Della Vallery Nolan née Jude v Diane Jude

• Jurisdiction: St Lucia
• Judge: Michel JA
• Judgment Date: 18 September 2020
• Judgment citation (vLex): [2020] ECSC J0918-2
• Court: Court of Appeal (Saint Lucia)
• Docket Number: SLUHVCAP2017/0025
• Date: 18 September 2020

[2020] ECSC J0918-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

SLUHVCAP2017/0025

Between:

[1] Della Vallery Nolan née Jude

[2] Beverley Jude-Porter

Appellants

and

[1] Diane Jude

[2] Vandyke Jude

Respondents

Appearances:

Mrs. Maureen John-Xavier for the Appellants

Mr. Dexter Theodore, QC, with him Ms. Sueanna Frederick, for the First Respondent

Mrs. Edith Petra Jeffrey-Nelson and Mrs. Esther Greene-Ernest for the Second Respondent

Civil appeal — Undue influence — Presumed undue influence — Existence of relationship of attorney and client — Whether transfers of land by client to attorney amounted to undue influence or abuse of trust or constituted an unconscionable bargain — Actual undue influence — Whether transfers of land and grant of power of attorney to child from parent amounted to actual undue influence, or abuse of trust and confidence, or constituted unconscionable bargains — Trust — Whether transferred lands were being held on trust for beneficiaries or heirs at law — Prescription period for claim of undue influence — Article 2103 of the Civil Code of Saint Lucia — Whether claims made by appellants as claimants in the court below were prescribed by virtue of the Civil Code of Saint Lucia — Whether learned judge erred in considering the defence of prescription in circumstances where it was not pleaded and did not fall in exception outlined in Article 2129 of the Civil Code

The appellants, Della Vallery Nolan née Jude (“Della”) and Beverley Jude-Porter (“Beverley”), and the respondents, Diane Jude (“Diane”) and Vandyke Jude (“Vandyke”), are siblings and the children of the deceased, Austin Jude (“Austin”) and his wife, Sheila Jude (“Sheila”). Austin was the owner of several portions of land at Marigot which were held in his name, the name of his company, Austinshiel Properties Limited (“Austinshiel” or “the company”) and in the name of his longstanding business associate, Kenneth Monplaisir (“Kenneth”).

In 2005, Austin became terminally ill, at a time when there were several unresolved issues involving the company and lands held in its name, and with lands which were jointly owned by him and Kenneth, but which were registered in Kenneth's name only. Austin asked his son, Vandyke, who was an attorney-at-law, but with whom he had a very acrimonious relationship, to represent him in the negotiation and resolution with Kenneth of the partitioning and sharing of their jointly owned lands. Against the background of this acrimonious relationship, Vandyke imposed several preconditions to his acceptance of his father's request. Among the preconditions was the grant of a power of attorney by Austin to Diane so that he (Vandyke) could communicate with his sister, and not his father, on matters concerning the partitioning and sharing of the Marigot lands and their eventual disposition. Austin accepted Vandyke's preconditions, including the grant of a power of attorney by him to Diane, which authorised her to sell, convey or dispose of on his behalf, any movable or immovable property in Saint Lucia or elsewhere upon such terms and conditions as she deemed fit.

This was followed by discussions and negotiations between Vandyke and Kenneth and land transfers by Kenneth to Austin and to Vandyke, and land transfers by Austin, by his company, by his sister, Martina Jude (“Martina”), and by his cousin, Loretta Lansiquot (“Loretta”), to Diane and Vandyke, and to Shiela. By the time Austin died in September 2007, most of his remaining property at Marigot, after the conveyance of 10 lots to Sheila, had been transferred to Diane or Vandyke. This included 13 parcels of land totalling almost 208,000 sq. ft. at Marigot to Vandyke by deed of transfer executed on 23 ^rd July 2007 (“the first deed”) and a half share in 3 parcels of land valued at $2,962,080 to Vandyke by deed of transfer also executed on 23 ^rd July 2007 (“the second deed”) by Kenneth and Austin.

By fixed date claim filed on 6 ^th April 2009 by Della against Diane and Vandyke, Della challenged the power of attorney granted by Austin to Diane and several transfers of land to Diane and Vandyke, as having been procured by undue influence exercised by them over their father, or because the transfers amounted to an unconscionable bargain, or were procured by an abuse of trust and confidence. She also claimed that the lands transferred to Diane and Vandyke were to be held by them on trust for Austin and/or his beneficiaries and/or his heirs at law.

Della alleged that her father left a Will dated 9 ^th May 2007 appointing her, Beverley and Diane as executors and devised and bequeathed all his properties to his children in equal shares, with the exception of certain properties in relation to his son, Cletus Jude. The Will was allegedly executed in England at a time when Austin was under Della's care; both Diane and Vandyke questioned the authenticity of the Will. The trial judge delivered his judgment on 5 ^th July 2017 dismissing the appellants' claim and awarding costs against them.

The appellants, being dissatisfied with the trial judge's decision, appealed on several grounds. The issues identified by the Court for its consideration and determination were narrowed down to the following: (i) whether the court was required to consider the defence of prescription, although it was not pleaded by the respondents (as the defendants in the court below); (ii) whether the claims made by the appellants (as the claimants in the court below) were prescribed by virtue of the Civil Code of Saint Lucia; (iii) whether the power of attorney granted by Austin to Dianne was procured by undue influence or abuse of trust or whether it amounted to an unconscionable bargain; (iv) whether the transfers of land from Austin, or at his behest, to Diane and Vandyke were procured by undue influence, or abuse of trust and confidence, or did they amount to unconscionable bargains; and (v) whether Diane and Vandyke held the lands transferred to them on trust for Austin, his beneficiaries or his heirs at law.

Held: allowing the appeal in part and making the orders set out in paragraph 98 of the judgment, that:

• 1. Article 2052 of the Civil Code provides that the court cannot, of its own motion, consider the defence of prescription, except where a claim is extinguished by law as provided in Article 2129. The claims brought by the appellants in the court below were not caught within this exception. The respondents were accordingly precluded from relying on the defence of prescription since it was not pleaded, was only introduced in closing submissions, and the appellants had no prior notice or fair opportunity to be heard on or respond to that issue. In the circumstances, the trial judge erred in treating with the issue of prescription as one to be determined by him in the proceedings in the court below.

  Articles 2052 and 2129 of the Civil Code of Saint Lucia, Cap. 4.01 of the Revised Laws of Saint Lucia 2017 applied.

• 2. A claim of undue influence is neither a delict within the definition of Article 1:15 of the Civil Code with a prescription period of 3 years under Article 2122, nor is it a claim for fraud with a prescription period of 10 years by virtue of Article 2119 of the Code. It follows then that the prescription period for undue influence (which is not otherwise regulated by law) is 30 years, in accordance with Article 2103 of the Code. This prescription period also applies to actions for a breach of trust. Accordingly, the claims brought by the appellant in the court below in April 2009 were not barred by prescription.

  Articles 1:15, 2119, 2103 and 2119 of the Civil Code of Saint Lucia, Cap. 4.01 of the Revised Laws of Saint Lucia 2017 applied; Khardisha Lindy Princess Jawahir v Davis Gawin Jawahir SLUHCVAP2017/0055 (delivered 8th April 2019, unreported) followed.

• 3. For presumed undue influence to arise, there must be: (i) a relationship between two people from which the law presumes that one party has influence over the other; and (ii) a transaction between the two in which the benefit to the party with the influence is so substantial or of such a nature that it cannot prima facie be reasonably accounted for on the ground of the ordinary motives on which ordinary men act. Against the backdrop of the lawyer and client relationship between Vandyke and Austin, their acrimonious relationship, the nature of the land transactions which were being questioned, and the absence of independent advice, the lands transferred to Vandyke clearly fall within the category of gifts which are so substantial that they could not, on the face of it, be accounted for on the ground of the ordinary motives on which the ordinary man acts.

  Allcard v Skinner [1886–90] All ER Rep 90 considered.

• 4. Based on the foregoing conclusion and having established that there was a confidential relationship between Austin and Vandyke as lawyer and client, the onus was on Vandyke to prove that Austin received independent advice prior to making the gift to him. In this case, the evidence relied on by Vandyke in support of his assertion that Austin received independent advice was insufficient to discharge the evidential burden placed on him. Accordingly, the learned judge erred in concluding that Vandyke did not, as legal advisor to Austin, exercise undue influence over him in procuring the transfer of lands to him by virtue of the two deeds of transfer dated 23 ^rd July 2007.

• 5. Actual undue influence is the product of threats, menaces and coercion by the person exercising the influence or of dependence and vulnerability of the person being influenced. On the evidence before the learned judge, it was open to him to conclude that at the time the power of attorney was granted to Diane, there was neither an...