2013 Case of Note: Moyes & Co (UK) Limited v Northern Gulf Petroleum Holdings Limited
About Jessica Kemmenoe
Jessica is an associate in the firm’s dispute resolution practice group. She practices in the area of civil and commercial litigation and advises on a wide range of matters including property disputes, estate matters, mortgage enforcement, employment matters, debt collection and immigration. Jessica started with MJM as a Pupil in July 2013 and is a local Bermudian.
The 2012 Supreme Court decision in the case of Moyes & Co (UK) Limited v Northern Gulf Petroleum Holdings Limited [2012] Bda LR 77 (290 KB PDF), clarifies the Bermuda Court’s approach when considering an application to have a claim struck out.
In this case, the Defendant attempted to have the action struck out pursuant to the Rules of the Supreme Court Order 18, Rule 19 Grounds (a) and (d), which states that the Court may strike out an action on the ground that—
(a) it discloses no reasonable cause of action or defence … or
(d) it is otherwise an abuse of the process of the court …
The Supreme Court Rules state that no evidence shall be admissible on an application to strike out when based on the ground listed in (a). Therefore, the question in this case was whether the pleadings, taken at face value, disclosed a cause of action.
The Defendant submitted that the material facts necessary had not been pleaded with sufficient detail. Justice Hellman confirmed that the Defendant was entitled to sufficient disclosure of the conduct of the parties relied on to understand the Plaintiff’s case.
Hellman explained that he was mindful of the commentary to the Rules of the Supreme Court in England and Wales whereby it states, in summary, that where a pleading is defective insofar as it does not contain particulars, then an application should be made for particulars and not for an order to strike out. Hellman held that it would be premature to assume on the face of the pleadings that there was no contract. The strike out application subsequently failed with respect to the allegation that the statement of claim had not properly been pleaded or disclosed no reasonable cause of action against the Defendant.
Hellman next considered if this action was an abuse of the process of the court. He stated that based on the arguments, a contractual relationship of some sort was in force and that the Plaintiff’s case may be weak. However, he explained that even though it may seem that the Plaintiff has a weak case, it does not mean that the case is inarguable.
Hellman referred back to a case in which Plaintiff’s counsel had previously relied on, Electra v KPMG [2000] BCC 368 at 386, in which it states: “[T]o succeed in an application to strike out, a defendant must show that there is no realistic possibility of the plaintiff establishing a cause of action consistently with his pleading and the possible facts of the matter when they are known.”
Ultimately the point made by Justice Hellman was that it would be difficult to grant the application to strike out when there are issues as to material primary facts and the inferences to be drawn from them that have not yet been submitted into evidence. In conclusion, the onus is on the Defendant to prove that even upon submission of all the evidence, the Plaintiff’s case would still have no realistic possibility. It was held in this case that the Defendant had not surmounted this “high hurdle” and the application to strike out was dismissed.