Victor Eugene Thompson and Terry Lynne Thompson v Clarence Victor Thompson

• Jurisdiction: Bermuda
• Judgment Date: 22 May 1991
• Date: 22 May 1991
• Docket Number: Civil Appeal No. 19 of 1990
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

da Costa, JA

Civil Appeal No. 19 of 1990

BETWEEN:

Victor Eugene Thompson

Appellants

and

Terry Lynne Thompson

and

Clarence victor Thompson

Respondent

Henderson v Henderson (1943-60) AER Rep 378

Ord v OrdELR [1923] 2 KB 433

Townsend v BishopUNK [1939] 1 All ER 805

Marginson v Blackburn Borough CouncilELR [1939] 1 KB 426

Lawlor v GrayUNK [1987] 3 All ER 345

Yat Tung Investment Co Ltd v Dao Heng Bank LtdELR [1971] AC 581

Grant v Edwards and anotherUNK [1986] 2 All ER 427

Gissing v GissingELR [1971] AC 686

Rules of Supreme Court Order 18, Rule 19

Res judicata — Dispute over will — Title to property — Claim by plaintiffs as executors for a declaration that their mother (deceased) had at the time of her death an interest in former matrimonial home — Defendant (father & husband) applied to strike out claim on grounds that it was an abuse of process — Appeal by plaintiffs against judge's order striking out proceedings on grounds that claim was res judicata — Parties in second action were not the same as in first action — Claim in second action not actually and directly in dispute in earlier proceedings — Statement of claim did not disclose cause of action

JUDGMENT

This is an appeal against an order of Mr. Justice Austin Ward dated 4th February 1991 striking out the Appellants' Statement of Claim under order 18 Rule 19 of the Rules of the Supreme Court.

The facts of the case are somewhat prosaic, but there is no escape from an uninspiring narrative.

On 3rd March 1941 the Respondent Clarence Victor Thompson was married to the late Enid Roseclair Thompson in Bermuda. In 1945 the Respondent acquired a piece of property in Warwick Parish on which the matrimonial house was built. His wife made no contribution to the purchase of the property or the building of the house; in 1949 he secured a mortgage on this property.

Mr. Hector in opening the appeal stated that the mortgage on the property was taken in the joint names of the husband and wife. This is clearly not correct. The opening words of the mortgage instrument read as follows:

‘This Indenture made the first day of July one thousand nine hundred and forty-nine Between CLARENCE VICTOR THOMPSON of Devonshire in the Islands of Bermuda (hereinafter called ‘the mortgagor’ and ENID ROSECLAIR THOMPSON his wife of the one part and EDITH IRENE GREAVES, both of Number 9 Upland Road, Eastbourne, Sussex, England (hereinafter called ‘the mortgagees’) of the other part.’

Enid Thompson was made a party to the mortgage because she had a right of dower in her husband's property and unless she was made a party to the mortgage she would not be bound by it.

The Respondent having fathered a brood of twelve children left Bermuda in 1969 ostensibly on a short holiday. He next set foot on Bermuda soil in November 1989, his reluctant return compelled by the accident of litigation.

His wife Enid died in March 1989. By clause 4 she disposed of real property which she owned in St. Kitts among her children. Clause 5 of her will reads:

‘I GIVE DEVISE and BEQUEATH all my real and personal Estate and effects whatsoever and wheresoever situated not hereinbefore disposed of which I shall be possessed of or entitled to at my death including any property over which I have a Power of Appointment unto my said son VICTOR EUGENE THOMPSON and my said daughter TERRY LYNNE THOMPSON in equal shares absolutely share and share alike as regards personalty and tenants in common as regards real property.’

It was under this clause that any interest she might have in the matrimonial house in Warwick would pass to the Appellants who were appointed the executors and trustees of her will. This bequest apparently caused dissension in the family, as some members felt that their mother's share in the matrimonial home should have been divided amongst all the children. Hereafter, the children were divided into two opposing camps.

The aggrieved members of the family then proceeded to locate their absentee father who was residing in New York. On the 23rd June 1989 a specially endorsed writ of Summons was issued out of the Supreme Court on behalf of the Respondent against Victor Eugene Thompson, one of the Appellants in this appeal. This was action no. 227 of 1989. By his Statement of Claim, the Respondent as Plaintiff claimed the return of the title deeds to his property located at #2 Peak Lane, Cedar Hill in the parish of Warwick i.e. the matrimonial home. As appears from the title to the action Victor Eugene Thompson was sued in his personal capacity, in what was really an action in detinue.

On 11th July 1989 before any defence to claim no. 227 of 1989 was delivered the attorney for Victor Eugene Thompson wrote to the attorneys for Clarence Victor Thompson, in effect pointing out that there was an impediment to this action proceeding. The fact is that an order had been made on 2nd January 1981 giving the late Enid Roseclair Thompson leave to swear that the death of her husband, the Respondent, occurred on or since 15th October 1975. This order would have enabled Enid Thompson to apply for letters of administration in her husband's estate. In fact she never did.

Obviously Mr. Clarence Victor Thompson would have had to be resurrected before he could be plaintiff in an action. Accordingly on 2nd August 1989 an application was made by Summons in the Supreme Court that the order dated 2nd January 1981 be set aside.

A number of affidavits were filed in connection with this application. On the 9th November 1989 the Respondent materialized in Court and Hull J., no doubt being persuaded that this was not a ghostly apparition, made an order on the same date setting aside the order of 2nd January 1981.

Subsequently on the 27th November 1989 a defence was filed in civil action 227 of 1989. It relied on the title of the plaintiff being extinguished by the Limitation Act 1984, a defence which proved to be untenable. In a brief judgment Hull J. pronounced the defence to be without substance and made an order in terms of the summons, that is to say that the title deeds to the matrimonial home should be delivered to the plaintiff i.e. the Respondent herein.

On the 24th January 1990 Appellants in their capacity as the executors of the estate of their late mother Enid Roseclair Thompson deceased, commenced an action (No. 42 of 1990) claiming inter alia:

• 1. A declaration that the late Enid Thompson acquired a legal and/or equitable estate in the property situated at No. 2 Peak Lane, Warwick parish:

• 2. A declaration that the said interest forms part of the estate of Enid Thompson.

The Respondent filed a Defence and Counterclaim on 7th March 1990.

On the 5th September 1990 the Respondent applied by Summons for an Order pursuant to order 18 Rule 19 of the Rules of the Supreme Court 1985 or under the inherent jurisdiction of the Court that:

1. ‘The Statement of Claim of the Plaintiffs be struck out as it is an abuse of the process of the Court in that the issue raised in the Plaintiffs' Statement of Claim was or should have been raised when the subject matter became the subject of litigation in the case of Clarence Victor Thompson, Sr. and Victor Eugene Thompson 1989 No. 227.

2. The cost of this application.’

Order 18 Rule 19 of the Rules of the Supreme Court 1985 provides as follows:

‘19. (1) The Court may at any stage of the proceedings order...