May 6, 2021

FSC ordered to pay damages to Delroy Howell

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9-21-2015-12-09-36-PM-6983544By Vivian Tyson, Senior SUN Editor From Turks & Caicos Sun

The Turks and Caicos Islands Supreme Court has awarded Jamaican businessman Delroy Howell damages against the Financial Services Commission (FSC) and its director Kevin Higgins after Howell claimed the financial regulatory body and its head honcho sullied his name, causing him to suffer loss.

The Supreme Court handed down the judgment on August 27, 2015, after both defendants failed to mount a defense against the claims.

Court document showed that Howell’s legal representative Karam & Missick dispatch a writ of summons to McCollum Newlands, the law firm representing the FSC and Higgins, but while they acknowledged receipt of the document, did not challenge the writ.

Howell sought reward against Higgins and the FSC’s misfeasance in public office; damages for malicious presentation of a winding-up petition; damages for loss of reputation; damages for loss of business; damages for consequential losses; that the winding up order be set aside; interest; costs; and any further relief the court sees fit to impose.

The court was told that Howell was the majority shareholder, founder and chairman of the board of directors of First Financial Trust Company, which was incorporated under Turks and Caicos Islands laws, on March 20, 2001.

Howell’s legal team, led by George Missick, said that on September 14, 2001, First Financial Trust was granted an unrestricted license by the TCI FSC to act as profession trustee, and as the fit and proper person on behalf of the company.

At that time, according to the plaintiff, Higgins and the FSC were responsible for monitoring, regulating and maintaining public confidence in the integrity of the financial services industry of the TCI, and preserving of the reputation of the islands as a financial centre in accordance with the internationally accepted best practices and standards.

The defense team claimed that the FSC is liable for the acts and omissions made maliciously, recklessly and in bad faith, by Higgins in the performance of his duties. They said that Howell has suffered loss as a result of failing to comply to a personal monetary request that Higgins made of him, and which the Jamaican businessman, who resides in the Cayman Islands, did not honour.
The cash request by Higgins, according to the documents filed in court, was to make “Howell’s problems go away”.

The court documents filed by the plaintiff’s lawyers, declared that Higgins flew to Jamaica sometime in August 2009, to discuss the matter concerning the company, during which he asked Howell for a $25,000 loan, telling him at the time that if the loan was obtained, the problems of the company would go away.

The court document said that Higgins made a number of follow-ups, including phone calls, to obtain the loan, but was unsuccessful.
Howell’s attorneys argued that subsequent to the meeting, Higgins ignored their client’s complaints, both in his capacity as Managing Director of the FSC and his capacity as a regulator of companies.
They accused Higgins of deliberately causing losses to the company through manipulation of Howell’s status as chairman, which they argued, was compounded by the company pursuing legal action against Howell, because he was not able to demand proper corporate procedures and review of such purported acts.

They charged that the deliberate act on by Higgins was done in bad faith, which led to reckless action in another jurisdiction in August 2010. The action by Higgins, according Howell’s lawyers, caused the other jurisdiction to seek and obtain a freezing order against Howell’s worldwide assets, which was in excess of US$14 million. That action, they claimed, had a debilitating effect on Howell’s ability to run his business, fight the litigation and supporting his family.

Howell’s lawyers noted that Higgins, on November 19, 2010, armed with an affidavit, stated that no petition was sought to wind-up First Financial Trust, but the appointment of an administrator was merely to carry out the company’s obligations. Howell’s lawyers said that during the proceedings, Higgins voiced his concerns as to the whereabouts of the trust’s asset.

They noted however, that by the application hearing date, affidavits were filed in Jamaican proceedings, stating the real assets held by First Financial Trust in Jamaica, and the bona fide use of the company’s funds. They said that the exhibits of the Jamaican Court were thereafter used as grounds for the TCI FSC to intervene by seeking the court’s appointment of administrators, messers Bacchus and Thompson.

Howell’s attorneys further argued that on December 10, 2010, former local high court judge, Justice Richard Williams, made a Protection Order, pursuant to Section 38 of the FSC Ordinance 2007, but appointed only one administrator Ian Thompson.

The plaintiff’s lawyers further argued that by that date, the Jamaican court had already ruled that the assets complained of were in fact substantially identified as owned or controlled by First Financial Trust, and therefore showed that Howell’s assertions concerning the whereabouts of the trust assets were accurate.

The court document showed that Higgins filed a second affidavit on January 18, 2011, seeking the appointment of Maria Ferere as the sole administrator, which Howell’s lawyers claimed, ignored the right of their client to have a fair hearing based on the complaints made as to the unlawful wresting of control of the company.

Howell, charged that despite the Jamaican Court proceeding on February 11, 2011, the FSC, under Higgins’s stewardship, maliciously and without reasonable or probable cause, presented a winding-up petition against First Financial Trust, in the TCI Supreme Court.

Howell’s lawyers claimed that the petition was not supported by an affidavit and the defendants alleged that Higgins had dissipated the restricted deposit without the FSC’s consent and further, that First Financial Trust was likely to become insolvent, without providing proof.

Justice Geoffrey Martin granted the petition on May 18, 2011, giving no reasons for his decision, according to Howell’s lawyers, other than reasons Higgins provided.

Howell’s attorneys claimed that Higgins, among other things, failed to make any proper legal assessment of the documentation in his possession or of legal proceedings in Jamaica, so he could arrive at an informed opinion as to the possible ramification of the company.

They said he should have educated himself as to whether the Jamaican claim was properly grounded or whether it should have continued in Jamaica after the appointment of an administrator. They said his malice and bad faith continued when he presented the petition to wind-up First Financial Trust in furtherance to his bad faith decision to place it in administration, and allowing an interloper to prosecute litigation in the name of the company, which caused severe harm, loss and damage to Howell.

They further claimed that Higgins ought to have known that the Turks and Caicos Islands was the proper forum for the matter to be litigated instead of Jamaica because the company was registered and regulated here and not Jamaica.

They said that the defendants should have taken every level of care to determine the applicable law and its effects on the company in the Turks and Caicos Islands, before using the proceedings in Jamaica as grounds for enforcing against First Financial Trust.

They said also that Higgins and the FSC owed a duty of care to present a winding-up petition based on evidence. They added that as a result of their malicious and reckless manner, where the FSC also failed to uphold statutory duties to Howell, their client had sustained injury to his reputation, suffered loss and damage, and incurred expenses.

(Left) Delroy Howell (Right) Kevin Higgins

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