Iorgulescu v Swiss Bank & Trust Corporation Ltd

• Jurisdiction: Cayman Islands
• Judge: (Schofield, J.)
• Judgment Date: 03 October 1990
• Court: Grand Court (Cayman Islands)
• Date: 03 October 1990

Grand Court

(Schofield, J.)

IORGULESCU

and

SWISS BANK AND TRUST CORPORATION LIMITED

P. Lamontagne, Q.C. and R. Nelson for the plaintiff;

R.D. Alberga, Q.C. and A. Foster for the defendant.

Cases cited:

(1) Hipgrave v. CaseELR(1885), 28 Ch. D. 356; 54 L.J. Ch. 399, considered.

(2) Ingersoll-Rand v. Banco Portugues do Atlantico, 1988–89 CILR 189.

(3) Ketteman v. Hansel Properties Ltd., [1987] A.C. 189; [1988] 1 All E.R. 38, dicta of Lord Griffiths applied.

Civil Procedure-pleading-amendment-amendment of statement of claim normally to be granted if reasons for amending outweigh inconveniences, e.g. early application raising substantial new issues against defendant business corporation able to cope with inconveniences

The plaintiff brought proceedings against the defendant alleging breach of fiduciary duty or breach of trust.

The plaintiff alleged that the defendant, her investment adviser, negligently caused her to suffer financial loss. The statement of claim was first filed in 1984 and before the beginning of the trial in 1990 was amended twice. In the first amendment the plaintiff averred that the defendant had improperly charged her certain commissions. In its amended defence, the defendant admitted receiving a return commission on the purchase of certain units but claimed that this was in keeping with the usual practice, in support of which claim it supplied all relevant particulars. Subsequently, the plaintiff obtained leave to make a further amendment but it was not until the first day of the trial that a third amendment was sought to include, inter alia, a new cause of action based on the allegation that the commission the defendant had admitted receiving had been a secret commission.

The defendant opposed the application and submitted that leave to amend should not be granted because (a) a limitation period applied to the issues raised, or alternatively; (b) an amendment at this stage would unduly prejudice its case as the events upon which the new claim was based had taken place 13 years earlier and witnesses had died or would

be unable to remember the events clearly; (c) the extra costs and expenses were not justified especially since, if the action were decided in the defendant”s favour, it would be unable to recover its full costs; and (d) in any case the court should not readily allow an amendment, the necessity for which was abundantly apparent several months before and not asked for at that time.

Held, granting leave to amend:

In general the court would grant leave to amend a statement of claim if after weighing in the balance the reasons for the application against the inconveniences the amendment might cause, it appeared just to do so. In this case, although counsel had been aware of all the relevant facts since 1986 and it was only due to his negligence that the issues he now sought to raise had not been properly raised before, the amendment was sought before the trial began, albeit on the first day, and it appeared to raise substantial issues for determination. There would be some inconvenience caused to the defendant in allowing a new cause of action to be raised at that stage but some of the inconvenience, e.g. the fact that the events took place a long time previously and witnesses were either unavailable or unable to recall them accurately, was shared by the plaintiff. This was quite different from allowing an amendment at the end of a trial in order to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence. It was true that as a result of allowing the amendment the defendant would incur extra expense which, even if it were granted costs of the suit it would not recover fully but, on the other hand, the defendant was a business corporation and did not have to bear the strains and anxieties of a personal litigant. The court would therefore allow the amendment without considering whether the new cause of action was in fact statute barred, as this was a matter substantially to be pleaded by the defence before the trial court (page 166, lines 26–41; page 168, line 41 – page 169, line 25; page 170, lines 3–7).

SCHOFIELD, J.: Valentina Iorgulescu, the plaintiff, seeks
leave, through her counsel, to amend her statement of claim in
this action against the Swiss Bank & Trust Corp. Ltd., the
40	defendant.
The writ of summons was filed on January 7th, 1983. The

statement of claim was filed on May 23rd, 1984. The plaintiff
alleged in that statement of claim that the defendant took over
her investment portfolio in May or June 1977 and was in breach
of an agreement and/or its duty of care to the plaintiff as her
5	investment adviser, in respect of its management and/or advice in
relation to the portfolio and that the plaintiff suffered loss and
damage as a result, the calculation of which had not by that time
been made. A defence was filed to that claim on January 7th,
1985.
10	The statement of claim was amended by leave of the court on
December 17th, 1985. Basically the amendment deleted the
averment that the defendant was in breach of its duty of care as
her investment adviser and substituted an averment that it was in
breach of its fiduciary duty and/or in breach of trust to the
15	plaintiff. The loss was particularized in that amended statement
of

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