Niall Iain MacFirbhisigh (as Curator of Barry Lionel Ching); Barbara Mary Marvell Ching v C. I. Trustees and Executors Ltd; Steven Gidley; Gary Killmister; Kevin Manning

JurisdictionJersey
CourtRoyal Court
JudgeDavid Hunt,Jurats Marett-Crosby,Grime
Judgment Date17 November 2015
Neutral Citation[2015] JRC 233
Date17 November 2015

[2015] JRC 233

ROYAL COURT

(Samedi)

Before:

David Hunt, Esq., Q.C., Commissioner, and Jurats Marett-Crosby and Grime

Between
(1) Niall Iain MacFirbhisigh (as Curator of Barry Lionel Ching)
(2) Barbara Mary Marvell Ching
Plaintiffs
and
(1) C. I. Trustees and Executors Limited
(2) Steven Gidley
(3) Gary Killmister
(4) Kevin Manning
Defendants

Advocate J. Garood for the Plaintiffs.

Advocate G. A. H. Baxter for the First and Third Defendants.

Mr Gidley appeared on his own behalf.

Authorities

Financial Services (Jersey) Law 1998.

Mental Health (Jersey) Law, 1969.

T.A. Picot (C.I.) Limited v. Michel Crill and Hamon [1995] JLR 33.

Riley v Pickersgill & Le Cornu [2001] JLR 471.

Hedley Byrne & Co. Ltd. V Heller & Partners Ltd [1964] A.C. 465.

Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145.

White v Jones [1995] 2 A.C. 207.

Hunt v Optima (Cambridge) Ltd [2015] 1 WLR 1346.

Williams v Natural Life Foods Ltd [1998] 1 W.L.R. 830.

Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181.

Charlesworth & Percy on Negligence (13th edition).

Bateson v Savills Private Finance Limited [2013] EWHC 719.

In the matter of the E, L, O and R Trusts [2008] JRC 150.

Libertarian Investments Limited v Hall 17 ITELR 1.

Underhill and Hayton's Law of Trusts and Trustees (18th edition).

Lewin on Trusts (19th edition).

In re Smith [2014] EWHC 3926 (Ch).

Masterman-Lister v Brutton & Co [2003] 1 WLR 1511.

Walker v Badmin [2014] EWHC 71 (Ch).

In the matter of the Strathmullen Trust [2014] (1) JLR 309.

Pitt v Holt [2013] 2 A.C. 108.

The Law of Trusts (2nd ed.) by Thomas and Hudson.

Knight v Knight (1840) 3 Beav. 148 and Hunter v Moss [1994] 1 W.L.R. 452.

King v King [1931] Ch. 294.

Re Beaney [1978] 1 W.L.R. 770.

Re Morris [2001] WTLR 1137.

Williams v Williams [2003] WTLR 137.

Quth v Hussain [2005] EWHC 157 (Ch).

Deacon v Bower [1978] J.J. 39.

Sutton v Sutton [2010] WTLR 115.

Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] A.C. 669.

Nolan v Minerva Trust Company Limited [2014] JRC 078A.

Trusts (Jersey) Law 1984.

Gwembe Valley Development Co Ltd v Koshy (No. 3) [2004] 1 BCLC 131.

Limitation Act 1980.

Bristol and West Building Society v Mothew [1996] 4 All E.R. 698.

In re Esteem Settlement [2002] JLR 53.

Public Services Committee v Maynard [1996] JLR 343.

Boyd v Pickersgill and Le Cornu [1998] JLR 305.

Minories Finance Limited v. Arya Holdings Limited [1994] JLR 149.

Trust — damages sought from the First to the Third defendants in relation to the creation of the Ching Trust 2006.

THE COMMISSIONER:
Introduction
1

In these proceedings as now constituted the Plaintiffs seek equitable compensation and damages from the First to Third Defendants on a number of different grounds arising out of the creation of the Ching Trust 2006 (“the Trust”) and the subsequent administration of the affairs of the Trust. On the second day of the trial the Plaintiffs discontinued their claims against the Fourth Defendant, Mr Kevin Manning (a Jersey qualified écrivain), who was represented by Advocate Williams of Ogier; accordingly we make no further reference to the claims against Mr Manning. (When we refer to the Defendants hereafter, we mean only the First to Third Defendants unless the context requires otherwise.) The First to Third Defendants dispute all the claims made against them; in addition, the Second and Third Defendants claim that the Plaintiffs' claims against them are barred by prescription.

2

In this judgment we confine ourselves to addressing those arguments made by the parties which seem to us to be of importance in resolving the various disputes between them. We make clear, however, that we have had regard to all the submissions both written and oral made to us, whether we mention them specifically in this judgment or not.

The parties
3

The First Plaintiff, Mr Niall MacFirbhisigh, is the present curator of Mr Barry Ching. Mr Ching, who is now 67 years old, was made the subject of a curatelle on 19 June 2006. His first curator was Mr Manning. By an order dated 25 November 2008 the Court accepted Mr Manning's resignation as Mr Ching's curator and by the same order the Court appointed Mr MacFirbhisigh as curator in Mr Manning's place.

4

Following a career as a stock-broker with the firms of Trevor Mathews & Carey, Philips & Drew, and Le Masurier James & Chinn, Mr Ching became the managing director and owner of ARC Capital Management Limited (“ARC”), an investment management and stock-broking firm. Sadly he is now in the advanced stages of Alzheimer's disease and is a patient in St Saviour's Hospital. The Second Plaintiff, Mrs Barbara Ching, is his wife. They were married on 14 November 1997. We refer collectively to Mr and Mrs Ching as “the Chings”. The Plaintiffs were represented by Advocates Pallot and Garrood of Carey Olsen (principally the latter), assisted by Ms Garrett-Sadler.

5

The First Defendant, C.I. Trustees and Executors Limited (“CITE”), is an English company, of which the Third Defendant, Mr Gary Killmister, is the sole director and beneficial owner. CITE and Mr Killmister were represented by Advocate Baxter of Viberts, assisted by Ms Zambon.

6

The Second Defendant, Mr Steven Gidley, was from June 2001 to January 2007 the managing director of Compliance Solutions Limited (“Compliance”). During the ten years up to 2001 he was involved in offshore compliance with HSBC Bank International Limited, ending as head of offshore compliance. Mr Gidley appeared in person. This proved to be less of a problem for the Court than might have been expected since Mr Gidley conducted his case with considerable ability.

7

Mr Killmister, the Third Defendant, is a tax accountant in practice in Hexham, Northumberland; he has practised as an accountant since 1987. He is also the sole director and beneficial owner of C.I. Accountancy Limited, an affiliate of CITE. He initially trained and worked in Jersey. Between 1994 and 2007 he was a director of, and a shareholder in, the Beresford group of companies providing trust and corporate services from Jersey.

Summary of the Plaintiffs' claims
8

The Chings, who were described in the Plaintiffs' opening skeleton argument as “two elderly, vulnerable individuals”, claim that they each placed their absolute, unqualified faith and trust in the Defendants, whose advice they sought and relied upon in relation to their financial affairs. More particularly, the Chings were concerned to ensure their financial well-being and security for their old age and they relied on both the Defendants' advice and the Defendants' implementation of that advice in order to safeguard their financial future.

9

The advice on which the Plaintiffs relied was initially given to Mr Ching by Mr Gidley in November 2005 and consisted in summary of statements to the effect that the Chings were in dire financial straits, that they had no alternative but to liquidate all of their assets and that the solution to their financial difficulties was to place their liquidated assets in trust. This advice was repeated and confirmed on several occasions by each of the Defendants to both Mr and Mrs Ching. The Plaintiffs assert that the advice was negligently given in that each of the Defendants knew or ought to have known that the advice was bad advice and therefore likely to occasion financial loss to them, or was reckless as to whether the advice was bad advice and therefore likely to occasion financial loss to them. Thus, for example, the Plaintiffs submit that the Chings were not in fact in dire financial straits and that it was not necessary to liquidate all of their assets.

10

The Plaintiffs also say that each of the Defendants, in giving the advice that they did, in persuading the Chings to act on such advice and in assuming responsibility for implementing the advice, assumed particular responsibilities to the Chings which were essentially fiduciary in nature, in that each Defendant knew or ought to have known that the Chings placed their trust in the Defendants, believing that they could and should rely on the advice, that the Defendants could and should be trusted to implement the advice on their behalf and that the Defendants would at all times act in their best interests.

11

The Plaintiffs contend that but for the Defendants' advice the Chings would not have liquidated their assets (in particular Granville, their jointly-owned property in Jersey, and Berkeley Court, a flat in Eastbourne in Mrs Ching's name), would not have placed those assets in trust and would not have suffered the capital losses that they did suffer as a direct result. The capital losses comprised in particular sums which could have been raised from sales of shares in a Canadian company, Digger Resources Inc. (“Digger”) which had been incorporated on 31 December 1985, and losses on an investment bond (“the AIG bond”). The Plaintiffs also submit that the Chings would not have surrendered the financial benefit of maintaining ownership of their assets, particularly their real estate. Nor would the Chings have been required to pay any of the Defendants any fees for their services. Accordingly the Defendants are, so the Plaintiffs say, directly responsible for the consequences of the advice which caused the Chings' financial loss. The Plaintiffs claim that the Chings are entitled to be and should be compensated by the Defendants and placed in a position to enjoy the remainder of their lives in the financial security which, were it not for the actions of the Defendants, they would now be enjoying.

12

Against that background, the Plaintiffs' claims as summarised in their opening skeleton argument fall under five distinct heads, namely (together with the sums now claimed):–

(A) negligent misstatement, which is alleged against Mr Gidley and Mr Killmister, (originally jointly and severally, but now only severally)

...

To continue reading

Request your trial
3 cases
  • Anne O'Keefe and Another v Cevdet Caner and Others
    • United Kingdom
    • Chancery Division
    • 15 May 2017
    ...application of the prescription period for tort under either limb of Article 74(1). 39 MacFirbhisigh v C.I. Trustees and Executors Ltd [2015] JRC 233 (" MacFirbhisigh") did not concern breach of directors' duties; the claims included allegations of negligent misstatement and breach of fiduc......
  • CMC Holdings Ltd v Martin Henry Forster
    • Jersey
    • Royal Court
    • 26 August 2016
    ...v Central Bank of Nigeria [2014] AC 1189. Peconic Industrial Development Limited v Lau Kwokfai 11 ITELR 844. MacFirbhisigh v CI Executors [2015] JRC 233. West v Lazards Bros & Co (Jersey) Ltd & Ors [1993] JLR 165. Midland Bank and Day v Federated Pension Services [1994] JLR 276. Royal Brune......
  • Niall Iain MacFirbhisigh (as Curator of Barry Lionel Ching) v C.I. Trustees and Executors Ltd
    • Jersey
    • Royal Court
    • 7 September 2016
    ...Authorities MacFirbhisigh and Ching v CI Trustees and Executors & Ors [2016] JRC 002A. MacFirbhisigh and Ching v CI Trustees and Others [2015] JRC 233. Crociani v Crociani [2014] (1) JLR 503. Mars UK Limited v Teknowledge Limited [1999] 2 Costs L.R. 44. Trust — reasons for ordering payment ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT