J. A. J. I. S. v N. L. A
| Jurisdiction | Barbados |
| Judge | Olson DeC. Alleyne |
| Judgment Date | 02 June 2020 |
| Neutral Citation | BB 2020 HC 15 |
| Court | High Court (Barbados) |
| Docket Number | No. CV No. 1302 of 2018 |
| Date | 02 June 2020 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Dr. The Honourable Justice Olson DeC. Alleyne, Judge of the High Court
No. CV No. 1302 of 2018
(Acting herein by his next friend J. H. …)
(Administrator of the Estate of C. O. A., deceased)
Ms. Chanika Carrington for the Claimant
Mr. Richard Byer for the Defendant
J. A. J. I. S. (“JS”) is a minor. He is fourteen years old. He is said to suffer from Autism Spectrum Disorder. Unfortunately, he lost his father C. O. A. (“the deceased”) some years ago. The deceased died intestate on 23 December 2013. The defendant (“the Administrator”) is the Administrator of his estate. Letters of Administration dated 31 July 2014 were issued to him on 6 August 2014.
On 1 October 2018, acting by his mother and next friend J.H. (JH), JS filed a fixed date claim form (“the FDCF”) against the Administrator in which he seeks, at paragraph (a), an order for leave “… to file an application for [JS] to be deemed a dependent (sic) of the Estate of [the deceased] notwithstanding that 3 years 3 months (sic) had elapse (sic) since Letters of Administration has been granted (sic)”. An affidavit sworn by JH was filed in support of the application.
At paragraph (b) of the FDCF, JS seeks an order that “The Second Defendant be granted monthly disbursement of his share in the estate in an amount reflective of his needs” [emphasis mine]. Clearly, the reference to “the Second Defendant” is erroneous. There is no such party in these proceedings. The order sought at paragraph (b) must have been intended to be for JS's benefit. I will come back to that.
The FDCF gives no indication that paragraph (a) of the application is made pursuant to any particular statutory provision. Nonetheless, the Court acknowledges that sections 57 and 58 of the Succession Act, Cap 214 (“the Succession Act”) are relevant. Those provisions constitute Part VII of the Succession Act which enables the “dependants” of an intestate to seek maintenance out of the latter's estate.
In respect of children, the term “dependant” is defined in section 57, at paragraph (c)9 as including:
“a child who is presumed to be the child of the deceased person and his (sic)
(i) under the age of eighteen years; or
(ii) because of some mental or physical disability, incapable of maintaining himself or herself,
and was wholly or mainly maintained by, or was living with, the deceased person at the date of his death.
Clearly, the word “his” which appears in the opening section of paragraph (c) is a typographical error with the intended word being “is”. That portion of the definition of “dependant” must be construed accordingly. Section 58 regulates the maintenance scheme. Only sub-sections (1) and (2) are relevant. They provide:
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58. (1) Subject to this section where an intestate dies leaving a dependant, the Court may, on application made by or on behalf of that dependant on the ground that the law relating to intestacy does not make provision for the maintenance of such dependant, make an order providing for such maintenance to be made out of the intestate's estate as it thinks fit, having regard to any benefits to which the person by or on whose behalf the application is made is entitled under any other enactment on the death of the intestate.
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(2) An application under subsection (1) shall be made within 12 months from the first taking out of the representation of the intestate's estate.
The order sought at paragraph (a) of the FDCF has been framed as one for leave for JS to be deemed a dependant. However, at this stage, it is not necessary for this Court to determine whether JH's affidavit establishes that JS is a “dependant” in respect of the deceased's estate. A preliminary issue that confronts him is whether the Court can entertain an application for an order under section 58(1) of the Succession Act which has been filed outside the time limit prescribed in section 58(2).
A second issue that has arisen relates to the form of application. When the FDCF first came on for hearing, the Court enquired of the parties whether a person who is seeking leave to file a claim could properly bring the application for leave by FDCF. Mr. Richard Byer who appeared for the defendant doubted the correctness of that approach. However, he indicated that the Administrator did not wish to derail the proceedings on account of any procedural irregularities. He filed no written submissions on the question.
Ms. Chanika Carrington who appeared for JS addressed the issue. She submitted that the application for leave should have been made by a notice of application pursuant to Part 11 of the Supreme Court ( Civil Procedure) Rules 2008 (“CPU”). However, she contended that the Court has power under CPR 26,4(3) to remedy procedural errors and that it should do so in this case “… in light of the importance of the matter which affects the well-being of a minor child”.
CPR 8.1(1) provides for the use of a claim form in commencing a “proceeding”. CPR 11.1 stipulates that Part 11 “deals with interlocutory applications … for court orders being applications made before, during or after the course of proceedings” [emphasis mine]. CPR 11.3(1) sets out a general rule that “… an application must be in accordance with Form 10”. However, CPR 11.3(2)(b) provides that an application may be made orally if the court dispenses with the requirement for a written application.
This Court agrees with Ms. Carrington. If an intended claimant requires leave in order to commence a claim, the application for leave should be brought under Part 11 of the CPR as an application before the proceedings. The Court also accepts that CPR 26.4(3) endows it with remedial powers in respect of procedural errors. CPR 26.4 reads:
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26.4 (1) This rule applies in relation to a matter of which an order has not been sought, or if sought, has not been made under rule 26.3 striking out a statement of case or part of a statement of case.
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(2) An error of procedure or failure to comply with a rule, practice direction or court direction or order does not invalidate any step in the proceedings, unless the court so orders.
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(3) Where there has been an error of procedure or failure to comply with a rule, practice direction, court order or direction, the court may make an order to rectify the error or failure.
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(4) The court may make such an order on or without an application by a party.
The Court's discretion under CPR 26.4 to correct procedural errors was acknowledged by the Court of Appeal in Auto-Guadeloupe Investissements S. A. v Columbus Acquisitions Inc. & Ors. (2012) 84 WIR 40 and Kelt man & Or. v Bovell Civ. App. No. 13 of 2015 (date of decision, 30 May 2018). In both cases there was no significant prejudice and proceedings were allowed to continue despite being commenced by the wrong form.
In Kellman & Or., at paragraph [66], the Court determined that, given the terms of CPR 26.4(1), resort could not be had to CPR 264(3) to correct the error since an application to strike had been made. However, at paragraph [68], it referred to the general power of case management granted by CPR 261(2)(u) and held that “… the court is empowered to make a number of orders before exercising its discretion to strike out under CPR 26.3(3)”. At paragraph [76], the Court of Appeal concluded that the trial judge had properly directed the matter to continue as if started by the correct form.
Essentially, this case is about a minor who is seeking maintenance. The Administrator does not object to the matter proceeding despite the procedural irregularity. There is no prejudice to him. He has filed lengthy submissions in respect of the central preliminary issue identified for consideration. In the interest of justice, the matter ought to proceed without delay or additional expense to the parties.
Accordingly, this Court decided to exercise its power under CPR 26.4(3) and direct that the application for the order under paragraph (a) of the FDCF proceed as if made by notice of application under Part 11 of the CPR, or as if the Court had dispensed with the requirement for a written application and JS had made an oral application under CPR 11.3(2). Each option yields the same result.
I return to the central issue. Section 58(2) of the Succession Act provides that an application for maintenance of a dependant “… shall be made within 12 months from the first taking out of the representation”. The term “representation” is defined in section 2(1) of the Succession Act to mean “probate or administration”, and “administration” is defined to mean “letters of administration, whether with or without a will annexed and whether granted for special or limited purposes”.
Mr. Byer submitted that the term “the first taking out of representation” applies to a grant that enables the distribution of the estate to take place rather than to grants that are for a limited or special purpose. He cited Re Estate of F dec'd [2013] 2IR 302 and Re Johnston (dec'd) [1987] CLY3882 in support of that proposition. I accept that to be the law. For the purposes of section 58(2) of the Succession Act, time began to run from 6 August 2014. JS' application was filed over 4 years later, and not 3 as stated on the FDCF.
Ms. Carrington identified no statutory provision which gives this Court power to grant leave for a section 58(1) application to be filed out of time, or to otherwise extend the time for the filing of an application. I have found none. That provision may be contrasted with family-provision statutes elsewhere which confer a discretion on courts to extend stipulated time limits. The Inheritance (Provision for...
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