The trial to award damages to several plaintiffs countersuing Sagicor General Insurance (Cayman) Ltd. in relation to the reconstruction of the Windsor Village condominium complex after Hurricane Ivan Windsor Village resumed last week.
Alastair Paterson, Bould Paterson Ltd., Crawford Adjusters, Hurlstone General Contractors Ltd., Hurlstone Ltd., John Hurlstone and Robert Hurlstone are seeking damages after a case of fraud and conspiracy was brought against them by Cayman General Insurance – now Sagicor General – which could not be sustained and was abandoned on the verge of trial.
In a case that has been described by Justice Alexander Henderson as extraordinary, there have been some monumental developments with regard to lack of disclosure and the subsequent rendering of documents by the defence for Sagicor General, which are now being referred as the X files.
The trial came to a close on 2 September but was resumed on 3 September after documents left in the witness box by Simon Dickson of Mourant du Feu & Jeune were discovered by attorneys for the plaintiffs after the close of the evidentiary part of the proceedings.
After submitting closing arguments – partly in writing – attorneys have now returned for oral submissions in the case.
In Wednesday’s proceedings, Justice Henderson said he had read the arguments and was now concerned with authorities on the law and the evidence.
At the root of the defence’s case is the thesis that Sagicor acted vicariously in the proceedings and were simply following the advice of attorneys.
Justice Henderson asked attorneys for Sagicor General if they had considered a normal civil action.
He said this would have been the approach in a case of alleged overcharging as opposed to suing in fraud.
However, defence attorneys maintained that the consensus among attorneys advising Sagicor General at the time was that the overcharging was so egregious, that the only explanation could be fraud and conspiracy.
Justice Henderson asked the attorneys if there was ever a body of evidence to support a case of fraud.
He probed the attorneys as to why no attention was being paid to the invalidity of a valuation of work done on the site, conducted by Alan Purbrick on behalf of Cayman General, which had to be abandoned, as it could not support a prima facie case of fraud.
‘If the case itself is without foundation, why should the court not castigate that as an abuse of process?’ asked Mr. Henderson.
He instructed the attorneys for Sagicor General that in a criminal court such a scenario could result in perjury.
The countersuit action by the plaintiffs alleges malicious prosecution and abuse of process.
Justice Henderson indicated that the evidence had not shown there to be a conspiracy on the part of the plaintiffs and added: ‘We still do not know in concrete terms why the case was abandoned.’
The attorneys contested that their clients were not advised properly.
‘Lawyers must say no sometimes,’ said lead defence attorney Michael Roberts.
Attorney for Alastair Patterson Antonio Bueno said if anyone could have spotted inconsistencies in Cayman General Insurance’s case, it would have been the company’s senior vice president at the time, Frank Delessio, who Mr. Bueno said misled everyone and wanted to make good on a personal vendetta against Mr. Paterson.
He said, ‘In fact, their attorneys at the time say if they had known that clean-up costs had been left out of the Alan Purbrick valuation of work done at the site, they would have never taken on the case.’
He argued that a classic feature of baseless accusations is to publicise them and suggested an article in the Caymanian Compass about the impending proceedings was instigated by Frank DeLessio.
He said this was proof of Mr. DeLessio’s efforts to destroy his client.
In sworn testimony earlier in the trial, Cayman Free Press journalist Alan Markoff denied receiving any information from Mr. DeLessio for his article, saying he heard about the lawsuit from a Windsor Village condominium owner.
Mr. Bueno also read a document that was only disclosed after trial, which showed that Mr. DeLessio had ordered payments to be stopped on the Windsor Village site and not Patrick Harrigan, whom the defence contended wrote the letter without prompting from Mr. DeLessio.
Justice Henderson said this could entitle him to draw an adverse inference against Sagicor’s defence for not disclosing material documents in their possession.
‘How could you not produce a statement by DeLessio?’ he said.
He urged the attorneys for Sagicor General to consider the fairness of their actions and not to distort the process.