Robinson v Bank of Bermuda Ltd

JurisdictionBermuda
Judgment Date11 July 2007
Date11 July 2007
Docket NumberCivil Jurisdiction 2002 No. 241
CourtSupreme Court (Bermuda)

In The Supreme Court of Bermuda

Simmons, J

Civil Jurisdiction 2002 No. 241

BETWEEN:
Dilton Martin Robinson
Plaintiff
and
The Bank of Bermuda Ltd
Defendant

Mr T Cottle for the Plaintiff

Mr A Martin for the Defendant

The following cases were referred to in the judgment:

White v Conyers Dill & PearmanBDLR [1993] Bda LR 49

Tai Hing Cotton Mills Ltd v Liu Hung BankELR [1985] 1 AC 80

Bird v Bank of NT Butterfield & SonBDLR [2005] Bda LR 55

Tournier v National Provincial and Union Bank of EnglandELR [1924] 1 KB 416

Bristol and West Building Society v MowtherUNK [1996] 4 All ER 698

Limitation Act 1984, s. 33

Application for strike-out — Time limitation — Banker and customer relationship — Fiduciary duty

RULING of Simmons, J

1. This is an application brought by the Defendant from a consent order for directions dated the 15th January 2007. Said order provided for the trial of two preliminary issues raised by paragraph 34 of the Defendant's defence.

The Preliminary Issues

2. The issues being, with respect to paragraphs 4 and 7 of the statement of claim, whether the Plaintiff's claim is time barred; and whether the Plaintiff's claim should be struck out on the grounds that it discloses no reasonable cause of action and/or is frivolous or vexatious, and/or is an abuse of process; or whether it ought to be struck out under the inherent jurisdiction of the court.

The History

3. The history of this action is well rehearsed in the judgments of this court that have previously been rendered.

The Facts

4. The facts are not in dispute, and in so far as they are, never the less, the facts borne out in the Plaintiffs pleaded case are taken to be indisputable for the purposes of the application.

5. The Plaintiff, at the relevant time was employed as an assistant manager in a mortgage company. He had valuable property and other assets but found himself in a cash crisis and sought the assistance of the Defendant in an effort to refinance various debts.

6. In the course of his dealings with the Defendant the Plaintiff entered into discussions with a servant of the bank, one John Fargey who after obtaining the Plaintiff's financial details advised the Plaintiff to include his wife in the refinancing; thereafter the Defendant caused to be drawn up a letter containing an offer to finance.

7. It is the Plaintiff's case that the Defendant's servant Mr Fargey gave advice and obtained the confidence and trust of the Plaintiff so as to create in the Plaintiff a belief that the Defendant was acting in the Plaintiff's interest, and that this gave rise to a fiduciary duty between the Plaintiff and the Defendant.

8. It is the Plaintiff's case that based on the financial advice it was necessary for the Plaintiff to realise certain assets; he would otherwise be able to service the newly created mortgage and loan by income from his employment and rental income gleaned from some of his real properties.

9. The Plaintiff and his wife at first did not accept the offer made in the letter, and in effect the offer lapsed by its terms by effluxion of time. Unbeknown to the Plaintiff or his wife, Mr Fargey through the medium of email, aware that the Plaintiff might be involved in an investigation, sought the advice of a Senior Vice President of the Defendant, Mr Henry Smith, as to whether the offer of finance should in the circumstances be pursued.

10. Mr Smith by return email confirmed that he was aware of the investigation, advised that the refinancing ought to go ahead stating as his reason that it would ensure that the Defendant would have a more secure position before they passed information on to the police that could land the Plaintiff in trouble.

11. Unaware of this development, when actively approached by Mr. Fargey to take up the offer, on the advice of Mr Smith, the Plaintiff and his wife accepted the offer of finance and entered into a mortgage and loan arrangement with the Defendant and one of its subsidiaries securing to the Defendant the majority of the Plaintiff's assets as provided by the letter of offer.

12. In his pleaded case the Plaintiff asserts that several days later he was summarily dismissed from his employment as a result of the Defendant...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT