Julienne Haynes-seymour v Elliott D. Mottley, Q.C

• Jurisdiction: Barbados
• Judge: Master Deborah Holder
• Judgment Date: 18 March 2021
• Neutral Citation: BB 2021 HC 7
• Docket Number: Civil Suit No. CV0563 of 2018
• Court: High Court (Barbados)

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Before Master Deborah Holder, BSS, Master of the High Court

Civil Suit No. CV0563 of 2018

Between:

Julienne Haynes-Seymour

Claimant

and

Elliott D. Mottley, Q.C

Defendant

Appearances:

Ms. Esther Obiora Arthur, Attorney-at-Law for the Claimant

Ms. Faye Finisterre, Attorney-at-Law for the Defendant

DECISION

Introduction

1 In this application, made pursuant to Rule 26.3 of the Supreme Court ( Civil Procedure) Rules 2008 (CPR), the Defendant is asking that the Claimant's statement of case be struck out. Alternatively, he is asking the court to make an order for security for costs against the Claimant under Rule 24 of the CPR. The Claimant is ordinarily resident outside of Barbados.

2 On 14 ^th December, 2018 and 22 ^nd October 2019 the Claimant filed applications with supporting affidavits, pursuant to Rules 19 and ²⁰ of the CPR to amend her statement of case to add “Elliott D. Mottley QC as the executor of the estate of Karen Culbard deceased” as second Defendant and “Elliott Mottley & Co.” as Third Defendant respectively.

3 On 31 ^st August, 2018 the Defendant filed a Notice of Application and an Affidavit in Support followed on 22 ^nd October, 2018. He sought an order:

• “1. that this action be dismissed against him or that all further proceedings in this action against him be struck out;

  Alternatively, if the Claimant is permitted to maintain the claim against the Defendant,

• 2. that the Claimant do provide security for costs of the Defendant in the sum of $19,676.40 and in either event,

• 3. that the costs of and incidental to this application be paid by the Claimant to the Defendant in any event;

• 4. for such further and other relief as this Honourable Court deems fit.”

4 The grounds of the application are:

• “I. Strike out

• 1. The Claimant has no real prospect of succeeding on the claim against the Defendant;

• 2. There is no other reason why the case against the Defendant should be disposed of at trial.

  Alternatively

• 3. The statement of case insofar as it contains allegations against the Defendant discloses no reasonable ground for bringing the claim against the Defendant.

• 4. The Defendant is a private individual who was named together with Grantley Leslie Culbard (deceased) also known as Karen Culbard referred to in her Death Certificate as Karen Culbard late of 79 Upto in the parish of Saint Michael in this Island dated June 25, 2008, as an executor to her estate.

• 5. The Estate of Ms. Culbard (the Estate) has not been proved, however an applicationo for letters Testamentary remains pending in the Superme Court of Judicature, Probate Division. The Court has not yet granted probate to the named executors.

• 6. The Defendant as an individual has separate legal personality from the personal representatives of the Estate of the decedent and as such allegations against him in his personal capacity are unsustainable and/or give rise to no personal legal liability on his part.

• 7. The Claimant's Claim discloses no reasonable cause of action or claim against the Defendant.

• II. Security for costs

• 8. The Claimant is ordinarily resident out of the Jurisdiction of this Honourable Court.

• 9. The value of the claim is $78,382.00 claimed by the Claimant in the Statement of Claim in this action.

• 10. In accordance with Part 65.5 of the Supreme Court Rules, 2008 and Appendix B to Part 65, the total amount of costs payable in respect of the claim against the Defendant is $19,676.40.”

Background

5 This matter commenced on 7 ^th May, 2018 when the Claim form and Statement of Claim were filed. The Claimant, who resides in New York, United States of America, is seeking to recover $78,382.00 from the Defendant. She claimed that he received this sum from the Barbados Bar Association “for and to [her] use,” as part of a cheque for $94,817.13 dated 5 ^th November, 2010. This sum came from the Client Account of attorney at law Karen Culbard, deceased. The Claimant also sought costs and interest.

Statement of Claim

6 Ms. Leodean Chrysostom, Attomey-at-law, by letter dated 27 ^th September, 2004, forwarded a cheque in the amount of $78,382 to Ms. Culbard. The Bank of Nova Scotia sold certain property belonging to the Claimant and this sum was the balance of the proceeds of that sale. By letter dated 15 ^th November, 2004. Ms. Culbard wrote Ms. Chrysostom and acknowledged receipt of the letter.

7 By letter dated 5 ^th November, 2010, Ms. Liesel Weekes of the Barbados Bar Association forwarded to the Defendant a cheque in the amount of $94,817.13, the balance of the funds from Ms. Culbard's Client Account.

8 Ms. Esther Obiora Arthur, attomey-at-law, by letter dated 20 ^th November, 2013, wrote the Defendant requesting delivery of the funds to her Client Account for the Claimant's benefit In 2014 the Claimant visited the Defendant's office and the latter maintained that some issues needed to be resolved with Ms. Culbard's estate before he could release the funds.

9 By letter dated 6 ^th May, 2016 Ms. Obiora Arthur again requested that the funds be transferred to her for the Claimant's benefit. The Defendant responded that he could not recall the transaction and would seek an opinion from Ms. Faye Finisterre, attomey-at-law,

10 Ms. Finisterre by letter dated 23 ^rd February, 2018 wrote Ms. Obiora Arthur seeking supporting documentation as to the specifics of the claim. By letter dated 28 ^th February, 2018 Ms. Obiora Arthur forwarded the requested documentation to Ms. Finisterre. Since that time the latter stated that she could not provide any information regarding the Defendant's response and Ms. Obiora Arthur was unsuccessful in her several attempts to reach the Defendant.

Defence

11 The Defence was filed on 9 ^th July, 2018. The Defendant made no admission as to paragraph 1 of the Statement of Claim but stated that if true, “the Claimant is a person who is ordinarily resident outside” the court's jurisdiction.

12 The Defendant stated that he was an attomey-at-law with an office for his private practice at Strathclyde, St. Michael. He was a private individual who, together with Grantley Leslie Culbard, was named in the last Will and Testament of Karen Culbard dated June 25, 2008 as an executor of her estate. The application for Letters Testamentary was pending. The court had not yet granted probate to the executors.

13 The Defendant admitted receipt of $94,817.13 from the Barbados Bar Association, being the balance due to the estate of the deceased. He also admitted that Ms. Obiora Arthur requested the funds on behalf of the Claimant. He stated that he advised the Claimant that the estate was pending probate and the grant of letters testamentary. He required the Claimant to prove the statement which she alleged that he made to her.

14 No admissions were made to the Claimant's account of what transpired between the Defendant and Ms. Obiora Arthur except as supported by letters dated 23 ^rd February, 2018 and 28 ^th February, 2018. He averred that Ms. Finisterre had advised Ms. Obiora Arthur that the Defendant was off island and that, prior to his traveling, she had not confirmed any instructions with regard to a response to Ms. Obiora Arthur's letter of 28 ^th February, 2018.

15 The Defendant also averred that any assets held by him on behalf of the estate were held as trustee for persons entitled, and the Claimant had no cause of action against him personally and that she was required to prove any and all claims against the estate at law in a properly constituted action against the estate. The Defendant denied being indebted to the Claimant as alleged or at all.

The Defendant's Affidavit in Support

16 In his Affidavit in Support filed on 22 ^nd October, 2018, the Defendant deposed that the statement of case, in so far as it contained allegations against him personally disclosed no reasonable ground for bringing the claim and had no real prospect of success against him personally and that there was no other reason why the case against him should proceed to trial.

17 He reiterated the pleaded position that he was a private individual who was named in the last will of the deceased as one of her executors and that probate had not yet been granted to the executors. A copy of the will was attached. Also, that he had a separate identity from the personal representative of the estate; that allegations against him personally were unsustainable and that he was not personally liable in his actions as trustee or executor of the estate.

18 He was advised that the Claimant is ordinarily resident outside the court's jurisdiction which gave rise to the court's discretion to order security for his costs, in the event that he was successful in defending the matter.

The Defendant's Submissions

19 Ms. Finisterre reiterated the Defendant's position as pleaded. She argued that the claim disclosed no reasonable cause of action against the Defendant. She contended that by virtue of section 3 of the Succession Act Chapter 249, Ms. Culbard's personal representatives became responsible for her estate upon her death. The section provides:

• “ 3 (1) The real and personal estate of a deceased person shall on his death, notwithstanding any testamentary disposition, devolve and become vested in his personal representatives.

• (2) The personal representatives for the time being of a deceased person shall be the representatives of the deceased in regard to his real and personal estate, and shall hold the estate as trustees for the persons by law entitled thereto.”

20 Ms. Finisterre submitted that a claim would have to be brought against the estate of the deceased via her personal representatives. She cited Latch v. Latch (1875) L.R.10 Ch App 464 per Sir W. M. James LR at 466 and Stoute v. Skeete [2001] BB SC 29.

21 She stated that in accordance with Part 65.5 of the CPR and Appendix B the amount of...