Maureen Dyett (the sole executrix of the late Mary Chapman) v Mary Casarin

• Jurisdiction: Caribbean States
• Judge: Morley J
• Judgment Date: 20 May 2022
• Judgment citation (vLex): [2022] ECSC J0520-1
• Docket Number: CASE MNIHCV2018/0003
• Court: Eastern Caribbean Supreme Court

In the Matter of an equitable claim in proprietary estoppel and/or unconscionable bargain and/or a constructive/resulting trust and/or unjust enrichment and/or restitution and for an injunction and a claim in trespass to land and the conversion of personal property, with counterclaim for injunction against trespass, and other relief, concerning plot 14/09/11, once the land of Susanna Gerald Dyett who died in 1990;

And in the Matter of settling the costs of the suit following judgment on 22 November 2021.

Between

Maureen Dyett (the sole executrix of the late Mary Chapman)

Claimant

and

Mary Casarin

Defendant

CASE MNIHCV2018/0003

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

APPEARANCES

Mr Jean Kelsick for the Claimant.

Mr David Dorsett for the Defendant.

RULING

On costs of the suit following judgment

Morley J

1 This ruling will settle what costs are to be paid following protracted litigation over ownership of a concrete home on a portion of land within a plot, contested by a family over three generations, namely within plot 14/09/11 measuring overall 0.83 acres owned by the defendant Mary Casarin. There was judgment on 22.11.21 in favour of Casarin, that she owned the building, with land portion, constructed on the plot from 1997 by her late sister Mary Chapman, whose children led by claimant Maureen Dyett sought its ownership under their mother's Will. This has been most unhappy litigation, with feelings running high, as it has been felt by many in the family, rightly or wrongly, Casarin acquired ownership of the whole of plot 14/09/11 improperly on 10.04.91 after the death of the mother of Casarin and Chapman, Susana Gerald Dyett, who died in 1990 1.

2 Written submissions on costs were filed by Counsel Dorsett on 23.11.21 and by Counsel Kelsick on 14.12.21. The hearing was supposed to be 24.01.22, but was adjourned to 01.04.22. This ruling then should have been delivered on 04.05.22, but has been delayed to today 20.05.22 owing to zoom difficulties.

3 In the judgment of 22.11.21, there were some costs observations at para 47:

Concerning costs, Casarin as the successful party is entitled to claim them and I will listen to further argument on what sum. However, there are some costs recoverable by Maureen, arising out of the odd history of proceedings explained above, as follows, noting these are procedural matters largely arising from Counsel Dorsett's failed attempt to prevent the trial occurring:

a. $2500ec on the costs in the cause Order made by the Court of Appeal refusing Casarin leave to appeal and a stay of proceedings;

b. $1500ec in costs on Casarin's failed application filed on 27.11.20 to strike out part of the Chapman's affidavit;

c. $5000ec on the costs in the cause Order made by the High Court on 10.03.21 dismissing Casarin's second strike out application;

d. The total being $9000ec, to be set off against Casarin's costs.

4 As to the ‘odd history of proceedings’, litigation has been marred by four features in its conduct by Counsel Dorsett, mentioned in the judgment at para 3, set out in full below, being a detailed review of the proceedings leading to trial, noting:

• a. There was a questionable bargain struck between Dorsett and Counsel David Brandt (earlier representing Maureen, though also being represented by Dorsett on personal criminal proceedings) that Brandt would arrange Dorsett would receive $ 14000ec paid by Maureen, caused then by Chapman owing costs on a previous suit against Casarin who then had different counsel, being case MNIHCV2001/0013, though not an action for which Maureen was responsible, in exchange for Dorsett not raising res judicata as a preliminary strike-out point;

• b. After paying the $ 14000ec, there was disingenuous attempt by Dorsett to take the res judicata strike-out point afresh when Counsel Kelsick replaced Brandt who went into custody;

• c. There was then wholly inappropriate attempt by Dorsett to protect Brandt from mention of criminal proceedings against him when Maureen by affidavit queried the relationship between Dorsett and Brandt; and

• d. There was to the mind of this court vexatious interlocutory appeal delaying the trial by Dorsett, concerning predictable and inoffensive amendment sought to the pleadings by Kelsick when he became instructed.

  3 Before looking deeper into the facts, the proceedings concerning plot 14/09/11 have been complicated by two previous suits and an oddity in the instant suit.

  • a. After Chapman began building in 1997, by 2001 the sisters had fallen out, police had been called to one fracas, and on 27.04.01 Casarin launched action against Chapman in essence for quiet enjoyment, being case MNIHCV2001/0010, which then led on 14.05.01 to legal proceedings concerning ownership of the land being launched against Casarin by Chapman, supported by brother Dudley, being case MNIHCV2001/0013, Chapman and Dudley becoming executors to Susanna's estate on 19.07.01. The argument in the latter suit was Casarin's sole title of 1991 should be set aside for fraud or mistake under s140 Registered Land Act Cap 8.01. A trial ended on 20.05.06 before Liegertwood-Octave J, who issued a judgment more than three years later on 29.04.09, confirming Casarin's acquisition of title, and awarding $ 14000ec in costs to be paid by Chapman toward Casarin's then advocates, Sylvester Carrott and Owen Roach. Appeal was lodged but withdrawn and no costs were paid, which thereafter remained outstanding.

  • b. Moreover, using Counsel Dorsett, from 2014 Casarin then sued her cousin Daly as case MNIHCV2014/0010 for ownership of the concrete house he built on 14/09/11. In a separate decision of this judge, dated 12.04.17, it was determined on the unique facts the house was hers, based on what on balance had been found agreed in 1998, but he had a right to remain for life if paying fair rent from 10.02.13, having lived virtually rent free for 15 years.

  • c. After Chapman sadly died on 30.03.17, which had been 13 days before the Daly decision, Maureen had sought to bury her mother's ashes, returning in May 2017 to Montserrat from where she lives in Toronto, staying at Chapman's home, and she says was met with hostility from Casarin to vacate, who in June 2017 then changed the locks. The antagonism which followed, including argument over whether Casarin had begun improperly to dispose of Chapman's personal property, led to these further legal proceedings, launched by Maureen on 18.01.18. At this time her advocate was David Brandt, who offered a different cause of action from the 2001 suit, namely, simpliciter, proprietary estoppel arising from the 1997 build.

  • d. Counsel Dorsett was again instructed by Casarin, and quickly sought perfectly properly to argue res judicata arising from the Octave judgment in an effort to strike out the proceedings. He filed comprehensive argument on 23.06.18, though before the court on 25.06.18 withdrew in curious circumstances. In parallel, Counsel Brandt was facing personal criminal proceedings in which Counsel Dorsett was assisting him. Between them it was agreed if Maureen paid the outstanding costs of $ 14000ec, then the argument on res judicata would not be pursued as a preliminary point, thereby allowing Maureen's case to proceed to trial. It might be arguable the costs on the 2001 suit had to be paid for the 2018 suit to proceed, though this was never adjudicated. So, Maureen paid the costs on 28.08.18 to the Registry; however the Court later learned from Counsel Dorsett he was then paid this money, not perhaps Counsels Carrott and Roach.

  • e. This court cannot help but wonder about the propriety of this arrangement, which to a third party can appear possibly to be Brandt though Maureen paying Dorsett to drop an argument, in parallel in a sense perhaps to help make some measure of reward owing to Dorsett while working for Brandt on his case, which raises a possible appearance of both being in breach of their duties to their clients in this case, namely that Brandt maybe used his client to help settle his own debt, while Dorsett maybe withheld a proper argument to advance his client's case in exchange for money from the opposing party, to which he may not be strictly entitled as in theory it perhaps should go to the original counsel, all of which can appear, rightly or wrongly, to be the lawyers helping each other as a conflict of interest regarding the parties. Whatever the truth, it looks terrible. To preserve public confidence in the Bar, insofar as I am able I wish to refer this oddity to the Montserrat Bar Association for deliberation as to whether misconduct may have arisen, by either counsels Dorsett or Brandt, and I hope the matter will settle happily to the satisfaction of all.

  • f. In any event, Counsel Brandt was later remanded in custody on his personal matters, and so Maureen needed new counsel, choosing Jean Kelsick, who went on record on 04.03.20. He amended the pleadings to perfect what Counsel Brandt had largely always sought to say, and had in three previous appearances, but had not pleaded clearly. At this point Counsel Dorsett opposed amendment, and when overruled, so that the perfected amended fixed date claim was lodged on 02.06.20, he then on 15.10.20 renewed the strike out application for res judicata, despite having earlier agreed not to pursue it in exchange for the costs, by this time already paid.

  • g. When Maureen filed an affidavit on 21.10.20 to complain, mentioning at para 7 when paying the costs she was struck by how Counsel Dorsett in parallel was representing Counsel Brandt in serious criminal proceedings, Dorsett then filed a counter affidavit signed by his office manager Benatha Andrews on 27.11.20, as arguably a self-serving statement in which she reports what Counsel Dorsett told her were the circumstances of the costs payment, adding it was ‘scandalous’ and ‘oppressive’ to mention the nature of the charges...