By KHRISNA RUSSELL
Tribune Chief Reporter
krussell@tribunemedia.net
FORMER Attorney General Carl Bethel, QC, is representing a US couple in the Bahamian courts in a $30m lawsuit against Sandals Resorts.
In 2020, John Pascarella and Ashley Reid Pascarella’s case against the resort was thrown out by a US court on the basis that it lacked “personal jurisdiction” over Sandals Resorts international parent.
The duo, received widespread TV and print coverage in both the US and UK media when in 2019 legal action was taken claiming that Mrs Pascarella was sexually assaulted by Moral Adderley, the butler assigned to them during their stay at Sandals Royal Bahamian.
“Ashley and Jeffrey Pascarella claim that Ashley was assaulted by an employee of Sandals Royal Bahamian Spa Resort & Offshore Island on the night before their destination wedding at that resort’s property,” District judge Analisa Torres, sitting in the southern New York federal court said in summarising their action back in 2020.
“They bring claims against Sandals Royal Bahamian, its parent company, Sandals Resort International, and the tour company that helped book their wedding, Travel Impressions, for negligence, loss of consortium on behalf of Jeffrey, and breach of contract.”
Delving deeper into the allegations, the verdict recalled: “In April 2016, plaintiffs planned a destination wedding at the resort property operated by Sandals Royal Bahamian in The Bahamas. Sandals Royal Bahamian is a subsidiary of Sandals Resorts International, which ‘sets policy for, directs and maintains throughout all its affiliate resorts – brand compliance and uniformity of accommodations, services, food, beverage, housekeeping, water sports, and all other environments, decor, and activities’.
“The wedding was booked through Travel Impressions. On the basis of the deal negotiated with Travel Impressions, the plaintiffs invited some 70 guests to their destination wedding at Sandals Royal Bahamian’s property. During plaintiffs’ stay at Sandals Royal Bahamian’s property, they were assigned a butler, who was an employee of Sandals Royal Bahamian.
“After a cocktail party held on the night before plaintiffs’ wedding, that employee ‘entered the bedroom of’ Ms Pascarella, and ‘undertook surreptitiously to molest, fondle, grope and take sexual liberties of’ her. She screamed for help, and resort security apprehended the butler. He was later charged with indecent assault in a Bahamian court.”
The butler, Moral Adderley, has vigorously denied that such an attack occurred even though he pleaded guilty to indecent assault in a Magistrate’s Court. He said he changed his initial ‘not guilty’ plea in an effort to escape serving prison time and thus missing his father’s funeral.
Tribune Business previously reported how the all-inclusive resort chain’s legal advisers had urged that the case be dismissed on the basis that the couple had signed a document agreeing that all legal disputes be resolved in The Bahamas.
This stipulated that “all claims” against Sandals “shall be governed solely by the laws of the Bahamas as the exclusive choice of law, and further that the courts of the Bahamas shall be the exclusive venue/forum for any proceedings, claims or litigation whatsoever.”
With the case being thrown out in the US, the couple was left to face paying security for costs to the second defendants.
A written ruling lists the Pascarella’s as the plaintiffs.
West Bay Management Ltd (Sandals Royal Bahamian Spa and Resort Offshore Island), Sandals Resort International Ltd and Moral Adderley are named as the defendants.
Mr Bethel is listed as appearing for the plaintiffs, while Chizelle Cargill, with Tonesa Munnings, represented the defendants.
On March 18, 2021 acting Justice Tara Cooper-Burnside granted an order for costs to the second defendants against the US couple who are not residents of The Bahamas.
The terms of this order included that the Pascarellas had 28 days to give security for the first defendants costs in the sum of $15,000. This was to be paid either to the court or a joint bank account held in the names of both counsel for the plaintiffs and counsel for the first defendant.
Additionally all further proceedings in this action as against the first defendant were to be stayed until security was paid.
The ruling furthered: “The court of its own motion grants leave to the plaintiffs to amend their statement of claim filed on December 9, 2021.
“The plaintiffs amended statement of claim filed March 16, 2021 shall stand as their amended statement of claim.”
The Pascarellas were also to pay the first defendant the cost of any amended defence filed by the first defendant such as costs to be taxed if not agreed. The couple were also to pay the first defendants the cost of and occasioned by the application for security for costs such as costs to be taxed if not agreed.
However, they did not comply with the order and by summons ruled on September 1, 2021 Sandals applied for an order that unless the couple paid within seven days of the date of the order granting this application, security for the first defendants cost and pursuant to the order made on March 18, 2021 the action commenced by the plaintiff against the first defendant shall be dismissed with costs to the first defendant. This was supported by an affidavit of Ms Munnings filed on the same date.
This summons was heard on November 29, 2021 simultaneously with a summons filed on May 3, 2021 by Keod Smith for leave to withdraw as counsel for the Pascarellas.
Mr Smith was given leave to withdraw as counsel for the plaintiffs and the court made an order that if the couple did not on or before December 18, 2022 give security in the sum of $15,000 for the first defendants costs in this action by lodgement into court of the said sum.
Additionally, until such lodgement was made and notice given to the first defendant all proceedings in the action against the first defendant shall remain stayed.
Also, in default of the making such lodgements within the ordered timeframe the plaintiffs’ action against the first defendant shall be struck out without further order, with costs to be paid by the plaintiffs to the first defendant, such costs to be taxed if not agreed.
“The plaintiffs failed to comply with this order and sought by summons files on December 21, 2021 to obtain an extension of time to comply with the court’s order made on November 29, 2021. The first defendant objected,” the written ruling read.
“In the plaintiff’s supporting affidavit there were exhibits of the names of attorneys and confirmation that a wire transfer for the security for costs in the sum of $15,000 has been received by Halsbury Chambers.”
Justice Cooper-Burnside said she accepted the event of the plaintiff and found that their delay in complying with the order granted them additional time to comply with the order for security costs “was neither intentional nor contumelious”.
She added that while she did find some sympathy with the plaintiffs’ plight in retaining local counsel, “I am mindful that the power to extend time ‘when there has been non-compliance with a peremptory order of the court must be used with caution and usually on stringent conditions’.”
“I must consider the prejudice and hardship of the second defendant and in particular the expense to which it has been subjected as a result of the plaintiffs non-compliance with these court orders,” Justice Cooper-Burnside went on to note in her ruling.
The ruling also drew attention to West Bay Management already having three orders for costs in its favour.
They included: the first costs order which was made with respect to the security for costs application. West Bay Management filed and served its bill of costs claiming costs in the sum of $22,310.50; a second cost order was made with respect to the plaints’ application to amend their statement of claim costs in the sum of $2,850; and the third costs order was made with respect to the application for the unless order. West Bay Management filed and served its bill of costs claiming costs in the sum of $10,428.
While the total costs of these three applications is 35,588.50 the court said it was mindful that this figure represented untaxed costs that would be reduced by at least one third on taxation.
“Though and in any event, it is pellucid that the existing sum for security for costs will be insufficient given the existing cost orders against the plaintiff and further and more importantly, that this action is in its infancy stage and more interlocutory applications may become necessary.”
As a result, the justice granted leave to extend the time for the payment of the security for costs in the sum of $15,000 by the close of business on May 6, 2022; additional security for costs in the sum of $15,000 to be paid by no later than May 23, 2022; costs to the second defendant of this application fixed at $3,500 to be paid no later than May 23, 2022.
