Hinds v Conyers Dill & Pearman (A Firm)
| Jurisdiction | Cayman Islands |
| Judge | (Mangatal, J.) |
| Judgment Date | 14 August 2019 |
| Court | Grand Court (Cayman Islands) |
| Date | 14 August 2019 |
(Mangatal, J.)
Civil Procedure — summons — striking out — claim against former attorneys for alleged negligent advice as to limitation period for original claim struck out as abuse of process as impermissible collateral attack against earlier Grand Court judgment in which original claim found to be time barred and also barred by acquiescence and laches
Held, striking out the claim:
The present claim amounted to an attack on the findings of the Grand Court judge, findings of mixed fact and law in relation to laches and acquiescence. To demonstrate his case that, had the defendant correctly advised him to take action to prevent his claim becoming time-barred he would have been entitled to recover the transferred parcel of land, the plaintiff would need issues as to his knowledge and conduct, in respect of which the judge had made detailed findings, to be re-run. If the case were allowed to proceed it could result in another judge of concurrent jurisdiction making potentially inconsistent findings and forming an inconsistent view as to credibility. This case was an impermissible collateral attack on the Grand Court judgment. The fact that the plaintiff did appeal, and tried to have the issues of laches and acquiescence dealt with on appeal, did not make it any less abusive for the present proceedings to be brought against the defendant. If the defendant were not entitled to rely on the findings of the judge in support of the issues of laches and acquiescence, it would have to approach the witnesses and attempt to adduce the same evidence again. That would be manifestly unfair to the defendant and to the witnesses, who were the defendants in the underlying proceedings and who had already given evidence and had the matters resolved. It would bring the administration of justice into disrepute. Looking at the case broadly on the merits, taking into account all the private and public interests involved, the proceedings were clearly an abuse of the process of the court. The writ of summons and the statement of claim should be struck out on the grounds that the claim was an abuse of process and/or frivolous and vexatious (paras. 82–94).
(1)Arnage Holdings Ltd. v. Walkers (a firm), 2019 (2) CILR 382, referred to.
(2)Arthur J.S. Hall & Co. v. Simons, [2002] 1 A.C. 615; [2000] 3 W.L.R. 543; [2000] 3 All E.R. 673, considered.
(3)Fisher v. Brooker, [2009] UKHL 41; [2009] 1 W.L.R. 1764; [2009] 4 All E.R. 789; [2009] Bus. L.R. 1334; [2010] E.M.L.R. 2, referred to.
(4)Hollington v. F. Hewthorn & Co. Ltd., [1943] K.B. 587; [1943] 2 All E.R. 35, considered.
(5)Hunter v. Chief Const. (West Midlands), [1982] A.C. 529; [1981] 3 W.L.R. 906; [1981] 3 All E.R. 727, considered.
(6)Johnson v. Gore Wood & Co., [2002] 2 A.C. 1; [2001] 2 W.L.R. 72; [2001] 1 All E.R. 481; [2001] C.P.L.R. 49; [2001] BCC 820; [2001] 1 BCLC 313; [2001] P.N.L.R. 18, distinguished.
(7)Laing v. Taylor Walton (a firm), [2007] EWHC 196 (QB), followed.
(8)Lake v. Lake, [1955] P. 336; [1955] 2 All E.R. 538, referred to.
(9)Perry v. Raleys Solicitors, [2019] UKSC 5; [2019] 2 W.L.R. 636; [2019] 2 All E.R. 937, considered.
(10)Ridgewood Properties Group Ltd. v. Valero Energy Ltd., [2013] EWHC 98 (Ch); [2013] 1 Ch. 525; [2013] 3 W.L.R. 327, referred to.
(11)Trade & Indus. Secy. v. Bairstow, [2003] EWCA Civ 321; [2004] Ch. 1; [2003] 3 W.L.R. 841; [2004] 4 All E.R. 325; [2003] BCC 682; [2003] 1 BCLC 696, followed.
The defendant sought the striking out of the plaintiff’s writ and statement of claim.
The plaintiff’s father had died intestate in 1978. The plaintiff’s mother thereafter held certain parcels of land for the benefit of the heirs, namely herself and the plaintiff. The plaintiff’s mother had three other children from a previous marriage. During her lifetime she transferred one of the parcels of land to her other three children and sold another parcel transferring proceeds to one of the other children. The Grand Court and the Court of Appeal held that the transfers were in breach of trust.
After his mother’s death, the plaintiff instructed the defendant firm in 2010 to advise about the parcels of land. The defendant issued a summons on the plaintiff’s behalf in June 2011 claiming recovery of certain parcels of land and the recovery of the proceeds of sale. The defendant advised the plaintiff that it did not consider his entitlements under his father’s estate to have lapsed due to passage of time by virtue of the Limitation Law. In 2012, the retainer was terminated by the defendant due to slow payment of fees and a breakdown in relations. The plaintiff instructed another law firm and the defendant had no further involvement in the action. In 2014, the Grand Court (Foster, J.) held that the plaintiff’s claimsto the transferred parcel of land and the proceeds of the sold property were time barred and, in any event, barred by acquiescence and laches. On appeal, the Court of Appeal also held that the claim to the transferred property was time-barred (having so held the court dismissed the appeal on that ground alone). The court overturned the judge’s finding that the claim in respect of the proceeds of the sold parcel was time-barred but nevertheless dismissed the appeal because the plaintiff had acquiesced in his mother spending the sale proceeds.
The plaintiff threatened to bring a claim against the defendant. It was alleged that, among other things, the court judgments showed that the defendant’s advice was incorrect in respect of the transferred parcel of land. He alleged that the defendant negligently failed properly to advise him in respect of the limitation period. In May 2018, the plaintiff brought a summons seeking the determination of preliminary issues of law, asking the court to say what, on a true construction, the Court of Appeal judgment (in November 2015) meant in relation to certain issues. After one day of submissions, the plaintiff’s attorneys sought to amend the 2018 summons very substantially. The plaintiff’s summons and draft amended summons were adjourned pending determination of the defendant’s summons to strike out the plaintiff’s writ and statement of claim.
The defendant denied that it had been negligent and sought the striking out of the plaintiff’s claim under GCR O.18, r.19 and/or the inherent jurisdiction of the court on the grounds that it was frivolous and vexatious and/or an abuse of process, the plaintiff’s claims in the present proceedings representing an impermissible attack on the original findings, judgment and order of the Grand Court.
The defendant submitted inter alia that (a) the modern approach was to judge the issue of whether the proceedings were an abuse broadly on the merits, taking account of all the public and private interests involved and the facts of the case; (b) it was not necessary to identify an additional element such as a collateral attack on an earlier decision, but where such an element was present the court would be all the more ready to strike out; (c) proceedings would be an abuse of process of the court if they sought to re-litigate an issue which had in substance already been determined in other proceedings; (d) the plaintiff’s claims were obviously unsustainable, and thus frivolous or vexatious, inter alia because the claim in respect of the transferred parcel of land would fail for want of causation; and (e) it was plain that the present proceedings were an abuse of process of the court.
The plaintiff submitted inter alia that (a) the defendant’s strike-out application should be dismissed; (b) in respect of the Grand Court decision, if, as the judge found, the plaintiff’s claims were misconceived because he had no standing to bring them, then neither limitation nor laches and acquiescence arose for decision, and if the claims were (as the judge found) barred by a statutory limitation period, questions of laches and acquiescence did not arise for decision; (c) only decisions that were necessary to the decision and fundamental created an issue estoppel;(d) the judge’s conclusions on standing and limitation, which were logically prior to issues of laches and acquiescence, meant that his conclusions on laches and acquiescence were not determinative and, therefore, there was no issue estoppel; (e) in respect of the Court of Appeal decision, the court did not consider the part of the plaintiff’s appeal relating to laches and acquiescence but, if it had done so, it was overwhelmingly likely that it would have allowed the appeal; (f) there was no general rule that re-litigation of points decided against a party in previous proceedings was treated as an abuse of process; it would only be so if it would be manifestly unfair to a party to the later proceeding or would bring the administration of justice into disrepute, which was not so in the present case; and (g) in general, professional negligence proceedings against a legal adviser would not be regarded as bringing the administration of justice into disrepute on the ground that they involved a collateral attack on a decision in earlier proceedings.
R. Ham, Q.C. and S. Dobbyn for the plaintiff;
G. Chapman, Q.C., P. Smith and E. Bodden for the defendant.
1 MANGATAL, J.:
Introduction
On January 30th and 31st, 2019, two summonses came before me for hearing. The first was that of the plaintiff, Phillip Bradley Hinds (“Mr. Hinds”). This summons dated May 2nd, 2018 (“the May 2018 summons”) sought the determination of preliminary issues of law pursuant to the Grand Court Rules 1995 (Revised Edition) (“the GCR”), O.14A. The first paragraph of the May 2018 summons originally asked this court to say what, on a true construction, a Cayman Islands Court of Appeal (“CICA”) judgment dated November 20th, 2015 (reported as In re Hinds, 2015 (2) CILR 222) meant in relation to certain issues. The second was the defendant, Conyers Dill & Pearman (a firm)’s (“Conyers”)...
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