Mabel Cambridge (by her Personal Representative Alinda Harry appointed pursuant to Order of the court dated March 26, 2015) Alinda Harry Claimants v R Theodore L. v Browne Laura Browne Defendants

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 09 November 2015
• Judgment citation (vLex): [2015] ECSC J1109-2
• Docket Number: SVGHCV1995/0148
• Court: High Court (Saint Vincent)
• Date: 09 November 2015

[2015] ECSC J1109-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SVGHCV1995/0148

Between:

Mabel Cambridge (By her Personal Representative Alinda Harry appointed pursuant to Order of the court dated March 26, 2015)

Alinda Harry

Claimants

and

R. Theodore L. V. Browne

Laura Browne

Defendants

Appearances:

Mr. Samuel E. Commissiong for the Claimants, Mr Parnel R. Campbell Q.C. and Mr Jonathan Lewis for the Defendants.

Decision on No Case Submission 1

Background

Henry, J.

1 This dispute involves a lawyer, Mr Theodore L. V. Browne and two of his former clients, Mrs Alinda Harry and her aunt Mrs Mabel Cambridge. Mrs Cambridge is deceased and Mrs Harry represents her estate in this suit. Mrs

Alinda Harry 2 alleges that Mr Browne 3 fraudulently deprived Mabel Cambridge deceased, 4 of the true value of land he contracted to sell on her behalf. Mrs Harry claims further that Mr Browne fraudulently presented his mother Clarice Conliffe as the buyer to conceal that he was the real purchaser. She alleges also that from the proceeds of that sale, Mr Browne deducted unspecified legal fees for an unrelated transaction 5, without providing a detailed bill of costs. Mrs Harry initiated this claim, 6 in her personal capacity and also as lawful attorney for Mabel Cambridge. 7 Mr Browne's wife, Mrs Laura Browne 8 is named as a co-defendant.

2 Mrs Harry 9 claims that Ms Cambridge retained Mr Browne to represent her in an action for recovery of land from a third party. She deposed that Mr Browne obtained a default judgment against the third party and afterwards demanded 10% of the value of the subject land as legal fees, which he quantified as $30,000.00. Mrs Harry testified that her aunt decided to sell land to obtain the fees. She asserts further that as lawful attorney for Ms Cambridge, she contracted Mr Browne to be the sales agent responsible for identifying a buyer and arranging the sale. Mrs Harry contends that Mr Browne arranged for sale of 2 ¹/₂ acres of the land to his mother, Clarice Conliffe at a price of $175,000.00 without consulting her or Mrs Cambridge. Further, Mrs Harry claims that she became aware of these details only when Mr Browne presented her with the

Deed of Conveyance to sign. She alleges that she raised objections regarding the amount of land being sold and the price at which it was being sold, but reluctantly signed the Deed when Mr Browne told her that he was not accepting less than 2 ¹/₂ acres of land. Mrs Harry averred that three days after that Deed was registered, the default judgment against the third party was overturned and the property returned to him.

3 Mrs Harry claims that within 11 months of registration of title in her name, Clarice Conliffe transferred the said lands to Mr Browne. She alleges that Mr Browne immediately gifted the land to his wife and himself, and they mortgaged it a few days later for $325,000.00. Alinda Harry contends that:

• 1. The transfer to Clarice Conliffe was arranged by Mr Browne to conceal the fact that he was personally interested in the subject property; and he failed in his duty as sales agent and solicitor to:

  • a) disclose all the knowledge he had;

  • b) disclose his interest to them; and

  • c) require them to obtain independent legal advice;

• 2. The price paid by Clarice Conliffe was below market value and Mr Browne failed in his duty to tell them about this.

4 Mrs Harry claims further that Mr Browne was instructed to prepare a Deed of Gift 10 of land at Diamond from her aunt Mabel to her. She indicates that Mr Browne paid the registration charges of $38,005.75 from his own funds. She explained that he deducted that sum and also the $30,000.00 from the purchase price paid by Clarice Conliffe. She stated that Mr Browne also withheld an additional sum " for all the work he had done" and presented her with a cheque for $20,000.00 representing the balance of the purchase price he received from Mrs Conliffe. She claims that Mr Browne neither specified the additional sum he deducted nor presented her with a detailed bill of costs for his services.

5 Alinda Harry on her behalf and on behalf of Mabel Cambridge's estate seeks:

• 1. a declaration that Mr Browne in breach of his fiduciary duty as agent for sale is the de facto purchaser of the subject land;

• 2. a) an order setting aside the Mortgage and the Deeds of Conveyance to Clarice Conliffe, then to Theodore Browne and subsequently to Mr Browne and Mrs Browne; or b) an order that Mr and Mrs Browne pay a fair market value for the land;

• 3. damages for deceit;

• 4. such further and other reliefs; and

• 5. costs.

6 Mrs Harry testified and she was cross-examined. She called no witnesses. Although they filed a joint defence, 11 the Brownes filed no witness statements. 12 Learned Queens Counsel, Mr Campbell made a no case submission in which he contends that Mrs Harry has failed to make out a prima facie case against Mr and Mrs Browne. He also informed the court that the Brownes would stand by their election.

Preliminary Observations

7 The court is mindful that it is accepted practice that a judge seldom entertains a no case submission in a civil case. This was articulated by Mitchell J.A. (Ag.) (as he then was) in Calvin Todman v Marguerite Hodge13 where he stated:

"As Brown LJ explained in the Benham Limited14 case, and

which explanation we happily accept, rarely if ever should a judge trying a civil action without a jury entertain a submission of no case to answer. Almost without exception the dangers and difficulties involved will outweigh any supposed advantages. It may be that some flaw of law or fact may have emerged in the case for the claimant for the first time, of such a nature as to make it entirely obvious that the claimant's case must fail. It may then save significant costs if a determination is made at that stage. Plainly, that will hardly ever be the case. Any temptation to entertain a submission should almost invariably be resisted."

In the circumstances of this case where the Brownes have not filed witness statements, there is no opportunity for them to give evidence. That principle is accordingly inapplicable in the case at bar for obvious reasons.

8 By order dated March 26, 2015, Alinda Harry was substituted in these proceedings 15 as personal representative for the claimant Mabel Cambridge on condition that she filed a written consent to the appointment on or before April 9, 2015. Mrs Harry did not file such consent until April 13, 2015 and she made no application for extension of time within which to do so. Mrs Harry's failure to comply with the timeline specified by the order, does not invalidate the late-filed consent unless the court orders. 16 Further, the court may of its own volition make an order to put things right. 17 In determining whether to do so, the court must give effect to the overriding objective to deal with the case justly. 18

9 The issues which arise in this case involve matters of general public importance and interest which have remained unresolved for over 20 years. It would be prejudicial to Mabel Cambridge's estate if an order is not made to put things right. Any prejudice caused to Mr and Mrs Browne by making such an order can be offset through their defence, which from the inception of this lawsuit, they evinced an intention to make. In all the circumstances, justice is better served by making an order to put things right than not. I now do so by directing and ordering that the consent filed by Alinda Harry is deemed properly filed.

Issues

10 The issues are:

ANALYSIS

Issue No. 1 – Whether Mrs Harry has made out a prima facie case that Mr Browne in breach of his fiduciary duty, overcharged her and Mrs Cambridge for work not competently done and failed to provide them with a detailed bill of costs for work done as their solicitor, and if so to what remedy they are entitled?

• 1. Whether Mrs Harry has made out a prima facie case that Mr Browne in breach of his fiduciary duty, overcharged her and Mrs Cambridge for work not competently done and failed to provide them with a detailed bill of costs for work done as their solicitor, and if so to what remedy they are entitled?

• 2. Whether Mrs Harry has made out a prima facie case that Mr Browne in breach of his fiduciary duty as Mabel Cambridge's

  • a) agent for sale, or

  • b) her solicitor:

• is the de facto purchaser of the subject land, as result of which they are entitled to an order setting aside the Deeds of Conveyance or an order for payment of fair market value?

• 3. Whether Mrs Harry has made out a prima facie case that Mr Theodore Browne or Mrs Laura Browne is liable in damages for deceit?

11 The test to be applied when the court is considering a no case submission, has been enunciated in a number of appellate decisions, notably Miller (t/a Waterloo Plant) v Cawley19 cited with approval by Mitchell JA (Ag.) (as he then was) in Calvin Todman v Marguerite Hodge20 case. In this regard, the court is concerned with determining whether the claimant has " established his claim on the balance of probabilities." 21 The court must also be mindful that the claimant may surmount this challenge by doing no more than establishing " a weak prima facie case" 22 which is then " strengthened to the necessary standard of proof by adverse inferences" 23 drawn from the defendant's silence. The court is permitted to draw adverse inferences from such silence, where it is naturally expected that the defendant would have material evidence to give in response to unfavourable evidence tendered against him on an issue before the court. However, if a defendant has proferred an acceptable explanation for his silence no adverse inference may be drawn. 24

12 In assessing the weight to be given to evidence in a trial, the court should be guided by general principles of " common sense," and be cognizant that " the weight

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