By NEIL HARTNELL
Tribune Business Editor
nhartnell@tribunemedia.net
Damages claims over Jamie Dingman’s failed Nassau restaurant empire may take two-and-a-half years to be resolved if the case has to be heard in the Bahamas, a local attorney has warned.
Vann Gaitor, the Higgs & Johnson partner, acknowledged the “concern” over the length of time required to resolve court disputes in the Bahamas in an affidavit filed with the southern New York federal court on October 14, 2016.
Mr Gaitor also conceded that many of the frequent delays suffered by court cases were caused by “the parties themselves, or their attorneys here and abroad”.
His affidavit, intended to rebut arguments by Mr Dingman that the Bahamas is the more appropriate jurisdiction than New York to hear the claims against him, sends a further potentially chilling warning to current and prospective international investors.
The swift, impartial resolution of commercial disputes is among the key attributes they will look for when assessing where to invest their capital, and a possible two-and-a-half year wait for the trial of a financial dispute matters is not what they are looking for.
With the Bahamas facing ever-increasing competition for foreign direct investment (FDI) dollars, resolving the backlog/delays in the civil and commercial courts is another aspect critical to improving the ‘ease of doing business’ in this nation.
Given that the Bahamas has now fallen to 121st spot in the World Bank’s latest ‘ease of doing business’ rankings, Mr Gaitor’s affidavit will add to concerns that this nation is going backwards when it comes to conducting commerce.
“The time it takes for a civil case to proceed through trial is uncertain,” Mr Gaitor alleged. “The time it takes for trial of a matter, such as this one [the Dingman case], may be between 24 and 30 months.
“The time it takes to resolve a case in the Bahamas is of concern to practitioners and litigants alike,” he added, with key factors involving judicial availability; case complexity; the amount and nature of evidence; the number of parties and witnesses; and how many preliminary applications and appeals were necessary.
“With respect to judicial availability, the Bahamian courts are very busy, but delays on many occasions are due to the parties themselves or their attorneys here and abroad,” Mr Gaitor said.
“With respect to the complexity of a case, one involving fraud claims, for example, may take substantially longer to proceed through trial than a case involving a less complicated claim of breach of contract.
“Once a case would have proceeded through trial to judgment, the parties may avail themselves of the appeal process which, in my experience, may be a lengthy one.”
Mr Gaitor’s affidavit is designed to support the argument of two Americans previously involved with Mr Dingman’s hospitality empire, Ryan Giunta and Erik Gordon, that their claim against him and his companies should not be heard in the Bahamas.
Mr Dingman, son of world-famous entrepreneur and Lyford Cay resident, Michael, is arguing that the New York case should be dismissed in favour of having it heard here, given that most of the events complained of - plus participants, companies and witnesses - took place, or are based in, the Bahamas.
Similar concerns to Mr Gaitor’s were also echoed earlier this year by Robert Adams, the Graham Thompson & Co attorney and partner, in the ultimately failed bid to prevent the New York State Supreme Court dismissing hedge fund billionaire, Louis Bacon’s, defamation claim against Lyford Cay neighbour, Peter Nygard.
Mr Adams alleged then that his client’s case would not likely proceed to trial until the 2018 first quarter.
He added that “substantial delays” in processing cases to trial were “regrettably not uncommon” in the Bahamian judicial system.
This was countered by Damian Gomez QC, the former minister of state for legal affairs, who on Mr Nygard’s behalf alleged: “In my opinion, Mr Adams’ opinions are based on pure speculation.
“The date by which a case goes to trial is dependent on a variety of factors, including how proactive the attorneys are in moving a case along; the proclivity of the judge; the number of documents produced; the number of witnesses involved; and whether there is a foreign discovery.”
Mr Gomez pointed to the Supreme Court’s own Rules to show how the Bahamas had moved to “streamline and simplify civil procedure to expedite trials, and the resolution of disputes, as efficiently and effectively as possible”.
“I also note that the Bahamas is a world-class financial centre, and accordingly the Bahamian courts are well-equipped to handle, and have handled, complex matters,” Mr Gomez said.
“Furthermore, in my experience, the judges in the Bahamas are exceedingly accomplished jurists and attract the best and brightest.”
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