Mohan Jogie v Angela Sealy
| Jurisdiction | UK Non-devolved |
| Judge | Lord Burrows,Lady Rose,Lady Arden,Lord Leggatt,Lord Stephens |
| Judgment Date | 15 August 2022 |
| Neutral Citation | [2022] UKPC 32 |
| Docket Number | Privy Council Appeal No 0090 of 2017 |
| Court | Privy Council |
[2022] UKPC 32
Lady Arden
Lord Leggatt
Lord Burrows
Lord Stephens
Lady Rose
Privy Council Appeal No 0090 of 2017
Privy Council
Appellant
Anand Beharrylal QC
Siân McGibbon
Melissa Ramdial
(Instructed by Ronald Dowlath (Port of Spain))
Respondent
Keston McQuilkin
Andre Rudder
(Instructed by Charles Russell Speechlys LLP (London))
Lord Burrows (with whom Lady Rose agrees):
This case raises some difficult questions on an aspect of the law of intestate succession. The claimant and respondent, Angela Sealy, is the daughter of Cynthia Abbott who died intestate on 21 December 2006. The claim was commenced by Angela Sealy on 1 February 2012. However, it was not until 2 November 2012 that letters of administration were granted to Angela Sealy and her brother Osden Abbott, who are both also entitled, along with others (there are two other siblings), to the benefit of the estate. It is unclear why there was such a delay in obtaining the grant of administration. Nor has there been any explanation for why Angela Sealy did not seek more limited forms of grant (for example, a “grant ad litem” for the purposes of litigation or a “grant ad colligenda bona” for the purposes of preserving assets) which could have been obtained quickly. A consequence of the delay is that her claim faces potential legal obstacles which could have been avoided. The Board has to decide whether, on a close examination of the common law and the civil procedure rules in Trinidad and Tobago, those obstacles are insurmountable.
The essential facts can be quickly set out. Cynthia Abbott was, by reason of the relevant statute in Trinidad and Tobago (the Land Tenants (Security of Tenure) Act: see below para 9), the long-leaseholder of land, namely No 8 Bhagoutie Trace, San Juan. The lease was to last for 30 years and, at any time during the first 30 years, could be renewed once for a further 30 years by Cynthia Abbott or her successors in title. The first period of 30 years of the lease expired on 31 May 2011. Cynthia Abbott had given no notice to renew the lease prior to her death (on 21 December 2006). But on 11 January 2011, a few months prior to the expiry of the first 30 years, Angela Sealy gave the landlord, Mohan Jogie, who is the defendant and appellant, a notice of renewal. She alleges that thereafter, both before and after 31 May 2011, Mohan Jogie has attempted to prevent her entering the land (for example, by placing padlocks and chains on the gates). On 1 February 2012, she commenced an action, purportedly as “Representative of the Estate of Cynthia Abbott”, for a declaration of her rights to the tenancy of the land and for the tort of trespass to land against Mohan Jogie seeking damages and an injunction. However, at that stage, she had still not obtained the grant of administration.
It is well-established that, in contrast to the position of an executor of a will, an administrator (and I shall throughout use this term to include an administratrix) generally only acquires the right to act on behalf of an estate once the grant of administration has been made. The position is well-summarised in the leading text, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 21st ed, (2018), para 5–13 (footnotes omitted):
“In contrast with the position for an executor, for an administrator, the general rule is that a party entitled to a grant of administration can do nothing as administrator before obtaining a grant. This is because he derives his authority entirely from his appointment by the court; his entitlement to apply for a grant derives from the Probate Rules, and confers no title. Before this, the deceased's property vests in the Public Trustee. After appointment, an administrator has the same rights and liabilities and is accountable as if he were the executor.”
Assuming that Angela Sealy can otherwise prove her case that the defendant has committed trespass to land (as the lower courts have decided she can, albeit that, as is explained in para 19 below, there is a lack of clarity as to whether the finding of trespass is confined to conduct of the defendant after January 2012), she faces two linked legal obstacles. Both arise from the fact that she was not granted letters of administration (along with her brother) until 2 November 2012 which was some 22 months after she gave notice of renewal of the lease and some ten months after she commenced proceedings. Applying the general rule set out above, that an administrator only acquires the right to act on behalf of an estate once the grant of administration has been made, it is submitted by Anand Beharrylal QC, counsel for Mohan Jogie, that she had no standing either to renew the lease or to commence these proceedings and that, therefore, the renewal of the lease is ineffective and the proceedings are a nullity. Counsel for Angela Sealy, Keston McQuilkin, submits that the “relation back” doctrine applies to validate both the renewal of the lease and the proceedings. There are also relevant civil procedure rules of Trinidad and Tobago to consider and these are set out immediately below.
New civil procedure rules came into force in Trinidad and Tobago in September 2005. The new rules were made under section 78 of the Supreme Court of Judicature Act. In very general terms, they mirror the reforms to the civil procedure rules made in England and Wales in 1999 following the report of Lord Woolf. But they are not identical to the civil procedure rules in England and Wales so that one cannot simply read across from one to the other. The civil procedure rules to which we have been referred in this case are CPR (T&T) rules 1 and 21.4. It is also helpful to set out here CPR (T&T) rule 21.7 as it was discussed in one of the Trinidad and Tobago cases to which we were referred.
CPR (T&T) rule 1 reads as follows:
“The overriding objective
Application by the court of the overriding objective
Duty of the parties
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1.1 (1) The overriding objective of these Rules is to enable the court to deal with cases justly.
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(2) Dealing justly with the case includes -
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(a) ensuring, so far as is practicable, that the parties are on an equal footing;
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(b) saving expense;
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(c) dealing with cases in ways which are proportionate to -
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(i) the amount of money involved;
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(ii) the importance of the case;
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(iii) the complexity of the issues; and
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(iv) the financial position of each party;
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(d) ensuring that it is dealt with expeditiously; and
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(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
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1.2 The court must seek to give effect to the overriding objective when it -
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(1) exercises any discretion given to it by the Rules; or
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(2) interprets the meaning of any rule.
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1.3 The parties are required to help the court to further the overriding objective.”
CPR (T&T) rule 21.4 reads as follows:
“Representation of persons who cannot be ascertained, etc, in proceedings about estates, trusts and the construction of written instruments
21.4(1) This rule applies only to proceedings about -
(a) the estate of someone who is dead;
(b) property subject to a trust; or
(c) the construction of a written instrument.
(2) The court may appoint one or more persons to represent any person or class of persons (including an unborn person or persons) who is or may be interested in or affected by the proceedings (whether at present or for any future, contingent or unascertained interest) where -
(a) the person, or the class or some member of it, cannot be ascertained or cannot readily be ascertained;
(b) the person, or the class or some member of it, though ascertained cannot be found; or
(c) it is expedient to do so for any other reason.
(3) An application for an order to appoint a representative party under this rule may be made by -
(a) any party; or
(b) any person who wishes to be appointed as a representative party.
(4) A representative appointed under this rule may be either a claimant or a defendant.
(5) Where there is a representative claimant or representative defendant, a decision of the court is binding on everyone he represents.”
It should be noted that CPR (T&T) Part 21, which includes CPR (T&T) rule 21.4, is headed “Representative Parties”; and that in general, but with the express exception of rule 21.4 (and presumably also rule 21.7 which is set out in the next paragraph), rule 21 “applies to any proceedings where five or more persons have the same or a similar interest in the proceedings.”
CPR (T&T) rule 21.7 says this:
“Proceedings against the estate of a dead party
(1) 7(1) Where in any proceedings it appears that a dead person was interested in the proceedings then, if the dead person has no personal representatives, the court may make an order appointing someone to represent his estate for the purpose of the proceedings.
(2) A person may be appointed as a representative if he -
(a) can fairly and competently conduct proceedings on behalf of the estate of the deceased person; and
(b) has no interest adverse to that of the estate of the deceased person.
(3) The court may make such an order on or without an application.
(4) Until the court has appointed someone to represent the dead person's estate, the claimant may take no step in the proceedings apart from applying for an order to have a representative appointed under this rule.
(5) A decision in proceedings where the court has appointed a representative under this rule binds the estate to the same extent as if the person appointed were an executor or administrator of the deceased person's estate.”
3. The Land Tenants (Security of...
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