In her ruling yesterday, Justice Allen concluded that there was no doubt that Messrs. Alexiou and Ferguson were in breach of her January 20 order to pay former Colina executive James Campbell $9 million “forthwith.” She said this placed them “technically in contempt of this court.”
Relations between the former partners became acrimonious after differences of opinion surfaced on how to manage the company. These differences eventually led to Mr. Campbell being forced out.
The justice reiterated that Messrs. Alexiou and Ferguson were in contempt of court regardless of the fact that they were pursuing their legal right of appeal in accordance with legal advice. After stating her view that she could have jailed the men, Justice Allen explained why she let them go.
“-After careful consideration of the circumstances, namely that the respondents pursued their appeal with expedition, complied with the said order within days of the decision of the Court of Appeal, and in as much as I find that the due administration of justice was not interfered with, impeded, obstructed or perverted by the actions of the respondents, I am satisfied with the apologies of both respondents and find that they have purged their contempt,” she said.
Attorneys Philip “Brave” Davis and Milton Evans had asked the court, on behalf of Mr. Campbell, to jail the two executives over their failure to immediately pay Mr. Campbell $9 million. The order came from Justice Allen on January 20, and the funds were not paid until February 8.
Mr. Campbell’s lawyers sought the committal of his former colleagues on the grounds that “the respondents” conduct in disobeying the court’s order was intended or calculated to impede, obstruct or prejudice the administration of justice.”
They further alleged that Mr. Campbell was derived of the fruits of his judgment.
Colin Callender and John Wilson appeared on behalf of Mr. Alexiou and Mr. Ferguson respectively, and together argued that as the money had been paid, the contempt had been purged.
Mr. Alexiou, through counsel, contended that Mr. Campbell was “seeking to humiliate and embarrass him” by having him jailed, but apologized for his breach of the order.
Mr. Ferguson also apologized, through counsel, after noting that he was not present on January 20 and was only served with the order on February 6. He pointed out that the money was paid on February 8.
The order reads in part “the further sum of $9 million agreed to be paid under paragraph 4 of the Consent Order is due and owing to the plaintiff and that the first and second defendants do pay the said sum forthwith.”
Justice Allen noted that there was much argument on the meaning of the word “forthwith,” with one side claiming it meant “as soon as possible in the circumstances, the nature of the thing being taken into account,” and the other claiming it meant “immediately as the circumstances permit.”
“In my view, forthwith in the said order means as soon as possible as circumstances permit,” Justice Allen said.
According to Justice Allen, the evidence showed that the monies were at all material times held by the attorneys for Mr. Alexiou in escrow. To disburse those funds would not have required anything more than a letter of instruction from Messrs. Alexiou and Ferguson, she explained.
“I agree that the funds could reasonably have been paid by the next business day following the service of the order on the respondents,” Justice Allen said.
Had Justice Allen decided to jail the men for contempt, she could have jailed them for six weeks.
Mr. Alexiou had taken issue during the committal proceedings with the testimony of Constable Kaylyn Cooper, who swore he served the relevant documents on Mr. Alexiou at his office on February 2.
Justice Allen agreed that Mr. Campbell’s side had not proven that the documents were served on Mr. Alexiou as claimed, but said that because Mr. Alexiou was present in the court throughout the proceedings, he did not suffer any injustice by what she termed “the applicants non-compliance with the rules.”
Basing her judgment on Order 52 of the Supreme Court rules, and Sections Three and Four of the Debtor’s Act, Justice Allen noted that “it is clear that Order 52 provides the remedy of committal for all contempts.” She pointed out that none of the six exceptions, which prevent committal under the Debtor’s Act applied in this case.
Justice Allen said she was satisfied that she could have jailed the two “in as much as this court has the obligation to protect the public interest, namely, to ensure that the court’s orders can be enforced and to prevent interference with due administration of justice.”
By: Quincy Parker, The Bahama Journal
