Ian Hope-Ross v Martin Dinning

CourtCourt of Appeal (Anguilla)
JudgeFarara JA [AG.]
Judgment Date30 April 2021
Neutral CitationAI 2021 CA 1
Docket NumberAXAHCVAP2020/0005 AXAHCVAP2020/0007



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.]




Ian Hope-Ross
[1] Martin Dinning
[2] Hudson Carr
[3] Shawn Williams
[4] Robert Miller
[5] Eastern Caribbean Central Bank
[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
[11] 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.
[1] Martin Dinning
[2] Hudson Carr
[3] Shawn Williams
[4] Robert Miller
[5] Eastern Caribbean Central Bank
[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
[1] Martin Dinning
[2] Hudson Carr
[3] Shawn Williams
[4] Robert Miller
[5] Eastern Caribbean Central Bank

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

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 deposit gives rise to a chose in action, namely the right of the depositor, on request, to payment by the bank of the whole or any part of the aggregate amount of principal and interest which has been credited or ought to be credited to the depositor's account at the bank.

Foley v Hill and Others (1848) 2 HLC 28 applied; Hirschhorn v Evans (Barclays Bank Ltd garnishees) [1938] 2 KB 801 considered; Space Investments Ltd v Canadian Imperial Bank of Commerce and others [1986] 1 WLR 1072 applied.

3. In this case, the master's finding that the appellants had no reasonable grounds in law for bringing their claims against the respondents cannot be impugned. This is so because a party seeking to establish that a fiduciary relationship or a trustee/beneficiary relationship (and therefore questions of breach of fiduciary duties, or a breach of trust) can arise in the context of a bank/customer relationship, must specifically plead and prove that such a relationship and duty exists. The facts relied on in the appellants' pleaded cases must be sufficient to establish a viable claim for breach of fiduciary duty and breach of trust, outside the mere existence of the banker/customer relationship. In the present case, however, the pleadings do not go further than relying on the usual parameters of the bank/customer relationship in seeking to establish that a fiduciary relationship or a trustee/beneficiary relationship existed. Accordingly, the learned master did not err in the exercise of his discretion in striking out the appellants' claims.

National Commercial Bank (Jamaica) Ltd v Hew and others [2003] UKPC 5 considered; Fahad Al Tamimi v Mohamad Khodari [2009] EWCA Civ 1109 considered; Bartlett v Barclays Bank Trust Co Ltd [1980] 1 All ER 139 considered; Tiger v Barclays Bank Ltd [1952] 1 All ER 85 considered; Bristol and West Building Society v Mothew [1997] 2 WLR 436 applied; Williams v Central Bank of Nigeria [2014] AC 1189 applied.

4. In the present case, the appellants' claim is one against the Banks for recovery of the debts owed to them (the chose in action) in the sum of their deposits plus any interest due to them in accordance with the terms of their banking contracts. Therefore, while it is arguable on certain pleaded facts that a parent company may owe a common law duty of care to individuals who suffer harm as a result of their subsidiary's dangerous activities, the appellants' pleaded case on the issue of negligence, fails on the basis that the appellants' monies, once deposited with the Banks, were no longer the property of the appellants. Accordingly, the master rightly found that the appellants are not permitted to claim against the Conservators as de facto or de jure directors for their deposits with the Banks.

Williams v Natural Life Health Foods Ltd [1998] WLR 830 considered; White v Jones [1995] 2 AC 205 considered; Lungowe v Vedanta Resources [2019] UKSC 20 considered; Okpabi and others v Royal Dutch Shell Plc and another 2021] UKSC 3 considered.

5. It is not open to the appellants to transform their claim for breach of fiduciary duties, breach of trust and negligence, into a claim for deprivation of property under the Constitution or into a challenge to the nature and exercise by the ECCB of powers under the ECCB Act, where it is clear that the claims were not instituted for that purpose or on that basis. The appellants' claims clearly sought to establish the respondents' liability for negligence, breach of fiduciary duty and breach of trust. The appellants' claims were neither in form nor substance claims for deprivation of property under the Constitution nor did they seek relief under the Constitution or pursuant to CPR Part 56. Moreover, the claim at paragraphs 27 and 29 respectively of the appellants' statements of claim asserts a breach of section 7 of the Constitution as a consequence of the transfer of the deposits made by the appellants in PBT and CCIB to NCBA, with respect to which deposits the appellants have no legal or proprietary interest. Further, by logical extension, there could be no viable claim against the respondents, as pleaded, for knowingly assisting the Government of Anguilla with depriving the appellants of their monies, even if such a cause of action exists in law or in equity. Accordingly, the learned master's decision to treat with the matter as a claim engaging the causes of action set out in the claim forms, was correct and cannot be a basis upon which this Court may interfere with the said decision.

The Attorney General of Anguilla et al v Bernice Lake et al Anguilla Civil Appeal No. 4 of 2004 (delivered 4th April 2005, unreported) distinguished; Gulf Insurance Ltd v The Central...

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