Try them together

Two former commercial bank employees facing charges that they had “wrongfully appropriated” more than a quarter of a million dollars from The Bank of Nova Scotia, are facing a double dose of court action.

In a decision likely to have implications for such cases in the future, the Barbados High Court has ruled that the financial institution lawsuit seeking $324,613 in damages can proceed concurrent with criminal court proceedings against the duo.

High Court Judge Margaret Reifer made the recent judgement after second defendant Kirk White, who along with Kevin Cadogan faces the charges, failed to get the court to agree that simultaneous civil and criminal action would prejudice his right to avoid self incrimination.

But according to court documents, White’s application for a stay of the civil suit was dismissed partly due to “the lack of specificity as to the exact nature of the prejudice”.

“The court’s inherent jurisdiction to adjourn/stay proceedings is for a stated time, not generally or for an unreasonably long time. The Constitution of Barbados protects the right to silence of an accused in criminal proceedings but there is no right to silence in civil proceedings,” the court decision stated.

“The failure of the application to state the time period for which the stay is being sought. The court has an inherent jurisdiction to stay proceedings for a stated time, but not generally or for an unreasonably long time…

“This court is inclined to conclude that this application is merely intended to create a tactical advantage, as there is an absence in the Affidavit in support of evidence showing unjust prejudice by the continuance of the civil proceedings lending to the inference above,” it added.

White’s attorneys Michael Koeiman and Kristin Edwards had submitted that the civil suit should be stayed “based on the premise that these concurrent civil and criminal proceedings are formulated on the same facts”.

“This being the case, he argues that the civil matter requires the Second Defendant to mount a substantive defence failing which judgment may be entered against him. The Second Defendant fears that in responding to the claim he may incriminate himself in relation to the charges.

“In other words, he is saying that if he defends this action he would be forced to contravene the constitutional provisions that protect him against self-incrimination,” the court documents stated.

“He argues that unless the claim is stayed pending the determination of the charges, he will be forced to choose between having judgment entered against him and waiving or prejudicing his constitutional right to silence in terms of the charges.”

Scotia Bank’s counsel attorney-at-law Alicia Richards-Hill of Yearwood and Boyce countered, however, that while the court’s power to stay proceedings was undisputed “there was a qualification/proviso to this general power which is, that such order should not produce injustice to the Claimant or the Defendant”.

She also submitted that “the staying of the proceedings is potentially an abuse of process”. The lawyer argued that “this civil proceeding is simply a matter of the bank trying to recover its money, while the criminal proceeding goes into other matters”.

In its civil suit Scotia Bank is alleging that $290,000 of its funds was stolen on August 12, 2011, and $27,930 similarly misappropriated between August 5 and 19 of that same year. (SC)

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