Liberty to Apply in Civil Cases

The effect of a ‘Liberty to Apply’ clause in a consent order was considered by the Jamaican Court of Appeal in the Admiralty case of Jebmed SRL v Capitalese SPA [2017] JMCA Civ 45, which concerned a previous court order relating to the disposal of a ship that had been arrested on account of the failure of its owners to settle a mortgage debt. In a previous application by the mortgagee, the court had ordered the sale of the ship by the Admiralty Bailiff, subject to conditions, with ‘Liberty to Apply’. Shortly afterwards, the mortgagee filed a notice of application
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The Paramountcy of Data Subject Access Rights

In early 2017 an action was brought in the Bahamas Supreme Court by members of a discretionary class of beneficiaries under a family trust settled in the Bahamas and consisting of assets worth over $400 million. Most of the beneficiaries were resident in Australia. The claimants were objecting to a prior distribution made by the defendant trustee in favour of certain other members of the discretionary class, to the exclusion of the claimants, which had left only $9 million remaining in the trust fund. The claimants faced a difficulty in that they were unable, in the Bahamian court, to obtain
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Constitution of Trust: No Benevolent Construction

In Deslauriers v Guardian Asset Management Ltd [2017] UKPC 34, an appeal from the Court of Appeal of Trinidad and Tobago, the Privy Council applied the basic rule of trust law that a private trust must be ‘completely constituted’ in order to be valid and enforceable, which means that the legal title to the trust property must be effectively transferred by the settlor to trustees or, alternatively, the settlor must declare himself a trustee of the legal estate for the beneficiaries. The Deslauriers, defendants/appellants in this case, were property developers who in 2007 entered into a commercial loan agreement with
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Causation in Diseases Linked to the Oil Industry

In Petroleum Company of Trinidad and Tobago Ltd v Ryan [2017] UKPC 30, the claimants had been diagnosed with pulmonary fibrosis and reactive airways disease. They attributed these conditions to emissions of hydrocarbon gases from a disused oil well on land under the control of the defendants and adjacent to their dwellings. They sought damages from the defendants on the basis of negligence and nuisance. Their claim was dismissed in the Trinidad and Tobago High Court but allowed (by a majority of 2 to 1) in the Court of Appeal. The Privy Council restored the decision of the High Court.
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Civil Litigation in the Commonwealth Caribbean: Preserving Continuity

Those who were in legal practice at the time of the seismic shifts affecting the rules of civil procedure in England and Wales and, almost simultaneously, in Commonwealth Caribbean jurisdictions in the late 1990s, will recall the startling dictum of Lord Woolf, architect of the new civil procedure regime, to the effect that, since the CPR was a ‘new procedural code’, judges should not “look over their shoulders” to the former Rules of the Supreme Court and the case law interpreting them, and that such case law was “generally irrelevant” in interpreting the new Rules (Biguzzi v Rank Leisure Pic
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Personal Injuries: Assessment of General Damages in the Bahamas

In the recent case of Scott v The Attorney General of The Bahamas [2017] UKPC 15, the Privy Council considered the question whether it was legitimate for the Bahamian courts to assess general damages in personal injuries actions by reference to the Judicial Studies Board (JSB) guidelines in England and Wales. In a number of previous Bahamian cases, notably Acari v Lane (Civ App No 18 of 2000), Mantuszowicz v Parker (1987) 50 WIR 24, and Resorts International (Bahamas) Ltd v Rolle (Civ App No 44 of 1994) it had been held that such reference was appropriate, but that the
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