and they questioned the Smiths’ claim of “financial hardship” as they had been able to finance the action.

Similar arguments were made by Insurance Management’s attorneys. Sir Ian agreed that the non-compliance was “serious and significant”, as it had forced the Supreme Court to vacate two trial dates, impacted other court users and “unnecessarily wasted time and expense”.

He also found that the couple had not justified or explained their non-compliance, even though it was alleged that the Smiths had “simply struggled under continued severe financial hardship because of the defendants’ own negligence, a dilapidated and mostly destroyed, uninhabitable house, with continuing outside rental accommodation rental expense also whilst bank mortgage payments still continued/continue’.

Sir Ian, though, said that while the non-compliance was not willful or deliberate, there was “no excuse for what transpired” as they “adopted an excessively casual and lackadaisical approach” to the case. He hinted that some of the fault lay with Mr Duncanson.

However, in the “final analysis”, the Chief Justice decided not to impose sanctions or drive the Smiths’ “from the seat of judgment” by dismissing the case. Noting that the proceedings were at an early stage, he added that neither CIBC FirstCaribbean or Insurance Management had argued they would be “prejudiced” by allowing the matter to continue to trial.

Tribune Business records show that Mr Duncanson, who seemingly set up Bahamas Claims Assistants Company in Hurricane Dorian’s wake, also initiated four claims against J S Johnson & Company Ltd/Island Heritage Insurance Company, and Star General Insurance Agents and Brokers/Royal Star Assurance and Safeguard Insurance Brokers over disputed claims payouts.