Centuries old law is changed

by Moshe Levy From Gibraltar Chronicle

Law books will have to be re-written today after the Privy Council’s landmark ruling handed down yesterday. In a remarkable case the Privy Council awarded the appellant Mr Alistair Paterson of the Cayman Island CI$1.335m (Cayman Island Dollars). The judgment is a ground breaking departure from the law that has stood for 315 years and allowed a damages award for losses caused by malicious and unjustified civil proceedings. The judges have created a very significant change in the law of Tort overturning a centuries-old restriction against seeking damages from those who bring a civil claim for malicious reasons. Previously damages were only available for losses resulting from malicious criminal prosecutions.

In this departure from the old restriction the majority in the Privy Council agreed with the arguments of Mr Paterson’s legal team (barristers Isaac Jacob and Conn MacEvilly instructed by Hampson and Co. of the Cayman Islands) that he should receive substantial damages for the injury caused to his business, reputation and health by reason of the respondent’s unjustified and malicious civil proceedings. At first instance and on appeal the courts held, in line with the law as it was at the time, that there were no damages available to people who had suffered losses as a result of civil proceedings brought maliciously. Persuaded by the arguments of Counsel for the appellant the Privy Council overturned the decisions of the lower courts of the Cayman Island.

In 2006, Sagicor sued Mr Paterson alleging that he had conspired to defraud Sagicor. The allegations of fraud and conspiracy were widely disseminated in Cayman and reported in the local press. They caused “massive damage to Mr Paterson’s reputation and to the willingness of third parties to employ him.” In 2008 Sagicor abandoned its claim only days before trial. However, by then serious damage to Mr Paterson’s reputation, business and family life had been done.

The Privy Council in their long judgment were faced with the dilemma of balancing the pressing need for justice against the need for finality in litigation which was the concern in the rulings of judges in many Common Law jurisdictions. In their judgment the Privy Council departed from a House of Lords decision in 2000 and decided with conviction that “finality is a good thing, but justice is better”.

Mr Jacob is well known in the Chancery Bar in England and his practice frequently brings him to Gibraltar where he is also well known amongst the Judiciary. His strong sense of justice compels him to take on what others may consider hopeless cases because he feels that a wrong must be righted. Mr MacEvilly used to work at Hassans here in Gibraltar and now practices at the bar in England.

Note: Moshe Levy was an overseas pupil working under Mr Jacob on this case and has now joined Hassans.

For more on this story go to:

http://www.chronicle.gi/headlines_details.php?id=29702

EDITOR:  Alistair Paterson is a long time resident and status holder in the Cayman Islands. He is a Chartered Quantity Surveyor, Property Appraiser and Building Consultant. He recently was employed by the McKeeva Bush UDP Government to complete the negotiations on the ill-fated China Harbour Engineering Company Limited’s agreement to construct Cayman’s cruise ship berthing facility.