Samuel Andrew Banks v Simon Storey Deirdre Storey

• Jurisdiction: Bermuda
• Judge: Mussenden J
• Judgment Date: 28 July 2024
• Neutral Citation: [2024] SC Bda 12 Civ
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION

Between:

Samuel Andrew Banks

Plaintiff

and

Simon Storey Deirdre Storey

Defendants

[2024] SC (Bda) 12 Civ.

CIVIL JURISDICTION

2021: No. 246

In The Supreme Court of Bermuda

Appearances:

Jeffrey Elkinson, Britt Smith, Conyers Dill & Pearman, for Plaintiff

Keith Robinson, Oliver MacKay, Carey Olsen Bermuda Limited, for Defendants

RULING

RULING of Mussenden J

Introduction

1 This matter appears before me on two Summonses as follows:

• a. The Plaintiffs Summons dated 25 May 2023 pursuant to Order 24 Rule 3 and/or Rule 7 and/or Rule 16 of the Rules of the Supreme Court seeking orders for specific discovery of trust documents (“ Trust Documents”) from the Defendants (“ Specific Discovery Application”), namely:

  • i. All deeds and documents relating to the Vita Bella Trust (the “ Trust”) including the Trust Deed; and

  • ii. All documents touching on or setting out the relationship between the Defendants and the current Trustee and the predecessor trustee of the Trust regarding the ownership, lease and use of the property at 13 Inglewood Lane, Paget, Bermuda (“ 13 Inglewood” or the “ Property”);

  • iii. All correspondence and documents relating to any permission sought by and/or given to the Defendants from the current Trustee and the predecessor trustee of the Trust in relation to 13 Inglewood and its use; and

  • iv. All correspondence and documents relating to any governmental notices given by the Defendants to the current Trustee and the predecessor trustee of the Trust in relation to 13 Inglewood.

• b. The Specific Discovery Application is supported by the Seventh Affidavit of the Plaintiff (“ Banks 7”). The application is opposed by the Defendants and is supported by the Fourth Affidavit of Oliver Jake MacKay of Carey Olsen (“ MacKay 4”).

• c. The Plaintiff's Summons dated 28 June 2023 pursuant to Order 15, rule 6 and Order 20 rule 5 for Omnium Trust Company Limited and Clarien Trust Limited 1 as trustees of the Trust be joined as Second Defendants to these proceedings (“ Joinder Application”) and that the Specially Endorsed Writ of Summons and Statement of Claim dated 23 August 2021 be amended in the form of the attached draft.

• d. The Joinder Application is supported by Banks 7 and the Eighth Affidavit of the Plaintiff (“ Banks 8”). The application is opposed by the Defendants and is supported by the MacKay 4.

General Background

2 The parties are neighbours. The Plaintiff is the owner, since 2001, of 17 Inglewood Lane (“ 17 Inglewood”) in Paget Parish and the Defendants are the owners, since 2012, of the neighbouring property 13 Inglewood. Disputes have arisen between them in respect of trespass and nuisance. A Specially Endorsed Writ of Summons was issued 23 August 2021 (the “ Writ”). The Statement of Claim (the “ SOC”) set out that there are boundary issues of trespass, nuisance, and conversion and seeks various orders including injunctions and damages.

3 A Defence and Counterclaim has been filed and a Reply and Amended Defence to the Counterclaim has been filed.

4 On 18 March 2022 the parties provided discovery by mutual exchange of lists of documents and subsequently exchanged copies of the documents referenced therein. There have been further applications, Orders and additional discovery and production on the part of both parties.

5 I have set out the detail background in previous Rulings in this matter.

Joinder Application

The Limitation Act

6 Section 33(1) and (2) of the Limitation Act 1984 state as follows:

“Fraud; concealment; mistake

(1) Subject to subsection (3), where in the case of any action for which a period of limitation is prescribed by this Act, either—

• (a) the action is based upon the fraud of the defendant; or

• (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

• “(c) the action is for relief from the consequences of a mistake,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

Reference in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent. (2) For the purposes of subsection (1), deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”

Rules of the Supreme Court 1985 (“RSC”) governing Joinder and Amendment

7 RSC Order 15 rule 6 states as follows:

“15/6 Misjoinder and non-joinder of parties

• (1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

• (2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application—

  • (a) …

  • (b) order any of the following persons to be added as a party, namely—

    • (i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

    • (ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter;

  but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.”

8 RSC Order 20 rule 5 states as follows:

“20/5 Amendment of writ or pleading with leave

• (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 that paragraph if it thinks it just to do so.

• (3) An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

• (4) …

• (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.”

The Plaintiff's Submissions

9 Mr. Elkinson submitted that the Plaintiff seeks to join a party who is the owner of 13 Inglewood as a defendant to the proceedings. This is a result of the Defendants informing the Plaintiff that that the second purchaser and owner of 13 Inglewood is Clarien Trust Limited (“ Clarien” or the “ Trustee”), merged with Omnium Trust Company Limited, described as trustee of the Trust. Mr. Storey is settlor of that Trust.

10 Banks 8 set out that the Defendants only recently disclosed that they are beneficiaries of the Trust and that 13 Inglewood was purchased jointly with the Trust and is controlled by the Trust. It asserted that counsel for the Storeys have put forward that the Storeys are the “real owners' by virtue of having a life interest in 13 Inglewood.

11 Mr. Elkinson submitted that an important indicia of “real ownership” is missing. A real owner can hold and produce the Deed Pack for the property when legally required, in this case, as ordered by the Court, so that documents which this Court has held are relevant to the action would be disclosed by the Storeys. However, the Court was informed that the Storeys do not have them, that they are held by someone called a trustee and the Court has heard how not only could the Storeys not produce them but that the Storeys needed to give permission to divulge who the trustee is. Further, that they need the Trustee's permission to have the Deed Pack — which the Defendants had refused for the best part of a year to disclose, with three had fought applications made by the Plaintiff to obtain documents which should have been disclosed in March 2022 but were not — to be told that the Trustee will only allow limited access to view limited documents in the Deed Pack. The resultant position was that 16 months since mutual discovery, the Plaintiff still has not seen a complete copy of the Deed Pack contrary to the Court Order that the Defendants produce it.

12 Mr. Elkinson submitted that the Defendants are described by their attorneys as beneficiaries, thus it is clear that the Defendants hold a beneficial interest in the property and that they have a life interest. In respect of the same, the law in Bermuda was clear as regards the rights and interest of life tenants which differs to English law which did not apply. A conveyance, dated 17 December 2012, conveyed 13 Inglewood from various...