Part one of the Bill Clarke-BNS battle was carried in yesterday’s Sunday Observer. Following is the conclusion.

THE letter that Bill Clarke had just received from his bosses in Toronto, separating him from BNS after 40 years, 13 as CEO, weighed heavily in his briefcase, on the four-hour flight back to Jamaica.

As soon as he landed in Kingston, he requested a meeting with the eight available members of the BNS Jamaica board. He told the July 12, 2008 meeting what had transpired in Canada, with members saying they had been unaware of the decision taken by BNS Canada.

Clarke was offered Canadian $1 million (J$85 million at the time) along with certain other contractual obligations, as part of the retirement package. He was also to retire on August 31, 2008, against his normal retirement date of December 15, 2015. The Jamaican board eventually changed that to October 31, 2008 when negotiations on Clarke’s counter proposal failed to reach conclusion before that date.

In a subsequent letter dated October 22, 2008 to one of Clarke’s lawyers, RNA Henriques, BNS’ Toronto lawyer, Robert Armstrong said the offer had been revised to a value of approximately C$3.7 million.

Clarke rejected the offer, explaining to the Observer that it was a “nebulous figure” that represented termination pay, supplemental pension and things like his daughter’s UK scholarship and the value of the bank house and two cars, a BMW 750 and Audi Q7 assigned to him.

“I could never accept termination pay, because I was never terminated. Neither can I accept pension, scholarship and the other things they say are covered, when if I was employed to 2015 all that would have accrued to me normally. That is not a settlement,” Clarke said.

He told the Observer that under the bank’s proposal, C$40,000 per month would be deducted from the package for the length of time he stayed in house after the retirement date.

Said Toronto-based chairman Robert Pitfield in the court papers: “Discussions and negotiations as to what would be a reasonable retirement package in the circumstances, took place orally and in writing between Mr Clarke’s attorneys and the attorneys for the bank over an extended period, but no agreement was reached. Mr Clarke rejected all offers the bank made, wanting at each stage more than what was offered.”

When the negotiations broke down, as Clarke described it in his affidavit, the former BNS CEO insisted that the matter be put to arbitration, and in the interim, all bank perquisites he enjoyed should continue until the matter had been settled. That included the house and cars.

Clarke wanted arbitration under Jamaican law, while BNS’ position was that it would be prepared to go to arbitration under the rules of the London Court of International Arbitration, among other stipulations. No agreement was reached.

“It should be noted that the claimant’s proposal in his email was for arbitration as a condition of his retirement on October 31, 2008. This proposal for conditionality was expressly rejected by the bank which asserted that Mr Clarke was to retire on October 31, 2008, whether or not there was settlement agreement for arbitration of the dispute about retirement compensation,” Pitfield emphasised.

He agreed in his affidavit that the bank’s board had approved a decision in principle that the dispute over reasonable retirement compensation be referred to arbitration. “But as the minutes relied on by Mr Clarke show, the board was very clear that the scope of the arbitration was to include all matters leading to Mr Clarke’s separation from the bank, including his conduct,” said the BNS chairman.

“.The bank still maintains the position that it is willing to settle the matter through arbitration, provided agreement can be reached as to the terms of the arbitration. So far, Mr Clarke has repeatedly declined the bank’s reasonable proposal as to the terms of the arbitration,” Pitfield added.

The stage was now set for the battle now before

the courts.

With no arbitration agreement, the bank’s earlier demand that the house and cars be returned by August 30, 2008, was amended to January 31, 2009, as a courtesy, said Pitfield in his affidavit before the Jamaican Supreme Court. But Clarke insisted it was only just that he kept the house and cars until the matter had been finally settled and he sought

an injunction to support this position.

On January 5, 2009, Justice Anderson granted Clarke reprieve, after hearing his lawyers, Dr Lloyd Barnett and Keith Bishop instructed by Bishop and Fullerton. BNS was represented by John Vassell and Cindy Lightbourne, instructed by DunnCox. They will go back to court on March 10 to decide whether the matter goes to arbitration and on what terms.

Round one to Clarke.