Cheryl Bertrand v The Attorney General

• Jurisdiction: St Lucia
• Judge: Henry JA
• Judgment Date: 22 May 2023
• Judgment citation (vLex): [2023] ECSC J0522-2
• Docket Number: SLUHCVAP2021/0014
• Court: Court of Appeal (Saint Lucia)

Between

[1] Cheryl Bertrand

[2] Shakira Francis (by her next friend, Kara Maria Francois)

Appellants

and

The Attorney General

Respondent

Before:

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mde. Esco L. Henry Justice of Appeal [Ag.]

The Hon. Mr. Gerhard Wallbank Justice of Appeal [Ag.]

SLUHCVAP2021/0014

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Intestacy — Succession — Entitlement of children born out of wedlock to inherit from their deceased father's estates on intestacy — Constitutional law — Fundamental rights and freedoms — Whether Article 579 of the Civil Code of Saint Lucia infringed sections 6, 10 and 13 of the Constitution of Saint Lucia — Standing to bring a constitutional claim for breach of fundamental rights and freedoms — Whether appellants had standing to bring a claim for breach of their fathers' rights to freedom of expression and to protection from discrimination — Chose in action — Whether Article 579 deprived the appellants of the right of succession to property or interest in property to which their deceased fathers were entitled — Application to amend a statement of case after the first case management conference — Rule 20.1 of the Civil Procedure Rules 2000 — Whether the learned judge erred by refusing leave to the appellants to amend their statements of case

The appellants, Shakira Francis (suing by her mother Kara Maria Francois as next friend) and Cheryl Bertrand (together “the appellants”) were both children fathered out of wedlock by married men. Their fathers died without making a will and they both claimed that they were entitled to a share in their deceased fathers' estates on intestacy. By fixed date claims and supporting affidavits filed on 12 ^th August 2020 in the High Court, the appellants contended that Article 579 of the Civil Code of Saint Lucia (“the Civil Code”) deprived them of the right to succession to their respective fathers' property; and to protection of the law and equal treatment under sections 1 and 6 of the Constitution of Saint Lucia (“the Constitution”).

They pleaded that the impugned Article discriminated against their fathers and constituted a breach of their fathers' freedom of expression. They also asserted that by virtue of the circumstances of their birth they had suffered direct loss by reason of these alleged constitutional breaches. They sought, inter alia, declarations that Article 579 was unconstitutional and costs. During the trial in the lower court, the appellants loosely articulated an application to amend their statements of case to assert that their rights (as opposed to their fathers' rights) under section 13 of the Constitution to protection from discrimination had been violated and consequently their constitutional right to property had been infringed, by virtue of their fathers' status as married men and their fathers' exercise of their freedom of expression. In a judgment delivered on 30 ^th June 2021, the judge refused leave to amend the claims and ultimately dismissed both claims.

Being dissatisfied with the judge's ruling, the appellants appealed. The appellants submitted 5 grounds of appeal but the two main issues which arose on appeal were: (i) whether the learned judge erred by not granting leave to the appellants to amend their statements of case and (ii) whether the judge erred by holding that Article 579 of the Civil Code did not infringe sections 6, 10 and 13 of the Constitution and was therefore not unconstitutional.

Held: dismissing the appeal, affirming the judgment made in the lower court and ordering that each party shall bear their own costs of the appeal, that:

• 1. After the first case management conference, a party may change its statement of case only with leave of the court. The guiding principle is that amendments ought to be made if essential to the resolution of the real question in controversy and where the justice of the case so requires. When considering an application to amend a statement of case, the court should have regard to all relevant factors including how promptly the application was made, the stage of the proceedings, the prejudice or advantage to parties if the application is granted or refused, whether the opposing party may be compensated in costs, the effect on the trial date and the administration of justice. Ultimately, the court should aim to achieve fairness to the parties and further the overriding objective.

  Rule 20.1 of the Civil Procedure Rules 2000 applied; George Allert (Administrator of the Estate of George Gordon Matheson, deceased) et al v Joshua Matheson GDAHCVAP2014/0007 (delivered 24th November 2014, unreported) followed.

• 2. An examination of the trial judge's ruling reveals that she had regard to CPR 20 when considering the application to amend the statements of case. She considered the stage of the proceedings and the likely prejudice to the respondent. However, the judge's decision appeared to be predicated primarily on the fact that the application was not in writing. She therefore failed to have proper regard to other material considerations including the interest of justice, whether the respondent could have been compensated in costs, the impact granting the order would have had on the progress of the proceedings, the loss of judicial time and how it would impact the administration of justice. The judge further failed to consider that the application qua submission was made on the trial date or the procedure regarding how an amendment is formally effected. In so doing, the judge erred by failing to consider all the relevant substantive and procedural factors and the application to amend the statements of case fell to be considered afresh by the Court of Appeal.

  Rule 20.1 of the Civil Procedure Rules 2000 applied; George Allert (Administrator of the Estate of George Gordon Matheson, deceased) et al v Joshua Matheson GDAHCVAP2014/0007 (delivered 24th November 2014, unreported) followed; Paragraphs 2 and 3 of Practice Direction No. 5 of 2011 applied.

• 3. On the facts, no application was made to dispense with the need for a written application and no order was made dispensing with that requirement. Moreover, the appellants failed to present to the court or the opposing party a draft with the wording of the proposed changes to the statements of case. The fact is that the application was made at an advanced stage of the proceedings and the respondent would have been taken by surprise. Further, any order granting leave would have had to include consequential orders for the statements of case to be re-verified and re-filed and the corresponding changes to the evidence would have been necessary. This would have likely led to a deferral of the trial date. Whilst it was arguable that the respondent could have been compensated in costs, a preliminary assessment of the appellants' prospects of success if the amendments were permitted suggests that their intended allegations were likely to fail. Thus, the relevant procedural and substantive factors weighed heavily against the appellants and the Court found that it was in the interest of justice to deny the oral application for leave to amend the statements of case.

• 4. Section 16 of the Constitution confers a cause of action for breach of section 10 of the Constitution exclusively on the person who claims that his right to freedom of expression has been, is being or is likely to be infringed. Only such a person may maintain an action for breach of such rights in relation to himself. On the facts, neither appellant had the requisite legal standing to maintain a claim for breach of her father's constitutional right to freedom of expression by virtue of Article 579. Consequently, their contention that they were directly affected by reason of their inability to inherit from their fathers' estates on intestacy did not forge a connection between their fathers' enjoyment of their rights and any purported constitutional or other right of either appellant to inherit such property or interest in the same. The judge therefore did not err in holding that the appellants had no legal standing to pursue a claim for infringement of their fathers' constitutional rights to freedom of expression and that those as well as the incidental claims therefore failed.

  Section 16 of the Constitution of Saint Lucia Cap. 1.01 of the Revised Laws of Saint Lucia, 2020 applied.

• 5. The learned judge however, did not go on to consider the other aspects of the appellants' freedom of expression case, i.e. that the breach of those rights of their fathers directly affected their ‘right of succession to property’, to ‘an interest in property’ of their fathers, or their ‘ability to inherit property forming part of their fathers' estates’. With the appellants' freedom of expression claims having failed, so too would the claim for declaratory relief in relation to them. Thus, there being no breach of the fathers' rights to freedom of expression under section 10 of the Constitution, there was no corresponding breach of the appellants' right under section 6 not to be subjected to compulsory deprivation of property without adequate compensation. Moreover, even if the learned judge had considered the decision in Vermeire v Belgium and/or granted leave to amend the appellants' statements of case as requested, this would not have changed the outcome, that Article 579 of the Civil Code did not deprive the appellants of their right to succession to property or an interest in property to which their deceased fathers were entitled.

  Vermeire v Belgium [1991] ECHR 12849/87 distinguished.

• 6. A chose in action is a term used to describe all rights of property which can be claimed or enforced only by action and not by taking physical possession. The appellants' use of the terminology ‘right of succession to property or interest in property to which [the] deceased father is so entitled’ and...