Oct 2016
BERMUDA
SUPREME COURT
STRIKE-OUT APPLICATION – CAPACITY TO SUE – LEGAL PERSONALITY – VALIDITY OF ASSIGNMENT AGREEMENT – NOTICE TO DEBTOR REQUIREMENT – SUPREME COURT ACT, 1905 SECTION 19(D)
The Defendant in this matter applied to strike out the Plaintiffs debt claim on two grounds, firstly, that the Plaintiff lacked the legal personality to sue and secondly, the Deed of Assignment of the debt that formed the basis of the Claim (the “Assignment”), was a nullity.
In regard to the first point it was readily accepted that the Plaintiff was an unincorporated association which lacked the legal capacity to sue. In relation to the Assignment, it was argued by the Defendant that the assignor had not met the requirement to provide express notice, in writing, to the debtor, as set out in Section 19(d) of the Supreme Court Act, 1905. In considering this requirement, the Chief Justice found that the one fact beyond argument was that express notice, in writing, of the Assignment, was only given after the Writ was issued. In view of this, the Chief Justice struck out the Plaintiff’s action stating that it was a “fatal flaw” that the Plaintiff did not possess the standing to bring proceedings when the Writ was issued.