Palimony deal?
Published:Sunday | July 31, 2011 | 12:00 AM
Court documents obtained by The Sunday Gleaner showed that the Supreme Court ruled that the settlement between former Scotiabank manager William 'Bill' Clarke and his former employers must be disclosed as part of the divorce proceedings.
Clarke was given 21 days to make the disclosure or face contempt charges. The three weeks for disclosure expires on August 12, 2011.
Speaking with the understanding that his name would not be revealed, a lawyer who has read the affidavits filed by both Clarke and his former wife, said the Supreme Court ruling and the divorce case itself will test the interpretation of the Property (Rights of Spouse) Act (PROSA).
The lawyer also stated that the legal team representing Mrs Clarke argued that even though the actual divorce has been concluded, the claim of entitlement was brought before the divorce was final.
"At the time when he demitted office, Mrs Clarke was still living at (the matrimonial home) as a wife (because) the marriage had not broken down," the lawyer said.
He also added that the former bank boss' official position to the court is that "she, Mrs Clarke, is not entitled to anything at all".
However, the Supreme Court judge who handed down the ruling on the application for disclosure, after hearing submissions from both legal teams, made it clear that the ruling in favour of Clarke's former wife does not automatically mean she will get a piece of the golden handshake.
"The court wishes to point out that this judgment is by no means deciding that the retirement package and settlement must necessarily be divided between the parties.
"All that is being said is that, the definition of property in Section 2 of PROSA is wide enough to bring these things within the definition and having regard to all that has been said the details surrounding them ought to be disclosed," read a section of the judge's disposition.
The court document added, "It maybe that when all the circumstances are examined the trial court may decide that, despite falling within the definition, they are not to be taken into account in this particular case."
The Supreme Court ruling also sought to protect Clarke's privacy though not granting his attempt to block disclosure of the particulars of the settlement. "There is no injustice to Mr Clarke in this regard. If he has concerns about confidentiality, then appropriate orders can be made dealing with that aspect of the matter," the judge noted in her ruling.
Hard work, proven success
While in chambers, Lord Anthony Gifford - a member of the former Mrs Clarke's legal team - argued "that the dollar figure of the retirement package was not arrived at by staring into a crystal ball".
"A person does not become a chief executive officer of one of the world's most successful banks by wishful thinking. He has to get there by hard work and proven success. Success is not usually the result of unilateral effort. Mr Clarke's success, it is said, was achieved with the support of Mrs Clarke," Gifford proffered.
According to Lord Gifford, "when one looks at Section 14 of PROSA and sees the factors that a court may take into account, an argument can be made that Mrs Clarke's contribution to the household and taking care of the family enabled Mr Clarke to concentrate on his career. This, in turn, contributed to Mr Clarke's rise to the top of his profession".
However, Judith Cooper-Batchelor, a member of Clarke's counsel, rejected Gifford's arguments and stated that the only thing Mr Clarke was entitled to was his pension, which she said he is receiving.
Cooper-Batchelor advanced that "the rest of the package was purely within the discretion of the bank and, in any event, it lacked the characteristic of property to which reference has already been made, namely alienation to third parties".
After hearing the arguments, the court sided with Gifford. "While the court accepts that Lord Gifford's proposition is, perhaps, stretching the point, the court is of the view that it is sufficient to enable the court to grant the order," the document said.
The Supreme Court also noted that on the basis of the judgments of the Court of Appeal, a reasonable argument could be made that Mr Clarke was constructively dismissed and so a possible cause of action arose from July 8, 2008. This is clearly a chose in action within the meaning of PROSA's definition of property.
"If what has just been said is correct, then the cause of action would have arisen before the parties separated whether one uses the November 2008 date suggested by Mrs Clarke, or August 12, 2008 hinted at by Mr Clarke.
"Since the duty of disclosure is a continuing one, then the full details of the settlement with Mr Clarke should be disclosed."
The lawyer who spoke with our news team on a condition of anonymity explained that "a chose in action is a right to sue somebody for something".