Douglas et Al v Barclays Bank Plc and National Commercial Bank Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Simmons, J
• Judgment Date: 21 June 2013
• Court: Supreme Court (Jamaica)
• Docket Number: HCV 6726 of 2009
• Date: 21 June 2013

Supreme Court

Simmons, J.

HCV 6726 of 2009

Douglas et al

and

Barclays Bank Plc and National Commercial Bank Jamaica Limited

Appearances:

Mr. Wentworth Charles and Mr. Floyd Green instructed by Wentworth Charles & Company for the claimants

Mr. John Vassell, Q.C. and Miss Julian Mais-Cox instructed by DunnCox for the first defendant

Mrs. Sandra Minott-Phillips, Q.C. and Mrs. Alexis Robinson instructed by Myers, Fletcher & Gordon for the second defendant

Civil practice and procedure - Application to strike out claim — Whether breach of trust — Whether action statute barred and thus frivolous, vexatious and an abuse of process — Whether any allegation of fraud, retention of trust property or conversion — No fraud pleaded — No retention of trust property or conversion found — Claim statute barred — Statement of case struck out.

Simmons, J

1 In this matter, the defendants have each filed an application to strike out the claimants’ statement of case.

2 The grounds on which the first defendant relies are:–

• i) that no reasonable cause of action is alleged or disclosed against it;

• ii) the claim against the first defendant is frivolous, vexatious and/or an abuse of the process of the court;

• iii) the action is statute barred in that the actions complained of occurred between October 1969 and August 1985 and all trust business in Jamaica of Barclays Bank D.C.O were transferred and vested in Barclays Bank Jamaica Limited which changed its name to National Commercial Bank Jamaica Limited in 1975;

• iv) that the claimants have acquiesced in any alleged breach.

3 The second defendant's grounds are that:–

• i) The action is statute barred;

• ii) The accounts between the claimants and the second defendant have already been stated and settled by payment and a discharge obtained from the claimants;

• iii) The claimants by their execution of the Discharges have acquiesced in any alleged breach and;

• iv) The claim is an abuse of the process of the court.

4 The claimants are the children of Ivan George Leopold Douglas, deceased and are beneficiaries in his estate. The deceased by way of a will dated the 29 ^th April, 1969 created a trust in their favour and Barclays Bank D.C.O was appointed as trustees. The responsibility for the administration of the trust was subsequently transferred to the first and second defendants.

5 The deceased's widow was given a life interest in a dwelling house which after her death is to be administered in accordance with the trust that was created in favour of the claimants.

6 A grant of Probate was made in Mr. Douglas’ estate on the 1 ^st day of December 1969 to Barclays Bank D.C.O. In 1971 Barclays Bank D.C.O. changed its name to Barclays Bank International. On the 2nd January 1975 by virtue of The Banking (Barclays Bank of Jamaica Limited) (Vesting of Assets) Order, 1974 (the Vesting Order) all of the trust business of Barclays Bank International was transferred to Barclays Bank of Jamaica Limited. The trust business referred to in that Order is “all trust business of the transferor bank in a fiduciary capacity, whether as executors, administrators and trustees, or otherwise in Jamaica.”

7 On the 12 ^th August 1977 Barclays Bank of Jamaica Limited changed its name to National Commercial Bank Jamaica Limited.

8 Written Discharges and acknowledgement were signed by the claimants on the 5 ^th February 1987, the 26 ^th January 1987 and the 19 ^th November, 1986 respectively in respect to their interest in the trust fund.

9 In December 2009 the claimants filed an action seeking an account of trust property, a declaration that the trustees were negligent and damages. That claim was amended in January 2012 to reflect the correct name of the first defendant.

10 The first defendant in its defence raised the issue that the action for breach of trust is statute barred by virtue of the Limitations of Actions Act 1881 and the Trustee Act 1897. It has also pleaded that the claims for negligence and an account are statute barred by virtue of the Limitations of Actions Act 1623.

11 In addition to the above it has pleaded the defences of accord and satisfaction, release, account already stated and settled by payment and laches and/or acquiescence. The first defendant has also denied that the second defendant is its servant and/or agent.

12 The second defendant in its defence pleaded the same defences that were raised by the first defendant. No Reply has been filed by the claimants.

First defendant's submissions

13 Mr. Vassell, Q.C. submitted that the action against the first defendant ought to be struck on the basis that it is frivolous, vexatious and an abuse of the process of the court as it is statute barred. He stated that this provided the defendant with a complete defence. Counsel referred to paragraphs 7.01 and 7.02 of Sime, A Practical Approach to Civil Procedure, 14 ^th edition which states:–

“Expiry of a limitation period provides a defendant with a complete defence to a claim. Lord Griffiths in Donovan v Gwentoys [1990] 1 WLR 472said, ‘the primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is a claim with which he never expected to have to deal’. If a claim is brought a long time after the events in question, the likelihood is that evidence which may have been available earlier may have been lost, and the memories of witnesses who may still be available will inevitably have faded or become confused. Further, it is contrary to general policy to keep people perpetually at risk.

Limitation is a procedural defence. It will not be taken by the court of its own motion, but must be specifically set out in the defence…Time-barred cases rarely go to trial. If the claimant is unwilling to discontinue the claim, it is usually possible for the defendant to apply successfully for the claim to be struck out …as an abuse of the court's process.”

14 Reference was also made to the case of Ronex Properties Ltd. v. John Laing Construction Ltd. And others [1983] Q.B. 398 at 408 in which Stephenson L.J. stated that where the expiry of the limitation period has been raised as a defence, whilst the defendant may not be able to say that the claimant has no cause of action, the claim may be struck out on the basis that it is an abuse of the process of the court.

15 Mr. Vassell, Q.C. stated that the effect of the Vesting Order is that as of the 2nd January 1975 the first defendant ceased to have and authority in respect of the deceased's estate as either executor or trustee. In this regard he referred to paragraph g of exhibit “JD1” which is the Agreement between Barclays Bank International Limited (BBI) and Barclays Bank of Jamaica Limited (BBJ). That paragraph stipulates that upon completion BBI was required to hand over “…all books, records, data and security and other documents and information…” relating to its business and in its possession to BBJ.

16 In these circumstances, it was submitted that if causes of action existed against the first defendant in relation to its trusteeship, they would at their latest arise upon the taking effect of the order on the 1 ^st January 1975. An exception to this would be where the claimant was under a disability or if there was a concealed fraud. He also made the point that the deceased's youngest child would have attained the age of majority in 1978.

17 Counsel also stated that this action which was filed in 2009 was concerned with alleged acts or omissions which would have occurred before the 1 ^st January 1975 and that any action relating to these matters would therefore be statute barred. Mr. Vassell, Q.C. stated that there are two scenarios in which this may not be the case. Firstly, if it were the law that no period of limitation exists or is applicable to the causes of action pleaded. Secondly if any of the equitable defences or exceptions to the entitlement to rely on the limitation period could be resorted to.

18 Learned Queen's Counsel further submitted that the causes of action advanced against the first defendant are negligence and breach of fiduciary duty for which there is a prescribed limitation period. He indicated that a trustee is permitted by virtue of section 46 of the Trustee Act to rely on the Limitation of Actions Act except where there is an allegation of fraud or that the trustee has converted the trust property to his own use. He stated that there has been no such allegation in the pleadings. Mr. Vassell, Q.C. also submitted that an allegation of dishonesty does not amount to a claim for fraud and there must be sufficient information in the pleadings to ground such a claim. He also stated that a claim for fraud could not be introduced by affidavit evidence where it is not pleaded in the statement of case. It was also submitted that an assertion of dishonesty does not amount to a claim for fraud.

19 Reference was made to paragraphs 21 and 25–27 of the Amended Particulars of Claim and it was submitted that the allegations contained in these paragraphs support a claim for negligent breach of trust and not fraud.

20 Learned Queen's Counsel referred to the case of Paragon Finance plc v. D B Thakerar & Co. (a firm) [1999] 1 All E.R. 400 and para 1141, Halsbury's Laws, 5 ^th edition Volume 68 in support of his submissions.

21 It was also submitted that once the first defendant raises the defence of limitation this places the onus on the claimant to prove that the action was filed in time. Reference was made to the case of London Congregational Union Inc. v. Harris & Harris (a firm) [1988] 1 All ER 15 in support of this submission.

22 He also made the point that time began to run from the date when the causes of action accrued. It was submitted that the relevant date would be that of the alleged negligence, breach of trust or failure to account. However, in the case of infant...