FM Capital Partners Ltd v Marino & Ors

FM Capital Partners Ltd v Marino & Ors

The court found that Mr Marino and Mr Ohmura orchestrated and participated in a dishonest scheme to extract secret commissions from FMCP/LAP assets through a series of structured product trades and investments, in breach of fiduciary duties and without disclosure or authorisation. The April Mandate did not authorise such payments. Both defendants were liable for breach of duty, dishonest assistance, and bribery. The claims in knowing receipt and conspiracy failed or were not made out against the individuals due to technical or evidential reasons. English law applied, not Swiss law.

Parties
Claimant: FM Capital Partners Ltd; First Defendant: Frédéric Marino; Second Defendant: Aurélien Bessot; Third Defendant: Yoshiki Ohmura; Fourth Defendant: Marit Sjǿvaag
Jurisdiction
England and Wales
Judgment Date
11 July 2018
Procedural Posture
Commercial Court Civil Claim / Judgment After Phase I Trial
Outcome
Judgment for the Claimant (FMCP) against Mr Marino and Mr Ohmura on breach of fiduciary duty, dishonest assistance, and bribery; claims in knowing receipt and conspiracy not established against individuals; remedies to be determined.
Legal Topics
Breach of Fiduciary Duty, Dishonest Assistance, Knowing Receipt, Bribery, Conspiracy, Directors' Duties, Secret Commissions, Proprietary Remedies
Company Law Equity and Trusts Commercial Law Breach of Fiduciary Duty Dishonest Assistance Knowing Receipt Bribery Conspiracy +3 more

Case Brief

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Parties

FM Capital Partners Ltd

Claimant

Frédéric Marino

First Defendant

Aurélien Bessot

Second Defendant

Yoshiki Ohmura

Third Defendant

Marit Sjǿvaag

Fourth Defendant

Procedural Posture

Commercial Court Civil Claim / Judgment After Phase I Trial

Legal Issues

  1. 1 Whether Mr Marino and Mr Ohmura are liable for breach of fiduciary duty, dishonest assistance, knowing receipt, bribery, and conspiracy in relation to secret commissions and structured product trades involving FMCP and LAP assets.

Ratio Decidendi

The court found that Mr Marino and Mr Ohmura orchestrated and participated in a dishonest scheme to extract secret commissions from FMCP/LAP assets through a series of structured product trades and investments, in breach of fiduciary duties and without disclosure or authorisation. The April Mandate did not authorise such payments. Both defendants were liable for breach of duty, dishonest assistance, and bribery. The claims in knowing receipt and conspiracy failed or were not made out against the individuals due to technical or evidential reasons. English law applied, not Swiss law.

Court Disposition

Judgment for the Claimant (FMCP) against Mr Marino and Mr Ohmura on breach of fiduciary duty, dishonest assistance, and bribery; claims in knowing receipt and conspiracy not established against individuals; remedies to be determined.

Orders

  • Declarations of liability for breach of fiduciary duty, dishonest assistance, and bribery against Mr Marino and Mr Ohmura.
  • Order for account of profits and/or equitable compensation against both defendants.