By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A law firm whose principal is a newly-named Supreme Court judge has lost its bid to recover an unpaid $24,544 legal bill because it failed to properly present its evidence before the court.

Gregory Moss, the former MP, who is due to assume office as a Supreme Court justice on May 1, 2023, according to a Judicial Legal and Services Commission release, represented his Moss & Associates law firm in the action before acting justice Ntshonda Tynes.

Her February 9, 2023, verdict rejected Moss & Associates’ claim on the basis that neither the witness statement of its office manager, Vanessa Russell, nor its documentary evidence had been properly entered during trial before the Supreme Court. As a result, based on the “dearth of evidence”, acting justice Tynes found there was nothing to support the law firm’s action and that its former client’s “no case” submission had to succeed.

Detailing the background to the dispute, she recorded how Moss & Associates issued a writ against Thomas & Norma Construction (T&N Construction) on November 15, 2019, in a bid to recover unpaid legal fees allegedly owed by the latter. The outstanding bills purportedly stemmed from a Supreme Court legal action the contractor asked it to file against Yasmine Stubbs.

“By its engagement letter dated the May 6, 2011, the plaintiff (Moss & Associates) indicated that the terms under which it would act for T & N included that it would be paid for legal services at the rate of $500 per hour and $5,000 per day for court appearances; that interest on unpaid invoices would be charged at the rate of 1 percent per month; and that an initial retainer of $10,000 was required,” acting justice Tynes wrote.

“The retainer was paid by the defendant in July 2011, and several months later, in March 2012, the plaintiff accepted T & N’s further instructions in respect of a second matter involving a claim against the Grand Bahama Development Company (DevCO) for damages for breach of contract based on facts that coincided with those of the Stubbs action.

“The plaintiff undertook significant legal work on behalf of the defendant in both actions and subsequently rendered to the defendant four invoices: Two in August 2012 and two in October 2015.” Moss & Associates alleged that, after deducting for the $10,000 retainer and another $10,000 paid for the DevCO action, an outstanding bill for legal services totalling $48,342 was due from T&N Construction.

After making repeated demands for payment without success, Moss & Associates vacated or abandoned the November 23, 2015, trial date for the Stubs action and told T&N Construction it would perform no further legal work until the bill was either paid in full or a payment plan mutually agreed. The law firm alleged that the contractor’s “agent”, Brian Smith, via a December 1, 2015, admitted the debt was due but this was denied by T&N.

The contractor eventually paid Moss & Associates some $23,798, leaving an outstanding $25,544 balance that has yet to be settled. But T&N, in its defence and counter-claim, argued that it was not necessary for Moss & Associates to commence a second court action against DevCO because the dispute with it and Ms Stubbs were part of the same court action. Therefore, it was only paying legal bills associated with one court matter.

“By its counter-claim, the defendant alleges that the plaintiff either negligently or deliberately separated the disputes with Ms Stubbs and DevCO ‘so as to charge the defendant for two court actions instead of one’,” acting justice Tynes noted. 

“The defendant alleges that due to the fault of the plaintiff, the DevCO action was struck out for lack of prosecution and the defendant has had to appeal to the Court of Appeal. According to the defendant, by reason of the plaintiff’s professional negligence or deliberate action, the defendant has suffered loss and damage.” This, though, was rejected by Moss & Associates which argued that the two actions were separate, “distinct” claims.

The trial was heard on October 31-November 1, 2022. T&N’s “no case” to answer argument was based on the manner in which Mr Moss and his law firm presented their evidence. They only called one witness, Ms Russell, Moss & Associates office manager, and Mr Moss obtained the court’s permission to “mark” the 19 documents contained in her evidence bundle.

After doing this, Mr Moss said Ms Russell was being presented for cross-examination and that he had no questions to ask her. James Thompson, T&N’s attorney, objected to Ms Russell being shown her witness statement as her evidence had already been completed and she had made no reference to it at that point.

Acting justice Tynes gave Mr Moss permission to re-open his examination of Ms Russell, which saw him produce her witness statement. She confirmed her signature was on the statement, whereupon Mr Moss closed his examination again. Mr Thompson, though, argued that her witness statement should not be included in the evidence before the court as she had not verified its authenticity under oath.

Under cross-examination, Ms Russell testified that she had no direct knowledge of communications between Mr Moss and his clients, and that what she knew came solely from documents on file. After all this, Mr Thompson made a “no case” submission on N&T’s behalf on the basis that Moss & Associates had produced so little evidence that his client could not be held liable and there was nothing for it to answer.

Besides Ms Russell failing to verify her witness statement under oath, he added that Moss & Associates’ documents had also not been properly admitted into evidence by the court. Arguing that Ms Russell’s testimony was limited, and that Mr Moss or one of Moss & Associates’ attorneys should have been called to give evidence, Mr Thompson said an invoice was no proof of legal services being rendered.

Mr Moss countered that, upon its filing with the Supreme Court, a witness statement “automatically” becomes its maker’s chief evidence, while asserting that the court can treat the documents marked by Ms Russell as evidence. He added that the documents had all been proven by “secondary evidence” in accordance with the Evidence Act.

Acting justice Tynes, acknowledging that “no case” submissions are “rare” in civil matters, found that when read together the Supreme Court rules and Evidence Act require witness statements to be made under oath in actions begun via writ as in this case. Given that Ms Russell did not verify her witness statement under oath, it could not form part of the trial evidence.

As to the documents, acting justice Tynes found: “With the greatest respect to learned counsel Moss, the ‘marking’ of documents by the court does not equate to the admission of documents in evidence for the court’s consideration. Neither does the inclusion of documents described in lists of documents in a party’s trial bundles render those documents exhibits which the court can take into consideration in making its decision.

“In the present case, learned counsel Mr Moss never attempted to tender any documents into evidence and never sought the court’s direction that any of the plaintiff’s documents be exhibited as evidence. The issue never arose. As such, no documents were entered into evidence on behalf of the plaintiff.

“As it stands, I find that the only evidence properly before this court on which it can and must base its decision is the oral testimony of Ms Russell. I also find that that evidence is insufficient to satisfy the plaintiff’s evidential burden of proving its case on a balance of probabilities.”

Finding for N&T’s “no case” submission as a result, and dismissing Moss & Associates’ claim, the judge nevertheless said: “I might add, however, that as an advocate with some years’ experience at the private bar, I can empathise in principle with any attorney who has conducted extensive legal work on behalf of a client only to be rebuffed upon remittance of an invoice by a seemingly ungrateful beneficiary of that work.”