(1) Michele Stephenson (2) Mahalia Mars (Qua Administratrices of the Estate of Anthony Allan John deceased) by their lawful Attorney Allan John Claimants v Lambert James-Soomer Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: Edwards J
• Judgment Date: 19 April 2004
• Judgment citation (vLex): [2004] ECSC J0419-3
• Court: High Court (Saint Lucia)
• Docket Number: CLAIM NO.: SLUHCV 2003/0138 CLAIM NO.: SLUHCV 2003/0453
• Date: 19 April 2004

[2004] ECSC J0419-3

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO.: SLUHCV 2003/0138

CONSOLIDATED WITH

CLAIM NO.: SLUHCV 2003/0453

Between:

(1) Michele Stephenson

(2) Mahalia Mars (Qua Administratrices of the Estate of Anthony Allan John deceased) By their lawful Attorney Allan John

Claimants

and

Lambert James-Soomer

Defendant

Between

David Black

Claimant

and

Lambert James-soomer

Defendant

JUDGEMENT

Edwards J

1 Claim No. SLUHCV 2003/0138 is an action brought by the Claimants who are foreign administratrices, seeking to recover damages from the Defendant, for the death of Anthony Allan John, on the ground that he died because of the negligent driving of the Defendant.

2 The action has been brought for the benefit of the deceased's 2 infant children and his parents under Article 988 of Civil Code of St. Lucia, Cap. 242.

3 Article 988 (3) requires such actions to be brought within 3 years after the death of the deceased.

4 The issues arising from the preliminary submissions of Counsel at the trial are:-

• A. Can a grant of Letters of Administration to the Administratrices in England enable them to validly commence these proceedings in St. Lucia in their capacity as Administratrices.

• B. What is the effect of resealing a grant and can a resealing relate back to the date when a claim was issued prior to resealing.

• C. Is the Defendant precluded from raising the Claimant's lack of standing as a preliminary issue at the trial, where this was not pleaded as a defence.

• D. Can Parts 19. 4 and 20. 2 of the CPR 2000, which allow the addition or substitution of a party, or an amendment to alter the capacity in which a party claims, after the expiration of the limitation period, be applied to mitigate the harshness of the law of Prescription in St. Lucia.

The Facts

5 On the 4^th of June 2000 Anthony Allan John, who was domiciled in England, died in St. Lucia while visiting his parents here.

6 On the 6^th of December 2000, the Administratrices, mothers of the deceased's 2 children, obtained a grant of Letters of Administration in England. They were never granted Letters of Administration in St. Lucia. Neither did they make an application for the resealing of the English grant.

7 They appointed the father of the deceased, Mr. Allan John, to be their attorney for the purpose of bringing the action on the 28^th January 2003.

8 On the 7^th February 2003 this action was commenced under Article 988 of the Civil Code Cap. 242.

9 By Article 988 (4) it is provided:

"Every such actionshall be brought by and in the Name of the Executor or Administrator of the person deceased, but if in any case there is no executor or administrator of the person deceased, or if there being such executor or administrator, no such action is, within six calendar months after the death of such deceased person, brought by and in the name of such executor or administrator, the action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit the action is hereby given."

10 Article 1152A of the Civil Code states:

"Where a Court of Probate; in any part of Her Majesty's dominions; or a British Court in a foreign country, has, either before or after the passing of this article; granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, on being produced to, and a copy thereof deposited with, the Registrar of the Supreme Court, be sealed with the seal of that Court,and on being registered in the Registry of Deeds shall thereupon be of like force and effect, and have the same operation in the Colony as if granted by the Supreme Court."

11 I shall now deal with the first 2 issues together.

A. The Effect of the English Grant and

B. The Requirement for Resealing

12 It was submitted by learned Counsel Mr. Theodore that an administrator (unlike an executor who derives his title from the will) derives his title solely under the grant and cannot institute an action as administrator before he gets the grant. Mr. Theodore argued further that the requirement for resealing the English grant is a critical requirement; and the estate of the deceased cannot vest in the foreign administratrices until the legal requirements for resealing are fulfilled. That it is only upon registration of the sealed copy in the office of Deeds and Mortgages that a resealing of a grant of letters of administration made by a British Court assumes the force and effect of a grant made in our High Court.

13 Mr. Theodore relied on the decision inIngall v Moran to buttress his argument: ( [1944] KB.160).

14 In this case the Plaintiff issued a writ in an action under the Law Reform (Miscellaneous Provisions) Act 1934, claiming to sue in a representative capacity as administrator of his son's estate. He took out Letters of Administration nearly 2 months after issuing the writ. It was held that the action was incompetent at the date of its inception by the issue of the writ. That the doctrine of relation back of an administrator's title, on obtaining a grant of letters of administration to the date of the intestate's death could not be invoked so as to render the actions competent.

15 It was recognised in this case that upon obtaining his title by the grant of letters of administration, the plaintiff became prima facie entitled to sue. He could then have issued a new writ, and that was all (Scott L.J. at page 164).

16 Speaking of the incompetent action Scott L. J. opined "It was born dead and could not be revived … all subsequent proceedings in the supposed action, including the judgment of learned County Court Judge were likewise nugatory for if the action and the pleadings were bad there was no valid action before the learned judge to try…" (at page 165).

17 On the other hand Claimant's Counsel, while agreeing in principle with theIngall v Moran decision, sought to distinguish the facts from the present case. Mr. Edgar argued that that case was relevant to the question of when the Administrator obtains title and representative capacity, but it did not consider the effect of resealing a grant.

18 Learned Counsel Mr. Edgar submitted that Article 1152A required the resealing of a foreign grant in order to authenticate the instrument and provide notice to the world of the administrator's title and his representative capacity.

19 On the basis that the resealing and registration requirement is only a procedure for perfecting title, Mr. Edgar invited the Court to approve the following reasoning and approach:-

• a) That the foreign grant being a valid grant gives the Claimants the requisite title and representative capacity in St. Lucia.

• b) That the Claimants are therefore equipped to commence the proceedings without resealing to avoid the consequences of a limitation action.

• c) That thereafter the Claimants may seek to perfect their title prior to the issue of decree or judgment on the claim.

• d) That since the perfected title is required for Claimants to prove their title, the action should be stayed by the Court until title is perfected and should not be dismissed.

20 My research unearthed a case with facts very similar to the present one. The decision in this case does not accommodate the reasoning and approach of Mr. Edgar: (Finwegan v Cementation Co. Ltd. [1953] I All ER. 1130).

21 This was a case where Counsel for the Plaintiff had argued that a grant of Letters of Administration in Ireland was sufficient to enable the grantee to institute proceedings in England under the Fatal Accidents Acts 1846 and its 1864 Amendment.

22 Section 2 of the 1846 Act stated that the action "shall be brought by and in the name of the Executor or Administrator of the person deceased."

23 Responding to Counsel for the Plaintiff's submission, Singleton L. J. had this to say:

" counsel's submission … is that the plaintiff, having obtained letters of administration in Dublin, can be regarded as administrator for the purposes of S.2 of the Act 1846. I do not think that submission is right. The section when it refers to an administrator means the person empowered by law to administer the estate of deceased. The person to whom letters of administration are granted in Ireland is not a person empowered by law to administer the estate of the deceased in England. That point, therefore, fails.": (at page 1133 para A)

24 Another helpful decision I unearthed dealt with the resealing of an Irish grant:(Burns v Campbell [1951] 2 All ER. 965).

25 This was a case where the Plaintiff's husband who was domiciled in Ireland, died in England on the 23^rd January 1950. The Plaintiff took out letters of administration on the 12^th January 1951 in Northern Ireland. She issued a writ in the High Court in England under the Fatal Accidents Act 1846, claiming as administratrix damages for Negligence from the defendant. On the 20^th March 1951, the grant in Northern Ireland was sealed in England under S 169 (1) of the Supreme Court Judicature (Consolidation) Act 1925 (Comparable to Article 1152A of the Civil Code of St. Lucia).

26 Denning L. J. delivering the Judgment held, that the sealing of the grant under S.169 (1) did not result in the grant having effect in England from the date of the grant in Ireland. The result was that on the 19^th January 1951 when the writ was issued, the plaintiff had not obtained a grant of administration to the English assets. So far as the English Courts were concerned, she was not the administratrix. The action therefore was not properly constituted since it purported to be an action by her as administratrix when she was not administratrix.

27 The authorities mentioned are weighted heavily in favour of the...