Maharaj and another v Johnson and Others (Trinidad and Tobago)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson,Lady Hale,Lord Carnwath,Lord Hodge,Lord Clarke |
| Judgment Date | 15 June 2015 |
| Neutral Citation | [2015] UKPC 28 |
| Court | Privy Council |
| Docket Number | Appeal No 0063 of 2013 |
| Date | 15 June 2015 |
[2015] UKPC 28
Lady Hale
Lord Clarke
Lord Wilson
Lord Carnwath
Lord Hodge
Appeal No 0063 of 2013
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants
Aidan Casey (Instructed by Sheridans)
Respondents (1 and 3)
Michael Douglas QC (Instructed by DWF Fishburns)
Heard on 3 February 2015
The judgment of the majority of the board was delivered by ( with whom Lady Hale, Lord Carnwath and Lord Hodge agree)
Mr and Mrs Maharaj ("the claimants") appeal to the Board against the order of the Court of Appeal dated 4 March 2013 (Archie CJ, Bereaux and Smith JJA), by which it dismissed their appeal against the order of Rajkumar J sitting in the High Court on 8 February 2013. Rajkumar J had struck out their claim against the defendants, who in February 1986 were partners in a firm of solicitors and conveyancers in practice in Port of Spain under the name De Nobriga, Inniss and Co.
The claimants brought their claim against the defendants on 27 February 2012. The claim, as specified in the claim form and in the statement of case, was for damages for negligence. On the application of the defendants to strike it out, Rajkumar J assumed that the facts pleaded in the statement of case were true and, on that assumption, concluded that the claimants had a cause of action against the defendants in negligence. He held, however, that the cause of action had accrued on 6 February 1986 and that, having been brought outside the period of four years from that date, the action was barred under section 5 of the Limitation of Personal Actions Ordinance ("the Ordinance"), which, although repealed in 1997, has continued to apply to causes of action which had previously accrued.
The claimants seek to persuade the Board that the cause of action in negligence did not arise until 29 February 2008 and that the action was therefore not time-barred. They also seek its permission to amend their statement of case to plead their claim alternatively in contract and, specifically, that the defendants had a continuing contractual duty to them, of which, until about 4 April 2008, they remained in breach. An action brought on 27 February 2012 in respect of causes of action arising in contract between 27 February 2008 and 4 April 2008 would not be time-barred. But an action brought now, in 2015, in respect of such causes of action would be time-barred and so, were the suggested claim in contract arguable, it would be necessary to consider whether in such circumstances it would be proper to grant permission for the statement of case thus to be amended.
The action surrounds the conveyance of land forming part of the Bonair Estate in Arouca ("the land"). Until his death intestate in February 1976, Patrick Lambert owned the land. Almost nine years later, in December 1984, letters of administration of his estate were granted to Gwendolyn Lambert, his widow. Shortly prior to her receipt of the grant, namely on 22 August 1984, Mrs Lambert, who lived in Venezuela, executed a Deed by which she conferred a Power of Attorney upon Richard Inniss, described in the Deed as an area superintendent. The nature of his connection, if any, with the firm De Nobriga, Inniss and Co is unclear and irrelevant. By the Deed, which was duly registered, Mrs Lambert empowered Mr Inniss to act on her behalf in a wide range of specified financial transactions, including "to sell any real or personal property belonging to [her] or to which [she] may become entitled, in particular the freehold parcel of land at Bonair Estate, Arouca, comprising 56,464 Superficial Feet". The land to which Mrs Lambert there referred was the land which her husband had owned and to which she was soon to become entitled as his legal personal representative.
In 1985 the claimants contracted to purchase the land from Mrs Lambert at a price of $170k. It is unclear whether Mrs Lambert signed the contract in person or whether Mr Inniss did so, or purported to do so, on her behalf; but, although the possible significance of the signatory's identity will soon become apparent, the case has proceeded on the basis that the contract itself was fully effective. The claimants instructed the defendants to act in the purchase on their behalf and, specifically, to do everything necessary to enable them to acquire a good marketable title to the land. The partner within the defendants' firm who had conduct of the purchase on behalf of the claimants was Mr Johnson, the first defendant.
By Deed dated 6 February 1986 Mrs Lambert, as personal representative of her husband's estate, conveyed, or purported to convey, the land to the claimants in consideration of their payment of the price, which was duly made on that day and receipt of which was acknowledged. With the approval of the defendants, indeed at their offices, Mr Inniss executed the Deed on Mrs Lambert's behalf pursuant, or purportedly pursuant, to his Power of Attorney. The claimants paid the defendants' fees for having acted for them in the purchase and the defendants closed their file. It was understood on all sides that the claimants had become full legal owners of the land. It never crossed the mind of the claimants that they might not be its full legal owners until their receipt of the letter to which the Board will refer in para 8 below.
In January 2008 the claimants decided to offer the land as security for a loan from the Bank of Baroda and they forwarded to the bank the Deed dated 6 February 1986. The bank instructed a firm of lawyers to investigate the claimants' title to the land. But the claimants changed their mind: they decided to sell the land instead. On 1 February 2008 they contracted to sell the land to Mr Sammy, a property developer, for $20m. Terms of the contract identified the closing date for the sale as 29 February 2008 and obliged the claimants to produce to Mr Sammy a good marketable title to the land.
Although on 1 February 2008 the claimants informed the Bank of Baroda that they no longer sought to raise the proposed loan, the investigation by the bank's lawyers of their title to the land for some reason proceeded. By letter dated 21 February 2008 the bank's lawyers informed the claimants that they were unable to certify that their title to the land was of a marketable nature. The basis of the lawyers' doubt about the claimants' title, which they appear to have set out in the letter, was their opinion that the Power of Attorney granted by Mrs Lambert to Mr Inniss had not empowered him to transfer title to land which she held as personal representative of her husband's estate rather than in her personal capacity.
On receipt of the letter from the bank's lawyers the first claimant at once contacted the first defendant, who remained in practice as an attorney in Port of Spain. The first claimant informed the first defendant about the contract of sale to Mr Sammy and the contents of the letter from the lawyers. The response of the first defendant was that Mrs Lambert should be located and then asked to rectify the Deed of Conveyance. But efforts to locate Mrs Lambert prior to 29 February 2008 failed. On that date, when the property market may well have been falling, Mr Sammy rescinded the contract for purchase of the land on the ground that the claimants could not discharge their obligation to produce to him a good marketable title to it; and they acknowledged that he was entitled to do so.
In March 2008 efforts to locate Mrs Lambert succeeded. She was continuing to live in Venezuela. The first defendant prepared a Deed of Rectification. On 12 March 2008, in her capacity as personal representative of her husband's estate, Mrs Lambert executed it in Venezuela and on 4 April 2008 the claimants executed it in Trinidad. On 15 April 2008 it was registered. Recitals to the Deed stated that the Deed of Conveyance dated 6 February 1986 had been executed "through inadvertence, error and/or omission"; that "doubts" had arisen whether Mr Inniss had had the power to execute it on behalf of Mrs Lambert as personal representative of her husband's estate; and that, "with a view to removing all doubts" about the efficacy of the earlier Deed, she had agreed to execute the present Deed. Mrs Lambert, as personal representative, thereupon proceeded to convey the land to the claimants. The first defendant did not charge the claimants for his services in procuring and registering the Deed of Rectification.
In their statement of case the claimants alleged that the defendants were negligent in having failed in 1986 to procure for them a good marketable title to the land and, in particular, to advise them that Mr Inniss had no power to execute on behalf of Mrs Lambert a deed of conveyance in relation to property which she held in her capacity as personal representative. They alleged that, as a result of the negligence, the sale of the land to Mr Sammy for $20m had not proceeded and that, since the present value of the land was only about $4m, they had thereby suffered loss and damage.
By their defence the first and third defendants (who, formally, are the only respondents to the appeal before the Board), and by a separate defence the second and fourth defendants, together contended that the claimants' action was time-barred. Without prejudice, they also contended that the Power of Attorney granted by Mrs Lambert to Mr Inniss had empowered him to convey on her behalf land which she held as personal representative of her husband's estate as well as land which she held personally; and that therefore, by the Deed dated 6 February 1986, the claimants had received good marketable title to the land. The four defendants therefore denied negligence;...
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