Barbara Gayle, Staff Reporter
DALTON YAP, former general manager of technology and operations at the Jamaica Citizens Bank (now Union-Bank), who was fired from the bank in October 1993, has won his appeal against a Supreme Court order that he should pay US$106,226 (J$4.5 million) for breach of contract and negligence.
Mr. Yap was fired after the bank lost substantial sums in relation to its international credit card system.
Attorney Christopher Dunkley of the law firm Wright, Dunkley and Company said on Thursday that Mr. Yap will be pursuing legal action against the bank. He also pointed out that Mr. Yap's assets were frozen for four years as a result of a Mareva injunction granted to the bank.
The Court of Appeal referred to the excellent evaluations which the bank's managing directors had given about Mr. Yap. The court held that with such an excellent reputation it was highly improbable that Mr. Yap would have committed the bank to taking on the international credit card system "knowing as the judge found," of the likelihood of loss to the bank.
The bank took Mr. Yap to court and Justice Panton heard the action and ruled in favour of the bank in September 1997. The judge had ordered that Mr. Yap should pay US$106,226.04 with interest at a rate of 12 per cent per annum from June 30, 1994 to the date of the judgment. The sum awarded represented the extent of the loss sustained by the bank in respect of the operation of a telemarketing account in the name of Worldwide Marketing Limited (the WWM account). Mr. Yap had opened the account in his capacity as general manager.
Mr. Yap appealed and the Court of Appeal comprising Ian Forte, president of the Court of Appeal, Justice Donald Bingham and Justice Clarence Walker heard the appeal from November to December last year and handed down the unanimous decision on Thursday.
Justice Walker who wrote the judgment said it was clear that the WWM account was opened shortly after the meeting of July 19, 1993 with the tacit, if not expressed, approval of the bank's marketing department. The court referred to a letter written by A. George Lumsden, assistant general manager of retail banking to Mr. Yap, pointing out that, "the proposal put forward by Worldwide Marketing appears to be an attractive source of new business and one which could utilise the capabilities of our credit card technology."
Memorandum
Hilary Phillips, Q.C. who also represented Mr. Yap argued on appeal that the judge did not give due effect to the meeting of July 19, 1993 which authorised the opening of the WWM account or due regard to Mr. Lumsden's memorandum of July 21, 1993 to Yap.
The court in agreeing with Miss Phillips's submissions said, "if the WWM account had been profitable the respondent would have been the real beneficiary of such profits and the appellant would have been hailed an instant hero." The court said, as it turned out, it resulted in losses to the bank. The losses were unfortunate for the bank but on the evidence it was not misfortune which could fairly be attributed to conduct amounting to a breach of Yap's contract of employment. "Hardly is there a business venture that does not involve an element of risk. Every businessman knows that," the court said.
In referring to the excellent evaluations which the bank had given Mr. Yap prior to July 1993, the court said that, "with such an excellent reputation it was highly improbable that the appellant would have committed the bank to taking on the WWM account knowing, as the judge found, of the likelihood of loss to the bank. The court found that from a letter addressed to Visa's Vice-president, Joseph Dawson, Mr. Yap had in mind an intention to comply with Visa's regulations.
Attorneys Michael Hylton, Q.C. and Hilary Reid, represented the bank.
