Simmons & Simmons v Cartwright & Hill

• Jurisdiction: Bermuda
• Judgment Date: 21 May 2008
• Date: 21 May 2008
• Docket Number: Civil Jurisdiction 2000 No. 432
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2000 No. 432

BETWEEN:

Andrew Simmons and Christopher Simmons

Plaintiffs

and

Ann Frith Cartwright and Hilary Susan Hill

Defendants

Mr B Adamson for the Applicants/Defendants

Mr J Riihiluoma for the Respondents/Plaintiffs

The following cases were referred to in the judgment:

Shtun v ZalesjskaUNK [1996] 3 All ER 411

Hollett v Hollett [1993] Nfld & PEIR Lexis 905

Williams v Williams 1982 Civil Appeal No. 8

Limitation Act 1980, s. 16, 20

Application for strike out — Whether claims are time barred — Equitable interest in real property from will — Whether limitation period is 20 years or 6 years — Illegality — Delay

RULING of Kawaley, J

Introductory

1. The Applicants apply by Summons dated February 6, 2008 to strike-out the present action for want of action. It is common ground that if the Respondents” claims are not now time-barred, the present proceedings may not properly be struck-out because fresh proceedings could simply be commenced. The action may be said to have been asleep (in terms of substantive Court actions) for nearly five years. The last out-of-court step in the action was apparently taken by the Applicants”/Defendants” attorneys over four years before they applied to strike-out the action for want of prosecution.

2. The central issue upon which the application turns is whether or not present claims are or are not time-barred, a novel point being raised by the Applicants” counsel on the interpretation of section 16 as read with section 20 of the Limitation Act 1980. The present claims seek, essentially, a declaration that the Respondents either own or have an equitable interest in certain land which was willed to the Second Defendant by the Respondents” late step-mother. If the 20 year limitation period for actions for the recovery of land applies, no question of striking-out the action arises. If a six-year limit applies, the case for striking-out is an arguable one.

3. The history of the action in chronological terms may be described briefly:

• (a) December 22, 2000: Specially Indorsed Writ issued;

• (b) January 10, 2001: Defendants entered an appearance;

• (c) March 7, 2001: Defence filed;

• (d) April 27, 2001: Further and Better Particulars of Defence requested;

• (e) August 20, 2001: Summons for security for costs issued;

• (f) October 5, 2001: Security for Costs ordered in the amount of $20,000 by Consent;

• (g) March 15, 2002: Pre-trial directions ordered by Consent;

• (h) April 18, 2002: Further and Better Particulars of Defence filed;

• (i) January 7, 2003: Plaintiffs apply for a Further and Better List of Documents;

• (j) February 20, 2003: Court gives directions relating to discovery sought by Plaintiffs;

• (k) January 26, 2004: Defendants” letter Request for Further and Better Particulars;

• (l) February 6, 2008: Defendants issue a Summons to strike-out for Want of Prosecution.

• (m) February 12, 2008: Plaintiffs file Notice of Intention to Proceed;

• (n) April 22, 2008: Plaintiffs issue Summons for Leave to Amend Specially Indorsed Writ;

• (o) April 30, 2008: Plaintiffs provide Further and Better Particulars requested in January 2004.

Factual findings/pleaded case

4. The present application was argued with respect to the Respondents”/Plaintiffs” case as set out in the Amended Specially Indorsed Writ, it being conceded that without prejudice to the strike-out application, the amendment application should be granted with the usual order being made as to costs.

5. The original claim was essentially based on an alleged agreement (‘the Agreement’) made in or about May, 1978 between the Plaintiffs” now deceased father and their now deceased step-mother (‘the Deceased’). However it was also alleged that as a result of representations made by the Deceased that she would devise a certain apartment to them in consideration for payments of $5000 per quarter (‘the Apartment’), her administrator was estopped from denying that either (a) the Plaintiffs were entitled to damages for the consequential loss, or (b) that the Apartment was held on constructive trust for their benefit. The Defence alleged that (a) the Second Defendant was one of a class of beneficiaries of the trusts which paid her the $5000 per quarter in accordance with the settlor's letter of wishes, and (b) the payments relied upon by the Plaintiffs were not made by them.

6. The Amended Claim in paragraph 9 most significantly alleged that ‘the Deceased by her words and conduct induced the Plaintiffs to believe that there was between the Plaintiffs and the Deceased an agreement, arrangement or understanding that in return for the said quarterly payments that the Deceased would on her death bequeath to the Plaintiffs the Apartment or its monetary equivalent and the personal estate.’

7. The original claim thus is based on an alleged oral agreement between persons who died in 1987 and 2000, respectively. The Amended Claim is based on communications between the Plaintiffs and the Deceased between in or about 1978 and in or about 1998.

8. The Plaintiffs do not allege that either Defendant had any knowledge of the matters relied on. The case appears to turn wholly or substantially on the oral evidence of the Plaintiffs themselves and the construction of very few documents.

Applicable limitation periods

9. It is clear that the contractual claims became time-barred as such six years after the date when the Respondents/Plaintiffs first learned of the breach of which they complain, seemingly after the death of the Deceased on August 10, 2000 (at the latest), or six years after the date (January 6, 1997) when she devised her property to the Second Defendant, in breach of the alleged Agreement (at the earliest).

10. Whether the equitable claims are now time-barred is less straightforward, however. Mr. Adamson submitted that since the primary claim was a contractual one, to which the standard six-year limitation period applied, the alternative equitable estoppel claim would be subject by analogy to a similar limitation period (Limitation Act 1984, section 37).

11. Mr. Riihiluoma relied upon two longer limitation periods, however. Firstly, as regards the claim that the Apartment is held on constructive trust for the benefit of the Plaintiffs, either wholly or to the extent of the value of the payments the Deceased allegedly received on the assumption that they were to be devised the property, this was a claim for the recovery of land. A 20 year limitation period was claimed (Limitation Act 1984, section 16). Secondly, as regards the claim to personal property from the deceased's estate to which the Plaintiffs also claim to be entitled, the Plaintiffs also rely on a 20 year limitation period (Limitation Act 1984, section 24(a)).

12. The supposed claim to personalty from the estate of the deceased, properly analysed, is not in fact legally distinguishable from the legal and equitable claims to an interest in the Apartment, because it is not on its face a claim on behalf of an ordinary estate beneficiary at all. It is not alleged that the Plaintiffs are beneficiaries under the Deceased's Will or that the Will ought to be set aside and the Plaintiffs are entitled to the personalty under the law relating to intestacy. Section 24(a) of the Limitation Act provides as follows:

‘24 Subject to section 23(1) and (2)—

(a) no action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy) shall be brought after the expiration of 20 years from the date on which the right to receive the share or interest accrued …’

13. The claim to personalty is based on the same averments which support the real property claims. Firstly, it is a contractual claim to which the normal contractual limitation period applies. Secondly, the claim to personalty is advanced on an equitable basis, overlapping with the claims relating to the Apartment. In my judgment the time limits applicable to either claims for breach of trust or breach of contract would apply by analogy to the entirety of the Plaintiffs” equitable claim, the limits being six years under sections 6 and 23(3) of the Limitation Act, respectively. So the claim to personalty is time-barred applying the six year limit applicable to contract or breach of trust claims by analogy.

14. It remains to consider whether the claims in respect of the Apartment are not similarly governed because they constitute actions for the recovery of land.

Section 16 of the Limitation Act 1984

15. Section 16 of the Act provides as follows:

‘Time limit; recovery of land

16 (1) No action shall be brought by any person to recover any land after the expiration of 20 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

(2) Subject to the following provisions of this section, where—

(a) the estate or interest claimed was an estate or interest in reversion or remainder or any other future estate or interest and the right of action...