Ewers v Barton-Thelwell

• Jurisdiction: Jamaica
• Judge: Brooks JA,McDonald-Bishop JA,Straw JA
• Judgment Date: 31 July 2017
• Neutral Citation: JM 2017 CA 29
• Docket Number: SUPREME COURT CIVIL APPEAL NO 5/2016
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2017

Between

Tanya Ewers

(Executrix of the estate of Mavis Williams)

Appellant

and

Melrose Barton-Thelwell

Respondent

[2017] JMCA Civ 26

Before:

THE HON Mr Justice Brooks JA

THE HON Mrs Justice McDonald-Bishop JA

THE HON Miss Justice Straw JA (AG)

SUPREME COURT CIVIL APPEAL NO 5/2016

IN THE COURT OF APPEAL

Civil Appeal - Extension of time to file defence — Executor's right to institute claim — Appeal allowed.

Douglas Leys QC and Miss Kenik Brissett instructed by LeySmith Lawyers for the appellant

Leonard Green and Miss Sylvan Edwards instructed by Chen Green and Company for the respondent

Brooks JA

1 On 21 September 2015, a judge of the Supreme Court refused an application by Ms Tanya Ewers for an extension of time within which to file a defence to a claim brought by Mrs Melrose Barton-Thelwell. The claim was not, however, against Ms Ewers, but rather against Ms Ewers' mother, Ms Mavis Williams. Ms Williams had filed an acknowledgement of service to Mrs Barton-Thelwell's claim, but had failed to file a defence. Ms Williams died over a year after filing the acknowledgment of service.

2 The learned judge ruled that Ms Ewers had no basis on which to file a defence, as she could not be properly treated as a defendant. The learned judge also granted Mrs Barton-Thelwell permission to enter judgment in the claim, in default of defence. The orders made were:

• “1. That the Application for extension of time to file defence by Tanya Ewers is refused.

• 2. That permission is granted for judgment to be entered in default of a defence.

• 3. The Applicant Tanya Ewers pays the claimant's costs for this Application.”

3 The judgment which Mrs Barton-Thelwell sought would have had Ms Williams declared as having been dispossessed of title to registered land. It would have also barred Ms Williams from pursuing any action to recover possession, or otherwise assert the rights of owner, by virtue of being registered as the proprietor of that land. That prohibition would have resulted from the operation of section 3 of the Limitation of Actions Act.

4 Ms Ewers obtained permission from this court to file notice and grounds of appeal on behalf of the estate of Ms Williams, as the representative of that estate. It is in that capacity that she has had the appeal argued before us. She contends that the learned judge's ruling was wrong. It is Ms Ewers' contention that the learned judge ignored:

• a. the rules of the Civil Procedure Rules (CPR) which allowed her to file a defence on behalf of the estate, and

• b. the provisions of rule 21.7 and 21.8 of the CPR that provide for the substitution of a personal representative for the estate of the deceased person.

5 The main issues for resolution by this court are whether the learned judge was entitled to refuse Ms Ewers' application to file a defence on behalf of Ms Williams' estate and whether it was appropriate to allow a judgment to be entered against a person who was already dead, without substituting someone for that deceased person.

The factual background

6 Ms Williams and Mr Fitzhobern Thelwell were involved in a common-law relationship as man and wife when they were registered along with Mr Ian Thelwell, Mr Fitzhobern Thelwell's son (hereafter called Ian), as joint tenants of premises situated at Culloden in the parish of Westmoreland (hereinafter called “the premises”). That was in 1988. Mr Thelwell and Ms Williams were living together at the premises at the time.

7 At some point thereafter, the couple separated and Ms Williams left Mr Thelwell at the premises. It is unchallenged that Mrs Barton-Thelwell went to live with Mr Thelwell at the premises in 1994 as his common-law wife. She bore him two children thereafter, one in 1995 and the other in 1996. She and Mr Thelwell married in 2000.

8 Ian died in 1999 and Mr Thelwell died in 2005. The law regarding the right of succession for joint tenants that would normally have operated, is that on Ian's death, Ms Williams and Mr Thelwell would have automatically acquired Ian's interest in the premises, and would have become the remaining joint tenants. Similarly, on Mr Thelwell's death, Ms Williams would have automatically become the sole registered proprietor. Indeed, it was on those bases that, on 12 April 2010, she secured registration of the respective deaths on the registered title and, on 3 May 2010, had a new title for the premises issued in her sole name. It appears that she may falsely have claimed that the duplicate certificate of title was lost, but that is not a material fact for these purposes.

9 Apparently, still operating on the basis that the usual law of succession applied, Ms Williams, in February 2011, filed a plaint in the Resident Magistrate's Court for Westmoreland. In that claim, she sought recovery of possession of the premises from Mrs Barton-Thelwell.

10 In May 2011, Mrs Barton-Thelwell filed the claim in the Supreme Court. In it, she claimed that Ms Williams' automatic right to succession had been lost by virtue of Mr Thelwell's occupation of the premises, from 1994 to 2005, together with her occupation thereafter, to the exclusion of Ms Williams, for a period in excess of 12 years. Mrs Barton-Thelwell claimed the relief offered by the Limitation of Actions Act that Ms Williams, being out of occupation for a period in excess of 12 years, was barred from taking any action to recover possession of the premises. Mrs Barton-Thelwell further claimed that she was the beneficial owner of the premises.

11 In June 2011, Ms Williams filed an acknowledgment of service to that claim, but failed to file a defence. Ms Williams' plaint in the Resident Magistrate's Court was adjourned without a date, apparently, as a result of the existence of the claim in the Supreme Court. Ms Williams died in February 2013, not having filed a defence to that claim.

12 Mrs Barton-Thelwell did not seek to secure a judgment on her claim and in December 2013, Ms Ewers filed an application seeking to extend the time within which to file a defence on behalf of Ms Williams' estate. It was after that application was brought to her attention that Mrs Barton-Thelwell applied to strike out Ms Ewers' application and to seek a judgment in absence of a defence. Ms Ewers' application was struck out, but was later re-instated.

The applications before the Supreme Court

13 Ms Ewers, nonetheless, filed a new application for extension of time. Mrs Barton-Thelwell's response was to file a fresh application asking for Ms Ewers' application to be struck out and for permission to enter judgment in default of defence. The two applications came before the learned judge in March 2015.

14 In her first affidavit in support of her application, Ms Ewers stated that failure to file a defence within the required time was due to Ms Williams being ill. The long delay between Ms Williams' death and the filing of the application for the extension of time was due, Ms Ewers stated, to clinical depression that Ms Ewers suffered due to her mother's death.

15 She asserted that her mother had contributed to the acquisition of the premises and that the reason that she left the premises was Mr Thelwell's abusive behaviour. Ms Ewers deposed that she witnessed Mr Thelwell verbally and physically abusing Ms Williams during the time that they cohabited (see paragraph 7 of her affidavit filed on 4 March 2015).

16 Mrs Barton-Thelwell deposed in an affidavit in support of her application, that from the day she moved to the premises in 1994, to February 2011, when she was served with a plaint for recovery of possession, Ms Williams did not come to the premises or make any effort to assert her title. Mrs Barton-Thelwell said that the premises were not only home to her and her family, but that she also conducted business there. She deposed that she and Mr Thelwell used their earnings from the premises to support their family and advance their interests. None of their earnings, she said, were ever claimed by, or shared with, Ms Williams.

17 According to Mrs Barton-Thelwell, Mr Thelwell had “chased” Ms Williams from the premises (paragraph 6 of her affidavit). She said that Ms Williams “would never dare to present herself on the property as [Mr Thelwell] had a hostile and explosive temper…” (paragraph 7). She further said at paragraph 9 that “[a]t no time at all did [Mr Thelwell] allow [Ms Williams] to come on the land…hence [Ms Williams] received no benefit from the land by way of rental or any other payment and reaped no thing [sic] from the trees planted thereon nor did she ever seek to make any claim that she was so entitled”.

18 The learned judge, having heard the applications, made the orders referred to above. By this appeal, Ms Ewers has sought to have those orders set aside.

The grounds of appeal and the orders sought

19 The grounds of appeal filed on behalf of Ms Ewers are as follows:

• “i. The learned judge erred in law in giving a restricted to [sic] meaning to the meaning of the ‘Defendant’ within the context of the Civil Procedure Rules (CPR) with the result that it precluded the executrix of the estate of the Appellant/Defendant from continuing the action on her behalf.

• ii. By ruling and accepting that an executor/Executrix has the capacity to carry an action in the absence of a grant of probate upon the death of the testator dies [sic] the learned judge erred in law and not allowing the executrix Tanya Ewers to act as defendant in the continuing lawsuit against her deceased mother.

• iii. Alternatively the learned judge erred in ignoring the provisions of 21.7 and 21.8 of the CPR (albeit cited to her) and in particular rules 21.7 (3) and (4).

• iv. The learned judge in ignoring the provisions of the said sections failed to appreciate that the nature and intendment of the application, which was an application for executrix to file the defence on behalf the estate of...