Robinson v Bank of Bermuda Ltd 1998 Civil Jur. No. 295

• Jurisdiction: Bermuda
• Judgment Date: 14 August 2001
• Docket Number: Civil Jurisdiction 1998 No. 295
• Date: 14 August 2001
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction 1998 No. 295

BETWEEN

Dilton M. Robinson

Plaintiff

and

The Bank of Bermuda Limited

Defendant

Ms. C. Hatcher for the Plaintiff

Ms. K. Bell for the Defendant

Sterman v EW & JW Moore Ltd (a firm)UNK [1970] 1 All ER 581

Paragon Finance v DB Thakerar & CoUNK [1999] 1 All ER 400

Clarapede v Commercial Union Association (1993) 32 WR 262

Ketteman v Hansell Properties LtdELR [1987] AC 189

Beoco Ltd v Alfa Laval Co. Ltd.UNK [1994] 4 All ER 464

Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg [2000] TLR 18 July

Bentley v Black (1893) 9 TLR 580

Riding v HawkinsELR (1889) 14 PD 56

Limitation Act 1984, s. 4

Rules of the Supreme Court 1985, O. 20, R. 5

Breach of fiduciary duty of bank — Breach of confidentiality — Limitation — Amendment of pleadings — Application for leave to amend — Fraud

JUDGMENT

PRELIMINARY

The Plaintiff, Dilton Robinson, by Summons dated 28 April 2000 applied for leave to amend the Statement of Claim. By Order dated 6 June 2000 the Plaintiff was granted leave to amend the Summons dated 28 April 2000 seeking leave to amend the Plaintiff's Statement of Claim.

FACTUAL BACKGROUND

The original Statement of Claim was filed by Telemaque and Associates on behalf of the Plaintiff on 18 December 1998. The claim is against the Defendant, the Bank of Bermuda Limited, and the Plaintiff's claim is that the Defendant breached its fiduciary duty owed by the Defendant to a client, the Plaintiff, as well as breached a duty of confidentiality to the Plaintiff.

The Plaintiff's Statement of Claim averred that the Defendant provided in breach of ‘their fiduciary duty and duty of confidentiality to the Plaintiff, financial information’ to the Plaintiff's employer. In consequence the Plaintiff was dismissed by his employer's principal who was a director of the Defendant and the Plaintiff was unable to service his borrowings. The Plaintiff's Statement of Claim also averred that the Defendant by ‘its servants …… withheld information from the Plaintiff in breach of its fiduciary duty to the Plaintiff and proceeded contrary to the Plaintiff's best interests to actively encourage the completion of the offer to Finance to the Plaintiff's ultimate detriment where by the Plaintiff has suffered loss and damage’ and ‘had the Plaintiff and his wife been aware of the same the Plaintiff and his wife would not have so encumbered themselves to the Defendant …..’.

The Plaintiff pleaded that the breach of fiduciary duty was based on electronic mails in May 1992 which mails he became aware of ‘in or about late 1996 early 1997’.

On 7 March 1999 the Defendant filed a Defence denying the Plaintiff's claim and inter alia pleaded a defence that the ‘Plaintiff's cause of action did not accrue within six years before the commencement of this action and the Defendant will rely on Section 4 of the Limitation Act 1984’.

On 27 April 2000 after the Plaintiff changed his attorney the Plaintiff filed a summons seeking leave to amend his Statement of Claim.

On 2 June 2000 the Plaintiff provided an Amended Statement of Claim in which the Plaintiff made allegations of fraud against the Defendant.

On 6 June 2000 the Court granted the Plaintiff leave to amend his Summons dated 28 April 2000 and awarded costs to the Defendant

RELEVANT PRINCIPLES AND LIMITATION ACT 1984

The relevant portions of Order 20 Rule 5 of the Rules of the Supreme Court 1985 (‘the R.S.C.’) provide:

‘5. (1) Subject to Order 15, rules 6, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in the paragraph if it thinks it is just to do so.

……………………………………………………………

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.’

I think that this rule confers upon the Court a wide and general power to allow amendments to be made.

As to the full effect to the wide words of Order 20 Rule 5(1) of the R.S.C. it is apposite to refer to the statement of Lord Denning M.R. in Sterman v EW & JW Moore Ltd (a firm)UNK[1970] 1 ALL ER 581 at 585, [1970] 1 QB 596 at 604:

“I think we should give full effect to the wide words of RSC Ord 20, r 5(1). We should not cut them down by reference to r 5(2), (3) and (4). I adhere to the view I expressed in Chatsworth Investments Ltd v Cussins (Contractors) LtdUNK[1969] 1 All ER 143 at 145, [1969] 1 WLR 1 at 5: ‘Since the new rule, I think we should discard the strict rule of practice in Weldon v NealELR(1887) 19 QBD 394. The courts should give Ord. 20, r.5(l) its full width. They should allow an amendment whenever it is just so to do, even though it may deprive the defendant of a defence under the Statute of Limitations.’ I withdraw not one whit of those words: and I think we should apply them here. Here was a plaintiff who issued his writ and served it on the defendants well within the period of limitation. They knew perfectly well that the plaintiff was claiming damages for his fall from the trestle because it was their fault. Yet they seek to bar him on the most technical consideration—just because he omitted the words ‘for negligence and breach of statutory duty’. I do not think we should allow this technical objection to prevail. We should apply the wise words of Holroyd Pearce LJ in Pontin v WoodUNK[1962] 1 All ER 294 at 297, [1962] 1 QB 594 at 609 when he said that the court would give its aid—‘to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects’. Applying those words, we should allow the plaintiff to amend the writ so as to state in terms that his claim is for damages ‘for negligence and breach of statutory duty’. I see no harm in adding the further claim for damages for ‘breach of agreement’.”

However, Pill LJ. in Paragon Finance v DB Thakerar & Co.UNK[1999] 1 ALL ER 400 at 420 d said thus:

‘Where it is sought to add allegations of wrongdoing which is intentional, the position is in my judgment different. The change cannot be categorised as a technicality I accept the submission made on behalf of the plaintiffs that the critical question is the extent to which the facts on which the new cause of action is based depart from those already pleaded (and not the seriousness of the new allegation). However, to allege that an injury is caused intentionally is to add a new allegation of fact which gives the allegations of fact as a whole a substantially different character. In Letang v CooperUNK[1964] 2 All ER 929, [1965] 1 QB 232, this court recognised the division in actions for personal injuries “according as the defendant did the injury intentionally or unintentionally” (Lord Denning MR with whom Danckwerts LJ agreed) [1964] 2 All ER 929 at 932, [1965] 1 QB 232 at 239). Moreover as Bowen LJ stated in Edgington v FitzmauriceELR(1885) 29 Ch D 459 at 483, [1881-5] All ER Rep 856 at 861, “the state of a man's mind is as much a fact as the state of his digestion …….. it is as much a fact as anything else”. The addition of allegations of intentional wrongdoing take these cases beyond the power conferred by s 35(4) because the claims do not arise “out of the same facts or substantially the same facts”.’.

I must also mention that in the Paragon case Millett L. J. said at 406 c:

‘In my judgment, it is incontrovertible that an amendment to make a new allegation of intentional wrongdoing by pleading fraud, conspiracy to defraud, fraudulent breach of trust or intentional breach of fiduciary duty where previously no intentional wrongdoing has been alleged constitutes the introduction of a new cause of action.’

However negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs. Clarapede v Commercial Union Association(1883) 32 WR 262 at 263 per Brett MR.

No matter how late the amendment the Court is likely to allow an amendment which seeks merely to clarify the issues in dispute and does not cause prejudice to the other side.

On the other hand, it should be remembered that there is a clear difference between allowing amendments to clarify the issues in dispute and those that provide a distinct defence or claim to be raised for...