Ian Hope-Ross v Martin Dinning

• Jurisdiction: Anguilla
• Judge: Farara JA
• Judgment Date: 30 April 2021
• Judgment citation (vLex): [2021] ECSC J0430-1
• Docket Number: AXAHCVAP2020/0005 AXAHCVAP2020/0007
• Court: Court of Appeal (Anguilla)
• Date: 30 April 2021

[2021] ECSC J0430-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

The Hon. Mde. Esco Henry Justice of Appeal [Ag.]

AXAHCVAP2020/0005

AXAHCVAP2020/0006

AXAHCVAP2020/0007

Between:

Ian Hope-Ross

Appellant

and

[1] Martin Dinning

[2] Hudson Carr

[3] Shawn Williams

[4] Robert Miller

[5] Eastern Caribbean Central Bank

Respondents

Consolidated with:

Between:

[1] Christopher Liss

[2] Kathy Liss

[3] Yellow Wood Houses Ltd.

[4] Tirdeo Dharamraj

[5] Summer Breeze Ltd.

[6] Ocean Investment

[7] North Eastern Insurance Services

[8] Nivek Limited

[9] Ermanno Galli

[10] Sunil Pishu Khatnani

[Ii] Martin Oliver

[12] Ian Gurr

[13] Rendezvous Tour Company Ltd.

[14] William Dorsey

[15] Dotty Dorsey

[16] Longwall Investments N.V.

[17] DWS Group Limited

[18] Jurgen Kurt Schwirtlich

[19] Winchester Corp. Limited

[20] Dr. Ahmet Baydar

[21] Teri Baydar

[22] Kenneth R. Lang

[23] Tomaz Slivnik

[24] Monique Baussan

[25] Richard Holubowicz

[26] Little Bay Venture Capital Ltd

[27] Kevin Gavin

[28] Lena Gavin

[29] Daniel Gavin

[30] Darlene Spicer

[31] Marie Therese Robert

[32] Mary Van Den Berg

[33] Robert Horvath

[34] Danielle Horvath

[35] Roach Merle

[36] Judett Black

[37] Dr. Catherine Vuala

[38] Josette Sophia Peterson

[39] International Mortgages Ltd.

Appellants

and

[1] Martin Dinning

[2] Hudson Carr

[3] Shawn Williams

[4] Robert Miller

[5] Eastern Caribbean Central Bank

Respondents

Consolidated with:

Between:

[1] Satay Limited

[2] United Duty Free Concessionaries Ltd.

[3] Helen Bayer Constable, Patrick Constable and Walter Bayer II.

[4] Helen Bayer Constable, Teresa Bayer and Walter Bayer II

[5] Cadiz Holdings Ltd

[6] Chantal Cloutier

[7] CMS Management Ltd

[8] David Crowley

[9] D.N.A. Patents, Inc

[10] Dcipher Inc.

[11] Vodaco Limited

[12] Diamont Company N.V.

[13] Duna Holding Limited

[14] Equipment Leasing Ltd

[15] Van Veen Caribbean Holdings

[16] Jason Freeman

[17] HBM(Anguilla) Ltd

[18] Heidi Hobgood

[19] Hope-Ross and Thompson

[20] Ihatsu Fudosan Capital Limited

[21] Sean Kennelly

[22] A & A Limited

[23] Edouard Ledee

[24] Anthony Marini

[25] Mars Exploration Inc

[26] Lisa Marshall

[27] Latin Retreats

[28] Dominique Noire

[29] Frank Oliviero

[30] Colin Percy

[31] Francis Raineau

[32] Necol Limited

[33] Rhino LLC

[34] FSC Management Attorney Llc

[35] Canon Limited

[36] Sunny Days Management Corporation

[37] Synetics Capital Corp Limited

[38] Glenys Taillon

[39] TSS LLC

[40] Robert Velasquez

[41] Annette Krabbe

[42] Simon Drake

[43] John Michael Victory

[44] Lorraine Tyson

[45] Stephen Joseph Cavagnaro

[46] Gary Charkham

[47] Sunshine Properties Limited

[48] Laura F. E. Van Hoeve

[49] Vanita Mirchandani

[50] Sharron Yuan-Sam

[51] Gillian Looser

[52] Angela Tyler

[53] The Little Ship Company Ltd

[54] Jerri-Lyn Zimmerman

[55] Raymond Longbottom

[56] Manning Kong

[57] Pamela Yee Lawrence

[58] Isabelle Patry

[59] Maria Ines Almeida

[60] Marlam Ltd.

[61] Darline Destephens

[62] Holly Haven, Ltd

[63] Habib Jiha

[64] Menavia Langlais

[65] Hiroko Yoshida

Appellants

and

[1] Martin Dinning

[2] Hudson Carr

[3] Shawn Williams

[4] Robert Miller

[5] Eastern Caribbean Central Bank

Respondents

Appearances:

Mr. Ian Benjamin, SC with him, Ms. Rayana Dowden for the Appellants

Mr. Paul Dennis, QC with him, Mrs. Nadine Whyte-Laing and Ms. Navine Fleming for the Respondents

Interlocutory appeal — Case management powers under rule 26.3 of Civil Procedure Rules 2000 — Rule 26.3(1)(b) of Civil Procedure Rules 2000 — Striking out of statement of claim — Reasonable grounds for bringing the claim — Whether pleadings disclosed reasonable grounds for bringing claims — Negligence — Breach of fiduciary duty — Breach of trust — Exercise of judicial discretion — Approach of appellate court to exercise of case management discretion — Whether the master erred in law by concluding that the appellants' statements of claim disclosed no reasonable grounds for bringing the claims against the respondents for negligence, breach of fiduciary duty and breach of trust — Whether the master erred in failing to properly consider matters pleaded in the appellants' statements of claim — Amendments to statements of claim in lieu of striking out — Whether the master ought to have granted leave to appellants to amend statement of claim in lieu of exercising his discretion to strike them out

The appellants in these consolidated appeals were depositors either with the National Bank of Anguilla (Private Banking and Trust) Limited (“PBT”) or the Caribbean Commercial Investment Bank Limited (“CCIB”) (collectively referred to as “the Banks”). The Banks are companies licensed to carry on offshore banking business in Anguilla and are regulated by the Anguilla Financial Services Commission. PBT is wholly owned by the National Bank of Anguilla Limited (“NBA”) and CCIB is wholly owned by the Caribbean Commercial Bank (Anguilla) Limited (“CCB Anguilla”). In August 2013, the Eastern Caribbean Central Bank (the “ECCB”), as the monetary authority and regulator of domestic banking in Anguilla, exercised its powers under article 5B of the Eastern Caribbean Central Bank Agreement Act (“the ECCB Act”) to place NBA and CCB Anguilla under conservatorship. During the period August 2013 to April 2016, the ECCB appointed the 1 ^st to 4 ^th respondents variously as conservators over NBA and CCB Anguilla (“the Conservators”). On 22 ^nd April 2016, the assets of PBT and CCIB were transferred to a new legal entity, the National Commercial Bank of Anguilla (“NCBA”).

The appellants commenced three claims against the ECCB and against the Conservators as de facto directors of PBT and CCIB. The claims were for breach of fiduciary duty, breach of trust, and knowing assistance occasioned by the alleged conduct of the Conservators and the ECCB in relation to the monies deposited by the individual appellants with the Banks. The 1 ^st, 2 ^nd, 3 ^rd and 5 ^th respondents sought to strike out the appellants' statements of claim on the basis that the statements of claim did not disclose any reasonable ground for bringing the claims; alternatively, that the appellants had no reasonable prospect of succeeding on their claims and there was no reason why the claims should be disposed of by way of a trial. The learned master granted the strike out application and held that two contractual relationships may exist in this case: one between the Banks and the 1 ^st, 2 ^nd, 3 ^rd and 4 ^th respondents as directors and another between the Banks and the appellants as customers. The learned master found that there was no duty of care owed to the appellants by the respondents and that no fiduciary duties could be made out on the pleadings. The learned master found further that the deposit of money by the appellants gave rise solely to a debtor and creditor relationship and did not give rise to a trustee relationship capable of giving rise to a breach of trust.

Being dissatisfied with the learned master's decision, the appellants appealed. The following issues arise for this Court's determination: (i) whether the master erred in law by concluding that the appellants' statements of claim disclosed no reasonable grounds for bringing the claims against the respondents for negligence, breach of fiduciary duty and breach of trust; (ii) whether the master erred in failing to properly consider the appellants' pleaded case in their statements of claim in relation to the alleged breach of article 5B of the ECCB Act; the alleged breach of section 7 of the Constitution; and the ‘knowing assistance’ allegation at paragraph 30 of the statements of claim; and (iii) whether the learned master ought to have granted leave to the appellants to amend their statements of claim in lieu of exercising his discretion to strike them out.

Held: dismissing the appeals and ordering the appellants to pay the respondents' costs, to be assessed by a judge or master of the High Court at no more than two-thirds of the costs in the court below, if not agreed within 21 days, that:

• 1. The court, in the exercise of its case management powers under CPR 26.3(1)(b), has a discretion to strike out a statement of claim or any part thereof where it is shown that the statement of claim discloses no reasonable ground for bringing the claim. It is settled that an appellate court will not lightly interfere with the exercise of a discretionary case management power. In order to successfully challenge the exercise of the court's discretion, the appellants must therefore discharge the heavy burden of showing that the learned master was wrong in the exercise of his discretion to strike out the appellants' claims in the sense that the decision to strike out the claims was plainly wrong or falls outside the generous ambit within which reasonable disagreement is possible.

  Rules 1.2 and 26.3(1)(b) of the Civil Procedure Rules 2000 applied; Michel Dufour and others v Helenair Corporation Limited and others [2002] ECSCJ No. 243 (delivered 2 ^nd August 2002) considered Peter Toussaint et al v Martine Johnson (Representative of the Estate of Peter Michael Barnard), SLUHCVAP2018/0024 (delivered 16th September 2020, unreported) considered; America 2030 Capital Limited et al v Sunpower Business Group PTE Ltd et al [2020] ECSCJ No. 361 (delivered 26 ^th October 2020) considered.

• 2. In this case, the master's decision to strike out the claims for breach of fiduciary duty and breach of trust cannot be impeached. This is because the relationship between banker and customer does not ordinarily give rise to a fiduciary relationship or to a trustee/beneficiary relationship. The relationship between banker and customer is purely one of debtor and creditor. Accordingly, the monies deposited by a customer with a bank gives rise to a debt as between the depositor and the bank, and not a right or interest over any property held by the bank. The...