Howell, Mitchell win appeal in fiduciary duty case

BY JULIAN RICHARDSON Assistant business co-ordinator richardsonj@jamaicaobserver.com

THE Court of Appeal on Friday overturned a summary judgement against businessmen Delroy Howell and Kenarthur Mitchell, and First Financial Caribbean (Jamaica) Limited.

Howell and Mitchell appealed a May 2011 judgement for breach of fiduciary duty handed down by Justice Patrick Brooks against them and Howell’s company, First Financial Caribbean (Jamaica) Limited.

The case centred on a dispute involving First Financial Caribbean Trust Company, that was controlled by Howell, but wrestled from him in a bitter takeover. Mitchell had served as a director of the Turks and Caicos Islands (TCI)-based trust company, which accused both men of failing to account for US$14 million in assets that were under their management.

However, the Court of Appeal on Friday ruled in favour of Howell and Mitchell, allowing the appeal with costs and set aside the summary judgement.

Howell was represented in court by attorneys Douglas Leys and Roderick Gordon (instructed by G Anthony Levy), while Lord Anthony Gifford, Conrad George and Kimone Tennant (instructed by Hart Muirhead Fatta) represented Kenarthur Mitchell and First Financial Caribbean (Jamaica) Limited.

“We are thankful to the court for its decision, because it reiterates my belief in the justice system,” Howell told the Jamaica Observer.

“We are working vigorously to put an end to this matter,” Howell added.

The Court of Appeal indicated the reasons for its decision will be given at a later date. But Leys speculated that the court was influenced by questions on applicable law and whether a judgement could be formed without proving that there was a loss to the trust.

“It is clear that the Court of Appeal was moved by the submissions by counsel and those submissions included inter alia the proper approach where there is breach of trust, but no loss has been proved to the trust,” said Leys.

“There were complicated issues of fact and law as to what would be the proper law and what would be the jurisdiction that gave the Jamaican courts to adjudicate on this matter, having regard to the fact that the company was incorporated as an offshore company in the Turks and Caicos Islands,” added Leys, a former solicitor general.

Howell owns a number of businesses in Jamaica, the Cayman Islands and the Turks & Caicos.

In the takeover battle, Judith Wilchcombe, who served as a senior manager of First Financial Trust Company, acquired a majority shareholding in the TCI company and dismissed both Howell and Mitchell from the board of directors in August 2010.

Under Wilchcombe’s control, the trust company brought proceedings in Jamaica against First Financial founder Howell, Kenarthur Mitchell, and several First Financial Caribbean companies, claiming misuse of the trust’s assets. She subsequently got a court order freezing their assets, claiming that both men failed to account for US$14 million in assets.

Howell, who noted that he has since regained control of the trust company in the TCI, said the freeze order has cost him millions of dollars in lost assets and missed investment opportunities. He expressed confidence that the appeal victory was just a “first step” towards the court ruling in his favour at a full trial.

“I am still a little bit dissapointed that it took so long, but I’m glad it’s a first step in getting my life back together,” said Howell.

HOWELL… it’s a first step in getting my life backIt is clear that the Court of Appeal was moved by the submissions.

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