November 27, 2020

Barbados: Clarke loses appeal in suit against First Caribbean

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by Emmanuel Joseph From Barbados Today

Eight years after Shirley Clarke was fired from Bank (Barbados) Limited for violating the bank’s code of conduct, gross negligence and misconduct, and just under seven years after then magistrate Barbara Cooke-Alleyne ruled in the bank’s favour, the Court of Appeal has upheld the magistrate’s ruling.

The three-member panel, comprising Chief Justice Sir Marston Gibson and Justices of Appeal Andrew Burgess and Kaye Goodridge, Wednesday dismissed a request by Clarke for an extension and struck out the notice of appeal on the grounds that the appellant should have applied in writing within seven days of the magistrate’s ruling.

In fact, the court said it had no jurisdiction to extend the time for giving notice of appeal and therefore “the proceedings before are really a nullity”.

Clarke was fired on October 20, 2009 after the bank determined that he had mishandled a series of transactions revolving around a US$96,000 cheque deposited by longstanding customer Margaret Daniel, and purportedly drawn on an account at a bank in the United States .

As the assistant customer service manager, Clarke authorized the deposit and asked the customer service officer (CMO) to place a 30-day hold on the cheque.

However, when Daniel returned the following day and the day after with what was thought to be approval from the Central Bank for the transfers of  US$15,000 and US$60,000 respectively, Clarke violated the 30-day hold by authorizing both transactions, the court found.

The US$96,000 cheque was subsequently dishonoured by First Caribbean International, which tried in vain to recover the money from the customer, and Clarke was subsequently sacked for, among other things, “not correcting the CSOs error and failing to question the source of the funds”.

Cooke-Alleyne, now Supreme Court Registrar, ruled against the fired bank employee on December 10, 2010, and more than 30 days later, his attorney Hal Gollop, , lodged an application before the Court of Appeal asking for more time to challenge the magistrate’s decision.

It has taken the court nearly seven years to dismiss that request, while ordering Clarke to pay costs to First Caribbean International to the tune of $4,000, plus Value Added Tax (VAT), on, or before December 15, 2017.

The three-member panel also noted that the bank’s attorney Edmund Hinkson had argued that the notice of appeal should be thrown out on the grounds that it was filed 32 days after the magistrate rendered her decision and not within the seven days required under Section 240 (2) of theMagistrate’s Court Act, Cap 116A of the Laws of Barbados.

The judges also drew attention to Gollop’s admission that he thought the rules required an appeal of this kind to be filed within 28 days.

“Mr Gollop, QC, sought the extension of time on several grounds including that the lapse of time between the decision and the application was minimal, a ‘mere’ 23 days, and the extension would in no way prejudice the respondent bank,” the justices said.

In its decision, the court admitted it had made an error when it granted Gollop time to file the appeal outside of the stipulated period and was now backtracking, “since we had no jurisdiction to permit such an application” and that the application, which was filed on July 21, 2014, and the notice of appeal “must be struck out”.

In commenting on the ruling, Hinkson said the decision settles once and for all, the law of Barbados that an appeal from a decision of a magistrate to a higher court must be filed in writing before the higher court within the stipulated time.

For more on this story go to: https://www.barbadostoday.bb/2017/11/02/clarke-loses-appeal-in-suit-against-first-caribbean/

LOGO: CIBC First Caribbean Bank

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