ST. GEORGE WEST COUNTY PORT OF SPAIN PETTY CIVIL COURT

Transcription

1 ST. GEORGE WEST COUNTY PORT OF SPAIN PETTY CIVIL COURT JUDGMENT CITATION: TITLE OF COURT: Port of Spain Petty Civil Court FILE NO(s): No. 397 of 2010 DELIVERED ON: 27 th February 2012 CORAM: Her Worship Magistrate Nalini Singh St. George West County Port of Spain Petty Civil Court Judge REPRESENTATION: Mr. Cecil Pope appeared for Joy Dillon Mr. Jerome Herrera appeared for Suzette Simon 1

2 INTRODUCTION By an Ordinary Summons dated and filed on the 18 th November 2010, the plaintiff Joy Dillon commenced proceedings against the defendant Suzette Simon for the sum of $7000. It is alleged that this sum of money represents monies owed by the defendant to the plaintiff for: 9 months of arrears in rent (February 2010-November 2010) Arrears on an electricity bill Effecting minor repairs 1 to the property at Wharton Street Laventille On the 9 th January 2012 when the matter came up for trial, counsel for the defendant Mr. Herrera, made an application to have the matter dismissed on the basis that the plaintiff had no right to commence a claim against his client for monies owed. THE SUBMISSIONS 1. The submission advanced by Mr. Herrera Mr. Herrera developed his argument this way. He submitted that his client did in fact occupy a two bedroom apartment located at Wharton Street Laventille but, this was pursuant to a tenancy agreement which was entered into by his client and the plaintiff s father in December It was further submitted that in or about the first half of 2009, the plaintiff s father died and the plaintiff took his place as landlord for the property located at Wharton Street Laventille. Letters of administration were never granted to the plaintiff. In these circumstances since the plaintiff never obtained a grant of letters of administration on or before the 18 th November 2010 when the 1 This was specifically stated as relating to rectifying the damage done to the exterior of the premises and replacing a toilet tank, one louver glass pane and a bathroom door. 2

3 ordinary summons was filed by her in her representative capacity, she had no right to bring an action for monies owed. Simply stated, the plaintiff had no locus standi to institute any legal proceedings on behalf of the deceased s estate as letters of administration had not been obtained by the plaintiff by the date the ordinary summons was filed against the defendant. Mr. Hererra supported his position by relying on the authority of Caudle v. LD Law Ltd. [2008] 1 WLR On the facts of this case, the claimant had a son with the deceased before their divorce. The deceased died intestate and the son was the only heir. The deceased s parents took documentation concerning the estate to the defendant firm, which set about applying for letters of administration on their behalf. It wrote to the claimant informing him that as he had parental responsibility, he had to apply and that, because the son was under 18 years old, at least two administrators would be required and that the second administrator should be the next permitted representative, which was one of the deceased s parents. The claimant replied that he wanted to appoint a solicitor in the firm representing him as the second administrator, and requested the documentation relating to the estate. Correspondence did not secure the delivery of the documentation, and the claimant instituted proceedings for wrongful interference with that documentation. The county court judge found that the claimant had no right to bring the proceedings, and the claimant appealed. On appeal, the defendant submitted that because the claimant had not obtained a grant of letters of administration at any time prior to instituting proceedings in court, he had no right to bring an action for wrongful interference. The claimant contended that he had an immediate right to possession of the documents, and thus could maintain an action for 3

4 wrongful interference because, as the father of the minor who was the sole beneficiary of the estate, he was the person entitled in order of priority to apply for the grant of letters of administration. It was held that the person entitled to the grant of letters of administration had an immediate right to possession of personal property formerly owned by the deceased if it was necessary that possession be taken to safeguard the estate. If this was the case then such a person was entitled to take legal action to enforce that right. The court went on to find that on the facts before them the claimant could not show that he needed to take possession of the documentation to safeguard the estate. Accordingly, it was concluded that the claimant had no right to immediate possession of the documents, and, consequently, no right to bring a claim for their delivery up. It was submitted by Mr. Herrera that this case illustrated his point that since Joy Dillon did not have letters of administration when she filed the proceedings against Suzette Simon she had no right to comence these proceedings and the ordinary summons is accordingly null and void. 2. The submission in reply made by Mr. Pope Mr. Pope acting for the plaintiff admitted in response that his client was the sole beneficiary of the estate and was the person entitled, in order of priority for the grant of letters of administration. He stated further that his client was not suing in her own right; indeed she had no right to commence proceedings except in her representative capacity. Additionally, although letters of administration were in fact applied for by his client, it was not granted on or before the 18 th November 2010 when originating documents were filed in this case. This notwithstanding, 4

5 Mr. Pope submitted that the application made by Mr. Herrera was premature in nature because of the fact that the application for letters of administration was pending. No authorities were relied upon to support this position. From these arguments, the legal questions which arise for determination by this Court are: 1. Whether a litigant can commence proceedings in court in a representative capacity when letters of administration have not been obtained. 2. Assuming that a litigant cannot commence proceedings in court in a representative capacity when letters of administration have not been obtained, whether the doctrine of relation back can be relied upon to validate the proceedings. I turn now to determine each of these issues raised. THE LAW 1. Whether a litigant can commence proceedings in court in a representative capacity when letters of administration have not been obtained. An administrator derives his authority from the grant of letters of administration In resolving the issue of whether a litigant can commence proceedings in court in a representative capacity when letters of administration have not been obtained, I start with a consideration of the basic premise that an administrator derives his authority entirely from the grant of letters of administration which appoint him to his office. This point was made in Woolley v. Clark (1822) 5 B&A 744 where A took out letters of administration under a will by 5

6 which he was appointed executor, and, after notice of a subsequent will, sold the goods of the testator. In holding that the rightful executor was entitled to recover the full value of the goods sold, and that A was not entitled, in mitigation of damages, to show that he had administered the assets to that amount Abbott CJ had this to say: There is a manifest distinction between the case of an administrator and an executor. An administrator derive, his title wholly from the ecclesiastical court. He has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant. An executor, on the other hand, derives his title from the will itself and the property vests in him from the moment of the testator s death. (emphasis mine) An administrator cannot act in his capacity as administrator without the grant of letters of administration Since a party entitled to administration receives his authority from the grant of letters of administration, it follows that an administrator can do nothing as administrator before letters of administration are granted to him. In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate 2 at para 8-10 it is laid down that: an executor may perform most of the acts pertaining to his office, before probate. However, for an administrator, the general rule is that a party entitled to administration can do nothing as administrator before letters of administration are granted to him. This is because he derives his authority entirely from the appointment of the court After his appointment, he has the same rights and liabilities and is accountable as if he were the executor. (emphasis mine) 2 John Ross Martyn and Nicholas Caddick (London, Sweet & Maxwell 19 th ed.)

7 This principle was illustrated in Holland v. King (1848) 6 CB 727. On the facts of this case, indentures of partnership between A, B and C, provided that, in the event of the death of either of the parties during the continuance of the partnership, the executor or administrator of that deceased partner would have the option of succeeding to the share of that deceased partner in the partnership business and effects, if he, she, or they gave notice of such intention within three calendar months after the death of the partner, to the surviving partner or partners. C died intestate on the 20 th February 1844, and on the 15 th May 1844, his widow gave the surviving partners notice of her intention to avail herself of the option of succeeding to her deceased husband s share of the business. It was only on the 10 th December 1844 that she took out letters of administration, and thereby became his legal representative. The surviving partners refused to admit her into the partnership on the ground that no notice was given by any executor or administrator in accordance with the terms of the indenture, and the matter went to court. The question for the determination of the court was whether valid notice was given. It was held that the notice given in the circumstances was not an effectual notice, within the meaning of the indenture. Incidentally, this line of reasoning was applied by the Supreme Court of Barbados in 1960 in the case of Greaves v. Briggs et al [ ] Barb. L.R. 259 where Hanschell J, in arriving at his decision in the case, had cause to say that: the administrator derives his title entirely from the grant of letters of administration and the property of the deceased does not vest in him until such grant. He cannot make a lease or other disposition before such grant (emphasis mine). 7

8 This very point was also made by Ventour J in the matter of In The Estate of Maria Mills Legal Personal Representative of Ellen Julien (Deceased) Between Esta Maria Mills v. James Adona Green and Juliet Smith HCA 3840 of 1982 at pages This is what His Lordship said: section 10(4) of the Ordinance makes it quite clear that when a person dies intestate his/her Estate vest in law in the Administrator General until the same is divested by Letters of Administration. It seems therefore that unlike an appointed Executor (as illustrated in the Walcott -vs- Alleyne case) the next of kin on intestacy is not vested with any power or authority to act on behalf of the deceased Estate until a grant of Letters of Administration is obtained. His Lordship went on to hold that the plaintiff in the matter was incompetent to bring the action on behalf of her mother s estate against the first named defendant without first having obtained a grant of letters of administration. An administrator cannot commence legal proceedings in his capacity as administrator without the grant of letters of administration It follows that since a person entitled to administration has no power to do anything as administrator before letters of administration are granted to him, he has no right to commence proceedings as an administrator before letters of administration have been issued. According to Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (supra) at para 8-10: 8

9 A person has no right to commence proceedings as an administrator before letters of administration have issued for until such time, he has no right of action. This concept is recognized by a number of cases, three of which are now referred to. The first is the 1698 case of Martin v. Fuller (1698) Comb. 371 Comb.Dig., Admon B. 9; 1 Salk 303 where Holt Ch. J said that: In the case of an executor, if he hath the probate at the time when he declares, it is well; but it is otherwise in the case of an administration: here it appears by the declaration, that the letters of administration were granted after the suit commenced, which is ill. The second case is the 1704 case of Wankford v. Wankford (1704) 1 Salk 299; 91 ER 265 in which it was clearly stated that: the right of an executor is not like that of an administrator for he may bring an action before probate, but an administrator cannot before letters of administration are granted. The third case is the 1916 Privy Council case of Meyappa Chetty v. Supramanian Chetty [1916] 1 AC 603 where the words of Lord Parker of Waddington at pages are directly on point. He puts it this way: It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator s death, and the consequence is that he can institute an action in the character of executor before he proves his will. He cannot, it is true, obtain a decree before probate, but this is 9

10 not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant. (emphasis mine) This was the point which was made in the Trinidad case of Lennore Walcott (Sole Executrix of the Last Will of Catherine Alleyne Deceased) v. John Clement Alleyne (1990) 1 TLR at page 529 at paragraphs C-D where His Lordship Mr. Justice Hamel-Smith (as he then was) concluded that: (t)he estate of a testator vests in the executor at the time of the death of the testator pursuant to section 10(1) of the AEO and since the executrix is in possession of the land and, by the common law rule, she gets her authority from the will she can commence this action in her representative capacity. She cannot, however, maintain the action until she obtained a grant of probate. In 2011 the Court of Appeal in England in the case of Millburn-Snell and Others v. Evans [2012] 1 WLR 41, recognized that this principle of law was still good law and in so doing, expressly approved four cases which illustrate the point that an administrator cannot commence 3 This case was approved in 1996 by Basdeo Persad Maharaj J in Mabel Clarke v. Victor Romero HCA No of 1985 at pages 18-19, and in 2000 by Master Durity in Ramnarine Rampersad Legal Personal Representative of the Estate of one Rampersad Also Called Jogin Rampersad Deceased v. Isaac Cooblal HCA No of 1988 at page 2. And, again in 2009 by Pemberton J in Dale Khan v. Kenneth La Crete CV at page 2 and, Rampersad J in the matters of Arjim Sammy aka Ann Arjum Sammy v. Catherine Earle HCA 1280 of 2003 at pages and Naresh Ramlogan v. Orangefield Estates Limited, Shazad Khan and Fariza Khan HCA No of 2000 at pages paragraphs 106 and

11 legal proceedings in his capacity as administrator unless he has first been granted letters of administration. These cases are: Ingall v. Moran [1944] 1 All ER 97 Hilton v. Sutton Steam Laundry [1946] KB 65 Burns v. Campbell [1951] 2 All ER 965 Finnegan v. Cementation Co. Ltd. [1953] 1 QB 688 In 1983, however, the Judicial Committee of the Privy Council accepted without approving the law as laid down in Ingall v. Moran [1944] 1 All ER 97, Hilton v. Sutton Steam Laundry [1946] KB 65 and Finnegan v. Cementation Co. Ltd. [1953] 1 QB 688, and went on to refine the principle by stating that the modern approach to be taken by courts is to treat the irregularity as a nullifying factor only if it creates substantial injustice. This was stated to be the law in the case of Alexandrine Austin and Others v. Gene Hart [1983] 2 AC 640. These six cases are now examined. The first case is that of Ingall v. Moran (supra). On the facts of this matter, the respondent issued a writ in an action for loss of expectation of life and expenses occasioned by an accident which occurred by reason of the appellant s negligence. The claim was brought by him claiming to sue in a representative capacity as administrator of his son s estate, but he did not take out letters of administration until nearly two months after the date of the writ. The appellant contended that the action was not properly constituted since the writ was issued when the respondent was not yet an administrator. It was held that the action was indeed incompetent at the date of its inception. As Scott LJ put it page 99 (t)he old writ was in truth incurably a nullity; it was born dead, and could not be revived. Additionally he stated at page 101 that: 11

12 It is, I think, well established that an executor can institute an action before probate of his testator s will is granted and that, so long as probate is granted before the hearing of the action, the action is well constituted although it may in some cases be stayed until the plaintiff has obtained his grant. The reason is plain. The executor derives his legal title to sue from his testator s will; the grant of probate before the hearing is necessary only because it is the only method recognised by the rules of court by which the executor can prove the fact that he is the executor. If any authority for this is required it is to be found in the judgment of Lord Parker, in Chetty v Chetty. An administrator is, of course, in a different position for his title to sue depends solely on the grant of administration. It is true that when a grant of administration is made the intestate s estate including all choses in action vests in the person to whom the grant is made, and the title thereto then relates back to the intestate s death, but there is no doubt that both at common law and in equity in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ. (emphasis mine) The second case is that of Hilton v. Sutton Steam Laundry (supra) where a similar question arose as to the validity of proceedings brought by a plaintiff in her administrative capacity when she had not yet been granted letters of administration. On the facts of the case, the plaintiff was the sole dependent of her deceased husband. She brought an action in an administrative capacity for damages in respect of his death. She had not at the time when the writ was issued, taken out letters of administration. It was held, applying Ingall v. Moran (supra) that the writ was a nullity. 12

13 The third case is that of Burns v. Campbell (supra). In this case, the plaintiff issued a writ in England by which she claimed as administratrix of the deceased for damages. The writ was issued within the statutory twelve month from death period, but at the date of its issue, the plaintiff had only obtained a grant of administration in Northern Ireland. Denning LJ said at page 966 that: The result is that on Jan. 19, 1951, when the writ was issued, the plaintiff had not obtained a grant of administration to the English assets. So far as the English courts were concerned, she was not the administratrix. The action, therefore, was not properly constituted. It purported to be an action by her as administratrix, but she was not administratrix. The action was a nullity: see Hilton v. Sutton Steam Laundry. The fourth case which is referred to is Finnegan v. Cementation Co. Ltd. (supra). On the facts of this case, a workman died on the 22 nd January 1952 as a result of an accident which he suffered while being employed with the defendant company. His widow obtained in Ireland a grant of letters of administration of his estate, but she did not obtain a grant of administration in England. On the 10 th June 1952, she commenced an action in England against the defendants on behalf of her husband s dependants for damages in respect of his death. The indorsement of the writ stated that her claim was as administratrix of the estate of her husband, and in the statement of claim it was stated that plaintiff is the widow and administratrix of the deceased man. On the 12 th February 1953, the defendants issued a summons asking that the writ and all subsequent proceedings be set aside on the ground that the plaintiff had no title to administer in England. In considering Ingall v. Moran (supra) and Burns v. Campbell (supra) and following Hilton v. 13

14 Sutton Steam Laundry (supra) the court held that the fact that the plaintiff had obtained letters of administration in Ireland did not constitute her an administratrix and, therefore, she was not entitled to sue as such. In arriving at this position Jenkins LJ accepted that: (a)s to the law, so far as this court is concerned it seems to me to be settled by Ingall v. Moran, Hilton v. Sutton Steam Laundry and Burns v. Campbell, that an action commenced by a plaintiff in a representative capacity which the plaintiff does not, in fact, possess, is a nullity. (emphasis mine) These four cases were in turn contextualized by Lord Neuberger MR in Millburn-Snell and Others v. Evans (supra), when he stated at paragraph 16 that: I regard it as clear law, at least since Ingall, that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity. That principle was recogised and applied by this court in Hilton v. Sutton Steam Laundry [1946] KB 65 (per Lord Greene MR, at 71) and Burns v. Campbell [1952] 1 KB 15 (per Denning LJ, at 17, and Hodson LJ, at 18). In Finnegan v. Cementation Co. Ltd [1953] 1 QB 688, Jenkins LJ at 700. In Millburn-Snell and Others v. Evans (supra), the claimants were the daughters of the deceased, who had died in The defendant owned a farm, and had been a business partner of the deceased. The day after the deceased s death, solicitors who had previously been advancing a claim on his behalf against the defendant wrote to the defendant s solicitors, stating that the claimants were considering whether they wished to pursue the claim on behalf of their father. The claim was based on the assertion that the deceased had acquired a 50% beneficial interest in the farm and the riding school business carried on there. Proceedings were issued in the names of 14

15 the claimants, naming them as the deceased s personal representatives. The defence disputed the claimants title to sue. The defendant applied to strike out the claim on the ground that the claimants had neither sought nor obtained a grant of letters of administration of his estate. The claim was struck out and the claimants appealed. It was held that the appeal would be dismissed as the court found that it was settled law that whereas an executor derived his title to sue from the will and not from the grant of probate, he could validly sue before obtaining a grant. Contrastingly, an administrator derived his title to sue solely from the grant of administration and so a claim brought on behalf of an intestate s estate by a claimant without a grant was an incurable nullity. In so far as England is concerned therefore, it seems that the law is clearly settled by the 2011 decision of Millburn-Snell and Others v. Evans (supra). That being said there is no avoiding the fact that the cases of Ingall v. Moran (supra), Hilton v. Sutton Steam Laundry (supra) and Finnegan v. Cementation Co. Ltd. in particular, were accepted but not approved in the Privy Council case of Alexandrine Austin and Others v. Gene Hart (supra) which was a case that originated from Trinidad and Tobago and is binding on this Court. On the facts of that case, within six months of the deceased s death in a car accident, his mother and his children issued a writ claiming damages from the defendant for negligence in causing the death. The relevant legislation in Trinidad and Tobago provided that such an action was to be brought in the name of the executor unless no action had been commenced within six months of the death, when it could be brought by specified relatives, including parents and children. The defendant denied liability but did not question the plaintiffs right to commence the action. No action was brought by the executor within the six month period. Over a year after the death, the defendant amended his 15

16 defence to plead that the court had no jurisdiction to entertain the claim. A trial judge upheld this submission. The plaintiffs appealed to the Court of Appeal where it was held that they had not been entitled to issue the writ and the action was a nullity. On further appeal this time to the Privy Council, it was held that (t)he modern approach is to treat an irregularity as a nullifying factor only if it causes substantial injustice The premature issue of the writ in the present case did not cause injustice at all. The appeal was accordingly allowed. In so doing their Lordships had this to say: In Ingall v. Moran [1944] KB 160, 169 Luxmoore L.J. could not help feeling some regret. In Hilton v. Sutton Steam Laundry [1946] KB 65, 73 Lord Green M.R., was not averse to discovering any proper distinction which would enable this unfortunate slip to be corrected. In Finnegan v. Cementation Co Ltd. [1953] 1 QB 688, 699 Singleton L.J. lamented that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them. Accepting, without approving, the decisions of the Court of Appeal which have been cited, their Lordships see no reason to encourage any extension of their ambit. In the present case the plaintiffs were entitled to sue in the capacities named in the writ, they were entitled at the date of the writ to sue unless the executor or administrator intervened within six months of the death, no such intervention took place and the plaintiffs without needing or seeking any amendment are entitled to proceed with the action which they launched. The three cases of Ingall v. Moran (supra), Hilton v. Sutton Steam Laundry (supra) and Finnegan v. Cementation Co. Ltd can be distinguished from the ruling of the Privy Council in 16

17 this way. The case of Ingall v. Moran (supra) can be reconciled with Alexandrine Austin and Others v. Gene Hart because the plaintiff in Ingall v. Moran (supra) was never entitled to sue in his personal capacity when he instituted proceedings 4 whereas in Alexandrine Austin and Others v. Gene Hart (supra), the plaintiffs were always entitled to bring an action against the defendant in their personal capacity. The cases of Hilton v. Sutton Steam Laundry and Finnegan v. Cementation Co. Ltd. can also be distinguished from the case of Alexandrine Austin and Others v. Gene Hart because in the former cases, both plaintiffs were widows who had issued writs in their capacity as administratrix when letters of administration had not been granted and sought leave to amend to bring the matters in their personal capacity after the statutory limitation period for commencing those proceedings had expired which would have been the effect of granting leave to amend. This was not the case in Alexandrine Austin and Others v. Gene Hart where the plaintiffs had a good cause of action at the time of the death of the deceased but had instituted proceedings too soon and this was considered by the court to be something capable of being cured by lapse of time without amendment thereby creating no injustice to the defendant who was already put on notice albeit earlier than allowed for in law, as to the claim being brought against them. It seems therefore that with respect to the first issue of whether a litigant can commence proceedings in court in a representative capacity when letters of administration have not been obtained, the cumulative effect of the aforementioned cases is that the irregularity of a litigant commencing proceedings in court in a representative capacity without letters of administration would be treated as a nullifying factor only if it causes substantial injustice and this would not 4 The plaintiff in Ingall v. Moran was the father of the deceased who, at the time he instituted proceedings, was said (at page 99 of that judgment) to have had no shadow of title to his son s surviving chose in action, in respect of which he purported to issue a writ. 17

18 be the case once the plaintiff has the right to sue in their personal capacity in the first place. That said the only way in which the proceedings commenced in this Court can be treated as null and void would be if its irregular institution has caused substantial injustice to the defendant. When the plaintiff issued her ordinary summons she was not entitled to sue in her personal capacity. Consequently, this Court is of the view that substantial injustice would be occasioned to the defendant were this matter be allowed to proceed because the defendant would be exposed to litigation commenced by a person who is not entitled to file proceedings against the defendant in the first place. The plaintiff Joy Dillon instituted proceedings in her representative capacity before she was granted letters of administration. An administrator derives his authority from the letters of administration which appoint him to his office and he can do nothing as administrator before letters of administration are granted to him. Joy Dillon could not do anything as administrator on the 18 th November 2010 because on that date (which was when the ordinary summons was filed) letters of administration were not yet granted to her. In particular, Joy Dillon had no right to commence legal action in her representative capacity on the 18 th November Joy Dillon did not have any right in law to commence these proceedings in her personal capacity. 18

19 To allow these proceedings which have been irregularly instituted to proceed would cause substantial injustice to the defendant as it would allow a person to institute proceedings against her when they have no right in law to do so. The ordinary summons dated and filed on the 18 th November 2010 is therefore ex initio a nullity. 2. Whether the doctrine of relation back can be relied upon to validate the proceedings. The point was made by Mr. Herrera that in some instances, the grant of letters of administration could relate back to the date of death if it is for the benefit of the estate. This much is clearly stated in Parry & Clark The Law of Succession at para A doctrine (or fiction) of relation back has been adopted by the courts for the limited purpose of protecting the deceased s estate from wrongful injury in the interval between his death and the grant of letters of administration to his estate. Under this doctrine, the letters of administration relate back to the death of the deceased The administrator may sue in respect of any wrongdoing to an asset of the deceased s estate during this interval between death and the grant of letters of administration for instance, in respect of trespass to the deceased s land or breaches of covenant by a lessee of the deceased s land. 5 Roger Kerridge 11 th ed (London: Sweet & Maxwell, 2002) 19

20 Counsel argued that on the pleadings before the Court, no such circumstances were demonstrated and so the exception cannot apply to the facts of the instant matter. I am inclined to agree with the conclusion that the doctrine of relation back cannot apply in this case but it is for an entirely different reason than the one advanced by counsel for the defendant. Proceedings brought by a person supposedly as administrator, but before obtaining a grant, are a nullity and cannot be validated by a later grant of administration. There is one case which this Court finds useful in this regard. It is the case of Burns v. Campbell (supra). What is instructive is what Denning L.J. had to say at page 17 of that judgment. It is that: All these re-sealings operate as a grant only from the date of re-sealing and are not retrospective. The result is that on January 19, 1951, when the writ was issued, the widow had not a grant of administration to the English assets. So far as the English courts were concerned, she was not the administratrix. The action was therefore not properly constituted. It purported to be an action by her as administratrix, but she was not an administratrix. The action was therefore a nullity: see Hilton v. Sutton Steam Laundry. She did later obtain a grant of administration to the English assets, namely, on the re-sealing on March 20, 1951, but that does not cure the matter. It does not revive the nullity. (emphasis mine) 20

21 This point was emphasized by Rampersad J in Arjim Sammy aka Ann Arjum Sammy v. Catherine Earle (supra) at page 16 paragraph 15 when he said: it seems that this plaintiff would not have had the capacity to have brought this action on the date when the writ was issued and, in light of the fact that there is no principle of relating back with respect to the grant of letters of administration, it would mean that the plaintiff s claim as the legal personal representative of the deceased cannot stand. (emphasis mine) From this it can be concluded that the doctrine of relation back cannot apply in the circumstances of this case as it cannot go back to cure something that was initially a nullity in law. CONCLUSION 1. A litigant cannot commence proceedings in court in a representative capacity when letters of administration have not been obtained as this would cause substantial injustice to potential defendants. 2. The doctrine of relation back cannot be relied upon to validate the proceedings which have been commenced by a litigant in a representative capacity when letters of administration have not been obtained. ORDER In the opinion of this Court, there is a duty to follow the law set out by the Judicial Committee of the Privy Council in the cases of Chetty v. Chetty (supra) and Alexandrine Austin and Others v. Gene Hart (supra). They are binding on this Court and are conclusive on the point which has 21

22 arisen here. On the 18 th November 2010, Joy Dillon had not been granted letters of administration in respect of her father s estate. She therefore had no authority to do anything as administrator until such time as letters of administration had been granted to her. Following from this, she was not entitled to institute proceedings against Suzette Simon. This means that this action is incompetent at the date of its inception. Additionally the Court finds that the doctrine of relation back of an administrator s title to their intestate s property, on obtaining a grant of letters of administration, cannot be invoked so as to render this action competent as it was incompetent when the ordinary summons was filed. Indeed, a subsequent grant of letters of administration cannot operate retroactively to validate the ordinary summons which from the beginning was a nullity. For these reasons the Court finds that no proper action was commenced by Joy Dillon against Suzette Simon. The ordinary summons dated and filed on the 18 th November 2010 is hereby struck out. The defendant will be allowed her costs. In arriving at this conclusion I take comfort in the dicta of Lord Neuberger MR in Millburn-Snell v. Evans (supra) at paragraph 41. It is this: Arguments such as that which the defendant successfully raised before the judge in this case are never very attractive, and one of the purposes of the CPR is to rid the law of unnecessary technical procedural rules which can operate as traps for litigants. However, whatever one s views of the value of the principle applied and approved in Ingall v. Moran [1944] KB 160, it is a well-established principle it was the judge s duty to follow it, as it is the duty of this court, at least in the 22

23 absence of any powerful contrary reason. The need for consistency, clarity and adherence to the established principles is much greater than the avoidance of a technical rule, particularly one which has a discernible purpose, namely to ensure that an action is brought by an appropriate claimant. Her Worship Magistrate Nalini Singh Petty Civil Court Judge 23