Estate of Marjorie Ilma Knox v John Vere Evelyn Deane
| Jurisdiction | Caribbean States |
| Judge | Mr Justice Saunders,Wit,Anderson,Mr Justice Saunders, PCCJ |
| Judgment Date | 03 April 2020 |
| Court | Caribbean Court of Justice (Appellate Jurisdiction) |
| Docket Number | CCJ Application No BBCV2019/007 |
| Date | 03 April 2020 |
IN THE CARIBBEAN COURT OF JUSTICE
Appellate Jurisdiction
The Honourables
Mr Justice Saunders, PCCJ
Mr Justice Wit, JCCJ
Mr Justice Anderson, JCCJ
CCJ Application No BBCV2019/007
BB Civil Appeal No 6 of 2010
Mr Philip A. McWatt and Mr Alair P. Shepherd QC for the Applicant
Ms Doria M. Moore for the Second Respondent
Mr Leslie F. Haynes QC for the Ninth Respondent
Mr Barry L. V. Gale QC and Ms Laura Harvey-Read for the Tenth Respondent
JUDGMENT of The Honourable Mr Justice Saunders , President and the Honourable Justices Wit and Anderson
Delivered by The Honourable Mr Justice Saunders , President on the 3 rd day of April 2020
JUDGMENT OF THE HONOURABLE
There has been a long and bitter history of litigation between Ms Marjorie Ilma Knox, now deceased, and the Respondents. Ms Knox was a shareholder in one of the Respondents, Kingsland Estates Limited (“the company”). In proceedings heard at the High Court, the Respondents obtained a garnishee order against dividends payable by the company to Ms Knox. The order was made by Worrell J. The decision to make that garnishee order was appealed. The Court of Appeal reserved its decision on the appeal in 2016. The Court of Appeal has, to date, failed to deliver its judgment. Ms Knox's representative wants this Court to regard that failure as a dismissal of the appeal and, on the premise of that alleged dismissal, the representative seeks Special Leave to appeal to this Court the making of the garnishee order.
The principal question for determination therefore is one of jurisdiction. Can this Court entertain an Application for Special Leave to appeal when no judgment has been rendered by the Court of Appeal? The background to this question can be briefly stated.
The appeal against Worrell J's order was filed on 13 September 2010. The appeal was heard by a panel of three Judges. On 14 July 2016, the Court of Appeal reserved its decision. Since then, of the three judges who sat on the panel, Burgess JA was appointed a Judge of this Court in 2019 and Mason JA was appointed Governor General of Barbados in 2017.
Ms Knox (“the deceased”) died on 29 September 2017. At the time she was resident in Florida in the United States of America. She left a will naming her daughter, Ms Kathleen Davis, also resident in Florida, as personal representative of her estate. On 5 October 2017, the will was probated in Florida.
Through a petition filed by Ms Davis, an order was issued on 21 November 2017 by the Florida Circuit Court appointing Mr Eugene Knox administrator ad litem. Mr Knox is the son of the deceased. According to him, this petition was a consequence of his sister's unwillingness to become involved in the pending litigation in Barbados involving their mother.
On 24 January 2018, Mr Knox applied to the High Court of Barbados for an order to be appointed representative of the deceased's estate. This was done at a time when the appeal had already been heard and everyone was awaiting a judgment from the Court of Appeal. In support of his Application to represent his deceased mother, he submitted the order by the Florida Circuit Court appointing him administrator ad litem. The Respondents claimed that the Florida Circuit Court had no jurisdiction to make Mr Knox administrator ad litem in respect of pending proceedings in Barbados. This contention prompted a fresh application by Mr Knox to be appointed a representative for the purpose of the pending proceedings. This second application (“the second application”) made no reference to the order issued by the Florida Circuit Court.
The parties agreed to enter an order by consent in respect of the second application. The consent order was drawn up and contained the operative word, “representative”. Before it was perfected on 10 October 2018, the word “personal” was inserted before “representative” and the order therefore read, “personal representative for the purposes of these proceedings’. Some of the Respondents took the view that the insertion of the word “personal” had the effect of changing the character of the order from what was originally agreed. They alerted the Registrar to the variance in the wording but nothing further was done to correct or otherwise amend the consent order.
In the meantime, as previously indicated, no decision has been rendered by the Court of Appeal in the substantive proceedings regarding the garnishee order. This delay prompted Mr Knox's decision to seek redress from this Court. On 28 November 2019, he filed this Application for Special Leave to Appeal. He sought to rely on Omar Holder v The Queen 1 in support of the view that he was entitled to leapfrog the Court of Appeal in light of the delay.
Holder was a case in which, after a hearing, a judgment of the Court of Appeal had been reserved for almost 7 years. The appellant, a person convicted of murder by a jury, lodged an Application before this Court for Special Leave to appeal his conviction. In effect, like Mr Knox, Holder sought to leapfrog the Court of Appeal in circumstances where the Court of Appeal was taking an inordinately long time to render its judgment. It is noteworthy that Holder was granted Special Leave, but this was in circumstances where the Director of Public Prosecutions consented to such leave being granted. Before Holder's appeal could be determined by this Court, however, the Court of Appeal delivered its judgment and so the appeal to this Court was thereby rendered moot.
Mr Knox's attempts to leapfrog the Court of Appeal is met with opposition by the Ninth and Tenth Respondents. They assert firstly that Mr Knox has no standing to continue the proceedings since Ms Davis was the person appointed as personal representative under the laws of Florida and, therefore, she should be the proper Applicant. Secondly, they say that in any event, the Court lacks jurisdiction to hear the Application and that Holder may not properly be relied upon by Mr Knox.
Rule 21.8 of the Barbados Supreme Court ( Civil Procedure) Rules, 2008 2 (the “CPR”), empowers the court to make an order and/or give directions to facilitate the continuance of proceedings after a litigant dies. The rule states:
21.8 (1) If a party to proceedings dies, the court may give directions to enable the proceedings to be carried on.
(2) An order under this rule may be made on or without an application.
Where an order is made but it contains a clerical mistake, the court may correct that mistake under rule 42.10 of the CPR:
42.10 (1) The court may at any time, without an appeal, correct a clerical mistake in a judgment or order, or an error arising in a judgment or order from any accidental slip or omission.
(2) A party applying for a correction must give notice to all other parties.
It is difficult to understand what the contention is about Mr Knox's standing to bring these proceedings seeking Special Leave. The second application made by him was made precisely for the purpose of enabling him to stand in the shoes of his deceased mother in relation to pending or impending proceedings in this suit. The operative part of the order stated:
The Applicant, EUGENE ESTWICK JOHN KNOX, of Bannatyne Plantation in the parish of Christ Church in this Island, be appointed as the personal representative of MARJORIE ILMA KNOX, who died on the 29 th day of September 2017 for the purpose of these proceedings.
The Respondents consented to the making of this order. If the drawn-up order contains a clerical mistake that error cannot thwart Mr Knox's ability to avail himself of the benefit of an order to which the Respondents had agreed. It would be a simple matter for a court to order that the word “personal” be struck from the order by consent under rule 42.10 of the CPR.
The Respondents further state that, even if it was valid, the order only extended to the High Court proceedings. There is no logic in that submission. The High Court proceedings were already complete when the order was made. Indeed, the proceedings before the Court of Appeal were also complete save for the rendering of a judgment by that Court.
The phrase in the order ‘for the purposes of these proceedings’ must be interpreted in its context. The consent order looked forward. Its purpose was not to validate or deal with anything that had occurred prior to the hearing of the appeal. Its purpose was to enable Mr Knox to address, in the place...
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