East Bank Consultants v Ferigo

• Jurisdiction: Bermuda
• Judgment Date: 31 October 2016
• Date: 31 October 2016
• Docket Number: Civil Jurisdiction 2015 No 377
• Court: Supreme Court (Bermuda)

[2016] Bda LR 100

In The Supreme Court of Bermuda

Civil Jurisdiction 2015 No 377

Between:

East Bank Consultants

Plaintiff

and

Livio Ferigo

Defendant

Mr L Peniston in person

Mr S White for the Defendant

The following cases were referred to in the judgment:

Katzenstein Adler Industries (1975) Limited v Borchard Lines Ltd (The ‘Joanna Borchard’) [1988] 2 Lloyd's LR 274

WF Harrison & Co Ltd v BurkeWLR [1956] 1 WLR 419

Strike-out application — Capacity to sue — Legal personality — Validity of assignment agreement — Notice to debtor requirement

EX TEMPORE JUDGMENT of Kawaley CJ

Introductory

1. The Defendant in this case applies by Summons dated the 20^th November 2015 to Strike-Out the Plaintiff's claim:

‘in its entirety pursuant to Order 18, rule 19 of the Rules of the Supreme Court 1985 and or under the inherent jurisdiction of the Court on the following grounds:

1. the claim against the Defendant discloses no reasonable cause of action; further or in the alternative

2. the claim against the Defendant is scandalous frivolous and or vexatious; further or in the alternative

3. the claim against the Defendant is an abuse of the process of the Court’.

2. The case in support of strike-out had a number of strings to its bow. The first complaint was that the Plaintive lacked the legal personality to sue. The second broad complaint was that the assignment (a Deed of Assignment between M & M Construction Ltd. and East Bank Consultants dated 5^th January 2015-‘the Assignment’) was a nullity.

Lack of legal personality/capacity to sue

3. The legal personality ground was straightforward in that it is accepted by the Defendant that the original Plaintiff East Bank Consultant is an unincorporated association which lacks the legal capacity to sue.

4. The Defendant sought to meet this objection following a directions hearing and filed, without obtaining formal leave of the Court, a purported Amended Specially Endorsed Writ of Summons substituting James A L Peniston trading as East Bank Consultants for the original Plaintiff.

5. Mr White invited the Court to decline to grant leave to amend at this stage but, having regard to the fact that the Plaintiff clearly attempted to cure this defect, I would not be minded to grant this application on the lack of capacity to sue ground alone. It is true, for the reasons argued by Mr. White and set out in the Defendant's skeleton argument, that the Plaintiff would have to meet the...