Assignment of Debts in Bermuda: more entertaining than you might think …

In his recent decision in the case of East Bank Consultants v Livio Ferigo [2016] SC Bda 88 Civ, Chief Justice Kawaley struck out a debt claim which had been brought by one Mr. Llewellyn Peniston, purportedly in the name of ‘East Bank Consultants’, and acting as a ‘litigant in person’, against one Mr. Livio Ferigo.

The debt claim was apparently asserted by East Bank Consultants as a purported Assignee of a debt allegedly owed to M & M Construction Limited, by way of a Deed of Assignment dated 5 January 2015.

The Court held, however, that the purported Assignment was a legal nullity, for failure to comply with section 19(d) of the Supreme Court Act 1905, and in particular, the statutory requirement for express notice to have been given in writing to the debtor.

The Judge did not address the possibility of an equitable assignment, in circumstances where the original creditor was not a party to the proceedings.

Although the Court did not formally rule on various other issues raised by the Defendant in support of his application, Chief Justice Kawaley queried the capacity of the Plaintiff to take an assignment and to pursue legal proceedings, in circumstances where it was unclear whether the Plaintiff was an unincorporated association, or merely a trading name for Mr. Peniston personally.

As a footnote, the Judge ordered Mr. Peniston to pay Mr. Ferigo’s costs.

By way of further footnote, all of the individuals involved in the case have colorful backgrounds, which are not apparent from the judgment itself.

Mr. Peniston is a former attorney, who has had the misfortune of being both made bankrupt and being disbarred from legal practice, and who has previously been accused of practicing as a lawyer while disbarred (none of which are great qualifications, one might think, for acting as a litigant in person).

M&M Construction Limited is a construction company owned and managed by Michael MacLean, who has also been the focus of Court and media attention in recent years, and Livio Ferigo is a well-known Italian chef and restaurant owner in Bermuda.

From a spectator’s point of view, it’s a great shame that the case is not heading towards a trial.




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