Butterfield Trust Ltd v Rutli Stiftung and Salle Modulable (Costs)

• Jurisdiction: Bermuda
• Judge: Zacca P,Evans JA,Auld JA
• Judgment Date: 20 November 2012
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2012 No 6
• Date: 20 November 2012

[2012] Bda LR 71

In The Court of Appeal for Bermuda

Zacca P; Evans JA; Auld JA

Civil Appeal 2012 No 6

Between:

Butterfield Trust Ltd

Appellant

and

Rütli stiftung and Salle Modulable

Respondent

Mr N Turner for the Appellant

Mr D Kessaram for the Respondents

Costs following discontinuance — Fresh proceedings pending

JUDGMENT of Evans JA

1. There was an exchange of letters in August/September 2007 between the Managing Director of the Butterfield Trust (Bermuda) Limited and a Swiss Bank representing an existing or proposed Swiss Charity coupled with a body called Rütli Stiftung (hereinafter ‘the Swiss parties’). In the letter written on behalf of the Butterfield Trust it was said that the Trust ‘agreed in principle’ to provide 120 million Swiss Francs of funding for an opera house to be constructed in Lucerne.

2. There was and continues to be a dispute as to whether there was a legally binding contract to that affect. It seems that some funds, maybe considerable funds, have already been advanced and that the dispute also involves trust issues, with the same object of determining whether there was any obligation to provide funds or further funds.

3. That being the nature of the underlying dispute, on the 28^th April 2011 the ‘Swiss Parties’ brought proceedings in Switzerland asserting that there was a contract or legal obligation binding on the Butterfield Trust. On the 11^th July 2011, the latter brought proceedings in Bermuda claiming a declaration that there was no contract or binding legal obligation. On the 22^nd September the Swiss parties withdrew the Swiss proceedings on the basis, which was announced on their web site, that they were prepared to have the matter litigated in Bermuda. After some correspondence between the respective lawyers, the Butterfield Trust decided to withdraw their proceedings in Bermuda, and on the 19^th October 2011 they sought leave to discontinue them. That application came before the Chief Justice on the 20^th March 2012.

4. We have been referred to the exchanges that took place between the lawyers at that time. They include an email dated the 3^rd October 2011 in which the Butterfield Trust representatives sensibly proposed that the Swiss parties should respond to the originating summons by filing affidavit evidence ‘and any counterclaim’ forthwith. The response from the lawyers representing the Swiss parties was that the issue was such as to require a full scale trial and an action commenced by...