The Tribune

By NEIL HARTNELL

TRIBUNE Business Editor

nhartnell@tribunemedia.net

Insurance regulators have moved swiftly to overturn Orry J Sands & Company’s recent legal success by arguing the Supreme Court “failed to grapple” with whether an agent/broker has standing to pursue a claim in its name on behalf of underwriters they represent.

The Insurance Commission of The Bahamas, in July 13, 2026, legal filings obtained by Tribune Business, asserted in its draft appeal motion that there is no law or procedure that allows a Bahamian insurance agent/broker to initiate legal action in their own name, and without the permission of the insurer they act for when, in effect, they are seeking redress on the latter’s behalf.

Justice Simone Fitzcharles, in a June 30, 2026, verdict rejected the regulator’s bid to have Orry J Sands & Company’s bid for declaratory relief, and confirmation that it represented Sagicor’s Bahamas-based general insurance business as a standalone agent, rather than as a “branch” of the pan-Caribbean financial services giant, struck-out and dismissed for lack of standing and having no chance of succeeding.

Orry J Sands ultimately wants the Supreme Court to order that the Insurance Commission alter Sagicor’s September 2, 2016, registration certificate and remove the designation of conducting business “as a branch of a foreign company” in favour of an agency arrangement.

However, the Insurance Commission, asserting that the “branch” designation has no impact on either Orry J Sands’ or Sagicor’s “legal of financial position”, is arguing in its draft appeal motion that the Supreme Court verdict failed to account for the fact the pan-Caribbean giant has ceased writing business in The Bahamas, has wound-down its portfolio and exited the jurisdiction.

The regulator, in its bid to both appeal the Supreme Court decision and “stay” its enforcement, given that it sets a potential legal “precedent” for who can challenge the Insurance Commission and under what circumstances, argued that Justice Fitzcharles had “erred” in finding that Orry J Sands was able to “pursue litigation in its own name and obtain relief on Sagicor’s behalf” just because it was the latter’s agent.

“In order for an agent to be able to sue for relief available to the principal, the right to sue has to be assigned to the agent by the principal or the action has to be brought by the agent in the principal’s name,” the Insurance Commission and its attorneys, Callender’s & Co, assert in the draft appeal motion. “The learned judge failed to grapple with the fact there is no doctrine of law or rule of procedure that allows an agent to bring proceedings in its own name to pursue a principal’s claim.”

The Insurance Commission, also rejecting the judge’s finding that the dispute and its outcome have wider consequences for Bahamian insurance regulation, added: “The learned judge failed to take into account that Sagicor was in run-off and had ceased to underwrite new policies in The Bahamas prior to the commencement of the proceedings.”

Documents filed in evidence with the Supreme Court, and which have been seen by Tribune Business, reveal that while Sagicor was aware Orry J Sands was mulling legal action, and that it disagreed with the Insurance Commission’s “branch” designation, it was not going to battle the regulator in the court or be named as a party.

Sagicor’s Keston Howell, in a May 12, 2022, e-mail wrote to the Insurance Commission: “Sagicor's position on this matter has been consistent but compliant. We believe that our operations in The Bahamas are conducted via an agency arrangement with Orry J Sands & Company.

“We articulated this position previously and were advised by the Commission that based on guidelines established by the Commission, our business in The Bahamas was classified as a branch of a foreign company.

“While disagreeing, we noted the Commission's view on this matter and, to the best of my knowledge have complied with all of the regulatory requirements of the Commission consistent with the Commission's designation of Sagicor General’s operations in The Bahamas as ‘branch’ operations,” he added.

“It is apparent that Orry J Sands & Company has not accepted this position, and we were advised that they had taken up this matter with their attorneys. Our position was clear that we did not wish to lake any legal action against the Commission, and that Sagicor General would not be a party to any action taken by Orry J Sands & Company.

“The Commission is aware that was have since decided to exit The Bahamas market, and the portfolio is now in run-off mode. Sagicor General ceased writing new business in The Bahamas since October 1, 2021, and the last set of policies are due to expire on September 30, 2022.”

Sharanda Humes-Forbes, an Insurance Commission legal officer, argued that Orry J Sands’ claim was based “on a mistaken reading” of the Insurance Act’s section 28, and what that meant for the definition of a “branch”. She argued that it was working on a “mistaken premise that operating as ‘a branch of a foreign company’ is inconsistent with carrying on insurance business through an agent”.

And while, in the Insurance Commission’s view, Sagicor’s Bahamian operation was a branch conducted via an agent, Orry J Sands appeared “to believe (wrongly) that a foreign company cannot both be operating as a ‘branch’ and through an agent”.

The Insurance Commission, in the draft appeal motion filed last week, described the Bahamian agent’s action as “misconceived” and argued that the relief sought by Orry J Sands “serves no purpose”. It added: “The claim is based on a misunderstanding that operating as a branch means that Sagicor has its own presence in The Bahamas separate to Orry J Sands’ operations as an agent.”

But, noting that the Insurance Act contains no definition of a ‘branch’, Justice Fitzcharles wrote in her June 30 verdict: “The Insurance Commission uses the term 'branch' and contends that it is not used as a legal term of art, and has no legal effect except to describe a certain situation.

“However, the fact that Sagicor has disagreed and has soon thereafter sought to wind up its affairs in The Bahamas, coupled with the insistence of Orry J Sands in maintaining this application, are factors which reveal that the designation of a foreign insurer as having a 'branch' in The Bahamas, when it is contended it operates through a general managing agency, is not taken lightly.

“In some jurisdictions, in the context of cross-border insurance, the designation of 'branch' may carry regulatory, legal and tax implications, whether it refers to a direct 'brick and mortar' extension of the foreign insurer's head office or not. Further, how the claimant conducts its agency business and advises foreign insurers which approach it to act as general managing agent are some of the factors directly affected by the defendant's designation,” she said.

“In the circumstances, to confer the designation of 'branch' upon the operations of the foreign insurer and the managing general agent without reference to a legal meaning for that term, where such legal meaning may otherwise exist and give rise to other implications, readily invites the enquiry submitted by the claimant.”