Pedro v Pedro; HSBC Bank Bermuda Ltd v Pedro
| Jurisdiction | Bermuda |
| Judgment Date | 23 August 2019 |
| Docket Number | Civil Jurisdiction 2017 No 264 |
| Date | 23 August 2019 |
| Court | Supreme Court (Bermuda) |
[2019] Bda LR 66
In The Supreme Court of Bermuda
Civil Jurisdiction 2017 No 264
Civil Jurisdiction 2018 No 156
Plaintiff in person
Mrs A Cassidy for the 1st Defendant
Mr J Hindess for HSBC Bank Bermuda Limited
No appearance by the 2nd Plaintiff
The following cases were referred to in the judgment:
Lines Overseas Management Ltd v LOM Securities [2006] Bda LR 5
Scrymgeour v Hollis and Johnson [2006] Bda LR 80
Scrymgeour v Hollis and Johnson [2007] Bda LR 46
Santander v Fletcher [2018] EWHC 2778
First National Bank v Achampong [2003] EWCA Civ 487
Edwards v Lloyds TSB [2004] EWHC 1745
Fehily v Atkinson [2016] EWHC 3069
Re Beaney, deceased [1978] 1 WLR 770
Gorjat v Gorjat [2010] EWHC 1537
Breach of trust — Payment of rent — Damages — Plaintiff unrepresented and appearing by videoconference — Joinder by bank — Mortgage — Bank practice — Fraud — Undue influence — Legal capacity — Validity of declaration of trust — Admissibility of secretly recorded telephone conversations
JUDGMENT of Attride-Stirling AJ
1. Wanda Pedro and her sister Jennifer Pedro issued proceedings against their sister Rosemarie Pedro on 18 July 2017 (“the First Action”). That claim included various allegations and claims for breach of trust, payment of rent and damages.
2. They were originally represented by Apex Law Group Ltd but ceased to be represented by that firm. Wanda (and going forward, for the sake of brevity only and meaning no disrespect, I will refer to the three sisters by their first names), claimed that she applied for but was refused legal aid. This case would have been much assisted if the Plaintiffs had had the benefit of counsel.
3. Rosemarie filed a Defence (which is undated) through Cox Hallett Wilkinson Ltd. That firm was replaced by Kairos. It is noted that it became apparent that partners from CHW would be witnesses at the trial.
4. Almost a year later on 16 May 2018, HSBC issued proceedings against Rosemarie Pedro and the Estate of Quinton Horace Dowling Jr (“the Second Action”). The late Mr Dowling was husband of Mrs Mary Dowling, the mother of Wanda, Jennifer and Rosemarie and thus their step-father.
5. There was no evidence before the Court of an Executor of a Will or of an order appointing an Administrator of the Estate of Mr Dowling. Nor was there evidence of the Estate having been served with the court proceedings or of a court order appointing a representative of the Estate. As such the Estate did not participate in the proceedings.
6. At some point there was a falling out between the Plaintiffs Wanda and Jennifer. Jennifer was removed as a Plaintiff and then re-added. Subsequently, Wanda applied for Jennifer to be removed again as a plaintiff on the grounds, principally that Wanda was doing all the work and Jennifer was delaying progress. Jennifer objected to being removed as a plaintiff although she indicated that due to serious health problems (but provided the court with no medical evidence of this), she likely would not be able to play a large role. She did prepare and file a witness statement but did not attend at the trial to be cross-examined, and so no weight was attached to her statement (absent any strong grounds to permit this and absent any argument by the Plaintiffs to allow this).
7. Wanda says that at an earlier stage in the First Action, Mr Justice Hellman made an order permitting her to appear in court by video conferencing. None of the parties to the litigation contested this. All her appearances in relation to the conduct of the litigation as a personal litigant were done this way using telephone or Skype video conferencing. Whilst a review of the file does not show a written order by Hellman J, on 12 July 8018 Mrs Justice Subair Williams made an order which included provision for Wanda to attend the trial and to give evidence via skype.
8. It should be said at the outset that this was a wholly unsatisfactory way to conduct a trial. Having the examination and cross-examination of witness conducted by an unrepresented litigant in person, who was appearing by video conferencing, raised many problems with the trial, in particular it made it difficult to control the Plaintiff whose conduct is commented on further below.
9. Counsel in the case requested a two day hearing for the trial of the action, which was set down for April 8 – 9. At the conclusion of that period the trial was part-heard and the parties requested a further day and the trial continued on 10 April. At the conclusion of this period the matter was adjourned till May 14 – 15. At the conclusion of this period a further day was needed and matter continued on 16 May. In the end this two-day trial was heard over a six-day period.
10. There was an application to join the two proceedings formally. The chronology for this was as follows:
11. HSBC had been following Wanda's proceedings and actually attended and sat in on one of the earlier hearings in chambers. At the time Wanda objected to them being present but the Court permitted this.
12. On 31 May 2018, Hellman J ordered that the Defendant Rosemarie, who was represented, formally set the First Action down for trial, for a two day trial, within 14 days. So it was anticipated that the First Action would have been concluded a year ago.
13. On 6 September 2018, the Chief Justice ordered that Wanda had leave to file a further affidavit and exhibit certain further documents. She was also given leave to put into evidence the covert recording made of a conversation with David Cooper, providing that she called him as a witness. He ordered that that matter be set down for a two-day trial.
14. HSBC (having commenced their action on 16 May 2018) filed a summons in their action dated 22 October 2018, seeking to add Wanda and Jennifer as defendants to the HSBC proceedings (“the Joinder Summons”). I heard this application on 22 November 2018. Jennifer appeared in person, Wanda appeared via a telephone call.
15. Wanda objected to being joined as a defendant to the HSBC proceedings. She said that she wanted to join HSBC as a defendant to her proceedings, but at a hearing before the Chief Justice, he encouraged her to not do so, and to deal with one case at a time. So she declined to join HSBC at that time. She made clear that it was always her intention to sue HSBC.
16. Mr Hindess made the point that the matters were intertwined. The facts were all the same. Either Wanda and Jennifer were added to his case, or HSBC was added as a defendant to theirs. The parties indicated that they would agree to a consolidation of the proceedings and that HSBC would formally apply to do this.
17. HSBC filed a summons in their proceedings dated 31 January 2019, seeking an order that the two matters be consolidated (“the Consolidation Summons”) and that the HSBC matter be heard first.
18. I agreed, with the consent of all parties to order that the two actions be heard together, on the basis that the underlying facts were effectively the same or similar and the fact that the parties consented to this course of action, but I declined to order that the Second Action be heard first.
19. HSBC agreed that Wanda should serve a statement of claim against them to which they would file a defence. In doing so, HSBC effectively agreed to be a Defendant in the First Action, on condition that the two matters be heard together.
20. Because Wanda was concerned that HSBC's joinder or consolidation would delay her trial, HSBC agreed to voluntarily provide early discovery, in advance of her Statement of Claim against them. They felt that they had heard Wanda and seen numerous emails from her setting out already what her claim against HSBC was and understood the nature of the discovery obligations which flowed from such claims.
21. Due to the fact that the Plaintiffs were unrepresented, counsel for the two defendants in the spirit of being helpful, agreed to various variations to normal practice. The Defendants agreed to undertake the burden of preparing the trial bundles. Further, counsel for HSBC agreed not only to give early discovery to Wanda but, to accept a letter from her as taking the place of her statement of claim against HSBC to which HSBC would serve a Defence, so the matter could proceed swiftly.
22. Eventually the trial proceeded on the basis of Wanda's Amended Statement of Claim (undated) against Rosemarie and against HSBC.
23. HSBC filed a Defence dated 19 February 2019 to that statement of claim. HSBC made no counter-claim against Wanda and Jennifer. The consolidated matters were set down for trial.
24. There are multiple references in correspondence on the record, disclosing the contents of without prejudice communications. The Plaintiff (Wanda) did not have legal counsel and may not have been aware initially that all parties are forbidden from ever communicating the contents of without prejudice (“WoP”) communications to the court, save but in limited circumstances which do not exist in the present case. Wanda did make some submissions to the effect that special circumstances arose to permit the use of WoP correspondence, but I am satisfied that they do not.
25. At the commencement of the trial, I indicated that subject to any further submissions the parties wish to make on the point at this time, I intended to order that all references to WoP communications be stricken and that the WoP written communications not form part of the court record. To the extent that I have seen this, I would not take this material into account in any decision I come to. There being no objection to this course I proceeded accordingly.
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