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Companies can't imply consent; it must be in writing

BY PAUL HENRY Crime/Court Desk Co-ordinator henryp@jamaicaobserver.com

Friday, December 13, 2013    

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LYNDA MAIR, a senior lawyer for the Appliance Traders Ltd (ATL) Pension Fund yesterday opined, under re-examination, that evidence of consent should be in writing where a company is concerned.

She gave the opinion during her re-examination by prosecuting attorney Garth McBean, on the heel of her brief cross-examination by Queen's Counsel KD Knight in the fraud case of three former ATL executives in the Corporate Area Resident Magistrate's Court, Half-Way-Tree.

Knight's cross-examination, which lasted approximately 30 minutes, appeared to catch McBean off guard as he remained seated for a while before being gently prodded by Senior Resident Magistrate Lorna Shelly-Williams to commence his re-examination of Mair. McBean humorously commented that he was still trying to recover from Knight's brevity.

Knight, the lead defence lawyer, has become known in courtroom number four for his marathon examination of witnesses. In pleasant repartee, the magistrate has commended another defence lawyer, Frank Phipps, QC and prosecutor McBean for their succinct presentations.

During Knight's cross- examination, Mair agreed with him that as a general rule consent can be "expressed or implied" but she held that evidence of consent should be in writing where a company is concerned. She also agreed that as a general rule where consent is required it should not be irrationally withheld; that where there is a board of directors of a company no one director can usurp the function of the board; and that the action of that one director, if he or she usurped the power of board, would be of no effect.

The issue of whether consent was given for the distribution of $1.7 billion in ATL Group Pension Fund surplus is at the core of the fraud trial in which Catherine Barber, former general manager of the Fund; Patrick Lynch, the former chairman of the Fund; and Jeffery Pyne, a former director of Gorstew are charged with conspiracy in the forging of four letters to deceive Gorstew Ltd that consent was given for the distribution.

The prosecution maintains that the letters, which had been presented to Stewart by Barber at a meeting on December 16, 2010, had been backdated to 1998, 2002, 2005, and 2008. Importantly, Pyne, who signed the letters, had left the company seven months before December 15, 2010, when the alleged forgery was discovered. Lynch was the alleged mastermind behind the scheme, the court was told.

On Tuesday, Mair, who is a partner in the law firm Patterson Mair & Hamilton, testified in her examination-in-chief that Barber had sought her advice in June 2007 about two surplus distributions from 1992 and 1995 and that she (Mair) informed her that consent was needed from the board of Gorstew Ltd, the holding company for Chairman Gordon 'Butch' Stewart's companies.

The trial went on pre-Christmas break to resume on January 15, 2014 when a new witness will take the stand.

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