NCB, Barclays sued for alleged breach of trust

National Commercial Bank (NCB) and its former owner, the United Kingdom-based Barclays Plc, have had a J$504.68 million lawsuit filed against them by the son and three daughters of a Kingston businessman who died 40 years ago.

NCB said it will be fighting the suit.

The banks have been accused of negligence in the management of the estate of Ivan George Leopold Douglas, who held majority shares in Douglas Prefabricating and Construction Company Limited, stockholding of 100 shares in another firm, Tru Shade Awnings Limited, and was a client of Barclays Bank in Jamaica for about 10 years before he died in October 1969.

The claimants have said that at the time of their father’s death, Douglas Prefabricating and Construction Company was a very lucrative business, having secured a number of contracts for the construction of infrastructure for schools and housing estates throughout Jamaica.

The Government of Jamaica bought all the shares of Barclays Jamaica operation in 1977 and changed its name to NCB. Barclays is now a major global financial services provider operating in some 50 countries.

Douglas, in his will, which, according to papers filed in the Supreme Court, was prepared by Barclays Bank and signed by Douglas on April 29, 1969, had named the bank as the sole trustee and executor of his estate.

The businessman is also said to have owned properties in St Catherine, St Thomas and at 3 Winchester Road, lot 239 Beverly Hills, 8 Toronto Avenue, and Lots 20 and 21 Riverton City in Kingston and St Andrew.

His other belongings included a Mercedes-Benz motor car, a motor boat and land-surveying equipment, the claimants said, in the suit filed December 18, 2009 in the Supreme Court in Kingston.

Joy, Marlene, Jacqueline and Ivan Douglas have accused Barclays of breach of trust by failing to invest £30,000 (J$60,000 equivalent) in accordance with their father’s directions.

Barclays, they said, was required to use the money to establish a trust fund which was to be invested in the bank to provide income for his widow and the mother of the claimants until the children reached the age of 21.

fiduciary duty

The allegations against bank also include breach of its fiduciary duty for selling the properties under value and disposing of the property in what the claimants have described in court filings as “less-than-‘arm’s length’ transactions”.

Barclays has also been accused of selling household goods and the motor car for far less than they were valued and of failing to account for the sale of the yacht.

The claimants said the bank failed to ensure that the construction company was managed with the required skill and neglected to take appropriate action to ensure its viability. They also accused the bank of failing to pay into the trust account the profits from the voluntary liquidation of Douglas’ majority shareholding in the construction company.

The second defendant, NCB, is accused of failing to manage or administer the trust property in accordance with the trust instrument and its many duties as trustee resulting in loss to the estate and beneficiaries. The Jamaican bank has been accused of failure to act in accordance with the trust instrument when, in 1979, it discontinued payments for the maintenance of the claimants, resulting, the suit said, in severe hardships for them. The allegations against NCB also include failure to supply the claimants, as beneficiaries, with sufficient information about the transactions regarding the trust.

The alleged negligent mismanagement and administration of the trust and breaches of fiduciary duties by the two defendants are said to have resulted in damages and loss to the estate and the beneficiaries.

The more than J$504.68 million, plus costs, being sought includes J$383 million for alleged failure to manage the construction company and alleged failure to properly invest the money when the company was liquidated in 1989.

The claimants are seeking an order for the defendants to account for trust property and a declaration from the court that the trustees were negligent.

“We certainly deny the allegations that the estate was mismanaged, and are surprised that these allegations are being made at this time,” Dave Garcia, NCB’s chief counsel and company secretary, told the Financial Gleaner.

Garcia said the bank was challenging the claim, and that attorney-at-law Sandra Minott-Phillips of the law firm Myers, Fletcher and Gordon who is representing NCB, was in the process of preparing the bank’s defence.

Attorneys-at-law Wentworth Charles and Floyd O’Brian Green, who are representing the claimants, said the first defendant, Barclays Plc in London, which was created by virtue of a merger between Barclays Bank and Barclays Bank International Limited in 1985, has been served with court documents.

A date has not yet been set for the case to be heard.

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