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Justice Glasgow rules on the EC$2 million joint bank account – Part III

Attorney-at-law Karen Samuel - represented the Claimant in the $2M joint account lawsuit

High court judge Justice Raulston Glasgow has been called upon to give a ruling on the proceeds in a EC$2 million Joint Account in which one of the holders, British national Lionel Akins who lived on the sister isle of Carriacou had left behind.

The other name on the account Lauralee Cross was trying to lay her hands on all the money despite instructions given by the deceased that half of the money be transferred to another Joint account that he held with a close relative, Garvin Mc Quilkin.

Republic Bank was conducting an investigation when Akins died and did not transfer the funds.

Cross instituted legal action against Republic Bank claiming that she is entitled to the beneficial interest of the proceeds of the joint account which she previously held with Akins.

She argued that her entitlement to the entire balance in the account in the sum of $2,000,000.00 arises by virtue of the right of survivorship after the deceased’s death.

The ancillary claimant (Mc Quilkin) pleads that Ms. Cross is not entitled to the entire proceeds on the account since the deceased instructed the bank to transfer the sum of $995,262.27 from that account to another account prior to his death.

She contended that the bank’s failure to honour her request deprives her of the benefit of the funds in the account and claimed for loss and damages in the sum of $2,000,000 together with orders for declarations and interest, among other relief.

In response to the claim, the bank denies that the deceased established the account jointly with Cross and that the account was a personal chequing account in the deceased’s name to which he thereafter added Cross as a joint holder.

The bank argues that it had a lawful basis for freezing the account and it was bound by a legal duty of confidentiality owed to the deceased and his estate with respect to transactions conducted on the account.

Following is the Raulston Glasgow judgement on the issue:-

[41] In any event, Mr. Mc Quilkin did not make a claim for resulting trust on his pleadings but raised it on submissions. Under the Civil Procedure Rules rule 8.7A parties are required to set out the parameters of their case in their pleadings and cannot introduce new facts or contentions without leave of the court. In the recent decision of National Lotteries Authority v Jerome De Roche, Ward JA elucidated: “The claimant must plead the essential facts that constitute its case, and those facts must be sufficient to establish a cause of action and to enable the other side to know the case it has to meet in sufficient detail. CPR 8.7A prohibits reliance on allegations or facts not pleaded unless the judge gives permission, or the parties agree.”

[42] For the foregoing reasons the claim for resulting trust is refused.

Mr. McQuilkin’s claim for breach of the bank’s duty
[43] On this score, Mr. Burke for Mr. McQuilkin submits that it is settled law that the bankcustomer relationship is contractual in nature. Further, counsel argues, a bank has a duty under its contract with its customers to exercise reasonable care and skill in carrying out the customer’s instructions as explained by the court in Karak Brothers Company Ltd v Burden. Counsel maintains that the duty to exercise reasonable care and skill included a duty to carry out the deceased’s mandate in a prompt and efficient manner.

[44] The bank’s response is that when the first set of written instructions were brought to its attention by Mr. Mc Quilkin it acted in furtherance of its duty to carry out investigations into the deceased’s health and state of mind. The bank’s position is that the verification of the authenticity of the transfer letter was not to protect its own interest, but to protect the interest of the account holders. The bank formed the view that the first transfer letter did not represent the deceased’s intention since the deceased in the second letter only desired to transfer half of the monies in the account. However, as I have found above, by the time of the deceased’s passing, the bank had already satisfied itself that the deceased possessed the requisite mental capacity to issue instructions about the transfer and that there was nothing precluding the bank from executing the instructions.

[45] This view is compounded when one looks at the nature of the contract in this case. The bank gave evidence that the joint account was set up in such in a manner that either account holder were able to withdraw or transfer monies from the account without the other’s consent. Therefore, there was nothing in principle which prevented the deceased from transferring monies out of the joint bank account as he so desired without Ms. Cross’ consent. The bank had a duty, once it was satisfied that the instructions were properly made to execute the transfer of the monies as instructed by the deceased prior to his death.

[46] But is this the charge of breach of duty one that Mr. Mc Quilkin can make? I am of the view that this claim for breach of duty is not maintainable by Mr. Mc Quilkin since he was not privy to the contract with the bank. He was neither debtor nor creditor nor did he hold any relationship with the bank as banker and account holder in respect of the account in question.

[47] Generally at common law, banks have a duty to customers to exercise reasonable care and skill. Webster JA [Ag.] in Clement Lawrence et al v First St. Vincent Bank Limited restated the principle that for a duty of care to be imposed, three elements must be satisfied:

“Following the decision in Donoghue v Stevenson, the test has evolved into a three-way test that is best summarised by Lord Bridge of Harwich in Caparo Industries Plc v Dickman and Others as:

“What emerges is that, in addition to foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”

The three elements of the test are therefore: (1) reasonable foreseeability of damage; (2) a relationship characterised by proximity or neighbourhood between the wrongdoer and the person damaged; and (3) that the law would consider it fair, just and reasonable to impose a duty of care.” (My emphasis)

[48] The bank’s evidence is that they received a request to transfer monies to an account and had some concerns about the nature of the instructions and therefore requisitioned further information from the parties involved. It can hardly form a basis of complaint that the bank was not duty bound to investigate those concerns especially in light of the amount of money involved in the instructions.

Additionally, the bank was aware that the deceased was an elderly person who may have been influenced to give this instruction or may have lacked the mental capacity to so do.

The bank took a few days to seek legal advice on the transfer request and to satisfy itself that the deceased possessed the requisite mental capacity.

[49] I find that the bank acted reasonably and was not in breach of its obligations when it took a few days to verify whether the deceased wished to transfer the large sums in question and whether he possessed the mental capacity to so do. The various steps taken by the bank to have further instructions accompanied by a doctor’s and JP’s verification and the bank officers visiting the deceased were all quite appropriate actions to take in furtherance bank’s legal duty to the account holders in this case. But these were all matters pertaining to the holders of the joint account in question. In this case as I have stated, Mr. Mc Quilkin was not a co-owner of this joint account and therefore there was no relationship of banker and client between him and the bank. The bank did not owe him any duty to exercise reasonable care and skill as a customer nor would it be fair and just for the court to impose such a duty of care in these given circumstances. The bank owed a duty of care to the deceased (now passed to his estate) and Ms. Cross as creditors and customers.

The chose in action subsisted among the deceased, Ms. Cross and the bank. Mr. Mc Quilkin’s claim for breach of duty whether contractual or otherwise must fail.

[50] However, the foregoing finding does not absolve the bank of its obligation to carry out the instructions given by the deceased before his passing. As I have stated above, once the bank had taken the various steps to satisfy itself that (1) the deceased wished to make the transfer of half the sums in the account; and (2) possessed sound mental capacity to issue that instruction, the bank should have immediately carried out his instruction. This means that to date that the bank owes a duty to carry out those instructions. The point was not explored by the parties but I am sanguine that I am correct that the deceased’s estate has a sufficient basis to (1) insist that the bank so comports itself; or (2) to bring a claim if actions contrary to the deceased’s instructions are taken by the bank.

Conclusion
[51] For these reasons, I find that the claimant, Ms. Cross, is entitled to the sums standing to the joint account held with the deceased further to the bank fulfilling the deceased’s instructions to transfer half the sums therein to Mr. Mc Quilkin.

Order
[52] It is hereby ordered as follows:

(1) The claim filed by Lauralee Cross (Ms. Cross) is granted in part.

(2) The claimant is entitled to the sum standing to the joint account held with the deceased further to the bank fulfilling the deceased’s instructions to transfer half the sums therein to Mr. Mc Quilkin;

(3) The bank is therefore ordered to transfer half the sums held by the deceased in the joint account with Ms. Cross to the joint account that the deceased held with Mr. Mc Quilkin. This transfer is to be done with respect to all sums (inclusive of interest) standing to the credit of the joint account held with Ms. Cross as at the date of the transfer.

(4) In view of each party enjoying partial success on their respective claims, each party shall bear their own costs.

Raulston L.A. Glasgow
High Court Judge
By the Court
Registrar

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