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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civil Appeal No. P 19 of 2015
H.C.C. No. CV2011-02140
Between
LOUIS ANDRE MONTEIL
STONE STREET CAPITAL LIMITED
Appellants
And
CENTRAL BANK OF TRINIDAD AND TOBAGO
COLONIAL LIFE INSURANCE COMPANY (TRINIDAD) LIMITED
Respondents
PANEL: I. ARCHIE, C.J.
N. BEREAUX, J.A.
R. NARINE, J.A.
APPEARANCES: M. Daly SC, Mr. Mootoo for the appellants
M. Hylton QC, I. Benjamin, J. Singh for the
respondents
DATE DELIVERED: 27 May 2016
I have read in draft, the judgment of Bereaux J.A. I agree with it and have
nothing to add.
I. Archie
Chief Justice
I have read in draft, the judgment of Bereaux J.A. I agree with it and have
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nothing to add.
R. Narine
Justice of Appeal
JUDGMENT
Delivered by Bereaux, J.A.
The application
[1] This is a procedural appeal against the decision of Robin Mohammed J
made on 28 January 2015 by which he refused the appellants’ application for
further and better particulars on the basis that the application was premature. The
appellants are the 2nd and 5th defendants in the substantive claim brought by the
respondents, who are the claimants in the substantive claim. It is convenient for
the better management of this judgment to refer to the appellants as Monteil or
Stone Street respectively or collectively as the two defendants.
[2] The two defendants sought orders pursuant to Civil Proceedings Rules
1998 (as amended) (the CPR) or under the Court’s inherent jurisdiction that they
be provided with further and better particulars in respect of some thirty-nine
paragraphs set out in the amended statement of case and the Reply.
[3] They make the usual assertions about the need for the particulars. Among
them are that it will allow them to know and understand the case made against
them, prevent them from being taken by surprise such that they can properly
prepare their case and ultimately lead to the saving of time and costs.
The background
[4] The substantive claim out of which the application arose was brought by
the claimants, the Central Bank of Trinidad and Tobago (the Bank) and Colonial
Life Insurance Company (Trinidad) Limited (Clico) against six persons, human
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and corporate. The other defendants Lawrence Duprey, CL Financial Limited
(CLF), Dalco Capital Management Limited and Gita Sakal did not join in the
application. Where it is necessary to collectively refer to the Bank and Clico, I
shall call them the claimants. I shall refer to the other defendants as Duprey, CLF,
Dalco and Sakal or, collectively, as the other defendants. Where it is necessary to
refer collectively to all the defendants, I shall call them the defendants.
[5] The claim arose out of the assumption of control of Clico by the Bank on
13th February 2009, pursuant to its statutory powers under the Central Bank Act
Chap. 79:02 as amended by the Central Bank Amendment Act 2009. The
claimants allege mismanagement of Clico, including the misapplication and
misappropriation of income and assets of the company, its policy holders and
creditors over a period of two decades; as well as the mismanagement of mutual
funds, by the first defendant.
[6] Clico was incorporated in Trinidad and Tobago in 1936. Its primary
business is life insurance. It was the first locally owned life insurance company
astutely managed by its founder Cyril Duprey. By the time of his retirement in
1987 due to ill health, it had expanded its business into other Caribbean islands.
Duprey is his relative. Duprey was appointed managing director of Clico in 1987.
He soon expanded Clico’s business into financial services such as annuities and
mutual funds as well the alcohol and petrochemical industries. The claimants
allege that the offer of high rates of interest to policy holders in respect of
annuities and mutual funds was a distinctive feature of Clico products.
[7] In June 1988, Colonial Trust and Finance Company Limited was
incorporated, later name changed to Clico Investment Bank Limited (CIB). In
1991, Colonial Life Financial Company Limited was incorporated. In March
1994, its name was changed to CLF. The claimants contend that Duprey
controlled CLF and that effective 31st December 1992, Clico and CIB were
“almost entirely owned by subsidiaries of CLF and were controlled by Mr.
Duprey”, that “over the years” the CLF group (including Clico) grew to include
an intricate web of companies, including the Dalco and Stone Street, which were
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controlled by Duprey and the 2nd defendant.
[8] The claimants allege that under Duprey, Clico’s collective turnover, assets
and liabilities grew rapidly. As Clico expanded so did debt due to it from CLF
and CIB. They contend that soon after Duprey took over management of Clico,
the company “started to develop regulatory compliance issues”. In order to
remedy these issues and to grow the company into a conglomerate, Duprey set up
CLF to become a parent or holding company. The total assets of Clico were
transferred to CLF and CLF also took over various assets and liabilities of Clico.
[9] Duprey also invested in other sectors such as the methanol industry, real
estate developments in Florida, United States of America and the acquisition of
various European drinks companies through subsidiaries within the Clico group.
[10] The claimants contend that following the exercise of the Bank’s powers,
the President ordered a Commission of Enquiry into “the failure of CLF, Clico
(Trinidad) Ltd., CIB …” in June 2011. The Commission brought to light
evidence of the wrongful operation of Clico and the extent of wrongdoing in the
Clico group of companies which, according to the Bank, would not otherwise
have been discovered.
The issue and short answer
[11] The requests for further and better particulars are in respect of thirty nine
paragraphs in the statement of case and the Reply. At the heart of the issue of the
grant of particulars is whether Rule 8.6 of the CPR has been complied with, that is
to say; whether the re-amended statement of case has provided a statement of the
facts sufficient to make clear the general nature of the claimants’ case.
[12] The short answer to that question is yes it has. Robin Mohammed J was
right to dismiss the application. The appeal must be dismissed.
A sample of the allegations
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[13] I find it necessary to refer to some of the allegations of which particulars
are requested, if only to demonstrate the level of detail to which the claimants
have resorted in setting out their case. It also gives a perspective to the
allegations of wrongdoing in the context of the issues in this appeal while
demonstrating that a balance had to be struck as to the amount of detail provided
while ensuring that too much information did not render prolix the statement of
case. Indeed the claimants have complained that the two defendants have been
blowing hot and cold in their applications before the trial judge; on the one hand
arguing that too much information had been put in the statement of case and the
Reply with the result that the judge disallowed certain paragraphs of the proposed
Reply, while they now complain that not enough particulars have been provided
in the re-amended statement of case. Among the allegations made by the
claimants against the defendants were that:
(i) Duprey, Monteil and Sakal procured improper diversion and
misappropriation of Clico’s money (including policyholders’ money) in
order to fund CIB or CLF or other group entities, often in return for
worthless or wholly inadequate purported consideration or security. They
did so in circumstances where they knew or should have known that there
was no or little prospect of return. They knew or ought to have known
that CLF and CIB were each (a) highly dependent upon Clico not seeking
repayment of principal and accumulated interest on existing indebtedness
from them, as well as dependent upon Clico for further funding and (b)
unable to pay its debts to Clico as they fell due.
(ii) Duprey and Monteil procured that Clico fund other companies to make
payments for their personal benefit.
(iii) Duprey and Monteil procured Clico to fund unsuitable and high risk
projects in the pursuit of Duprey’s personal global ambitions contrary to
the interests of Clico and its policyholders.
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(iv) Monteil procured payments to be made where there was no interest or
return to Clico whatsoever and it was entirely in the interests of another.
(v) Duprey and Monteil procured and permitted the sale of products such as
EFPA’s and the GAP product to be sold by Clico at rates of interest which
far exceeded the market rate and also which far exceeded what any
insurance company or other product provider could reasonably expect to
generate from assets to meet its liabilities to policyholders and investors.
(vi) Duprey and Monteil procured Clico to:
a. build up extremely high levels of debt owed by CLF and CIB in
circumstances of continuing serious liquidity and solvency
problems;
b. procure CIB to roll over debentures and other indebtedness to Clico
(including interest thereon) upon maturity into other indebtedness
without actually repaying same;
c. procure CLF to roll over debentures and other indebtedness to Clico
(including interest thereon) upon maturity into other indebtedness
without actually repaying same;
d. transfer assets or money in return for Certificates of Deposit from
CIB in respect of non-performing fixed deposits (which totaled over
TT4.238B as at 31.12.08) and/or CLF debentures (which totaled
over TT$1.142B by 2008) and the CIB Bond (originally US$80M or
approximately TT$500M) and other purported consideration;
e. keep reinvesting its fixed deposits in the same financial institution
instead of obtaining a return of its principal/capital and investing in
other financial institutions to reduce its exposure to the risk of any
one counterparty;
f. agree to the issue of further fixed deposits in substitution for interest
or other return on existing fixed deposits;
g. convert Investment Note Certificates (which were purportedly
secured) into fixed deposits (which were unsecured);
h. fail to seek to obtain or to obtain the return of its capital.
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(vii) Duprey and Monteil procured the manipulation of assets in the statutory
fund otherwise than in the interests of Clico and Clico policyholders
including with a view to concealment of the extent of the inter-company
indebtedness. Thus in relation to Clico’s 2001 statutory fund obligations
they procured:
a. CLF to borrow US$80M from International Bank of Miami (IBoM)
b. CLF to use the loan to pay down its intercompany debt with Clico
c. Clico to use the money received from CLF to purchase a bond from
CIB, which it then used as a purportedly qualifying asset for the
Statutory Fund
d. CIB to use the money received from Clico (effectively through CLF)
to make a fixed deposit at IBoM as security for the loan to CLF.
(viii) Monteil knowingly received payments and other assets subject to
constructive trusts in favour of Clico, its policyholders, mutual fund
investors and trustees, including deemed trustees.
(ix) Stone Street knowingly received payments and assets from Clico from
time to time which were misappropriated by Monteil and/or Duprey and
were received in breach of trust.
(x) Further Stone Street, by Monteil, dishonestly assisted in the following:
a. breaches of fiduciary duties owed to Clico by Duprey and Monteil
and other directors;
b. breaches of trust by Duprey and/or Monteil and other directors.
(xi) Monteil knowingly received from Clico (purportedly via CLF) the sum of
US$3.5M in consultancy fees arising from the 2004 acquisition of a
further 10% RBL shareholding by CIB to which he was not entitled, in
breach of the directors benefit prohibition and/or the pecuniary interest
prohibition and his fiduciary duties, in particular the no self-dealing duty.
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(xii) In breach of their statutory duties in s99 of the Companies Act 1995 and
their common law duties, Duprey and/or Monteil wrongfully caused or
procured Clico to enter into guarantees to unit-holders and arrangements
with CLF when this was contrary to Clico’s interests and when it exposed
Clico to substantial financial risk.
(xiii) Duprey, Monteil, CLF, Dalco and/or Stone Street received payments or
money from mutual fund accounts or out of moneys designated for the
mutual funds from Clico. They thereby knowingly received trust property
to which they were not entitled and are obliged to account for same.
[14] The two defendants have mounted a robust defence. They plead, inter
alia, that the claims are all statue barred by virtue of section 3(1) of the Limitation
of Certain Actions Act Chap 7:09 (see paragraph 6 of the amended defence).
[15] They also plead specific Limitation Acts in respect of certain breaches of
trusts by Monteil alleged by the claimants. In answer to paragraphs 186, 187 and
188 of the re-amended statement of case, the two defendants at paragraphs 179
and 180:
(a) deny, inter alia, that they are trustees of the monies or assets of Clico,
(b) say that any breaches of trusts are statute barred by section 6 of the
Trustee Ordinance Chap 8:03 and section 3(1) of the Limitation of Certain
Actions Act Chap 7:09.
[16] In response to the two defendants’ plea in their defence that the claims
were statute barred, the claimants contended in their Reply that:
(1) the defendants wrongdoing and fraud in the management of Clico’s
affairs as set out in the re-amended statement of case could not have been
discovered with reasonable diligence and without specially commissioned
forensic and accounting investigations and/or the Commission of Enquiry
into the affairs of Clico
(2) the defendants concealed the facts relevant to the rights of action and/or
withheld relevant information with the intention of concealing the facts in
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question
(3) at all material times the defendants knew they were in breach of duty,
and/or intended to commit the breaches of duty and concealment set out
in the re-amended statement of case and/or failed to disclose all of the
material facts relevant to those breaches to Clico’s board of directors
and/or shareholders and/or to the Central Bank (and its predecessor
regulator the Supervisor of Insurance) in circumstances such that the
claimants or either of them were unlikely to discover for some time that
the breaches of duties had been committed.
The judge’s decision
[17] Robin Mohammed J held that further and better particulars at this stage of
the proceedings were not necessary or proportionate and to order them now would
be premature, because, it would not be in keeping with the overriding objective of
dealing with the matter justly. He found that the disclosure process may well
provide the defendants with the information they seek and because no trial date
had been set, that a failure to provide the particulars now would not prevent the
defendants from knowing the details they would have to meet at trial. The judge
found that in any application for further and better particulars or for requests for
further information, the tests to be satisfied are necessity and proportionality.
Requiring the defendants to await the disclosure process and the filing and service
of witness statements were far more proportionate, likely to save costs and
prevent delay than to put the claimants through a rigorous process of providing
the quite extensive particulars sought.
[18] He also found that provision of the witness statements may well cause the
defendants to seek further information under Part 35 with a view to deciding
whether to pursue the preliminary question as a point in limine.
The defendants’ submissions
[19] The two defendants have challenged the judge’s findings on multiple
grounds. They contend that the judge was plainly wrong in finding that the
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claimants did not lack the necessary details of the ingredients of the claim. They
say that the most significant error of the judge was his failure to consider that the
true nature of the case before him was one which was built on allegations of
corporate fraud, dishonesty and “a variety of egregious equitable wrongs”. The
nature of such allegations required that there be great particularity in the
pleadings. His failure was indicated by his non consideration of the decision of
Three Rivers DC & Ors. v. Governor and Company of the Bank of England
(No. 3) (HLE) [2003] 2AC 1 and the dicta of Lord Hope and Lord Millett.
[20] The defendants made a number of additional submissions as to why the
judge was plainly wrong:
(i) On the limitation question they allege that by deferring it until after
discovery and after service of witness statements, the defendants have been
burdened with having to address allegations of wrongdoing in respect of
complex transactions requiring substantial time and resources, which may
ultimately turn out to be statute barred.
(ii) He wrongly limited the factors required for consideration to necessity and
proportionality on the basis of Lexi Holdings v. Pannone & Partners
[2010] EWHC 1416 Ch which turned on requests for information rather
than further and better particulars and by so limiting himself did not
properly consider factors such as the complexity of the issues, fairness,
equality of footing for each party the value of the claim, the allotment of the
Court’s resources and the relative financial position of the parties.
(iii) He failed to give sufficient weight to the true nature of the case before him
and the practical considerations to be taken into account. In this regard the
enormity of the transactions impugned had rendered this case
distinguishable from the vast majority of civil actions to which Lord Woolf
would have referred in Mc Philemy v. Times Newspapers Ltd. [1999] 3
ALL ER 775 at 779. This was because the massive number of documents
which are to be disclosed in this case are such that the appellants will not
immediately appreciate the case they will have to meet or will be time
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consuming. Secondly, trial dates are fixed before witness statements are
filed and witness statements are usually filed within a few months of trial.
The defendants will only likely discover the details of the claimants’ case
upon exchange of witness statements and while supplemental witness
statements may be filed in answer, they will only have a short time to do so
before trial. This is manifestly unfair especially when those details can be
readily disclosed now.
The Civil Proceedings Rules
[21] I shall first examine the re-amended statement of case and whether it
complies with Rule 8.6 of the CPR. Then I shall consider the specific
submissions Mr. Daly made on behalf of the two defendants. Because of its
importance, I shall then look specifically at the concealment issue and the
requests for particulars thereof.
[22] Rule 8.6 of the CPR provides that the claimant must include a short
statement of all relevant facts on which he relies in the claim form or statement of
case. Under Rule 29.4 the Court may order the service of witness statements as
evidence in the proceedings. The provision of witness statements prior to trial was
a radical change from the old Rules of the Supreme Court of Trinidad and
Tobago, 1975. It allows the parties to know well in advance of the trial the case of
the opposing party. Unlike the old rules there is also no express provision for the
ordering of particulars.
[23] Consequently, as Lord Woolf MR noted in Mc Philemy v. Times
Newspapers Ltd. [1999] 3 ALL ER 775 at 792 J, “the need for extensive
pleadings including particulars should be reduced by the requirement that witness
statements are now exchanged”. Indeed, it is no doubt because of this that there
is no express provision in the CPR for the provision of particulars. But as Lord
Mance noted in Real Time Systems Ltd. v. Renraw Investments Ltd. & Ors.
[2014] UKPC 6, rule 26.1(1)(w) of the CPR enables the court, “of its own
initiative”, and for the purpose of managing the case and furthering the overriding
objective to “order the claimant to supply further details to the defendants”. Rule
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26.1(1)(w) is of course one of several general powers of management which the
Court in its discretion can exercise under the CPR. It empowers the court to:
“take any other step, give any other direction or make any other
order for the purpose of managing the case and furthering the
overriding objective.”
The judge chose not to order further particulars. The question is whether he was
plainly wrong to have done so.
[24] The purport of Rule 8.6 was examined by Lord Dyson in Bernard v.
Seebalack [2010] UKPC 15 in which the dictum of Lord Woolf in Mc Philemy
(supra) was approved by Lord Dyson at paragraph 15 of his judgment. In Mc
Philemy, Lord Woolf noted that “in the majority of proceedings, identification of
the documents upon which a party relies, together with copies of that party's
witness statements, will make the detail of the nature of the case the other side has
to meet obvious. This reduces the need for particulars in order to avoid being
taken by surprise”. Lord Woolf noted however that pleadings were still required
to mark out the parameters of the case which was being advanced by each party
particularly with regard to the identification of the issues and the extent of the
dispute between the parties. He added however that “what is important is that the
pleadings should make clear the general nature of the case of the pleader”.
[25] Having approved those comments (at paragraph 15 of his judgment) Lord
Dyson then added at paragraph 16:
“But a detailed witness statement or a list of documents cannot be
used as substitute for a short statement of all the facts relied on by
the claimant. The statement must be as short as the nature of the
claim reasonably allows”.
[26] Mr. Daly submitted that, consistent with the decision in Three Rivers DC,
the allegations of fraud and wrongdoing require great particularity. I agree. Mr.
Daly relied on Three Rivers DC to support his contention that allegations of
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fraud and dishonesty require particularization. His reliance on Three Rivers DC
was well founded. Three Rivers DC was a decision on the new Civil Procedure
Rules introduced in England in 1999. In that case although the decision of the
House of Lords was divided by a majority of three to two on the outcome of the
appeal, all of the law lords were at one that allegations of fraud and dishonesty
required particularization. The difference of opinion centred on whether the
particulars pleaded were consistent with fraud or negligence. The minority was of
the view that particulars were consistent with negligence and accordingly the
claim should have been struck out.
[27] As to the necessity to provide particulars of allegations of fraud and
dishonesty the dictum of Lord Hope of Craighead at paragraph 51 page 248 is
instructive. After approving Lord Woolf’s dictum in Mc Philemy (to which I
have referred at paragraphs 23 and 24) he said:
“On the other hand it is clear that as a general rule, the more
serious the allegation of misconduct, the greater is the need for
particulars to be given which explain the basis for the allegation.
This is especially so where the allegation that is being made is of
bad faith or dishonesty. The point is well established by authority
in the case of fraud.”
Later, at paragraph 53 he adverted to the argument of the Bank of England (which
was seeking to strike out the action for lack of particulars) in these terms:
“The Bank says that, as an allegation of misfeasance in public
office involves an allegation of dishonesty or bad faith on the part
of the public officer, particulars must be given of the facts which,
if proved, would justify the allegation. It is also said that it is not
enough to aver facts which are consistent either with dishonesty or
with negligence. Dishonesty or bad faith must be proved, so the
facts relied on must point distinctly to dishonesty. Reference was
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made to Davy v Garrett (1878) 7 Ch D 473, 489 where Thesiger LJ
said:
‘It may not be necessary in all cases to use the word 'fraud'—
indeed in one of the most ordinary cases it is not necessary. An
allegation that the defendant made to the plaintiff representations
on which he intended the plaintiff to act, which representations
were untrue, and known to the defendant to be untrue, is
sufficient. The word 'fraud' is not used, but two expressions are
used pointing at the state of mind of the defendant—that he
intended the representations to be acted upon, and that he knew
them to be untrue. It appears to me that a plaintiff is bound to
show distinctly that he means to allege fraud. In the present case
facts are alleged from which fraud might be inferred, but they are
consistent with innocence. They were innocent acts in themselves,
and it is not to be presumed that they were done with a fraudulent
intention.’ ”
At paragraph 55, he then concluded as follows:
“…The principle to which those remarks were directed is a rule of
pleading. As the Earl of Halsbury LC said in Bullivant v Attorney
General for Victoria [1901] AC 196, 202, where it is intended that
there be an allegation that a fraud has been committed, you must
allege it and you must prove it. We are concerned at this stage with
what must be alleged. A party is not entitled to a finding of fraud if
the pleader does not allege fraud directly and the facts on which he
relies are equivocal. So too with dishonesty. If there is no specific
allegation of dishonesty, it is not open to the court to make a
finding to that effect if the facts pleaded are consistent with
conduct which is not dishonest such as negligence. As Millett LJ
said in Armitage v Nurse [1998] Ch 241, 256G, it is not necessary
to use the word "fraud" or "dishonesty" if the facts which make
the conduct fraudulent are pleaded. But this will not do if
language used is equivocal: Belmont Finance Corpn Ltd v
Williams Furniture Ltd [1979] Ch 250, 268 per Buckley LJ. In that
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case it was unclear from the pleadings whether dishonesty was
being alleged. As the facts referred to might have inferred
dishonesty but were consistent with innocence, it was not to be
presumed that the defendant had been dishonest. Of course, the
allegation of fraud, dishonesty or bad faith must be supported by
particulars. The other party is entitled to notice of the particulars
on which the allegation is based. If they are not capable of
supporting the allegation, the allegation itself may be struck out.”
See also Lord Hutton at paragraphs 122 to 125 and 129, Lord Hobhouse at
paragraph 161 C and Lord Millett at paragraphs 184, 185, 186 and 189.
[28] As I have stated earlier the decision in Three Rivers DC was a decision
under the new CPR in England. So it is clear that particulars of fraud and
dishonesty are still required to be pleaded under the new English CPR.
[29] It is the same for Trinidad and Tobago. While Lord Woolf stated that the
provision of documents and of a party’s witness statement reduces the need for
particulars, it does not eliminate it. Lord Dyson in Real Time Systems endorsed
that approach but emphasized the particulars be as short as the nature of the claim
reasonably allows. It follows that although allegations of fraud and dishonesty
require greater particularity, Part 8.6 still applies. It will still be sufficient if the
statement of case makes clear the nature of the fraud or dishonesty alleged to
allow the accused party to plead its defence. Particularity does not mean
verbosity. As Lord Hope stated in Three Rivers DC at paragraph 49 “a balance
must be struck between the need for fair notice to be given on the one hand and
excessive detail on the other”. In my judgment the claimants have struck an
appropriate balance in this case. The long and laborious pleading of particulars is
no longer necessary to convey to the defendants what his wrongdoing is alleged to
be. That detail will generally be found in the documents and in the witness
statements which the defendant will have at least forty two (42) days before trial.
(The judge can extend the period as the circumstances of the case require.) The
caveat remains however that the details in the statement of case though concise
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must make clear the nature of the case of the pleader. If it has not done so then as
Real Time Systems demonstrates, particulars can be ordered by the judge of his
or her own initiative or by application of the defendant.
The re-amended statement of case
[30] The question therefore is whether the re-amended statement of case has
provided a sufficient statement of the facts of each claim to make clear the nature
of the case against the defendants given that much of the allegations are about
fraud and wrongdoing.
[31] I consider that it has. At the heart of the claimants’ case is that the
defendants mismanaged Clico, misapplied and misappropriated its income and its
assets, and concealed their misdeeds from the Bank’s regulators. The extent of
this mismanagement and misappropriation was only discovered when the Bank
took over Clico’s operations and the Commission of Enquiry started hearing
evidence. The claimants have set out a detailed case with sufficient particulars of
the unfavourable transactions and the breaches of duty by the defendants which
caused the Bank’s intervention. The sample of the pleading to which I have
referred at paragraph 13 accuses Duprey and Monteil of dishonesty and of being
knowingly in breach of trust (among other things). It can hardly be described as
“equivocal”. It is the same for the entire pleading.
[32] The re-amended statement of case is a quite massive document in so far as
statements of case normally go, consisting of one hundred and sixty-seven pages.
It sets out multiple causes of action against the defendants alleging breaches of
duties of care to Clico and its policy holders. The claimants allege that the manner
of Clico’s operation was deficient and egregious. They contend that interests of
policyholders and investors were subordinated and that monies invested by them
were improperly disbursed. Clico became improperly exposed to liabilities. Its
insurance business was imprudently conducted and was not in accordance with
the Central Bank Act and regulatory requirements. It accuses Duprey, Monteil
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and Sakal of misappropriation of funds or facilitating it. Generally, there was no
proper governance of Clico (by extension CLF and CIB).
[33] Because of the size of the document, (167 pages) it has been arranged
alphabetically into sections with a table of contents and a definition section
explaining the use of abbreviated terms. The various duties of care allegedly
owed by the defendants to Clico and others are clearly set out in section E.
Specifically the claimants allege four general duties of care at common law which
are spelt out.
[34] The breaches of duty allegedly committed by the appellants are set out in
sections N and O. The allegations against the defendants are unambiguous. The
claimants complain generally of breaches in respect of all the defendants and
specific breaches of duties in relation to the seven arrangements or transactions.
Sections F, G, H, I and J set out the supporting facts. Section P sets out the
consequences of the various breaches of duty and particularises the loss.
[35] The factual background against which these breaches were committed are
set out in fair detail at sections F, G, H, I, J, K, L, M. Sections J, K and L are
particularly instructive. They respectively set out what was the actual position of
Clico, CLF and CIB, how egregiously operated they were and how adversely a
series of payments, transactions and arrangements affected Clico’s operations. In
this regard specific allegations are made with respect to seven matters:
(1) Payments made to Mr. Duprey, Mr. Monteil, Dalco and Stone Street.
(2) Transactions involving Republic Bank Limited.
(3) Transactions involving certain European drinks companies and a Jamaican
company acquired by various companies within the CLF group.
(4) Transactions with companies involved in the methanol industry in which
CLF group had ownership or control.
(5) Transactions in respect of four real estate developments in Florida.
(6) The sale of 7 million Home Mortgage Bank HMB shares between CIB and
the 2nd defendant among others.
(7) Mutual funds.
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Each section which addresses these seven matters sets out in some detail the
various facts and allegations made.
[36] The judge considered as a factor against the grant of particulars the filing
and service of a defence by the two defendants. This was the subject of criticism
by Mr. Daly. But I consider that the judge was right to do so. The fact that the
two defendants have all been able to plead a defence must reflect that they
understand the general thrust of the claimant’s case. They plead two limitation
defences.
[37] They also reserved their position in respect of several transactions
contending that they are unable to fully plead to the details of those transactions
until after discovery and at the appropriate time they will seek permission to re-
amend their defence, because:
(i) The claimants have failed to provide all of the documents referred to
in the statement of case;
(ii) Monteil since May 2005, has ceased to be an employee and director
of Clico, since March 2008 has ceased to be an employee and
director of CLF and since April 2008 resigned as a director of CIB.
The several transactions referred to by the claimants to support the
causes of action involve substantial documentation. Upon his
cessation of service, Monteil has only a few copies of documents
relating to Clico, CLF and CIB;
(iii) Owing to the passage of time, Monteil is unable to immediately
recall some of the details of certain of the transactions and requires
sight of the documentation to refresh his memory and to plead to the
claimants’ allegations.
[38] Having reserved their positions on the full thrust of their defences (I note
that the reservation is contingent upon the provision of discovery and not upon the
absence of particulars) the two defendants proceeded to plead their defence and
have made substantial responses to the allegations of the claimants.
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[39] Oddly enough, even though the two defendants have complained about an
absence of particulars in certain paragraphs e.g. 102, 104, 105 and 110, those
paragraphs are not the subject of requests for further and better particulars, neither
has the absence of particulars prevented them from responding to many of the
paragraphs of which particulars are sought, nor has it prevented them from
pleading to specific allegations made by the claimants. In short, the two
defendants appear to have a more than solid grasp of the case of the claimants.
[40] In my judgment such details as are not clear can be corrected during the
discovery process and the exchange of witness statements. If that is not sufficient
the two defendants can apply for information under Part 35 of the CPR. See in
this regard the dictum of Lord Mance in Real Time Systems paragraph 13:
“It is clear from the location of Part 35 and the wording of rule
35.3 that its focus is on information which one party is likely to
want at a relatively late stage of the proceedings, after the time for
serving witness statements, though not less than 42 days before
trial. Its subject matter is “information about any matter which is
in dispute in the proceedings”. While it is capable of being used to
elicit more about the matters pleaded, the normal expectation is
that, by the time of exchange of witness statements, the pleadings
would have been settled and the issues would be being explored in
greater depth at the evidential level”.
[41] In Mc Philemy Lord Woolf spoke of the vast majority of cases in which
the statement of case together with the witness statements and the relevant
documents would be sufficient to inform the defendants of what is being claimed.
Mr. Hylton submitted that that represented the general rule and while there will be
exceptions, this case, unlike Real Time Systems, was not. I agree.
[42] The decision in Real Time Systems was very much an exception. That
was a case in which the defendant sought to have the substantive claim struck out
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for lack of particulars. The claimants on the other hand sought summary
judgment, seeking repayment of sums, purportedly advanced by way of loan,
totaling just over one million five hundred thousand dollars ($1,500,000.00). In
neither the pre-action protocol letter, the claim form nor statement of case were
details provided of particulars of the loan (for instance, whether it was oral or
written). No details were provided by the claimant in the supporting affidavit in
its application for summary judgment. It was plain that an order for particulars
was necessary. There are no similar exceptional circumstances here. The
claimants have provided sufficient particulars in the re-amended statement of case
to allow the defendants to know the nature of the case made against them.
[43] The claimants have set out in quite fair detail what the allegations against
the defendants are. A table of contents is provided to allow the defendants (and
indeed anyone who reads it) to follow the allegations with some alacrity. It is
difficult to see what more can be stated without falling into prolixity. Rule 8.6
requires concision. The intention of the rule is efficiency of expression.
Sufficient detail is to be provided. Excessive verbage is to be eschewed. The
particulars provided are sufficiently clear and detailed to enable the defendants to
prepare a defence and the defendants have done so.
[44] I turn then to the specific submissions of the two defendants in respect of
their challenge to the judge’s findings. I have already summarized the
submissions it is not necessary to repeat them.
(i) The Limitation point
[45] Mr. Daly relied on the decision in Civil Appeal No. 171 of 2012,
Kenneth Julien & Ors. v. Evolving Tecknologies v. Enterprise Development
Company Ltd. to the effect that the limitation defence should as far as possible
be permitted to be pursued as it may liberate a defendant from the oppression of
defending a stale claim.
Page 21 of 28
[46] I do not agree with Mr. Daly that the deferral has left the defendants
unfairly burdened with the continued preparation of a complex case. The fact that
the particulars may have been deferred until after discovery does not prejudice the
two defendants. The trial date has not been set. The information which may be
revealed at discovery will still permit them to prepare and pursue their defence of
limitation as a point in limine, if necessary.
[47] It is a question of case management by the judge. No trial date need be set
until all the issues are sorted and ready for argument.
(ii) Three Rivers DC
[48] Mr. Daly is quite right that the claimants alleged fraud and serious
wrongdoing. The re-amended statement of case is quite clear. He is also right that
the Three Rivers DC principle applies i.e. that when such allegations are made
that greater particularity is required. The difficulty the two defendants face in this
case is that the pleadings are sufficient to satisfy Rule 8.6 and the Three Rivers
DC principle.
(iii) Necessity and proportionality
[49] Mr. Daly is also right that the judge’s application of the test of necessity
and proportionality to a request for further and better particulars was
inappropriate. But it did not infect the judge’s conclusion. The decision in Lexi
Holdings which the judge followed and applied, is a decision on the English
equivalent of Part 35 of the CPR. The test of necessity and proportionality applied
by Briggs J. in Lexi Holdings is an application of paragraph 1.2 of the Practice
Direction to Part 18 of the English rules. Paragraph 1.2 states that “a Request
should be concise and strictly confined to matters which are reasonably necessary
and proportionate to enable the first party to prepare his case or to understand
the case he has to meet”. There is no similar provision in Part 35 of the CPR.
That is a significant difference. See Jamadar JA in Real Time Systems v.
Renraw Investments, Civil Appeal No. 238 of 2011 paragraph 26.
Page 22 of 28
[50] An order for particulars under the CPR derives from Rule 26.1(1)(w)
which directs the court to “give any direction or make any other order for the
purpose of managing the case and furthering the overriding objective”. A
direction for the giving of particulars per Rule 26.1(1)(w) turns on whether the
statement of case complied with Rule 8.6 by providing details sufficient to allow
the defendant to know the case he has to meet and file his defence. The question
is as Lord Woolf stated in Mc Philemy; that is to say, whether the pleadings
“have made clear the general nature of the case of the pleader”. In Real Time
Systems the statement of case did not comply with Rule 8.6. I cannot say the
same here. The judge however found, correctly, that the statement of case made
clear the general nature of the claimants’ case. While he found the application to
be premature, I consider that it has no merit whatever. At best the defendants
may seek information under Part 35 after witness statements are served.
[51] In his oral submissions Mr. Daly criticized what he described as the
“broad brush” approach of the judge in considering the requests for particulars.
He submitted that the judge ought to have considered and discussed individually
the merits of each request rather than to have spoken in general terms.
[52] I do not consider that, in this case, the judge can be faulted. Certainly
where possible, a judge should engage and analyze each request giving his
assessment of the merits of the request in relation to the pleadings. But a failure
to do so is not fatal if the judgment properly conveys the reasons why the requests
should succeed or fail. In most cases, a seriatim engagement of the individual
requests would be required but it is not an absolute necessity in every case.
[53] The judge took the view that none of the requests should be granted. He
could only have done so after having considered each of the requests for
particulars. The requests were numerous, a total of thirty nine requests with two to
four paragraphs requesting that the facts and circumstances of the allegations be
set out. He concluded that discovery and the provision of witness statements may
well provide the answers sought to all the requests. That was a sufficient
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explanation to convey to the two defendants his reasons for refusing the requests.
It was not then necessary for him to engage and analyze each request. That would
have been a less than efficient use of judicial time.
True nature of the case/practical consideration
[54] In his written submissions Mr. Daly argued that the obtaining of
information after service of witness statements gives the two defendants little time
to prepare for trial and that this sets them apart from the vast majority of cases. I
agree that this is not the ordinary case but it is a question of case management.
The judge in his discretion can set a longer window for the trial to allow the
defendants sufficient time to digest the contents of the witness statements and
other documents supplied to them or he may set no trial date at all until after he is
satisfied, through various case management conferences, that sufficient trial
preparation has been done.
[55] Mr. Daly also submitted that the judge by limiting the factors required for
consideration to necessity and proportionality, failed to consider such factors as
the complexity of the issues, fairness, placing the parties on an equal footing, the
value of the claim and the efficient use of the court’s resources. These are all
considerations of the overriding objective, as set out in Rule 1.1(2) of the CPR,
allowing for the just disposal of cases. While the judge did not especially mention
these factors he clearly had the overriding objective in his mind in coming to his
decision. It is not always necessary to spell out these considerations.
The concealment issue – the requests for particulars
[56] I turn specifically to the requests for particulars in the Reply. The
particulars sought are in respect of paragraph 2(a), 2(c) and 2(e) of the Reply. In
my judgment the defendants are not entitled to any particulars in respect of the
allegation of concealment raised in the Reply.
Paragraph 2(a)
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[57] In regard to paragraph 2(a) the claimants say that the “wrongdoing and
fraud in the management of Clico’s affairs.. would not have been discovered with
reasonable diligence and without specially commissioned forensic and accounting
investigations and the Commission of Enquiry into Clico’s affairs”. The two
defendants seek further and better particulars of “the specially commissioned
forensic and accounting investigations and the Commission of Inquiry, the period
during which they were conducted, by whom they were conducted, whether the
findings were conveyed orally or in writing and if in writing”, that the claimants
“identify the relevant document or documents containing such findings”.
[58] There are sufficient particulars set out in the re-amended statement of case
to allow the defendants to prepare their case. Mr. Hylton is right that enough has
been pleaded in the re-amended statement of case and that what the two
defendants now seek is evidence. Paragraph 1(3) of the re-amended statement of
case states clearly that one of the bases upon which the claims arose is the Bank’s
assumption of control of the affairs of Clico. Paragraph 40 then provides that
those powers were exercised on 13th February 2009 and that it led to
investigations into Clico, CIB and CLF, Duprey, Monteil and Sakal, inter alia,
and “consequent discovery of the extent of wrongdoing alleged herein which
would not otherwise have been discovered”.
[59] Paragraph 1C of the re-amended statement of case states that the
Commission of Enquiry is ongoing, that the first evidence hearing took place in
June 2011 and that “amongst other things, it brought to light evidence of the
wrongful operation of Clico …” and “significant evidence continues to emerge
therefrom”.
[60] From the re-amended statement of case therefore one can conclude that, at
latest, the relevant period of discovery of the wrongdoing and the issue of
discoverability of the wrongdoing could encompass the period 13th February 2009
to the period of filing of these proceedings.
Page 25 of 28
[61] The defendants ask that the claimants “state the specially commissioned
forensic and accounting investigations, the period during which they were
conducted, whether the findings were oral or written and if written to identify the
relevant documents in which they are ...” That is evidence which can come
through the discovery process and from the witness statements. The essential facts
upon which the claimants rely to refute the limitation point are set out in the
statement of case.
Paragraph 2(c)
[62] It is the same for paragraph 2(c). In regard to paragraph 2(c) the two
defendants seek information as to the facts and matters which show concealment,
withholding of information, when the concealment was discovered and the facts
by which the claimants could not have discovered them. In my judgment the
requests relate to evidence and documents which can be provided at discovery and
by witness statements. Paragraph 2(c) states, inter alia, that the defendants
“concealed the facts relevant to the rights of action and withheld relevant
information with the intention of concealing the facts in question”, that plea in the
Reply relates to the pleading in paragraphs 6, 33A, 179(c) and 180(b) of the
amended defence.
[63] Paragraph 6 of the amended defence pleaded that all the causes of action
are barred by virtue of section 3(1) of the Limitation of Certain Actions Act.
Section 33A, responds to paragraph 40 of the re-amended statement of case and
states that the two defendants were unaware of the investigations of the Bank.
They deny any wrongdoing by Monteil. Additionally, the two defendants assert
that the conduct of Monteil concerning Clico was at all material times, well
known to Clico and CLF. Further details of such knowledge are provided by the
two defendants at paragraph 12 and 13 of the amended defence. Paragraph 179(c)
pleads a limitation defence under the Trustee Ordinance Chap 8:03 (section 6) and
paragraph 180(b) pleads a limitation defence under the Limitation of Certain
Actions Act Chap 7:09 (section 3).
Page 26 of 28
[64] The limitation defences are pleaded in answer to the claimants’
allegations, in paragraphs 186, 187 and 188 of the re-amended statement of case,
of breach of trust by Monteil in respect of moneys diverted out of Clico, or
misappropriated by Monteil, or knowingly received by or for Monteil’s benefit.
[65] The claimants’ contentions as to breach of trust are fully set out at
paragraph 183 of the re-amended statement of case under the rubric “N2:
Monteil” and deal specifically with Monteil’s breaches of his duties as a director
of Clico under the Companies Act Chap 81:01 and under the common law. At
paragraph 183(10), 183(11) and 183(12), the claimants contend that Monteil:
(i) failed to make full and proper disclosure to Clico’s members in general
meeting or its board of directors (other than himself and Duprey) of matters
affecting Clico including its assets and liabilities as necessary and
appropriate – paragraph 183(10)
(ii) failed to obtain the consent of Clico’s members in general meeting or its
board of directors (other than himself) to payments or transactions as
appropriate paragraph 183(11)
(iii) failed to report the true position of Clico to the Supervisor of Insurance or to
the Bank; to wit “that it was insolvent on a statutory fund basis and was
periodically insolvent on an economic basis”
[66] These contentions all involve elements of concealment and all of them are
covered by paragraphs 1(3), 1C and 40 of the re-amended statement of case which
allege that these were wrong doings which were discovered only after the
assumption of control by the Bank on 13th February 2009 and the commencement
of the hearings of the Commission of Enquiry in June 2011. Facts and matters
which show concealment, withholding of information and when the concealment
was discovered go to proof and will be a question of evidence.
Paragraph 2(e)
[67] My conclusion is the same in respect of paragraph 2(e). Paragraph 2(e)
states:
Page 27 of 28
“at all material times these defendants knew they were in breach of
duty, and/or intended to commit the breaches of duty and concealment
set out in the re-amended statement of case and/or failed to disclose
all of the material facts relevant to those breaches to Clico’s board of
directors and/or shareholders and/or to the Central Bank (and its
predecessor regulator the Supervisor of Insurance) in circumstances
such that the claimants or either of them were unlikely to discover for
some time that the breaches of duty had been committed”.
The two defendants seek:
(i) particulars of the facts, documents or overt acts upon which the
claimants intend to rely in support of the allegation that they or either
of them knew that they were in breach of duty,
(ii) material facts relevant to the breaches of duty which they or either of
them failed to disclose,
(iii) the particulars of the circumstances which made it unlikely that the
claimants or either of them would have discovered the alleged
breaches of duty that had been committed.
[68] But, in my judgment paragraphs 1(3), 1C and section 40 as well as in
paragraphs 183(10), 183(11) and 183(12) of the re-amended statement of case set
out the relevant facts for the purposes of Rule 8.6 of the CPR. These are sufficient
to disclose the nature of the case to the two defendants.
[69] Mr. Daly indicated that he was no longer pursuing the question of inherent
jurisdiction so we have not addressed it.
[70] In closing, we wish to apologize for the delay in delivering this judgment.
We deeply regret it. The reason for the delay has already been intimated to the
attorneys-at-law.
[71] In the result the appeal is dismissed. We will hear the parties on costs.