Alan Deans v Patricia Deans

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Straw JA
• Judgment Date: 22 April 2021
• Neutral Citation: [2021] JMCA App 6
• Year: 2021
• Docket Number: SUPREME COURT CIVIL APPEAL NO COA2020CV0043 APPLICATION NO COA2021APP00001

Between

Alan Deans

Applicant

and

Patricia Deans

Respondent

Between

Patricia Deans

Applicant

and

Alan Deans

Respondent

SUPREME COURT CIVIL APPEAL NO COA2020CV0043

APPLICATION NO COA2020APP00213

APPLICATION NO COA2021APP00001

IN THE COURT OF APPEAL

Mrs Symone Mayhew QC and Ms Ashley Mair instructed by HeywoodBlake for Mr Alan Deans

Mrs Caroline Hay QC and Ms Christan-Marc Matthis instructed by Caroline P. Hay for Ms Patricia Deans

IN CHAMBERS

Straw JA

1 There are two applications before me for consideration. Firstly, there is the application for security for costs filed by the respondent to the appeal, Alan Deans (“Mr Deans”) on 1 December 2020 which was assigned application number COA2020APP00213. Secondly, there is the application for a stay of taxation proceedings which was commenced by Mr Deans in the Supreme Court, pending the determination of the appeal. This application, assigned application number COA2021APP00001, was filed 5 January 2021 and is supported by an affidavit sworn to by the appellant, Ms Patricia Deans (“Ms Deans”) filed on the same day.

Background

2 By way of background, the appeal (filed 16 June 2020) arises from a judgment entered in favour of Mr Deans on 6 May 2020 along with the customary order for costs. The following undisputed facts can be gleaned from the written reasons for judgment of J Pusey J:

• (i) The parties are siblings, two of six children born to their mother (“the deceased”) who died on 24 December 2014;

• (ii) The deceased acquired two properties in the parish of Saint Andrew, the only one which is relevant is the Gilmour property;

• (iii) Prior to the deceased's death, a will was prepared by Mr Deans (an attorney-at-law) which provided that Ms Deans would receive the Gilmour property absolutely; and

• (iv) The will was never signed and as such the deceased died intestate and, accordingly, her estate fell to be distributed among her six children pursuant to the Intestates' Estates and Property Charges Act.

3 The competing contentions may be summarised thus. Ms Deans filed a claim in the Supreme Court seeking to recover damages for negligence against Mr Deans for failing to have the will promptly executed by their mother before her death, bearing in mind that the deceased was diagnosed with a terminal illness. The learned judge described Ms Deans as an “intended disappointed beneficiary”.

4 Mr Deans denied being negligent, rather he contended that he prepared the will and took it to his mother several times for execution and that she gave excuses as to why she did not sign it. Further, he denied that a lawyer-client relationship existed between himself and his mother and that there was an implied retainer. He asserted that there was only a domestic arrangement.

5 The learned judge ultimately found that there were no circumstances in which she could infer that an implied contract of retainer existed, thereby giving rise to any liability. It was held that a domestic relation was evident of a “good son” assisting his ageing mother and there was no evidence of any act or omission that amounted to negligence (see paragraphs [88] of the reasons for judgment).

The application for security for costs — COA2020CV0043

6 Mr Deans seeks the following orders:

“1. The Appellant/Respondent [Ms Deans] give security for the Respondent/Applicant's [Mr Dean's] costs of defending the appeal in the amount of Three Million Dollars ($3,000,000.00) plus General Consumption Tax within thirty (30) days of the Order hereof.

2. That the said sum be paid into an interest-bearing account in the names of Heywood Blake and Caroline P. Hay to be held until trial of this action or further order of the Court.

3. The Appeal be stayed until the payment of the amount ordered in paragraph one.

4. That if security for costs is not provided within the said thirty (30) days in the manner specified in this Order, the Appeal be struck out.

5. Costs be costs in the Appeal.

6. Such further and other order(s) and/or directions as this Honorable Court deem(s) just.”

7 The grounds on which Mr Deans is seeking the above orders are as follows:

“1. Pursuant to Rule 2.11(1)(a) of the Court of Appeal Rules 2002 (‘the CAR’), a single judge of appeal is empowered to make orders ‘for the giving of security for any costs occasioned by an appeal’.

2. Additionally, Rule 2.12(3) of the CAR states that in deciding whether to order a party to give security for the costs of the appeal, the court must consider -

a) the likely ability of that party to pay the costs of the appeal if order to do so;

b) whether in all the circumstances it is just to make the order.

3. In accordance with Rule 2.12(2) of the CAR, a written request for security for costs has been made to the Appellant/Respondent [Ms Deans] but she has not given such security.

4. The Appellant/Respondent [Ms Deans] is unlikely to be able to pay the costs of the appeal if ordered to do so.

5. The Application has been made promptly as a date for the appeal has not yet been set.

6. The Respondent/Applicant [Mr Deans] has a good prospect of successfully defending this appeal.

7. The above orders are necessary for the just, fair and effective disposal of these proceedings.”

8 In his supporting affidavit filed on 1 December 2020, Mr Deans also contended that:

• (i) the grounds of appeal largely relate to the factual findings of the learned judge and are unlikely to be overturned on appeal (paragraph 6);

• (ii) Ms Deans' attorney-at-law admitted (in a letter dated 10 September 2020, which was exhibited) that Ms Deans would be unable to provide the costs of the appeal and contended that the payment of security would stifle the appeal (paragraph 8);

• (iii) He has incurred significant expenses (stated as $14,308,790.00 in the bill of costs filed) in defending the claim and estimated that it was likely that he would incur no less than $3,442,375.00 to defend the appeal (a draft bill of costs was exhibited) (paragraphs 10 and 12); and

• (iv) Ms Deans has no assets in the jurisdiction of which he is aware, save for her one-sixth interest in the Gilmour property which would not exceed $1,700,000.00 in value (paragraph 15).

9 In response, Ms Deans filed an affidavit on 5 January 2021. In this affidavit, she detailed the merits of her appeal. Her position is that the issues raised on appeal have a real prospect of success on appeal. To that end, she noted that the learned judge failed to demonstrate why she accepted Mr Dean's evidence in relation to whether the will was read to the deceased over that of the caregiver, who had no interest to serve. There was no explanation as to why Mr Deans was accepted as a credible witness. There is also a complaint that the fairness of the trial was compromised insofar that, the learned judge unreasonably interfered and prevented her attorneys-at-law from adducing evidence critical to the issue of whether there was an implied contract of retainer and whether the conflict of interest Mr Deans found himself in, explained why he did not present the will to the deceased for signing before her death.

10 There was also a complaint that the learned judge has yet to confirm the verbatim notes of trial taken by her attorneys-at-law, which was sent to the Registrar of the Supreme Court and Mr Deans' attorneys-at-law have not responded to a request to agree on same.

11 Ms Deans also asserted that her complaint in tort was not addressed; that another issue that was not resolved was whether Mr Deans dispelled the presumption of undue influence and discharged the obligation on himself to advise the deceased to get independent advice, as he stood to personally gain under her will.

12 On the issue of her assets within the jurisdiction, Ms Deans made reference to her one-sixth interest in the Gilmour property as well as the other property located at Roehampton Close, to which she was entitled under the deceased's estate. She also noted that the latter property was sold by Mr Deans in 2018 and he has refused to disburse the net proceeds of sale to her or any of the other beneficiaries.

13 Ms Deans admitted that an order for her to pay security for costs, will likely have the effect of preventing her from pursuing the appeal. She characterised this request as “oppressive conduct” from Mr Deans, since this would have the effect of forcing her to face costs totalling more than $17,000,000.00 in respect of the proceedings at the Supreme Court and the Court of Appeal at the same time. She also admitted that she is presently indebted to her own attorneys-at-law who have permitted her to make small payments on account over long periods and that this is the only way for her to pursue, what she believes to be, the proper outcome.

Submissions on behalf of Mr Deans

14 Mrs Mayhew QC, made her submissions by reference to rules 2.11(1)(a) and 2.12 of the Court of Appeal Rules (“CAR”) as well as the principles from Cablemax Limited and Others v Logic One Limited (unreported), Court of Appeal, Jamaica, Supreme Court Civil Appeal No 91/2009, Application No 203/2009, judgment delivered 21 January 2010, which were adopted by Brooks JA (as he then was) in Continental Baking Co Ltd v Super Plus Stores Ltd and Tikal Ltd [2014] JMCA App 30 and approved of by Morrison P in Jamaica Edible Oils & Fats Co Ltd v MSA Tire (Jamaica) Limited and anor [2018] JMCA App 8.

15 Reference was also made to three of the principles from Cablemax, namely that (1) the possibility that a party from whom security for costs is sought, such as Ms Deans, will be deterred from pursuing her appeal by an order for security for costs is not without more a sufficient reason for not ordering security; (2) in considering an application for security for costs, the court must carry out a balancing exercise — weighing the possibility of injustice to the appellant and respondent; and (3) before the court refuses to order security on the ground that it...