Privy Council upholds ruling in Paul Chen Young case

The United Kingdom Privy Council, Jamaica's final appellate court, is urging litigants in the 24-year-old lawsuit involving the estate of the late Dr Paul Chen Young, former Eagle Group chairman and other companies, to focus if possible on settling. 

It made the suggestion on Monday when it upheld a Court of Appeal ruling that the Supreme Court is the proper forum for the executor of Chen Young's estate and two financial companies to seek constitutional redress for legal costs from the State concerning a Court of Appeal judgment that was declared a nullity.

Dr Paul Chen Young died in May 2020 at age 82 in Florida.

Eagle Merchant Bank Jamaica Ltd and Crown Eagle Life Insurance Company, which Dr Chen Young founded, have been engaged in a legal battle with him since they were taken over by the government-owned Financial Sector Adjustment Company (FINSAC) during the 1990s financial meltdown.

They sued Chen Young, Ajax Investments Ltd and Domville Ltd in 1998 for breaches of fiduciary duty as well as alleged negligence.

On May 4, 2006, the Supreme Court ordered the defendants to pay $253 million and US$9.9 million in damages to the claimants. The defendants filed an appeal shortly after against the decision. 

On December 1, 2017, more than four years after the hearing of the appeal, the Court of Appeal purported to hand down a judgment, setting aside the Supreme Court judgment and ordered a retrial.

When the three appellate judges handed down that decision they had all passed their retirement age of 70, as specified in the Constitution, and did not receive permission from the Governor General to continue in office to complete outstanding work.

A panel of the Court of Appeal held in April 2018 stated that the December 2017 judgment was a nullity and directed a re-hearing of the appeal.

The appellants were concerned that the 2018 ruling meant that their costs at the lengthy and expensive hearing in 2013 had been thrown away. They sought from the Court of Appeal an order that their assessed costs should be paid by the State through the Attorney General or by way of redress for a breach of their constitutional right to an effective and timely appeal. The Court of Appeal ruled that their claim should be brought before the Supreme Court as a fresh claim.

The appellants then took the issue to the Privy Council, seeking several answers, one of which was whether a litigant who has incurred costs in the hearing of an appeal which has been nullified as a result of the presiding judges not complying with the provisions of the Constitution, consequent on their retirement, is entitled to be paid by the State, the costs thrown away as redress for breach of the Constitution.

“It is not seriously in dispute that the facts summarised above about the handling of the appellants' appeal from the judgment in May 2006 disclose a very serious contravention of their guaranteed Charter rights of access to justice. The December 2017 judgment was not delivered by a court established by law, and the period which has now elapsed involves by any standards a serious failure to conclude the appeal hearing within a reasonable time, contrary to section 16(2) of the Charter. All that is in dispute before the Board is the route by which, and the court before which the appellants may obtain redress, other than by way of the rehearing which has already been ordered,” the Privy Council stated.

The Privy Council dismissed the appeal on Monday and upheld the Court of Appeal's ruling on the issue of costs. The Privy Council pointed out that there still awaits a re-hearing of the appeal and a possible re-trial at first instance.

“There is no reason why those processes need to await the outcome of the claim for constitutional redress. In fact, it would in the Board's view be better if the main focus of the parties' efforts lay in progressing (including if possible settling) the main stream litigation,” the Privy Council advised.

Michael Paul Chen Young is the executor of Dr Paul Chen Young's estate. The estate and the other appellants were represented by Queen's Counsel Ransford Braham and attorney-at-law Abe Dabdoub.  

The respondents were represented by Queen's Counsel Michael Hylton and attorney-at-law Sundiata Gibbs.

Queen's Counsel Derrick McKoy and attorneys-at-law Annaliesa Lindsay and Lisa Whyte represented the Attorney General of Jamaica, who was an interested party.

- Barbara Gayle

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