Jersey Unreported Judgments

Trust - strike out application by the 1st to 4th and 6th defendants to strike out plaintiffs claim and application by the plaintiff to re-amend order of justice.

[2014]JRC033

Royal Court

(Samedi)

5 February 2014

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

Advocate I. C. Jones for the Plaintiffs.

Advocate G. A. H. Baxter for the First, Fourth and Sixth Defendants.

Mr S. Gidley the Fifth Defendant appeared in person.

Mr K. R. Manning the Seventh Defendant appeared in person.

Mr S. O'Sullivan the Eighth Defendant did not appear and was not represented.

JUDGMENT

THE MASTER:

Introduction

1.        This judgment represents my decision in relation to two related applications.  The first in time is a strike out application brought by the first to fourth and sixth defendants to strike out the plaintiffs' claims against the sixth defendant contained in the plaintiffs' amended order of justice.  The second application is brought by the plaintiffs to re-amend the order of justice.  Although the application of the first to fourth and sixth defendants was brought earlier in time, as a pleading that is otherwise susceptible to being struck out may be saved by an amendment, I directed Advocate Jones to make his application to re-amend with Advocate Baxter then responding as to whether or not the proposed re-amendments were sufficient to prevent any matter being struck out or whether he maintained all or part of his strike out application.  The fifth and seventh defendants supported Advocate Baxter's submissions. 

Procedural history

2.        The plaintiffs' claims were commenced by order of justice containing injunctions granted on 5^th November, 2009.  As the order of justice was originally drafted in 2009, it firstly prevented the first defendant from dealing with the assets of a trust, known as the Ching Trust ("the Trust"), and secondly sought information about the Trust. 

3.        In the course of 2010, further orders were made which resulted in information being provided to the plaintiffs, and the first defendant retiring as trustee of the Trust with a transfer of all its assets to Mr MacFirbhisigh as curator of the first plaintiff and as nominee for the second plaintiff. 

4.        By a consent order dated 30^th November, 2011, the order of justice was amended substantially.  The amended order of justice runs to 399 paragraphs and some 90 pages including schedules. The fifth and sixth and seventh defendants were also joined as parties to the proceedings.  I address below the allegations made. 

5.        On 30^th January a 4 page document said to be an executive summary of the plaintiffs' allegations was produced.  The defendants were critical of this summary on the basis that it went further than the amended order of justice. 

6.        It is also right to mention that in 2011, directions were sought from the Royal Court by Mr MacFirbhisigh to take steps to sell one of the assets he recovered from the first defendant, namely a bond.  I refer in more detail later in this judgment to this bond.  Secondly, he sought directions to issue the current proceedings.  Both applications were granted. 

7.        An answer was filed on 18^th December, 2009.  An amended answer was filed on 8^th March, 2012, responding to the allegations contained in the amended order of justice.  A reply was filed on 21^st May, 2012, and further and better particulars of the amended order of justice were filed on 30^th January, 2013, by the plaintiffs' then legal advisers.  

8.        In addition to the obligation on the first defendant to provide information to the plaintiffs pursuant to the injunctions granted in 2009, I was also informed that disclosure had taken place. 

9.        I was further informed that various affidavits had been filed in the course of different applications made in relation to this matter.  I was referred to two of those affidavits, the first being an affidavit sworn by the sixth defendant on 23^rd November, 2009, and the second being an affidavit of the second plaintiff sworn on 22^nd October, 2009.  The second plaintiff's affidavit was filed in support of the application for injunctive relief. 

10.      The strike out summons together with other relief was issued on 16^th May, 2013, and initially returnable on 10^th July, 2013, before Master Wheeler.  The summons was not heard on that day, and was adjourned to 17^th September, 2013.  Between 10^th July and 17^th September, 2013, Messrs' Carey Olsen were appointed to represent the plaintiffs in place of their previous legal advisers.  The recasting of the plaintiffs' case has therefore been carried out by the plaintiffs' new legal advisers. 

11.      At the hearing on 17^th September, 2013, the plaintiffs' new legal advisers indicated that they were going to look at all the allegations afresh with a view to re-pleading the plaintiffs' case in its entirety to try to address the criticisms of the case that had been advanced by the first to fourth and the sixth defendant in the latters' strike out application.  I therefore adjourned the application to allow the plaintiffs' new legal advisers' time to gather information from the plaintiffs' former legal advisers and to reformulate the plaintiffs' pleaded case.  

12.      It is also right that I repeat the observations I made when this matter first came before me on 17^th September when I expressed my concern that the case did not reflect well on the legal profession given that significant time had elapsed which could amount to inordinate and inexcusable delay.  I therefore made it clear that while I was going to allow the plaintiffs' new legal advisers time to consider the basis on which they wish to put the plaintiffs'' case, my intention was then to issue directions to enable a trial to take place as soon as realistically can occur. 

13.      As a result of difficulties in obtaining documentation from the plaintiffs' former legal advisers, the plaintiffs' new legal advisers did not receive documentation until towards the end of November 2013; it was not therefore possible for the plaintiffs to bring their application to re-amend the order of justice and therefore to hear the defendants' strike out application until now. 

14.      Subsequent to the hearing, a further draft of the re-amended order of justice (the "second draft") was filed by the plaintiffs in response to observations made by me during submission.  In this judgment, where I refer to the proposed amendments, I am referring to the draft considered at the time of submission unless I specifically indicate I am referring to the second draft. 

15.      I have set out the above procedural history because, in looking to re-amend its pleading, the plaintiffs have had the benefit of an answer filed by the first to fourth defendants, an amended answer filed by the first, fourth and sixth defendants, answers filed by the other defendants, as well as disclosure and a number of affidavits sworn by or on behalf of the parties. 

16.      Equally this is not a case where a trial date has yet been fixed, witness statements have been exchanged and there have not been any directions for expert evidence, if such expert evidence is required, as may well be the case. 

The factual background

17.      Despite the length of the amended order of justice and the proposed re-amended order of justice, the essence of the plaintiffs' claim is not that complicated and can be summarised reasonably briefly. 

18.      Mr and Mrs Ching have been married since 1997.  Towards the end of 2005 they started to run into financial difficulties.  The main assets they owned either jointly or in their own names were the matrimonial home, a flat in England in the name of the second plaintiff, known as Berkley Court, a car, some insurance policies and shares in a company listed on the Canadian Alternate Investment Exchange known as Digger Resources Inc ("Digger"). 

19.      In April 2006 the first defendant executed a document which sought to create the Trust.  One of the issues in litigation is whether or not the Trust was validly created.  For the purposes of the applications before me, the reasons advanced as to why it said a trust was not in fact created and was void do not matter as it is not contested by the defendants that this issue should not proceed to trial.  It is also accepted by the defendants it is arguable that, even if assets were held by the first defendant on a bare trust because the Trust is void, the plaintiffs are entitled to assert that the first defendant acted in breach of duty in how it dealt with the assets it held on any bare trust. 

20.      At some point in June 2006 it appears that ownership of the Digger shares was transferred to the Trust via two holding companies called Mitsukiku Investments Limited and Scorpio Services Limited.  There are disputes as to how this was achieved.  It is accepted however by the defendants in their answer that the Digger shares were transferred to the first defendant as trustee of the Trust.  There is also an issue on the current pleadings as to the extent of the interest the plaintiffs had in the shares at the time they were transferred and whether some of them were held for third parties.  There is also an issue as to the value of the Digger shares. 

21.      In June 2006, the seventh defendant was appointed as curator of the first plaintiff until he was replaced by Mr MacFirbhisigh at the end of 2008. 

22.      At the end of October 2006 the matrimonial home was sold.  With the approval of the Royal Court, the sum of £400,000 was transferred to the Trust from the proceeds of sale.  A further £331,919.04 was used to pay mortgages and other liabilities, leaving a balance of £152,737.58.  Of this sum £128,620.61 has been transferred to Mr MacFirbhisigh leaving the balance, it is alleged, unaccounted for. 

23.      Also at the end of October 2006 Berkley Court was sold.  The net proceeds of £166,180.76 were also transferred to the Trust. 

24.      By reference to the above matters the essence of the plaintiffs' complaints are as follows:-

(i)        It was not necessary to create a trust and the plaintiffs should not have been advised to do so.  Instead, some of the Digger shares should have been sold in order to pay off the debts of the plaintiffs. 

(ii)       Accordingly there was no need to sell the matrimonial home, or Berkley Court.  The plaintiffs therefore seek the difference between the current value of those properties and their value as of the date of sale;

(iii)      The first defendant failed to deal appropriately with the Digger shares in breach of trust.  Had they been disposed of properly the trustees would have held significant sums for the benefit of the plaintiffs who were the sole beneficiaries of the Trust;

(iv)      The trustees invested in a bond in breach of duty which later lost value.  The plaintiffs claim the loss in value of the bond. 

25.      In setting out the above brief summary, I have deliberately at this stage not set out the different causes of actions relied upon nor the roles said to have been played by each of the first fifth, sixth and seventh defendants.  I address their roles later in this decision. 

26.      In broad terms the amount claimed by the plaintiff is close to £3 million. 

The applicable legal principles on an application to amend

27.      The applicable legal principles on a strike out application and an application to amend are generally well known.  In particular I was referred to the decision of Birt, then Deputy Bailiff, in Cunningham v Cunningham [2009] JLR 227 and the following passages:-

"19     Today in England and Wales the courts will take account of the following (amongst other) factors-the strains which litigation imposes on personal litigants, and on particular individuals in litigating companies and other bodies; the expectation that all the issues have already been fully defined; the efficient disposal of the particular case in ways proportionate to the sums involved, its importance, its complexity, and the parties' respective financial positions; the effects on the efficient disposal of other cases; the use of an appropriate share of the court's resources; and similar matters covered by Part 1 of the CPR, in which an 'overriding objective' is encapsulated.

20       Jersey civil procedure has not been taken down the same route as the CPR. But the statement of principle in Esteem Settlement quoted in para. 4 above and the other observations in that and subsequent Jersey cases show that by judicial decisions rather than wholesale rewriting of rules, Jersey civil procedure is moving in a similar direction, though with material differences. For example, in a smaller jurisdiction such as Jersey with a relatively small number of fought civil actions, and a reasonable number of permanent Judges and part-time Commissioners, it is less likely that any impact on the progress of other actions will prove to be strongly relevant in a case such as the present.

21       Where there is a late application for an amendment to the order of justice (or to the answer or reply) the Jersey courts have to strike a balance which is primarily between the parties to the instant case. The burden on the applicant is a heavy one to show, for example, (1) why the matters now sought to be pleaded were not pleaded before; (2) what is the strength of the new case; (3) why an adjournment should be granted, if one is necessary; (4) how any adverse effects on the other party including the effects of any adjournment, any additional discovery, witness statements or experts reports, or other preparation for trial can be remedied; and (5) why the balance of justice should come down in favour of the party seeking to change its case at a late stage of the proceedings.

18       Another convenient summary of the relevant considerations can be found in Charlesworth v. Relay Roads Ltd. (3), where Neuberger, J. said this ([1999] 4 All E.R. at 401-402):

"As is so often the case where a party applies to amend a pleading or to call evidence for which permission is needed, the justice of the case can be said to involve two competing factors. The first factor is that it is desirable that every point which a party reasonably wants to put forward in the proceedings is aired: a party prevented from advancing evidence and/or argument on a point (other than a hopeless one) will understandably feel that an injustice has been perpetrated on him, at least if he loses and has reason to believe that he may have won if he had been allowed to plead, call evidence on, and/or argue the point. Particularly where the other party can be compensated in costs for any damage suffered as a result of a late application being granted, there is obviously a powerful case to be made out that justice indicates that the amendment should be permitted-‰.-‰.-‰.

On the other hand, even where, in purely financial terms, the other party can be said to be compensated for a late amendment or late evidence by an appropriate award of costs, it can often be unfair in terms of the strain of litigation, legitimate expectation, the efficient conduct of the case in question, and the interests of other litigants whose cases are waiting to be heard, if such an application succeeds."

The application in that case was made after the hearing and after judgment had been handed down, although before the order had been drawn up.

19       It is, furthermore, well established that the court will not permit amendments which infringe the rules of pleading or introduce a claim which is so hopeless that it would be liable to be struck out under the Royal Court Rules 2004, r.6/13."

28.      I was also referred to the decision of Judicial Greffier Le Marquand in Vezier v Bellego & Ors [1994] JLR 75 in relation to the issue of whether or not an amendment should be allowed where the new claim is prescribed.  This is because an amendment of an order of justice is normally treated as being back dated to the date of commencement of the action.  In Vezier Judicial Greffier Le Marquand recognised that an amendment may be allowed even if the amendment seeks to add or substitute a new cause of action which is otherwise prescribed.  This is so long as the new cause of action arises out of the same facts or substantially the same facts as an existing cause of action claimed in the action by the party applying for leave to amend.  (See page 78 line 40-79-line 39 of the Vezier decision). 

29.      The issue of whether a proposed new cause of action could fairly be said to arise out of "the same facts or substantially the same facts" was considered in Alhamrani v Alhamrani [2007] JLR 44.  At paragraph 50 of the judgment Commissioner Page stated as follows:-

"50     As to whether the proposed new causes of action could fairly be said to arise out of "the same facts or substantially the same facts" as the now abandoned cause of action under art. 56 (which would be relevant to the grant or refusal of leave, if the limitation period were 3 rather than 10 years and any of the new claims has become time-barred since October 10th, 2005), Mr. Speck draws attention to a passage from the judgment of Colman, J. in the English case of Goode v. Martin (3) (reversed on appeal, but on a different point), reading as follows ([2001] 3 All E.R. at 566):

 "Whether one factual basis is 'substantially the same' as another factual basis obviously involves a value judgment, but the relevant criteria must clearly have regard to the main purpose for which this qualification to the power to give permission to amend is introduced.  That purpose is to avoid placing a defendant in the position where if the amendment is allowed he will be obliged after expiration of the limitation period to investigate facts and obtain evidence of matters which are completely outside the ambit of, and unrelated to those facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim."

30.      Finally, I was referred to an unreported decision of the Court of Appeal dated 27^th July, 2000, in the Re Esteem Settlement (2000/150) litigation.  In relation to amendment and striking out of pleadings Southwell JA stated at page 6 of the judgement as follows:-

"(3) From now on it has to be appreciated by all who are involved in civil proceedings in the Royal Court that their objective has to be to progress those proceedings to trial in accordance with an agreed or ordered timetable, at a reasonable level of cost, and within a reasonably short time. 

 (4) Consistent with that objective, the correct function of pleadings needs to be kept in mind.  The function of pleadings is to set out the material facts on which the parties will rely at trial to establish their causes of action or defences, and which the parties will seek at trial to establish by relevant and admissible evidence.  It is no part of the function of advocates to seek to persuade the Royal Court to strike out the whole or part of a pleading which contains plainly arguable causes of action, or to edit a pleading whether so as to improve it or to make it less effective.  It is no part of the function of the Royal Court to lend itself to any such endeavours on the part of advocates.  Formal pleading is an art, not a science, and to seek to achieve some abstract level of perfection in pleadings is not consistent with the objective I have stated, or of value in terms of time, effort or expense."

The causes of action pleaded in the Amended Order of Justice

31.      To evaluate whether the causes of action pleaded in the proposed re-amended order of justice should be permitted, it is necessary to consider what is alleged and against whom in the amended order of justice.  Where relevant I refer to specific paragraph numbers of the amended order of justice.  The allegations in summary are as follows:-

(i)        Allegations of breach of fiduciary duty are made against each of the fifth, sixth and seventh defendants on the basis that the plaintiffs vested complete trust and confidence in each of them in relation to the care and management of the plaintiffs' affairs. 

(ii)       Against all three it is also alleged that they enjoyed complete or substantial influence and ascendancy over the plaintiffs and that the plaintiffs were at a special disadvantage in dealing with each of the fifth, sixth and seventh defendants. 

(iii)      Against the fifth, sixth and seventh defendants it is alleged they were under duties at all times to act in good faith, not to make a profit unbeknown to the plaintiffs, to avoid potential conflicts of interest or to act for the benefit of a third party.  What appears to underlie all of these allegations is an assertion that each of the fifth, sixth and seventh defendants owed a fiduciary duty to the plaintiffs.  What is meant by a fiduciary duty was considered in Re E Trust [2008] JLR 360 at paragraphs 26.  In summary the judgment noted that the distinguishing obligation of a fiduciary obligation was that of loyalty so that a principal was entitled to the single minded loyalty of his fiduciary. 

(iv)      An allegation of undue influence was also made against each of the fifth sixth and seventh (see paragraphs 88 and 368).  This allegation is no longer being pursued. 

(v)       Allegations of dishonest assistance were also made against each of the fifth, sixth and seventh defendants in that they assisted the first defendant to act in breach of trust.  The claim against the fifth and sixth defendants appears to relate to the sale of Berkley Court, the transfers of the Digger shares, recovery of the first defendants' fees and Mr Gidley's fees.  The claim against Mr Kevin Manning is for the recovery of all sums claimed against the first defendant for breach of trust namely £2,427,552.07. 

(vi)      There is also a claim for knowing receipt against the fifth and sixth defendants for the fees that they received.  (See paragraphs 354 and 375).  This claim is also no longer being pursued. 

(vii)     There is also an allegation of conspiracy against the fifth, sixth and seventh defendants at paragraphs 398 to 399 which again has now been abandoned by the plaintiffs. 

(viii)    There are also allegations of breach of duty or a failure to act properly against the fifth and seventh defendants. 

(ix)      In addition there are express allegations of breach of contract or negligence by the seventh defendant in relation to his role as curator of the first plaintiff. 

(x)       It is further alleged that the transfer of Berkley Court was procured by misrepresentations of the fifth and seventh defendants. 

(xi)      In relation to the sixth defendant, in answer to a request for further and better particulars of paragraph 362 of the amended order of justice, it is alleged that the sixth defendant invited the plaintiff to sell their assets and transfer the proceeds of sale into a Trust and all the plaintiffs needed to protect their assets from creditors and this was the only way to do so.  It is further stated:-

"It is clear that he should have been aware that there was no need for the actions which were taken with Mr and Mrs Chings' assets, in short, there was no need for a trust to be created and there was no requirement for Mr and Mrs Chings' assets to be sold (other than the sale of sufficient assets to meet their liabilities at the time)."

The causes of action in the proposed re-amended order of justice

32.      I have already noted above that the allegations of undue influence, knowing receipt and conspiracy contained in the amended order of justice are now withdrawn. 

33.      The case is now put on the basis of the torts of deceit, negligent misstatement, and negligence and a claim to pierce the corporate veil.  The allegations of dishonest assistance breach of fiduciary duty are also widened.  I will deal with each of these in turn. 

Deceit

34.      What is meant by deceit was considered by the Court of Appeal in Pell Frischmann v Bow Valley [2008] JLR 311 where the Court of Appeal summarised the different economic tort claims brought by the plaintiff in that case.  While Pell Frischmann was varied on appeal in relation how damages might be assessed, the Court of Appeal's comments on economic torts were not reviewed by the Privy Council. 

35.      In relation to deceit, the Court cited with approval Clerk & Lindsell on Torts 19^th Edition at paragraph 18-01 as follows:-

"Where a defendant makes a false representation, knowing it to be untrue, or being reckless as to whether it is true, and intends that the clamant should act in reliance on it, then insofar as the latter does so and suffers loss the defendant is liable for that loss."

36.      Paragraph 18-17 of Clerk & Lindsell expands upon the above extract as follows:-

"The state of mind necessary for liability in deceit

Although the decision in Paisley v Freeman established the existence of a tort based on fraud, it did not make entirely clear what state of mind was required in the defendant in order to establish it.  The leading case on this point is the later decision of the House of Lords in Derry v Peek.  There, Lord Herschell laid down the essentials of fraud in the following propositions:

"First, in order to sustain an action of deceit, there must be proof of fraud and nothing short of that will suffice.  Secondly, fraud is proved when it is shown that a false representation has been made (i) knowingly, (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.  Although I have treated the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states.  To prevent a false statement from being fraudulent, there must, I think, always be an honest belief in its truth."

It follows from this that a statement honestly believed to be true, however implausible it may be, is not capable of amounting to fraud.  Thus in Niru Battery Manufacturing Co v Milestone Trading Ltd a bank presented a letter of credit to a buyer for payment, despite the fact that it was obvious to any reasonable person that no payment was due under it since the goods had never been shipped.  But this fact was not in the mind of the relevant bank officer when he arranged the presentation: it followed that, however casual or naïve he might have been, no claim lay in deceit.  Similarly, in Derry v Peek itself a company prospectus stated that the company had certain parliamentary powers which in fact it did not possess.  Shareholders who had bought shares on the faith of the statement in the prospectus sued the promoters in deceit when the company went into liquidation.  Their action failed: it had not been proved that the directors lacked honest belief in what they had said.

Nevertheless, although the unreasonableness of the grounds of the belief will not of itself support an action for deceit, it will of course be evidence from which fraud may be inferred.  As Lord Herschell has pointed out, there must be many cases

"where in fact that an alleged belief was destitute of all reasonable foundations would suffice of itself to convince the court that it was not really entertained, and that the representation was a fraudulent one."

37.      No allegation of deceit was made in the amended order of justice or in the particulars.  There was no allegation that any defendant, including the sixth defendant, either knew that the statements that any defendant was making were untrue or that such a defendant was reckless in the sense of not caring whether or not the statements were true. 

38.      In the proposed re-amended order of justice no new factual matters are alleged or set out as to why the sixth or any other defendant either deliberately or recklessly (in the Derry v Peek sense) made misrepresentations.  The plaintiffs, in support of their application to amend, instead argue that the allegation of the tort of deceit arises out of substantially the same facts as those that previously pleaded.  

39.      I agree that the underlying facts alleged are essentially the same, save that it is now alleged that the sixth defendant made misrepresentations from November 2005 rather than from mid-2006.  This change in dates is not surprising because in his own answer and in an affidavit sworn in 2009 the sixth defendant accepts he had explained on many occasions to the second plaintiff "the issues relevant to the creation and the operation of the Trust."  (See paragraph 9 of the sixth defendant's affidavit) as well as taking part in phone calls with both plaintiffs at the end of 2005.  (See paragraph 17 of the affidavit). 

40.      I do not agree however that the existing allegations in the amended order of justice are sufficient to found a new claim in deceit that is suitable for trial.  An allegation of deceit, containing as it does an allegation of fraud, is a very serious allegation of dishonesty.  It must be expressly pleaded.  A party facing such an allegation is entitled to know precisely all matters relied upon, whether by way of statement, document or inference that should be drawn, as to why it was acting in a fraudulent manner.  It is all too easy to characterise any allegation of misrepresentation as amounting to deceit when what, in reality, is alleged is an allegation of breach of duty, breach of contract or an act of negligence.  In my view something more is required to extend a case of breach of contract or other duty to allege deceit.  A plaintiff must be able to set out what takes a matter into the realms of fraudulent or dishonest conduct so that a defendant knows the case it has to meet.  Despite allowing the plaintiffs time to re-plead their case, the proposed re-amended justice at paragraphs 2.40 and 2.41 simply makes bald assertions without any particulars of why statements made were known to be untrue or why the maker was reckless in the sense of not caring about the truth of a statement. 

41.      I was also expressly referred by Advocate Baxter to the second plaintiff's affidavit dated 22^nd October, 2009, filed in support of the application for injunctive relief.  Nowhere in that affidavit is an allegation of dishonesty made against any defendant.  The second plaintiff has also not filed any further affidavit now alleging dishonest or fraudulent conduct or explaining the basis of such an assertion. 

42.      It is open to me to allow the plaintiffs a further opportunity to provide particulars of this allegation to see if it could be saved.  However as I noted when this matter first came before me, this is also not a case which has been conducted efficiently.  Four years have already passed since proceedings were issued and yet the case is nowhere near ready for trial.  The strike out application has also been pending for a year and the plaintiffs' new legal advisers have been given adequate time to review the case and make the present application.  The allegation of deceit also focuses on events at the end of 2005 and in the first part of 2006.  By the time of any trial which is unlikely to take place before 2015, over 9 years will have elapsed.  The strain of dealing with an allegation of dishonesty or fraudulent conduct in litigation is one that is also likely to be significant.  For all these reasons, as a matter of discretion, I am not prepared to allow further time to plead an allegation of deceit. 

43.      If I am wrong in the view I have reached in relation to the allegation of deceit, in any event I would have not allowed the allegation to have been pursued by the first plaintiff in respect of the transfer of the matrimonial home and Berkley Court into the Trust.  This is because by the time of the transfer, the seventh defendant had been appointed as curator of the first plaintiff.  Even if therefore statements had been made by the fifth or sixth defendants, which they knew to be untrue, or if they were reckless as to their truth, the other element of deceit requires reliance.  The first plaintiff could not have acted in reliance on any representations made in respect of the matrimonial home and Berkley Court because the sale of these assets and the transfer of the proceeds of sale of these assets into the Trust was effected by the seventh defendant and not by the first plaintiff. 

44.      My view, in relation to the first plaintiff's interest in the matrimonial home and any interest in Berkley Court, does not apply to the transfer of the Digger shares because it is not sufficiently clear to me whether the transfer of these shares occurred before or after commencement of the first plaintiff's curatorship.  If allegations of knowledge or recklessness could have been pleaded, I would have been willing to allow a claim under the heading of tort of deceit to proceed in respect of the Digger shares.  

45.      Advocate Jones argued for the plaintiffs that there was reliance on the statements made by the fifth and sixth defendant because the seventh defendant also committed the tort of deceit.  I do not understand that observation as far as the first plaintiff is concerned because the seventh defendant was appointed to act as curator of the first plaintiff.  The first plaintiff was not therefore in a position to rely on representations made to him by anyone once a curator was appointed.  The first plaintiff could only act through the seventh defendant.  The allegation of conspiracy has also been withdrawn.  This is not therefore a case of the fifth, sixth and seventh defendants acting in concert to damage the plaintiffs for their personal benefit which is where the involvement of the seventh defendant might have overcome the difficulties in showing there was a case for trial on reliance.  I am not therefore persuaded by Advocate Jones that there is a case on reliance that is suitable for trial.  I should also make it clear that I consider that the plaintiffs were quite right to withdraw the allegation of conspiracy.  This was an allegation that was wholly unparticularised and there was nothing in the amended order of justice to sustain it. 

46.      As far as the second plaintiff is concerned, I am not prepared to allow the second plaintiff to bring a claim under the heading of the tort of deceit for the same reasons that I do not consider that the first plaintiff can bring such a claim as set out at paragraphs 39 to 41 and 45 above.  Had I been willing to allow such claim, I would have allowed the second plaintiff to bring such a claim in respect of all property transferred into the Trust. 

Allegations of negligent misstatement and negligence

47.      In relation to the allegations of negligent misstatement and negligence, I consider that these allegations are made in the amended order of justice and therefore although the matter is put much more clearly in the re-amended order of justice, the essence of the underlying facts relating to these allegations are substantially the same.  The particulars of paragraph 362 of the amended order of justice when read with paragraphs 357- 364 are sufficient to amount to a formulation of a claim of negligent misstatement if the court is satisfied at trial that the plaintiffs had vested complete trust and confidence in the sixth defendant as alleged.  Alternatively enough is pleaded to formulate an arguable claim in negligence.  I also note, at paragraphs 46 and 53 of the amended order of justice, it is alleged that the sixth defendant represented that a trust was needed to protect the plaintiffs.  Although the amended order of justice is not a model of clarity, it contains sufficient to allow this allegation to be pursued to trial in the form now pleaded in the re-amended order of justice. 

48.      However there is one area where a claim of negligent misstatement or alternatively in negligence cannot be sustained and has to be struck out.  This is the claim brought by the first plaintiff against the fifth and sixth defendants in relation to the transfer of any interest in the matrimonial home or the transfer of any interest the first plaintiff had in the proceeds of sale of Berkley Court into the Trust.  This because in relation to an allegation of negligent misstatement, what is required is reliance.  For same reasons as set out at paragraph 43 above in relation to a claim in deceit, a claim in negligent misstatement cannot be sustained by the first plaintiff when he did not act in reliance upon the statements made. 

49.      In relation to an allegation of negligence, for the reasons set out in the preceding paragraph, I also consider that any breach of duty of care did not cause the first plaintiff to transfer assets.  That transfer was effected by the seventh defendant.  While the first plaintiff may claim against the seventh defendant for transferring such assets in breach of duty, that is not sufficient for the first plaintiff to sustain a claim against the fifth and sixth defendants in negligence in respect of transfers of assets effected by the seventh defendant as curator. 

50.      The second plaintiff may however bring such claims against the fifth sixth and seventh defendants in respect of the sale of her interest the matrimonial home and Berkley Court because she was not under any form of curatorship at the time of the sale of the assets or the transfer of any proceeds of sale of such assets into the Trust. 

51.      Objection was taken by Advocate Baxter in relation to the allegation proposed in the re-amended order of justice that there was a voluntary assumption of responsibility by the sixth defendant with effect from late November 2005.  I have already dealt with the fact that the sixth defendant in his own affidavit accepted that he was making statements about the Trust from this time as set out in paragraph 39 above.  The allegation that the plaintiffs vested in complete trust and confidence in the sixth defendant was also made in the amended order of justice at paragraph 357 and in further and better particulars of that paragraph.  Although it was only suggested in the amended order of justice that the first plaintiff vested trust and confidence with the effect from mid-2006, given that it is accepted by the sixth defendant that he was making statements to both plaintiffs from the end of 2005, I do not regard the allegation that there was a  voluntary assumption of responsibility, which is necessary to make a case of negligent misstatement, from the end of 2005 as being substantially so different as to either disallow or strike out such an allegation. 

52.      In allowing this part of the case to be put I should make it clear that the issue of whether in fact the sixth defendant was acting in his own name when giving advice or making representations or whether he was acting as a director of the first defendant is a matter for trial. 

Piercing the corporate veil

53.      Paragraph 4.4.1 of the proposed re-amended order of justice pleads that the court is entitled to pierce the corporate veil and to look through the first defendant to impose personal liability on the sixth defendant.  This is an entirely new allegation which was not made in the amended order of justice.  Paragraph 4.4.1 as proposed provides as follows:-

"All of Gidley, Killmister and Manning made clear unequivocal representations to Mr and Mrs Ching that they had no choice but to sell Granville and Berkley Court and place the net proceeds of sale into trust; a trust which was to be controlled by a group of companies which companies included CITE, the First Defendant, which at all material times:

(i)        was solely controlled by Killmister, in his capacity as sole Director;

(ii)       was wholly owned by Killmister, being the only shareholder;

(iii)      had the sole purpose of being the corporate Trustee of the Ching Trust; and

(i)        had the sole engagement as the corporate Trustee of the Ching Trust.

In the premises the Court is entitled to pierce the corporate veil and look directly through CITE to Killmister who at all material times used CITE as the vehicle for additional; breaches of trust, fiduciary duty and/or negligence.  It is averred that trust and/or fiduciary duty perpetrated by CITE and which have caused Mr and Mrs Ching loss and/or damage."

54.      In La Générale des Carrières et des Mines v FG Hemisphere Associates LLC [2012] (2) JLR 172 the Privy Council at paragraph 23 with apparent approval set out the domestic law as cited by Counsel for the appellant on piercing the corporate veil as follows:-

"23     In making this last submission, Mr Hirst relies upon domestic law principles recently analysed by Munby, J. at first instance in Ben Hashem v. Ali Shayif (6). In summary, Munby, J. held ([2008] EWHC 2380 (Fam), at paras. 159-164):

159.    In the first place, ownership and control of a company are not of themselves sufficient to justify piercing the veil. This is, of course, the very essence of the principle in Salomon v. A Salomon & Co. Ltd. [1897] AC 22 -‰.-‰.

160.    Secondly, the court cannot pierce the corporate veil, even where there is no unconnected third party involved, merely because it is thought to be necessary in the interests of justice .-‰.-‰

161.    Thirdly, the corporate veil can be pierced only if there is some 'impropriety' .-‰.-‰.

162.    Fourthly, the court cannot, on the other hand, pierce the corporate veil merely because the company is involved in some impropriety. The impropriety must be linked to the use of the company structure to avoid or conceal liability .-‰.-‰.

163.    Fifthly, it follows from all this that if the court is to pierce the veil it is necessary to show both control of the company by the wrongdoer(s) and impropriety, that is, (mis)use of the company by them as a device or façade to conceal their wrongdoing .-‰.-‰.

164.    Finally, and flowing from all this, a company can be a façade even though it was not originally incorporated with any deceptive intent. The question is whether it is being used as a façade at the time of the relevant transaction(s). And the court will pierce the veil only so far as is necessary to provide a remedy for the particular wrong which those controlling the company have done. In other words, the fact that the court pierces the veil for one purpose does not mean that it will necessarily be pierced for all purposes."

55.      In the present matter, while factual allegations of control are pleaded, the proposed pleading does not meet the threshold of impropriety set out in FG Hemisphere and nowhere is it alleged that any impropriety is linked to the use of the first defendant as a company to avoid or conceal liability.  In other words, it is not enough simply to allege a breach of duty by the first defendant or the fact that the first defendant's corporate status provides the protection of limited liability to found an allegation sufficient to plead impropriety.  If I were to allow this amendment then it would be possible to make an allegation to pierce the corporate veil in any case where a company established for a single purpose, assuming this to be true, was used to obtain the benefit of limited liability.  In my judgment, as with the tort of deceit, much more is required to make an allegation of impropriety to assert a case that the benefits of limited liability protection are being used as a device or façade to conceal wrongdoing.  Such an allegation comes close to allegations of dishonesty and must be fully particularised.  In this case no such particulars have been provided. 

56.      In the second draft, the plaintiffs alleged that the first defendant was used as a device or façade to permit the sixth defendant to benefit from fees paid to other companies wholly owned and controlled by the sixth defendant.  It is also alleged that the first defendant since the litigation was commenced has ceased to trade and has a dormant status.  However the test to place the veil of a company, even a company with a sole shareholder and director, requires the corporate status to be used as a device or facade at the time of the transaction (see F G Hemisphere).  Despite disclosure having occurred, the second draft does not state (any more than the first draft) how the corporate status of the first defendant was used as a device when other companies were retained or fees were paid for.  It is also not pleaded that the corporate status was used to avoid or conceal a liability on behalf of the sixth defendant to the plaintiffs.  The pleading also does not allege that the first defendant was a sham, only that the Trust was void principally due to failings in drafting.  The second draft does not therefore alter the view I have reached on the allegation of piercing the corporate veil. 

57.      Again, while it is open to me as a matter of discretion to allow the plaintiffs more time to plead and particularise an allegation of piercing the corporate veil, I am not willing to do so.  This is the first occasion on which an allegation to place the corporate veil has been made.  It is raised some 4 years after the commencement of proceedings, 7 years after the events complained of and without any particulars despite two attempts to do so.  No evidence was placed before me as to why such an allegation can now be made or to explain why it has not been made previously.  The plaintiffs have also been given adequate time to review their case with their new legal advisors.  As with the allegation of deceit, the assertion that the corporate status of a company has been misused to conceal wrongdoing is a serious allegation and one which at this stage inevitably involves a defendant in the strains of litigation and requires a defendant to recall the events that have happened many years earlier.  In my judgment I consider it too late in the day for the plaintiffs to be allowed to pursue this allegation. 

Dishonest assistance

58.      The allegations of dishonest assistance are found at paragraphs 5.23 and 6.30 of the proposed re-amended order of justice. 

59.      The first allegation relates to a breach of trust by the first defendant in failing to deal with the Digger shares.  No allegation is made that the first defendant acted dishonestly.  The specific assertions of dishonest assistance by the fifth and sixth defendants are at sub-paragraph vii of paragraph 5.23 which provides as follows:-

"Moreover, by virtue of:(i) the advice relating to Digger share given by Killmister and Gidley to Mr and Mrs Ching; (ii) Gidley's appointment in relation to the proposed sale of Digger; (iii) the repeated statements made by Gidley and Killmister that the Digger Shares were worthless (iv) the assertion by Gidley and Killmister that the reason the Digger Shares could not be sold was because Mr Ching refused to contemplate such sale; and (v)CITE only ever being caused to act through Killmister.

Gidley and Killmister are both liable to compensate Mr and Mrs Ching, as dishonest assistants to CITE for the loss occasioned from this breach of trust."

60.      During the course of argument Advocate Jones clarified that his case was that the fifth and sixth defendants either knew that their statements that the Digger shares were worthless were untrue, or were reckless as to whether they were true or not. 

61.      The second allegation of dishonest assistance relates to an investment in the bond referred to at paragraph 23 (iv) above.  The allegation is that the first defendant acted in breach of duty in relation to investing trust monies in an unsuitable investment.  

62.      Paragraph 4 of paragraph 6.31 of the proposed re-amended order of justice states as follows:-

"Moreover, by virtue of: (i) the statements made by Killmister to Ms Alexander and her reasonable reliance on those statements; (ii) Killmister (through CITE) making a secret profit on the investment into the AIG Bond; (iii) CITE only ever being caused to act through Killmister.

Killmister is liable to compensate Mr and Mrs Ching as a dishonest assistant to CITE for the loss occasioned from this breach of trust"

Again it was clarified in argument that Mr Killmister knew or was reckless as to whether the statements he made through the first defendant were untrue. 

63.      As to what amounts to dishonest assistance the classic definition is to be found in the speech of Lord Nicholls in Royal Brunei Airlines v Tan (1995) AC 378.  The essential elements of the definition were summarised succinctly by Proudman J in the case of Weavering Capital (UK) Limited & Anor v ULF Magnus Michael Peterson & Ors HCO 9CO1915 whereas paragraph 200 she stated as follows:-

"The classic definition of dishonest assistance is contained in the speech of Lord Nicholls in Royal Brunei Airlines v. Tan [1995] AC 378 at 392.  There are a number of requirements to make out such a case.  First, a trust or, as here, other fiduciary relationship.  Secondly, a breach of the fiduciary duty on the part of the fiduciary, in this case Mr. Peterson.  Thirdly, a causal link between the breach and a loss to the beneficiaries (or between the breach and a gain to the defendant, as the case may be).  Fourthly, assistance by the defendant in the breach and fifthly a dishonest state of mind on the part of the defendant."

64.      The allegation of dishonest assistance in relation to the transfer of property into the Trust even as amended is flawed and cannot stand.  To sustain a claim in dishonest assistance what is required is for someone to assist, in the case of a trust, a trustee acting in breach of duty.  Such liability cannot arise in relation to a transfer of assets into the Trust.  The obligations on the part of the trustee only arise once assets are received.  Any liability in dishonest assistance can only therefore relate to a trustee dealing with assets not the decision to transfer assets into Trust.  If dishonesty is alleged in relation to the transfer of assets in relation to a trusteeship, that might form the basis of an allegation of fraud, dol or conspiracy.  However, no such allegations are made by the plaintiffs in this case. 

65.      The allegations of dishonest assistance in relation to the first defendant's conduct as trustee including the second draft rely firstly on contradictory statements made in the amended answer filed by the first to fourth and sixth defendants and secondly on steps taken by the fifth and sixth defendants contrary to some of the statements relied upon.  The statements relied upon appear to be those in the amended answer in response to paragraph 330 of the amended order of justice. Sub-paragraphs (b) and (c) expressly plead:-

"The Digger Shares are and always have been worthless."

This contradicts the amended answers response to paragraphs 253 -259 of the amended order of justice where paragraph (g) pleads:-

"It is denied that C.I. Trustees have at all times since 2006 alleged that the Digger shares hold no value and specifically at the time of this proposed deal, the trustee was under the impression (formed  not least by Mr. Ching's representations) that the Digger Shares had real value."

Why it is said by the plaintiffs that the fifth and sixth defendants were dishonest is because the fifth and sixth defendants, in purporting to on behalf of the first defendant to sell or deal with the Digger Shares, were doing so contrary to their own statements that the Digger Shares were worthless.  The dealing with the assets was trying to raise some money by lending the shares as a form of security to a third party, albeit this never happened.  Otherwise it appears to be common ground that some of the Digger Shares were held for the benefit of third parties although the plaintiffs now allege that approximately 900,000 shares were held for them personally.  The defendant's amended answer and the affidavit of the sixth defendant both set out that one of the challenges facing the first defendant was ascertaining who might be beneficially interested in the Digger Shares.  The plaintiffs' case at its highest is therefore that the fifth and sixth defendants, despite making statements that the Digger Shares were worthless, acted dishonestly by attempting to raise some value for the shares and also by attempting to ascertain who the beneficial owners of those shares might be.  The essence of the criticism therefore seems to be that the fifth and sixth defendants should have done something more than they tried to do to realise value in the Digger shares.  

66.      In my judgment this is not sufficient to sustain an arguable case of dishonesty.  The proposed pleading, despite two attempts to do so, asserts no more than a failure by the fifth and sixth defendants to either act at all or to deal properly with assets.  No allegation of conspiracy is made and there is no allegation that the failing to act was deliberate.  Moreover the first defendant could only act through the sixth defendant.  Yet no allegations of dishonesty have ever been asserted against the first defendant by looking to attribute the sixth defendant's knowledge or state of mind to the first defendant.  In my judgment nothing is set out as to why the Court could conclude a trial that the sixth defendant transgressed the ordinary standards behaviour.  The sixth defendant still does not know the case he has to answer.  I also consider something more is required than a bare assertion that a director is liable as a dishonest assistant, by acting as a director of a company, in order to formulate an arguable claim of dishonesty.  Otherwise an allegation of dishonest assistance could be made in every case where a director had taken a step on behalf of a company (cf Scrutton v Bone CH996-S95895).  In other words, assuming a director can assist a breach of duty by a company, any allegation of dishonesty has to be pleaded and particularised (see Cunningham) and the proposed pleadings do not do so.  

67.      I also do not consider it appropriate to allow the plaintiffs at this stage a further opportunity to try to re-plead dishonest assistance.  My reasons for doing so are the same as those set out paragraphs 42 and 57 above in relation to refusing to allow the plaintiffs to re-particularise their allegations of deceit or to pierce the corporate veil. 

68.      In relation to the second allegation of dishonest assistance, which is in respect of the investment in the AIB Bond, this allegation is made in paragraph 369 of the amended order of justice.  It is implicit in the plaintiffs' proposed pleading that the statements the sixth defendant is alleged to have made on 31^st January, 2007, (as set out at paragraph 6.3 of the proposed amended pleading) were untrue.  In particular, it appears to be the plaintiffs' case that the statements that Mr and Mrs Ching were extremely wealthy with substantial assets in Jersey and Canada, that there was a share portfolio of between £750,000 and £1 million, that Mr and Mrs Ching had sufficient assets from which they could derive an income for at least the next two to three years, and the investments were be held for a considerable number of years were all untrue and known to be untrue by the sixth defendant.  On balance I consider that this allegation is an allegation that the Jurats might conclude at trial amounts to a transgression of ordinary standards of honest behaviour if they were satisfied, as alleged, that the sixth defendant was motivated by obtaining secret commissions for his benefit or for the benefit of the first defendant which was wholly owned by him.  I should make it clear that I am not concluding that the sixth defendant was dishonest.  Rather I am concluding in relation to this allegation, that I am not persuaded to exercise my jurisdiction to strike out the pleading and that I am satisfied that there is an arguable allegation of dishonesty that can be considered by a trial Court.  In making such an allegation however the final version of the plaintiffs' pleading should make it clear that the matters I have referred to above were untrue (and known by the sixth defendant to be untrue). 

Allegation of Breach of Fiduciary Duty

69.      I have set out at paragraphs 30(i)-(iii) above that the amended order of justice contained allegations of breach of fiduciary duty.  I further note that at paragraphs 341, 362 and 383 it is alleged that each of the fifth, sixth and seventh defendants breached fiduciary duties by procuring the relevant transactions in respect of the sale of the matrimonial home and Berkley Court and the transfer of the Digger shares into the Trust. 

70.      At paragraph 47 of this judgment, in relation to the claims brought on the basis of negligent misstatement, I have accepted that the allegations of a voluntary assumption of responsibility are not substantially so different from the allegations made in the amended order of justice to either disallow or strike out such an allegation.  I consider the same reasoning applies to the claims for breach of fiduciary duty which are an alternative cause of action to the claim of negligent misstatement.  In my judgment the two stand or fall together. 

71.      I should also make it clear however that a claim for breach of fiduciary duty cannot be brought against or in respect of any transfer of the first plaintiff's interest in the matrimonial home or Berkley Court for the same reasons that such a claim cannot be brought under the heading of negligence misstatement or negligence (see paragraph 43 above). 

72.      Again, in reaching this decision, the issue of whether the sixth defendant was acting in his own when he is said to be under a fiduciary duty or whether he was acting as a director of the first defendant is a matter for trial. 

Position of Mr Gidley and Mr Manning

73.      In relation to the fifth defendant, Mr Gidley, although objections were taken by Advocate Baxter on behalf of the sixth defendant, in my judgment, the same analysis applies to the claims made against the fifth defendant.  Although he has not issued a summons to strike out the claims in the order of justice against him, in light of the fact that the plaintiffs put forward a complete re-pleading of their case, I am not prepared to allow allegations of dishonest assistance in respect of the Digger shares or deceit to be made against the fifth defendant for the same reasons that they should not be made against the sixth defendant.  The proposed pleading does not set out why the fifth defendant transgressed the ordinary standards of honest behaviour.  The same reasoning also applies to the claims in deceit or dishonest assistance made against the seventh defendant, Mr Manning. 

74.      The claims by the first plaintiff in negligence or negligent misstatement cannot in addition be brought against the fifth defendant in respect of the sales of the matrimonial home and any interest of the first plaintiff in Berkley Court and the transfer of the proceeds of sale to the Trust.  This is for the same reasons that such a claim cannot be brought against the sixth defendant namely that reliance or loss arising from a breach of duty, even a breach of fiduciary duty cannot be established.  These steps were carried out by the seventh defendant not the first plaintiff.  The remaining claims against the fifth defendant are matters for trial. 

75.      The seventh defendant however is in a slightly different position because he was the curator of the plaintiff between June 2006 and the end of 2008.  The first plaintiff acting through his current curator is therefore entitled to call the seventh defendant to account for his actions as curator.  In relation to such an allegation, the re-amended order of justice should plead expressly that the seventh defendant acted in breach of Article 50(1) of the Mental Health (Jersey) Law 1969 in that he acted without reasonable care.  Article 50(1) also allows for allegations of bad faith to be made.  No such allegations are made in the proposed re-amended order of justice.  I consider that the matters currently pleaded against the seventh defendant in the proposed re-amended order of justice are sufficient to found allegations of want of reasonable care for determination at trial but are not sufficient to allege bad faith.  I have reached this view essentially for the same reasons as to why allegations of deceit or dishonesty or proprietary should not be allowed.  The claims in negligence and negligent misstatement are also matters for trial against the seventh defendant just as they are for the fifth and sixth defendants. 

A way forward

76.      In light of my decision I am going to allow the plaintiffs 2 weeks from the date of the delivery of the judgment to formulate its re-amended order of justice in accordance with this decision.  In doing so all allegations of deceit, dishonest assistance other than dishonest assistance against the sixth defendant in respect of the AIB bond and piercing the corporate veil should be removed.  There should also be no reference in the pleading to any of the withdrawn assertions namely undue influence, conspiracy or knowing receipt or any factual maters leading to such assertions.  In particular the assertion in paragraph 4.3 that the fifth, sixth and seventh defendants were working in concert and the assertions at paragraph 4.44 that the fifth, sixth and seventh defendants were motivated by a desire to enrich their individual various businesses and personal interests and embarked on a dishonest purpose should also be removed, as should any other references to bad faith or dishonesty.  The allegations that the first plaintiff relied upon the advice of the fifth and sixth defendants in relation to the transfer the matrimonial home and any interest in Berkley Court should also be removed.  The amended pleadings should be sent to the parties and to me for approval. 

Loss

77.      Advocate Baxter argues that the proposed re-amended order of justice is inadequate because it fails to describe how any alleged loss arises from any statements made by the sixth defendant.  He suggests that it cannot follow that all losses incurred were caused by any claim of negligent misstatement or in negligence and gives the example of the Digger Shares losing their value.  

78.      The claims against the fifth and seventh defendants are negligent misstatement, alternatively negligence, and breach of fiduciary duty and in the case of the seventh defendant, breach of contract/duty.  The claim against the first to fourth defendants is for breach of trust.  The claim against the sixth defendant is also for negligent misstatement, negligence and breach of fiduciary duty although the capacity in which he is acting is an issue for trial. 

79.      In my view what loss flows from each breach is also a matter for trial.  It is open to the plaintiffs to argue that, but for breaches of duty, assets of the plaintiffs would have not been sold and the proceeds transferred to the first defendant and so they seek to recover what was transferred.  It is also open to defendants to argue who is responsible between them and to make submissions to prevent double recovery.  To the extent the plaintiffs have already recovered assets from the first defendant or do so as a result of this litigation from any defendant they will have to give credit for such recovery.  However the plaintiffs are entitled to pursue those claims I have allowed in the alternative to seek to restore what it is alleged was lost.  

Costs

80.      I wish to hear argument on the giving of this judgment from the parties on:-

(i)        What costs orders I should make in respect of allegations that have been withdrawn and what basis;

(ii)       The costs of and incidental to the two summons before me and on what basis. 

81.      Insofar, the defendants have to amend their pleadings to reply to the re-amended order of justice as I have allowed it to be formulated, the plaintiffs will have to pay the costs of and occasioned by such amendments on the standard basis.  That includes the wasted costs incurred by the defendants in relation to answers already filed as well as the costs incurred by each of the defendants in preparing fresh answers to the re-amended order of justice. 

Authorities

Cunningham v Cunningham [2009] JLR 227.

Vezier v Bellego & Ors [1994] JLR 75.

Alhamrani v Alhamrani [2007] JLR 44.

Re Esteem Settlement 2000/150.

Re E Trust [2008] JLR 360.

Pell Frischmann v Bow Valley [2008] JLR 311.

Clerk & Lindsell on Torts 19th Edition.

Derry v Peek [1889] UKHL 1.

La Générale des Carrières et des Mines v FG Hemisphere Associates LLC [2012] (2) JLR 172.

Royal Brunei Airlines v Tan (1995) AC 378.

Weavering Capital (UK) Limited & Anor v ULF Magnus Michael Peterson & Ors HCO 9CO1915.

Mental Health (Jersey) Law 1969.