Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION Cause No: G154/2001 BETWEEN: DARIC DONAN EBANKS (Suing by his guardians ad litem Wendy L. Watler and Paulette S. Anglin-Lewis) FIRST PLAINTIFF AND: 1. CAYMAN CULTURAL FOUNDATION 2. THE MINISTRY OF COMMUNITY AFFAIRS, SPORT, WOMEN, YOUTH & CULTURE 3. THE ATTORNEY GENERAL DEFENDANTS Appearances: Mr. James Kennedy of Samson & McGrath for the Plaintiff In attendance: The Plaintiff, his father and the Interim Receivers/Guardians Ad Litem Mr. Hector Robinson and Ms. Alexandra Bethell of Mourant Ozannes for the Defendants Before: The Honourable Mr. Justice Charles Quin Heard: 12th February 2014 JUDGMENT
The Plaintiff issued a Summons on the 17th December 2013 seeking a further interim payment in the sum of CI$200,000.00 or such sum as it seems appropriate pursuant to GCR O.29 r.10. The Plaintiff's Summons is grounded by the Fourth Affidavit of Paulette Anglin-Lewis ("Mrs. Anglin Lewis") dated the 6th December 2013, and the Exhibits therein attached.
The Defendants strenuously oppose the application and the position of the Defendants is set out in the Second Affidavit of Derrymore Lyon ("Mr. Lyon") dated the 7th February 2014. BACKGROUND
I refer to my Judgments dated the 18th May 2011 and 29th January 2013 which set out the background to this matter.
On the 10th July 2007 the Plaintiff obtained Judgment against the Defendants for damages to be assessed. Also, on that date, the late Pastor Al Ebanks was appointed as Interim Receiver of the interim payment of CI$250,000.00.
Owing to the sad and untimely deaths of the first Interim Receiver, Pastor Al Ebanks, and the Plaintiff's former attorney, Mr. Lee Freeman of Priestleys, and other unfortunate circumstances this matter has been the subject of delay, increased costs, and, several changes in attorneys representing the Plaintiff and the Defendants.
The Court records its gratitude to the incumbent Interim Receivers – Ms. Watler and Mrs. Anglin-Lewis – who have willingly agreed to act as guardians ad litem for the Plaintiff and as Interim Receivers of the funds distributed by the Defendant pursuant to the Orders of this Court.
In Mrs. Anglin-Lewis’ Fourth Affidavit she refers to the history of the Interim Payment applications contained in her Third Affidavit dated the 18th January 2013 and to Mr. Donovan Ebanks’ Affidavit dated the 19th November 2013.
In her Fourth Affidavit Mrs. Anglin-Lewis sets out the history of the previous interim awards in this action. AWARD # DATE JUDGE CIS AWARD TOTAL #1 26th April 2002 Kellock J. $95,000.00 #2 10th July 2007 Chief Justice $250,000.00 #3 6th November 2008 Quin J. $250,000.00 #4 11th December 2009 Quin J. $300,000.00 #5 18th May 2011 Quin J. $302,362.00 #6 26th March 2013 Quin J. $82,380.00 #7 21st November 2013 Quin J. $4,000.00 $1,283,742.00
Mrs. Anglin-Lewis deposes to the fact that she and her Co-Interim Receiver, Mrs. Watler, have made the payments to the Plaintiff in accordance with my Order dated the 26th March 2013. However, Mrs. Anglin-Lewis says the Plaintiff is not working and the fund is almost exhausted. Mrs. Anglin Lewis avers that the Plaintiff needs funds to support himself until the conclusion of this case.
Mrs. Anglin-Lewis further avers that the Plaintiff needs the interim payment to cover his ongoing living expenses and to meet a significant number of outstanding invoices from his attorneys. Accordingly, the Plaintiff’s Scott Schedule of Damages dated January 2013 has now been revised. There is a helpful Appendix to the Defendants’ Skeleton Arguments which sets out, in column form, the Plaintiff’s initial Schedule of Damages, his Revised Schedule of Damages and the Defendants’ assessment of the Schedule of Damages.
The heads of claim in the Plaintiff's Scott Schedule, with one notable exception, have not changed. However, the total sum claimed in the Revised Schedule is almost CI$1,500,000.00 more than the Schedule in January 2013. In particular, the Plaintiff's claim for future loss of earnings and for future gratuitous and professional care and assistance, have both almost doubled. The reason for this is that the Plaintiff has increased the multiplier for future loss of earnings from 24.01 to 35.88. For the future cost of care the multiplier has been increased from 29.89 to 58.51.
The one notable exception discloses a very important change contained in the Plaintiff's Revised Schedule. The Plaintiff is now applying a discount rate of 0% rather than the customary 2.5%. The Plaintiff relies on the recent Privy Council case relating to a Guernsey decision of Simon v Helmot [2012] UKPC 5 to justify a departure from the discount rate of 2.5%.
The Cayman Courts have consistently applied a 2.5% discount (see Wilson & Wilson v. Ebanks & Ebanks [2011] 1 CILR 447; Archer v. UBS [2009] CILR 531; Rivers v. Brown [2012] 2 CILR Note 13; and, Panton v. Seymour [2006] CILR 91.
It has to be noted that the Simon v. Helmot Privy Council case was decided some nine months before the application before me on the 29th January 2013, and the Plaintiff did not seek to rely upon it at that time.
It is further noted that the Plaintiff has provided no expert evidence to support a discount rate lower than the customary 2.5%.
The Defendants strenuously contend that the discount rate adopted in England of 2.5% and applied in the Cayman Islands should not be disturbed and further, the Court has not been asked to provide any directions as to whether expert evidence should be adduced to support this new increase in the Plaintiff’s claim.
Accordingly, the Defendants submit that the revised schedule should be disregarded and the only schedule to be addressed is the one that was before on the hearing on the 29th January 2013.
GCR O.29 r.1(1)(i) reads: "...the Court may, if it thinks fit ... order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the Plaintiff."
Whether the Plaintiff intends to argue that the current practice of a discount of 2.5% applied by the Courts of the Cayman Islands should be reduced to 0% is a matter for the trial Judge hearing the Assessment of Damages claim. It would be wrong for this Court, in what is now the Plaintiff’s seventh application for an interim payment, to decide upon an issue of such fundamental importance – both in relation to the customary practice of the Grand Court, and a matter of policy. This issue could only be decided by the Judge hearing the assessment of damages application, and only after receiving relevant expert evidence from the parties.
On the 20th May 2011 I stated at paragraph 6 of my Judgment: "On exercising a cautious approach there is every likelihood of there being a dispute between the parties as to final assessment of damages and, accordingly, the Court must approach this application for a further interim award with a high degree of caution."
On the 26th March 2013 after a careful review of Mrs. Anglin-Lewis’ Third Affidavit and Mr. Donovan Ebanks’ Affidavit, I ordered the interim sum CI$82,380.00 to be transferred to the Interim Receivers, with certain directions as to payment set out in paragraph 38. I also directed that there should be an early trial of this action pursuant to GCR O.28 r.14. I expect compliance with my direction.
I am of the view that we are now approaching the danger zone whereby any further Interim award could exceed a reasonable portion of the damages, which the Plaintiff is likely to recover and, accordingly, I dismiss the Plaintiff’s application.
For the last time I urge the parties’ attorneys to make every effort to have the trial on the Assessment of Damages heard as soon as reasonably practicable. I order what I hope will be a final Case Management Conference – to be heard within two months of today’s date. Dated this the 14th February 2014 Honourable Mr. Justice Charles Quin Judge of the Grand Court