Brown v Green Thumb Nursery & Landscaping Ltd

• Jurisdiction: Cayman Islands
• Judge: (Williams, Ag. J.)
• Judgment Date: 16 May 1996
• Date: 16 May 1996
• Court: Grand Court (Cayman Islands)

Grand Court

(Williams, Ag. J.)

BROWN

and

GREEN THUMB NURSERY AND LANDSCAPING LIMITED and FOUR OTHERS

S. Hellman for the first, second and fourth defendants;

P.A. Broadhurst for the plaintiff;

O.R. Watler for the fifth defendant.

The third defendant did not appear and was not represented.

Cases cited:

(1) -Avalon Tours Ltd. v. Att. Gen., 1994–95 CILR N–13, distinguished.

(2) -Bank of Jamaica v. Dextra Bank & Trust Co. Ltd., Jamaica Court of Appeal, Case No. 61/94, unreported, applied.

(3) -Dyson v. Att. Gen., [1911] 1 K.B. 410.

(4) -Jefferson Ltd. v. Bhetcha, [1979] 1 W.L.R. 898; [1979] 2 All E.R. 1108; (1979), 123 Sol. Jo. 389, followed.

(5) -R. v. McGregor, [1968] 1 Q.B. 371; (1967), 51 Cr. App. R. 338, distinguished.

Civil Procedure-stay of proceedings-related Cayman proceedings-no stay of civil proceedings pending outcome of potential criminal proceedings-accused”s right to silence not prejudiced if defence already disclosed to police and in civil pleadings-lapse of time before criminal proceedings and lack of publicity given to civil proceedings important

The defendants in civil proceedings for the recovery of land alleged to have been fraudulently transferred sought a stay of the proceedings pending the conclusion of any future criminal prosecution of the fourth defendant.

The fourth defendant had been arrested almost a year before the current proceedings were due to be heard, following the plaintiff”s discovery that several parcels of his land had been transferred without his knowledge or consent. The fourth defendant had been questioned by the police and made a statement denying any fraudulent conduct. He had been released on bail pending further investigations and had not subsequently been charged.

The plaintiff”s civil action had been set down for trial, each of the defendants having filed a defence. The defendants applied for a stay of proceedings only a few days before the hearing date.

They submitted that it would be just and convenient to grant a stay since (a) adverse publicity from a finding that the fourth defendant was liable to the plaintiff in the civil proceedings would influence potential jurors in any subsequent criminal trial and so prejudice a fair hearing; and (b) the fourth defendant”s right to silence should not be jeopardized by forcing him to disclose his defence prior to any criminal trial as a result of defending the civil proceedings.

The plaintiff submitted in reply that (a) there was no real likelihood of affecting the impartiality of future jurors, since little publicity was normally given to civil cases by the media in the Cayman Islands; (b) having already outlined his defence to the police and filed a defence of sufficient detail to satisfy the plaintiff in pleading his case, the fourth defendant could suffer no further prejudice. The opportunity to apply for a stay to protect his right to silence had now passed; and in any event (c) the risk of prejudice to the fourth defendant was purely speculative in the absence of any actual criminal charge against him and a stay could not be just or convenient when there were no concurrent criminal proceedings.

Held, refusing to stay the civil proceedings:

The fourth defendant would not suffer prejudice by the hearing of the present proceedings prior to any criminal prosecution which might take

place, since (a) the minimal publicity given to civil cases and the length of time it would take for a criminal charge not yet laid to come to trial would render it unlikely that future jurors would be influenced by news of the outcome of civil proceedings; (b) the fourth defendant had abnegated his right to silence by making known the substance of his defence both to the police and in the course of pleadings in the present proceedings. In the absence of concurrent criminal proceedings, the defendants had not shown it would be just or convenient to stay the civil proceedings which had been listed for trial for some time and were due to commence in a matter of days (page 86, lines 12–18; page 86, line 39 – page 87, line 2; page 87, lines 10–14; page 87, line 45 – page 88, line 6).

WILLIAMS, Ag. J.: By summons dated April 16th, 1996 the fourth
defendant sought orders that-
30	‘(a) this action be stayed pending the conclusion of the criminal
investigation and any subsequent prosecution of the fourth
defendant arising from the allegation of fraudulent conduct by him
which forms the subject-matter of this action; (b)

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