Willcocks action against Wakefield Quin over trust to proceed
The Supreme Court has refused to dismiss a case against a law firm accused of breaching duty to a client.
Geoffrey Willcocks launched legal actions against Joseph Wakefield and the law firm Wakefield Quin over a loan of more than $400,000 without any securities.
While Wakefield Quin called for the case against it to be dropped on the basis that there was no legal cause of action, Chief Justice Narinder Hargun found that there was an arguable case against the firm.
In a ruling dated August 11, Mr Justice Hargun said that Mr Willcocks could not pursue causes of action against the firm based on claims of breach of fiduciary trust as a trustee or as an estate administrator.
However, he found that Mr Willcocks could pursue claims of both breach of duty of care in tort and dishonest assistance in relation to breach of trust and breach of fiduciary duty or simply breach of fiduciary duty by Mr Wakefield.
“Having regard to the above facts, the court considers that it is arguable that the second defendant had actual knowledge that the transaction potentially involved misapplication of the trust assets to the detriment of the plaintiff beneficiary,” Mr Justice Hargun wrote.
“Alternatively, it is arguable that the second defendant had blind-eye knowledge.”
Mr Willcocks was told he would not be required to re-amend his statement of claim against the firm, as long as he understood that only two of the claims would proceed.
The court heard that the father of Mr Willcocks, Peter Willcocks, died in July 2005.
According to his will, drafted by Wakefield Quin, the sum of $480,000 would be used to create a trust fund for the benefit of Mr Willcocks. It would make an annual payment of $30,000 for the duration of his lifetime.
Mr Wakefield, as senior partner of Wakefield Quin at the time, was appointed as executor and trustee of the estate.
The court heard that in October 2010 Mr Wakefield contacted an accountant at Wakefield Quin indicating that he intended to loan the $427,259 still in the fund to Harold Darrell against the deeds of his property in Hamilton.
Mr Darrell subsequently signed a memorandum of deposit in which he promised to deposit the deeds with Mr Wakefield once he received them from the Bank of Bermuda.
However, the bank refused to give the deeds to Mr Darrell and was subsequently given permission by the courts to sell the property to satisfy debts and legal costs related to a longstanding legal dispute with Mr Darrell.
Mr Willcocks continued to receive his payments until 2014, when the payments stopped.
He argued in court that Mr Darrell was a friend and client of Mr Wakefield, and that the loan was made with no securities in place, in breach of Mr Wakefield’s duty to him.
Mr Willcocks, now a senior citizen, said the actions of Mr Wakefield had left him penniless and completely reliant of financial assistance for rent, groceries and health insurance.
At a hearing last year, Mr Wakefield argued that the case should be thrown out for several reasons, including that it was time-barred.
He argued that Mr Willcocks was informed in July 2015 that there was no money left in the trust and that he had six years from that time to initiate the legal action.
Mr Wakefield said that the legal action was not filed until six months outside that window.
Mr Willcocks responded that during the 2015 meeting he had not been told the money was “permanently gone” and that he had been urged to “call in the fall”.
He said he had been left with the impression that the funds could be recovered from Mr Darrell and that the annual payments would be able to resume in the future.
The court allowed the case to proceed against Mr Wakefield at that time, stating that there was a clearly arguable case that should be allowed to move forward.
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