Daniel v Exxon Services (Bermuda) Ltd

• Jurisdiction: Bermuda
• Judgment Date: 31 August 2011
• Date: 31 August 2011
• Docket Number: Civil Jurisdiction 2011 No. 179
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2011 No. 179

BETWEEN:

Keithly Daniel

Plaintiff

and

Exxon Services (Bermuda) Ltd

Respondents

Mr G Harvey-McKean for the Plaintiff

Mr A Collieson for the Defendant

The following cases were referred to in the judgment:

R v Derby Magistrates' Court, ex parte BELR [1996] AC 487

Thyssen Bornemisza v Thyssen BoremiszaBDLR [1998] Bda LR 11

Fubler v Attorney General and Commissioner of PoliceBDLR [1994] Bda LR 64

Abstract:

Disclosure - Termination of employment - Legal professional privilege

RULING of Kawaley, J

Introductory

1. The Plaintiff applied by Summons dated July 22, 2011 for Specific Discovery of certain documents. At a directions hearing on August 4, 2011, the Plaintiff was ordered to serve a Revised Schedule to his Summons and the Defendant was ordered to file an Amended List of Documents and any evidence in opposition by August 18, 2011. The application was adjourned to August 25, 2011 for effective hearing.

2. On the date of the hearing of the Plaintiff's Specific Discovery Summons, it emerged that the only outstanding controversy was whether or not certain documents requested were protected by privilege. The relevant requests related to two pleas made in the Defence. These pleas were made in response to the Plaintiff's claim that the benefits he received upon termination of his employment were, inter alia: (a) in breach of his lawful entitlement under the Employment Act 2000 to a redundancy payment, in that the latter statutory entitlement was deducted from his pension benefit; and (b) in breach of the Plaintiff's contractual rights, in that the 1.5% multiplier used for computing his lump sum retirement benefit was never contractually agreed.

The relevant pleas in the Defence

3. In paragraph 11 of the Defence, the Defendant recites clause VIII of the Pension Plan as follows:

"Lump Sum Settlement. You may also elect a lump-sum settlement of your annuity if you retire with annuitant status. Instead of a monthly annuity, you receive a one-time payment equal to the actuarially computed present value of the Norma Annuity and any temporary annuity (National Insurance offset) to which you may be entitled. In computing the amount of the lump sum the company uses mortality rates and an interest rate set from time to time by the Trustees."

4. In paragraph 16 of the Defence, the Defendant recites clause 16 of the Pension Plan as follows:

"Integration of Legally or Contractually Required Payments. The Company has the right to reduce any benefits paid to the beneficiaries of this Plan from any benefits, compensation, severance payments or any other payments that the Company will be obliged to pay to the beneficiaries at the termination of their employment with the Company due to legislation or...