The Tribune

BY FAY SIMMONS

TRIBUNE BUSINESS REPORTER

jsimmons@tribuneemedia.net

THE SUPREME Court has dismissed a $267,000 malicious prosecution claim against Colina Insurance, finding that the insurer did not initiate or conduct the criminal case against a former agent and that there was no evidence it acted maliciously.

Chief Justice Sir Ian Winder found that the Insurance Commission, rather than Colina, initiated the referral that ultimately led to the former agent being charged, while the Royal Bahamas Police Force independently investigated and decided to prosecute.

The ruling arose from a claim by former Colina insurance agent Edith Albury, who sought $267,250.80 in damages, punitive damages and other relief over criminal proceedings that began in 2018 and ended with her acquittal in May 2023.

Ms Albury claimed Colina had maliciously reported and prosecuted her, resulting in the non-renewal of her insurance agent's licence and preventing her from continuing in a profession she had worked in since 1985.

However, Sir Ian found that Colina's involvement was limited to its internal investigation, regulatory reporting and cooperation with the police investigation.

“The Court is satisfied that the Commission, not Colina, initiated the referral to law enforcement,” the Chief Justice said.

The judgment found that Colina had conducted internal investigations after receiving complaints from policyholders alleging that premiums collected by Ms Albury had not been recorded in the company's system. Colina subsequently reported its findings to the Insurance Commission.

That report, the court found, was made pursuant to Colina's regulatory obligations and was not a criminal complaint directed to police.

The Insurance Commission subsequently referred the matter to the Royal Bahamas Police Force in May 2017, requesting a police review and asking whether criminal charges should be instituted.

“The Court finds that the police conducted an independent investigation,” said the Chief Justice, noting that police obtained statements from policyholders, interviewed Colina's representative and Ms Albury, and exercised their own discretion in determining whether charges should be laid.

“The prosecution was conducted by the State, not by Colina,” he said.

Ms Albury was charged with stealing by reason of employment and fraudulent breach of trust. She spent eight days in custody awaiting bail and defended the charges for several years before ultimately being acquitted.

The Supreme Court, however, found that the acquittal did not establish that the prosecution had been brought without reasonable and probable cause.

“An acquittal reflects the prosecution's failure to prove guilt beyond a reasonable doubt; it does not retrospectively negate the existence of reasonable grounds for investigation or referral,” said Sir Ian.

The court also found that Ms Albury had failed to establish that Colina lacked reasonable and probable cause or that it had acted with malice.

“I am satisfied that Albury has failed to establish any malice on the part of Colina,” the Chief Justice said.

The court ultimately dismissed the malicious prosecution claim and ordered that Colina recover its reasonable costs, to be assessed if not agreed.

The ruling said the evidence demonstrated that the various stages of the matter — Colina's internal investigation, its regulatory reporting, the Insurance Commission's assessment and referral, and the police investigation — were “separate and sequential processes.”

The judgment also noted that the prosecution had survived a no-case submission during the Magistrates' Court proceedings, which the Supreme Court said supported the conclusion that the prosecution was not without reasonable and probable cause.