Desir and another v Alcide (Saint Lucia)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Clarke |
| Judgment Date | 21 May 2015 |
| Neutral Citation | [2015] UKPC 24 |
| Date | 21 May 2015 |
| Docket Number | Appeal Nos 0042 and 0044 of 2013 |
| Court | Privy Council |
[2015] UKPC 24
Lord Mance
Lord Clarke
Lord Wilson
Lord Hughes
Lord Toulson
Appeal Nos 0042 and 0044 of 2013
Privy Council
From the Court of Appeal of the Eastern Caribbean Supreme Court (Saint Lucia)
Appellants
Peter I Foster QC Diana M Thomas
(Instructed by Simons Muirhead & Burton Solicitors)
Respondent
Dexter Theodore QC
(Instructed by Michel & Co)
Heard on 16 February 2015
The parties prepared a précis of the appeals as an annex to the agreed statement of facts and issues. The two documents are broadly in these terms and give a flavour of the case. Mrs Bella Butcher's husband Epiphane died on 1 November 2005 in Venezuela. Three weeks later, on 22 November 2005, Mrs Butcher made a will before two Notaries Royal, Leandra Verneuil and Mary Charles. In her will she named Mrs Sabina Alcide and Mrs Marguerite Desir as sole residuary legatees and devisees of her property. Mrs Alcide is her niece. She named Mrs Desir as sole executrix of her will. She also devised her share of her matrimonial home to Mrs Alcide and made other specific bequests to several persons. She had no children. On the same day, 22 November 2005, Mrs Butcher executed a general power of attorney in favour of Mrs Desir. She also opened two joint accounts with Mrs Desir, who, like Mrs Butcher, lived in Saint Lucia. The period during which Mrs Butcher knew Mrs Desir is in dispute but Mrs Desir maintained that she was close to both Mrs Butcher and her husband for several years before she died.
Mrs Butcher was the owner of a valuable property with commercial warehouses on it ("the property") situated at Massade Gros Islet on Saint Lucia and registered at the Land Registry – Saint Lucia as Parcel No 1257B6. The market value was assessed in September 2007 by the Inland Revenue Department for the income year 2006 in the sum of EC$7,442,726. There was evidence from a valuer that the market value in 2008 was EC$7,836,216. On 8 January 2007 a company was incorporated called Commercial Warehouse Limited ("CWL"), whereafter the property was sold by Mrs Butcher to CWL for EC$644,000. Four shares in CWL were issued, of which two were owned by Mrs Butcher and the other two were owned by Mrs Desir (having been granted to Mrs Desir by Mrs Butcher). The Deed of Sale ("the Deed of Sale") was executed on behalf of Mrs Butcher in the presence of Leandra Verneuil on 10 April 2007. It was not in dispute that the sale was at a considerable undervalue.
The medical evidence showed that Mrs Butcher suffered from diabetes and motor neurone disease, which eventually caused some physical incapacity. By January 2007 her speech was slurred and she was unable to carry out her everyday living tasks on her own. She died of a heart attack on 13 April 2007 aged 61. The will was admitted to probate on 28 June 2007.
Mrs Butcher was Mrs Alcide's aunt. She raised her in her household for approximately the first seven years of her life. Mrs Butcher then moved to Texas with her husband and returned to Saint Lucia in about 1994. During the time Mrs Butcher lived in Texas, Mrs Alcide travelled to Texas and stayed with her for a period of about six months. Mrs Alcide herself migrated to the United States in or about 2002 and remained there. Mrs Butcher went to the United States for Mrs Alcide's wedding in 2003 and again in 2004 after she had her first child.
Mrs Desir said that she met Mrs Butcher at the Gros Islet Health Centre when she was about 12 years old and that she later became reacquainted with her in about 1994 when Mr and Mrs Butcher came back to Saint Lucia and Mrs Desir had left school and was working with the Bank of Saint Lucia, then called National Commercial Bank. She said that she became close first to Mr Butcher, whom she assisted with his banking business, and then to Mrs Butcher. She also said that she was friends with them and assisted them with their businesses before Mr Butcher died. Mrs Alcide disputed these assertions and maintained that Mrs Desir was a stranger to the Butcher family until after Mr Butcher died. Mrs Alcide said that Mrs Desir had been an employee of the bank or banks where Mrs Butcher and her late husband (or their companies) had their principal bank accounts and Mrs Desir thus became familiar with Mr and Mrs Butcher and their finances.
On 6 June 2007 Mrs Alcide filed a claim against Mrs Desir in her personal capacity. She sought the following orders: (1) an injunction restraining Mrs Desir from dealing with funds in bank accounts in the name of Mrs Butcher or in the name of any company under her control; (2) an order for an account; (3) an order that Mrs Desir restore monies to the bank accounts; (4) further and necessary consequential accounts; (5) damages; (6) further and other relief; and (7) costs.
The thrust of Mrs Alcide's case as stated by her in the pre-trial memorandum was that Mrs Desir "got her name unto (sic) [Mrs Butcher's] bank accounts and got [Mrs Butcher] to transfer title to her property by actual or constructive fraud, by undue influence or by taking advantage of [Mrs Butcher's] vulnerability, weakness or incapacity". That appears to the Board to be a succinct summary of the substance of Mrs Alcide's case then and now. In short, she challenged the transfer of property to CWL but not the will.
Mrs Desir filed a defence on 29 June 2007 and on 22 November 2007 Mrs Alcide filed an amended statement of claim in which Mrs Desir was sued, not just in her personal capacity, but also in her capacity as executrix of Mrs Butcher's will. Mrs Alcide specifically sought the improbation of the Deed of Sale dated 10 April 2007. Thereafter an amended defence was filed on 12 December 2007 and the matter came on for trial on 16 December 2008 before Georges J (Ag) ("the judge"). It lasted seven days between 16 December 2008 and 24 January 2009. Judgment was not given until 22 August 2011.
In his judgment the judge summarised his conclusions in paras 114 and 115 and his orders in paras 116 to 119. He said in para 114 that on the evidence he entertained no doubt that Mrs Desir exerted undue influence to procure her own name on the personal bank accounts or the accounts of companies in the name of or under the control of Mrs Butcher at the Bank of Saint Lucia, the Royal Bank of Trinidad and Tobago and the Bank of Nova Scotia. In para 115 he said that he was equally satisfied and convinced that the Deed of Sale, which was registered at the Land Registry on 22 May 2007 and purportedly executed by Mrs Butcher as vendor, was executed by her, if at all, without legal advice and for that reason ought to be improbated. The judge accordingly ordered that Mrs Desir, in both her capacities, render appropriate accounts and that the Deed of Sale be improbated.
Mrs Desir appealed to the Court of Appeal. She applied for a stay of the orders pending appeal but her application was refused. The Court of Appeal (Mitchell JA, Baptiste JA(Ag) and Thon JA(Ag)) delivered judgment on 18 September 2012. The only substantive judgment was delivered by Mitchell JA, with whom the other members of the court agreed. The court dismissed the appeal on the underlying merits but allowed the appeal on the improbation point. It set aside the improbation order but affirmed the other orders in favour of Mrs Alcide and awarded Mrs Alcide half her costs. Both parties filed applications for conditional leave to appeal to the Board. They were both granted conditional leave on 10 December 2012 and the Board granted final leave to both parties in March 2013.
There are two appeals before the Board. The first, Appeal No 0042, is Mrs Desir's appeal against the Court of Appeal's dismissal of her appeal on the undue influence point (and related issues). The second appeal is Appeal No 0044, which is Mrs Alcide's appeal against the decision of the Court of Appeal allowing Mrs Desir's appeal on the improbation point. It is convenient to consider the two appeals separately, although in considering Appeal No 0042 it is necessary to have some regard to the events surrounding the Deed of Sale.
The first two issues identified in the agreed statement of facts and issues are these: (a) whether the laws of England, in relation to the burden of proof of undue influence, apply to St Lucia in so far as article 927 of the Civil Code Cap 4.01 provides that fraud can never be presumed and must be proved, and article 2066 provides that good faith is always presumed so that he who alleges bad faith must prove it; and (b) whether the Court of Appeal and the High Court misdirected themselves in applying the laws of England in relation to the application of the doctrine of presumed undue influence to Saint Lucia and the present circumstances.
As stated above, the judge treated Mrs Alcide's claim as a claim based on undue influence. It was not, as the Board sees it, part of Mrs Desir's case before the judge that the English law of undue influence was irrelevant and that the relevant law was that of Lower Canada. Before the Board, Mrs Desir says that the question raised by the first two issues can be summarised in this way: (1) Do the laws of England in relation to the burden of proof of undue influence apply to Saint Lucia in so far as article 927 of the Civil Code Cap 4.01 provides that fraud can never be presumed but must be proved? (2) Does article 2066 provide that good faith is always presumed and that he who alleges bad faith must prove it? (3) Did the Court of Appeal and the judge misdirect themselves in applying the laws of England in relation to the application of the doctrine of presumed...
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