NASSAU, BAHAMAS: Colina Insurance Limited has defeated a more than $267,000 malicious prosecution claim after the Supreme Court rejected allegations that the insurer was responsible for initiating criminal proceedings against a former insurance agent who was ultimately acquitted.
Chief ustice Ian Winder dismissed the claim brought by Edith Albury, finding that she failed to establish that Colina instituted or conducted the criminal prosecution, acted maliciously, or lacked reasonable and probable cause in connection with the case.
Albury had sought $267,250.80 in damages for malicious prosecution, along with punitive damages, legal costs and interest, stemming from criminal charges brought against her following allegations concerning insurance premium payments.
The August 17 judgment represents a significant legal victory for Colina, with the court also ordering that the insurer receive its reasonable costs, to be assessed if the parties cannot agree.
Albury, a veteran insurance agent, was charged in 2019 with stealing by reason of employment and fraudulent breach of trust. She spent eight days in custody awaiting bail and defended the criminal proceedings for several years before being acquitted of all charges following a full trial in May 2023.
Her case against Colina centred on the contention that the insurer’s complaint and supporting information effectively set the criminal law in motion against her. Albury also alleged that Colina lacked reasonable and probable cause and that malice or an improper motive could be inferred from the circumstances.
However, Justice Winder rejected those arguments after examining the chain of events involving Colina, the Insurance Commission of The Bahamas and the Royal Bahamas Police Force.
The court found that Colina conducted internal investigations after receiving complaints from several policyholders concerning premiums allegedly collected by Albury but not recorded in the company’s internal system.
Colina subsequently reported its investigative findings to the Insurance Commission in 2016. Justice Winder, however, found that the report was made pursuant to the company’s regulatory obligations and was not, in form or substance, a criminal complaint directed to police.
Instead, the court found that the Insurance Commission conducted its own assessment of the information and subsequently referred the matter to the Royal Bahamas Police Force.
“The Court is satisfied that the Commission, not Colina, initiated the referral to law enforcement,” Justice Winder found.
The court further determined that police conducted an independent investigation, obtained statements from policyholders, interviewed a Colina representative and Albury, and exercised their own discretion in deciding whether charges should be brought.
Justice Winder consequently found that Colina did not institute or conduct the prosecution against Albury.
“Its role was limited to internal investigation, regulatory reporting, and cooperation with the police investigation,” the judgment stated.
The court found that the initiation of the criminal process was undertaken by the Insurance Commission, while the decision to prosecute was independently made by the Royal Bahamas Police Force.
Justice Winder also rejected the argument that Albury’s eventual acquittal established that the proceedings had been brought without reasonable and probable cause.
The court noted that an acquittal demonstrates that the prosecution failed to prove guilt beyond a reasonable doubt, but does not retrospectively erase reasonable grounds that may have existed for an investigation or prosecution.
Justice Winder pointed to the fact that the magistrate presiding over Albury’s criminal trial rejected a no-case submission made on her behalf. The civil court found that this supported the position that the prosecution was not one undertaken without reasonable and probable cause.
Justice Winder further found that Albury failed to prove malice on Colina’s part, another essential element of a successful malicious prosecution claim.
The court ultimately dismissed the action in its entirety.
“Albury’s claim for malicious prosecution is hereby dismissed,” the judgment stated
Colina was awarded its reasonable legal costs, which will be assessed if they are not agreed between the parties.
