Kingate Global Fund Ltd v Kingate Management Ltd and Others

JurisdictionBermuda
CourtSupreme Court (Bermuda)
Judgment Date11 January 2016
Date11 January 2016
Docket NumberCommercial Jurisdiction 2010 No 454

[2016] Bda LR 4

In The Supreme Court of Bermuda

Commercial Jurisdiction 2010 No 454

Between:
Kingate Global Fund Limited (in liquidation)
Kingate Euro Fund Limited (in liquidation)
Plaintiffs
and
Kingate Management Limited
Fim Limited
Fim Advisers LLP
First Peninsula Trustees Limited (as trustee of the ashby trust)
Port Of Hercules Trustees Limited (as trustee of the el prela trust)
Ashby Holding Services Limited
El Prela Group Holding Services Limited
Mr Carlo Grosso
Mr Federico Ceretti
Ashby Investment Services Limited
El Prela Trading Investments Limited
Alpine Trustees Limited
Defendants

Mr A Potts for the Plaintiffs

Mr T Lowe QC, Ms SJ Hurrion and Ms L Zuill for the 2nd, 3rd, 8th and 9th Defendants

The other Defendants were not present or represented

The following cases were referred to in the judgment:

Williams & Humbert v W&H Trade Marks (Jersey) LtdELR [1986] 1 AC 368

Morris v Bank of America TrustUNK [2001] 1 BCLC 771

Mentor Insurance Ltd v Ocean Drilling & Exploration CoBDLR [1991] Bda LR 60

Peters v Menzies [2009] EWHC 3709

Frogmore Estates v Berger The Times, 1 Nov 1989

Broadsino Finance Co Ltd v Brilliance China Automotive Holdings LtdBDLR [2005] Bda LR 12

Wenlock v MoloneyWLR [1965] 1 WLR 1238

Altimo Kyrgyz Mobil Tel LtdWLR [2012] 1 WLR 1804

Strike out application — Serious and prolonged argument — Soundness of pleadings — Decisive — When inappropriate

RULING of Hellman J
Introduction

1. By a summons dated 13th August 2015 (‘the Plaintiffs' Summons’) the Plaintiffs seek an order that the applications contained within paragraphs 1, 2 and 3 of what is now the Re-Amended Summons of the Second, Third, Eighth and Ninth Defendants (‘the FIM Defendants’) dated 11th September 2015 (‘the Re-Amended Summons’) be not entertained and/or summarily dismissed, in accordance with the power of the Court exercised in Williams & Humbert v W&H Trade Marks (Jersey) LtdELR[1986] 1 AC 368(‘Williams & Humbert’) and/or the Court's inherent jurisdiction and/or Order 18, rule 19 and Order 1A, rules 1 and 4, of the Rules of the Supreme Court 1985 (‘RSC’).

2. Alternatively, the Plaintiffs seek an order that the Re-Amended Summons be stayed generally, pending the final determination of the preliminary issues which are the subject of an appeal to the Court of Appeal from a judgment of this Court dated 25th September 2015 (‘the Judgment on the Preliminary Issues’).

3. In the further alternative, the Plaintiffs seek directions for the service of evidence with respect to the hearing of the Re-Amended Summons.

4. By the Re-Amended Summons the FIM Defendants seek orders pursuant to RSC Order 18, rule 19 or under the inherent jurisdiction of the Court that:

  • i. The fault-based claims and allegations made by the Plaintiffs against the Eighth and Ninth Defendants, Mr Grosso and Mr Ceretti, in paragraphs 126 to 132 of the Re-Re-Re-Amended Statement of Claim be struck out on the basis that they disclose no reasonable cause of action and/or are an abuse of process.

  • ii. The claims and allegations based on retention of legal title or the proprietary claims made by the Plaintiffs against each Defendant in paragraphs 97–103 of the Re-Re-Re-Amended Statement of Claim be struck out on the basis that they disclose no reasonable cause of action.

  • iii. The claims and allegations based on indirect unjust enrichment made by the Plaintiffs against each of the Fourth to Twelfth Defendants in paragraphs 78 to 96 of the Re-Re-Re-Amended Statement of Claim be struck out on the basis that they disclose no reasonable cause of action.

5. The background to the action is set out in the Judgment on the Preliminary Issues. I need not repeat it.

Williams & Humbert

6. Williams & Humbert is the leading authority on when the Court should refuse to permit a strike out application pursuant to RSC Order 18, rule 9 to proceed.

7. Lord Templeman reviewed the relevant case law from which at 435 H — 436 A he extracted the following principle:

‘… if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself.’

8. Lord Templeman held at 436 C — D that although in the case before the House that test was not satisfied, there were special circumstances which had justified the judge at first instance in entertaining the strike out application:

‘If the appellants' pleadings and particulars had not been struck out, the appellants would have proceeded to demand discovery before trial and to lead evidence at the trial, harassing to the plaintiffs and embarrassing to the court and designed to support the allegations and insinuations of oppression and bad faith on the part of the Spanish authorities which appear in the amended defences and particulars. These allegations are irrelevant to the trade marks action and the banks' action and are inadmissible as a matter of law...

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5 cases
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    • Bermuda
    • Supreme Court (Bermuda)
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    ...Equity Partners were quoted with approval by Hellman J in Kingate Global Fund Limited (In Liquidation) v Kingate Management Limited [2016] Bda LR 4. Hellman J also quoted the above passages from the judgment of Stuart-Smith in Broadsino with approval and made the following additional point:......
  • St John's Trust Company (PVT) Ltd v Watlington and Ors
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    • 26 March 2020
    ...and Ors v Credit Suisse Life (Bermuda) Ltd [2018] Bda LR 87 Kingate Global Fund Ltd (in liquidation) v Kingate Management Ltd [2016] Bda LR 4 Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 Airways Ltd v Bowen [1985] BCLC 355 Salomon v Salomon [1897] AC 22 Re Duomatic [1969] 2 Ch 3......
  • Bidzina Ivanishvili v Credit Suisse Life (Bermuda) Ltd
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    • 13 September 2018
    ...& Humbert v W&H Trade Marks (Jersey) Ltd [1986] 1 AC 368 Kingate Global Fund Ltd (in liquidation) v Kingate Management Ltd & ors [2016] Bda LR 4 Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 Freeman v Ansbacher Trustees (Jersey) Ltd [2009] JRC 003 Gorham v British Telecommunicati......
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    • Supreme Court (Bermuda)
    • 28 July 2021
    ...Broadsino Finance Co Ltd v Brilliance China Automotive Holdings Ltd [2005] Bda LR 12 Kingate Global Fund Ltd v Kingate Management Ltd [2016] Bda LR 4 E (a minor) v Dorset CC [1994] 4 All ER 640 Parker Tweedale v Dunbar Bank plc (No 1) [1991] Ch 12 Michael v Miller [2004] EWCA Civ 282 Applic......
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