KPB wants LL to pay legal costs

Chartered Accountant Kieron Pinard-Byrne wants Lennox Linton, the political leader of the opposition United Workers Party (UWP) to pay his legal costs of EC$340,926.39.

A letter from the law firm de Freitas, de Freitas & Johnson, Pinard-Byrne's lawyers, says that Linton must indicate "no later than 28th day of April, 2016" of his "agreement or otherwise" to pay the costs outlined in a bill of costs that Pinard-Byrne sent on 21April, 2016.

Linton and Pinard-Byrne have been locked in a long and bitter legal battle related to a defamation case arising out of the failed Layou River Hotel Economic Citizenship project that ended with an appeal to the British Privy Council that Pinard-Byrne won.

The letter from lawyers representing Pinard-Byrne states: "We refer to the costs Order made by the Judicial Committee of the Privy Council dated the 29th day of January, 2016 .In furtherance of the terms of the said Order that costs be assessed if not agreed, we attach herewith, a breakdown of the costs incurred by our client in prosecuting this matter before the Court of Appeal of the Eastern Caribbean and the Judicial Committee of the Privy Council".

The costs outlined by Pinard-Byrne include:

Privy Council hearing:

• Anthony Astaphan- EC$28,750.00;

• Simon Muirhead & Burton (PC Agent) Fees & expenses inc. Adam Speker – EC$177,503.19;

• De Freitas, de Freitas & Johnson disbursements- $3,424.30

Total cost Privy Council- EC$ 209,677.49

Eastern Caribbean Supreme Court costs

• Anthony W Astaphan - EC$50,000.60

• De Freitas, de Freitas & Johnson- EC$33,333.00

Leave to appeal to JCPC

• Anthony W. Astaphan- EC$ 28,750.00

• Defreitas, Defreitas & Johnson - EC$19,165.90

ECSC total cost- EC$131,248.90

Total Costs: EC$340,926.39

The case revolved around the two-decade-old failed hotel construction financed by the multi-million dollar Citizenship by Investment programme that Grace Tung managed. In a radio broadcast few years ago Linton charged that Pinard-Byrne, the company's representative and accountant was an inappropriate beneficiary of that project.

Pinard-Byrne sued and won at the High Court in Roseau and at the Privy Council in Britain. Linton won an appeal to the Eastern Caribbean Supreme Court.

One set of fees that that Linton had to pay was detailed in a letter from Pinard-Byrne's lawyers, deFreitas, deFreitas & Johnson; it was the Privy Council fee of £20,000.

When Linton raised that amount in a radio appeal, UWP supporters had had gathered outside the lawyer's office to pay the fee on Linton's behalf.

Subsequently, the lawyers wrote that between February 22 and February 23, 2016, Linton's supporters visited the law firm to pay and it received EC$2708.00 (£692.39) in bags of pennies, nickels, dimes and quarters.

"The unorthodox and contemptuous manner in which the payment of the aforementioned sum was made resulted in hostile and disruptive behaviour on the part of those who presented themselves to make payment, which was not conducive to, nor consistent with, the professional standing of our Chambers," deFreitas, deFreitas & Johnson wrote in a letter to Linton.

"We refer, in particular, to the loud and aggressive conduct of your brother, Brian Linton, who threatened, assaulted and insulted our staff, using some of the most vile and unsavory language. His despicable behaviour was completely unwarranted, in circumstance where he and the -other persons entering our Chambers were received and accommodated with civility".

Additionally, Pinard-Byre through his lawyers said the time limit for the payment of the amount has expired and the sum of £307.61 was outstanding.

"We therefore demand that you immediately make payment of the outstanding sum of £307.61 to our Chambers'" the letter said.

"Having regard to the aforesaid conduct, we must insist that you make payment by means of a banker's draft or certified cheque and that you desist from further contemptuous form of payment".

"If you fail to comply," the lawyers warned "an appropriate Order will be sought from the Court".

Sometime earlier Pinard-Byrne had demanded and received payment for the cost of the High Court segment of the legal battle.

Three years ago Justice Cottle had ordered Linton to pay EC$50,000 in damages, as well as prescribed costs of $14,000. Pinard-Byrne said Linton had to pay an additional 5% interest from the date of the judgement to January 2015, i.e. a total of just below EC$80,000.

Background

In 2013 Judges of the Eastern Caribbean Supreme Court (ECSC) overruled a lower court decision which had slapped heavy fines on Linton and others for alleged defamatory statements made regarding Pinard-Byrne, the accountant and former owners' representative of the ill-fated Layou River Hotel that Pinard-Byrne himself has described as a construction disaster.

At the High Court phase of the court battle Judge Brian Cottle ruled that the words complained of were defamatory of Pinard-Byrne and that the statements "did not constitute fair comments on a matter of public interest."

However, judges of the ECSC, Dame Janice Pereira, Davidson Baptiste and Mario Michel over-turned that decision and ruled that "The speaking, writing and publishing of the words complained of were done in circumstances which attracted qualified privilege."

As a result, they allowed Linton's appeal and also dismissed Pinard-Byrne's counter appeal.

The ECSC judges ruled that Linton "did in fact undertake an extensive investigation of the issues which he spoke about during the radio broadcast and in the internet article" adding that it was not "open to the learned trial judge (Cottle) to make the finding that (Linton) did not make any enquiries and that this factor weighed heavily against him being able to rely on the defence of qualified privilege".

The judges concluded: "the speaking, writing and publishing of the words complained of were done in circumstances which attracted qualified privilege."

Not satisfied with that decision, Pinard-Byrne took the case to the Privy Council and the matter was heard in April 2015.

According to the Privy Council: "The question for decision by the judge (in the High Court) was whether, in publishing the words complained of, that is the defamatory words, LL was acting responsibly and had a duty to the public to publish them.

"As Lord Nicholls put it in the first of his ten points, the more serious the charge, the more the public is misinformed and the individual (here KPB) harmed, if the allegations are not true.

"The focus is upon the allegations which are not true. Thus, where in his second point Lord Nicholls focuses upon the nature of the information and the extent to which the subject matter is a matter of public concern, he is again referring to the allegations which prove not to be true.

"As the Board sees it, it is not sufficient for the court to focus on the underlying circumstances. Thus is not sufficient to say, as the Court of Appeal did, that the underlying project was a matter of public interest or a matter of public importance.

"The judge correctly accepted that it was, as indeed did the Court of Appeal. The Board recognizes that evidence that KPB was guilty of wrongdoing would be a matter of public importance.

"However, in the opinion of the Board, before making allegations to that effect it was the duty of LL to carry out a reasonable investigation to ascertain whether they were true. The problem is that LL did not carry out an investigation to that end. The Board accepts that, as the Court of Appeal concludes, he made some investigations into the Project. There is however no evidence that he investigated whether KPB was guilty of the kind of wrongdoing alleged in the words complained of."