IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
ON MONTSERRAT
CASE MNIHCV2020/0041
In the Estate of Patricia Lynn Cummings deceased;
And in the matter of claim for breach of contract on a promissory note/money lent/a balance due under an agreement for sale and for damages for breach of warranty/contract /misrepresentation concerning a motorhome;
And in the matter of an application for summary judgment, or in the alternative for striking out of the claim and abuse of process for fraud and illegality of contract.
BETWEEN
ANTHONY JONATHON NUNNS
Applicant/Claimant
AND
HOWARD MARK ROTHERHAM
As the sole Executor of the Will of
Patricia Lynn Cummings deceased
Respondent/Defendant
APPEARANCES
Mr Jean Kelsick for the claimant.
Mr David Dorsett for the defendant.
2021: JULY 16
RULING
On application for summary judgment concerning an unstamped promissory note
and on application to strike out for abuse of process and illegality
1 Morley J: Anthony Nunns wants money from Howard Rotherham owing under an agreement with Rotherham’s wife Patricia Cummings who died on 22.08.19, where Rotherham is executor of her estate by her Will of 25.04.16. The sum is £25000 under a promissory note, with a further £10000 for misrepresenting the value of a motorhome. Claim was filed on 30.11.20. As yet there has been no filing of a formal defence. Instead on 22.02.21 Counsel Dorsett for Rotherham filed for summary judgement, owing to relevant documents being unstamped, and in submissions in support on 09.03.21 also argued any agreement was illegal and should not be enforced begging whether the claim should be struck out. There have been several hearings, leading to further legal submissions, the last hearing being on 11.06.21, with ruling today 16.07.21 on the issues raised.
2 In support of his claim, and as the legal arguments developed, Nunns has filed three affidavits, dated 18.11.20, 15.03.21 and 06.04.21, plus exhibited UK solicitors’ letters dated 04.12.19 and 14.01.20, there being no evidence from Rotherham. Distilling all this material, the claim and history appears as follows:
a. On 02.07.18, Nunns sold ‘Lime Tree House’ on Montserrat to Cummings at parcel 12/7/54, along with furnishings and a Suzuki car said valued at £30000. The sale was recorded in two documents:
i. By a document entitled ‘Agreement for Sale’, prepared in June 2018 by the conveyancer on Montserrat , signed by Nunns and Cummings, (the first page appearing as a scan at annex as document 1), it appears the ‘property sale’ (being for the land and house) was declared to the government to be for $150000us, (about £110000), being it seems a deliberate undervalue of the true sale price.
ii. However on 03.07.18, there was a handwritten document obtained by Nunns visiting Cummings in France, signed by both, not prepared by a lawyer, entitled ‘Confirmation of Agreement’, which reads (and appears as a scan at annex as document 2):
The buyer has contracted to purchase from the seller the property known as Lime Tree House, Old Town, Montserrat at the agreed price of £260000.
Of this £25000 has been paid by allowance for title of a 2006 Hymer 614 motorhome.
A further £25000 is by short term loan from the seller to be repaid as soon as possible. If within 12 months of the date below this will be free of interest. If a longer period interest will be paid at 5% per annum.
The balance of £210000 is due forthwith. Every effort will be made by the buyer to pay this within three days of the date below and at the very latest by July 11th 2018.
iii. Then it seems later the government valued the land and house at $200000us, independently of the June 2018 sale agreement.
iv. On its face concerning the document of 03.07.18, for the land, house, and contents plus car (‘the overall sale’), it appears Cummings was to pay £210000, plus give Nunns a motorhome valued at £25000. In his suit Nunns says it turns out the motorhome was only worth £15000, having been an insurance write off, hence the claim for £10000. From the way the document is drawn up, not professionally, the £25000 ‘loan’ may be part of the overall sale or may be separate, there may never have been an actual loan but merely a delay in paying the overall sale sum, it is not clear, the figures therefore being possibly in combination the overall sale for £235000, plus the ‘loan’ or ‘delayed payment’ of £25000, making a total owing of £260000.
b. On 12.10.18, Cummings signed a promissory note, unconditional on its face, not referring to the overall sale, specifically pleaded to be effective on Montserrat, to pay back the loan of £25000 from Nunns within the period of 03.07.18 to 03.07.19 or thereafter pay interest at 5%pa, to date the sum not being paid. A scan of the promissory note appears at annex as document 3.
c. On 22.08.19 sadly Cummings died.
d. On 04.12.19, in response to Nunns chasing the monies from Cummings’ estate via UK solicitors, his being ‘Lanyon Bowdler’, ‘Howells’ for Rotherham said monies sought by Nunns should be set off against a counterclaim for the cost of repair works to the house he did not perform as promised. On 14.01.20, in reply Lanyon Bowdler said the loan was separate from the overall sale, independent of any arrangements pertaining to the house.
e. On 30.11.20, the claim was filed by Counsel Kelsick, and there was some difficulty contacting Rotherham, who it seems has been in France.
f. On 14.12.20, an ex parte injunction was granted to prevent further sale of 12/7/54 until the claim is resolved.
g. On 15.01.21, Counsel Dorsett acknowledged service on behalf of Rotherham.
h. On 22.02.21, Counsel Dorsett applied for summary judgment, using his law clerk Annie Bowen to file an affidavit claiming the promissory note was unstamped under s22 Stamp Act, being therefore inadmissible, so that Nunns claim on it must fail as he is not permitted to offer the note into evidence to found his claim.
i. On 09.03.21, Counsel Dorsett filed detailed argument for summary judgment because:
i. the promissory note was unstamped;
ii. and further argued the April 2016 Will, June 2018 agreement, and by implication the 03.07.18 agreement, are also inadmissible as unstamped, or as unregistered under s4 and s5 Registration and Records Act;
iii. and at para 20 he further argued the claim was founded in fraud on the revenue and so should be struck out as illegal, as the June 2018 agreement declared a value for property sale as $150000us (about £110000), being at least half the true value in the 03.07.18 agreement, seemingly to avoid or reduce taxes payable of perhaps 7.75% on the sale price, which led to further submissions being filed, the court then wondering proprio motu during oral argument on 26.03.21 if the claim might be an abuse of process.
j. In sum, applying counsels’ initials, submissions have been filed ten times on this preliminary point at para 2(i) over the following dates: DD 09.03.21; JK 16.03.21; DD 24.03.21; JK 12.04.21; DD 06.05.21; DD 17.05.21; JK 27.05.21; DD 27.05.21; JK 07.06.21; and DD 08.06.21.
The argument
3 The present conundrum is whether to give summary judgment or in the alternative to strike out the claim. Though no defence has been offered, adding it up Counsel Dorsett has filed 614 pages of cases, and Counsel Kelsick 176. Through the ten filings of skeleton arguments, the following 47 cases and two textbooks have been specifically cited by counsel:
Didier v Royal Caribbean Cruises Ltd (2016) 89 WIR 277
Westpac Banking Corporation v M M Kembla New Zealand Ltd [2001] 2 NZLR 298
Sagicor Bank Jamaica Ltd v Taylor-Wright [2018] UKPC 12, [2018] 3 All ER 1039
Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22
King’s Casino Ltd v Pizza House Ltd ANU HCVAP 2005/0005
Fengl v Fengl [1914] P 274
Venkata Sveta (Rajah of Boobbili) v Inuganti Bhavayyammi Garu [1899] UKPC 45
Robert Edward Jones v Her Majesty’s Attorney-General [2003] UKPC 48
The Attorney General’s Reference 2018 ECSC Reports
Graham Ferguson Lacey v Abraham Zion5 2006 ECSC Reports
Marble Point Energy Ltd v Multiperils International Ltd BVIHCV 2006/0238, [2007] ECSCJ No. 56
Alfa Telecom Turkey Ltd v Cukurova Finance International Ltd BVI HCVAP 2009/001
Attorney General of the Turks and Caicos Islands v Misick [2020] UKPC 30
George W. Bennett Bryson’s & Co. Ltd. v Bryson’s Shipping1 (2018) ECSC Reports
Myrna Norde v Jacqueline Mannix 2015 ECSC Reports
Fairclough Homes Limited v Summers [2010] EWCA Civ 1300
Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004
The Treasure Island Company v Audubon Holdings Limited5 2003 ECSC Reports
Danzie v Cecil Anthony 2015 ECSC Reports
Fuller v The Attorney General of Belize [2011] UKPC 23
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Takhar v Gracefield Developments Ltd [2019] UKSC 13, [2020] AC 450
King-Emperor v Benoari Lal Sarma [1945] AC 14
St. Lucia Motor & General Insurance Co. Ltd v Peterson Modeste 2010 ECSC Reports
Patel v Mirza (2016) UKSC 42
Tinsley v Milligan [1994] 1 AC 340
Chettiar v Chettiar [1962] AC 294
DD Growth Premium v RMF Market
Neutral Strategies (Master) Limited [2017] UKPC 36
Waugh v Morris (1873) LR 8 QB 202
Hounga v Allen [2014] 1 WLR 289
Vita Food Products Inc. v Unus Shipping Co Ltd [1939] AC 277
St John Shipping Corpn v Joseph Rank Ltd [1957] 1 QB 267
Saunders v Edwards [1987] 1 WLR 1116
Ambrose v Bacon (1993) 33WIR
Vincent McDonald v Lawrence Dubriel 2004 ECSC Reports
Morrell v Workers Savings & Loan Bank [2007] UKPC 3
Bilta (UK) Ltd v Nazir (No 2) [2015] UKSC 23, [2016] AC 1
Langton v Hughes (1813) 1 M & S 593, 105 ER 222.
Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65
Grondona v Stoffel & Co [2020] UKSC 42, [2020] 3 WLR 1156
Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43, [2020] 3 WLR 1124
Okelina v Chikale 2019 ICR 1635
DD Growth Premium 2X Fund v RMF Market Neutral Strategies (Master) Ltd [2017] UKPC 36, [2018] Bus LR 1595
Azucena v de Molina (1991) 50 WIR 85
Brandt (Appellant) v Commissioner of Police and others (Respondents) (Montserrat) [2021] UKPC 12 Privy Council Appeal No 0079 of 2020
Maxwell, The Interpretation of Statutes (12th Ed)
Burrows, A restatement for the English Law of Contract
4 As to relevant statutes, Counsel Dorsett has offered:
a. The Stamp Act cap 17.02 says at s22:
22. Save and except as aforesaid, no instrument executed in any part of Montserrat, or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done, in any part of Montserrat, shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed.
b. The Registration and Records Act cap 6.02 says at s2, s4 and s5:
2…”deed” includes every document in writing affecting or relating to lands, tenements, or hereditaments in Montserrat, but does not include –
(i) Any document evidencing a transaction registerable under the Registered Land Act;
(ii) Any document registerable under the Registration of Records (Special Provisions) Act…
- No deed shall be received in evidence in any proceeding whatever, whether at law or equity, in Montserrat unless such deed shall have been duly registered.
No will, whereby any estate or interest in realty within Montserrat is devised, shall be admitted in evidence in any proceeding whatever, either at law or at equity, within Montserrat, until such will shall have been duly proved and registered.
5 These two Acts were first promulgated respectively in 1887 and 1881, being mechanisms then and still in use to raise revenue for government by a fee being paid for documents to be recognised as enforceable.
a. Reading each Act fully, there may be an argument almost any record relied on in a court must be stamped or registered, noting for example an ‘instrument’ is defined at s2 Stamp Act as ‘every written document’.
b. Of interest at s38 Stamp Act, a promissory note is specifically mentioned, and ‘includes any document of writing containing a promise to pay any sum of money’, stampable as a ‘Bill of Exchange’ at 50c for every $500ec being the value of the note, here seeming in total about $100ec. If this calculation is right, then for want of having paid the Montserrat government $100ec it is said Nunns cannot claim his £25000, begging if such a draconian result just.
6 As to the relevant sections of the Civil Procedure Rules 2000 as amended, concerning summary judgment and striking out, at rules 15 and 26:
15.2 The court may give summary judgment on the claim or on a particular issue if it considers that the –
(a) claimant has no real prospect of succeeding on the claim or the issue; or
(b) defendant has no real prospect of successfully defending the claim or the issue.
15.5 (1) The applicant must –
(a) file affidavit evidence in support with the application;…
(2) A respondent who wishes to rely on evidence must –
(a) file affidavit evidence;
26.2 (1) …the court may exercise its powers [to strike out] on an application or of its own initiative.
(2) If the court proposes to make an order of its own initiative, it must give any party likely to be affected a reasonable opportunity to make representations.
26.3 (1) In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that –…
(b) the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a claim;
(c) the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings…
7 Though much has been written, the short point is Counsel Dorsett seeks early resolution in his favour saying Nunns’ claims for £25000 and £10000 must inevitably fail for two reasons:
a. The claims’ founding documents, being the April 2016 Will, June 2018 agreement, 03.07.18 agreement and 12.10.18 promissory note, are inadmissible as unstamped or unregistered;
b. And separately, the property sale recorded in the June 2018 agreement was a fraud on the revenue so that the 03.07.18 agreement reflecting the true sale price is illegal and should not be enforced, which includes the loan later on 12.10.18 turned into a promissory note.
Questions of mixed law and fact
8 Stepping back from the deluge of legal materials, in my judgment these two reasons are misconceived as each a preliminary point because there are myriad questions of mixed fact and law to resolve if litigated.
a. As to fraud, as narrow questions:
i. Was the promissory note dated 12.10.18 part of the property sale of 02.07.18, or separate, instead reflecting or creating an unconnected loan?
ii. Alternative to 8(a)(i), was the loan as articulated in the 03.07.18 agreement part of the property sale, or separate, instead reflecting an unconnected loan?
iii. Was the motorhome part of the property sale, or separate, instead reflecting an exchange for the furnishings and car?
iv. So, if not part of the property sale, then is either agreement illegal if the property sale was fraudulent?
b. More broadly as to fraud, has there been in fact and law a fraud:
i. if so by who on whom;
ii. who will benefit from the fraud;
iii. with what effect on each claim;
iv. if there has been a fraud on the revenue, does it follow on the facts of this case, mindful of the complexities in the doctrine of illegality, any claim under the 03.07.18 agreement should not be enforced;
v. more, if Nunns does not benefit from the fraud, does this mean he can still claim;
vi. or if he does benefit, though less than Cummings, does this mean he can still claim;
vii. in any event, are the motorhome and promissory note part of the fraud (as above in 8a);
viii. and what is the effect on whether a fraud occurred if the government apparently ignored the June 2018 agreement making a separate finding of value?
c. As to stamping, as questions of mixed fact and law, what is today’s effect of the Stamp Act and Registration and Records Act, being perhaps long-outdated legislation, superseded by new realities and the internet, begging do these acts apply strictly so that hitherto unstamped or unregistered documents are incurably inadmissible in the modern world, or has practice de facto changed so their modern inadmissibility may be an affront to justice? More pointedly:
i. How do these Acts work in established practice today;
ii. Does every written document require a stamp if to be used in court, and if not, which not and why not;
iii. Is there an important difference between stamping and registering;
iv. Is the reality that documents, whether as ‘deeds’ or ‘instruments’ or other types, are mostly not routinely stamped or registered anymore but long admitted as a practicality;
v. Moreover, should it be permitted they are stamped or registered late, including ad valorem, if they are needed to be;
vi. And is there significance documents are stamped anyway by being filed in the claim, so that by the court action they have become stamped, or by implication registered as needed, to make them admissible?
9 Depending on the answer to these questions, mixing facts with law, Nunns may have a ‘real prospect of succeeding’ per rule 15.2 so that summary judgment is inappropriate, (leaving aside Counsel Kelsick’s further argument summary judgment under rule 15.5 requires a defence to be filed rather than just an affidavit from counsel’s clerk); while under rule 26 the statement of the case may well disclose ‘reasonable grounds for bringing the claim’ if on the facts there is not a fraud raising the bar of illegality or ‘an abuse of process’, meaning neither is striking out appropriate.
10 Obviously to answer the 18 questions in para 8 there will have to be a trial.
Stamping
11 Moreover, the stamping point is unarguably arid, and likely in conflict with ‘the overriding objective’ of the Civil Procedure Rules, which states from the outset:
1.1 (1) The overriding objective of these Rules is to enable the court to deal with cases justly.
1.2 The court must seek to give effect to the overriding objective when it –…
(b) interprets any rule…
12 Rhetorically, concerning the plainly written promissory note, how can it be just for two persons doing business on Montserrat to be barred from suit if they have not yet paid the Montserrat government $100ec?
13 Applying the principle the most reasonable interpretation of a statue be applied, it may be sensible any requirement to stamp documents should be available to be done when suit arises if inadvertently stamping has not already occurred. This means, as raised at 8(c)(v) above, if the documents do need stamping to be admissible, even ad valorerm rather than as a page count of court documents, then I incline Nunns should be allowed to stamp them at any time during this litigation, though accept this point may need to be argued further at trial or earlier.
14 I am reinforced in this view by noting the Stamp Act section preceding what Counsel Dorsett quoted, namely s21, considering also s19, which both importantly seem to permit late payment with penalty:
Section 19 – Except where express provision to the contrary is made by this or any other Act, any unstamped or insufficiently stamped instrument may be stamped after the execution thereof, on payment of the unpaid duty and a penalty of $48ec, and also by way of further penalty, where the unpaid duty exceeds $48ec, of interest on such duty, at the rate of 8% pa…
Section 21 – Upon the production of any instrument chargeable with any duty as evidence in a court of civil judicature in Montserrat, the officer whose duty it is to read the instrument shall call the attention of the Judge to any omission or insufficiency of the stamp thereon, and if the instrument is one which may legally be stamped after the execution thereof, it may, on payment to the officer of the amount of the unpaid duty and the penalty payable by law on stamping the same, as aforesaid, and of a further sum of $1.20ec, be received in evidence, saving all just exceptions on other grounds.
15 The point also arises under s6 Registration and Records Act, being the very next section following what Counsel Dorsett quoted, allowing a judge discretion to register deeds and wills late:
6. Every deed shall be lodged in the Record Office of Montserrat, for registration, within the time hereinafter limited, that is to say—
(a) if executed within Montserrat within three months after execution;
(b) if executed anywhere out of Montserrat, within twelve months after execution:
Provided that, any Judge may, on cause shown, order any deed to be registered notwithstanding its not having been presented for registration within the time hereinbefore limited; and, in such case, a copy of the order of the Court shall be attached to the deed and registered therewith…
16 In sum, the Acts merely require money paid to the government if certain documents are to be relied on, they are not about punishing litigants, and provided the government gets its money, with penalty, eventually, then it would seem likely just to allow late payment.
Striking out
17 Though the court raised abuse of process on 26.03.21, as the argument distilled it is clear striking out for abuse would not be appropriate, recalling it is rarely invoked. The doctrine protects the court’s process, rather than punishes. This claim is not in itself abusive of the process, where here its nature is uncomplicated, to proceed as an action for misrepresentation of the motorhome value and non-payment of the promissory note, though in a context where the history between the parties may raise whether during their interaction there has also been underpayment of taxes. Further, it might be disproportionate in effect to strike out a claim by the vendor who never benefitted from the fraud (if it be so) having properly drawn the court’s attention to the undervaluation, explaining it was not his idea.
Illegality
18 Illegality could be a defence to the claim, though it has not been pleaded, and so in principle is not yet at large as no defence has been filed. Perhaps it may not need to be pleaded if a contract is illegal ex facie, but is not so here, and in any event as above the facts need to be explored.
19 However, peering deeper, illegality used to be a mostly automatic response founded on the long-standing reliance test, emphasised in Tinsley v Mulligan 1994, supra, being, ‘the question is whether the person making the claim is obliged to rely in support of it on an illegal act on his part’, per Lord Sumption at para 234 in the seminal rewrite by the UK Supreme Court of the illegality doctrine in Patel v Mirza 2016 supra. In this case at Bar, the illegal act has been, arguably, to offer as the basis of the claim an agreement which sought to defraud the revenue. Though Patel is not ‘year zero’ rendering previous case law irrelevant, nevertheless the reliance test has been clearly superseded, and qualified, where Lord Toulson explained at para 120:
The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts.
20 Distilling, illegality now more fairly begs a proportionate response, no longer an automatic bar. In this claim, once the fraud is examined at trial, the questions will be, to an extent already offered earlier at para 8, and:
a. Is it proportionate to deny Nunns ability to claim, where it appears he did not benefit, and was only acting on advice;
b. Can the effect of the fraud be addressed separately, by alerting the authorities, recalling punishment is for criminal courts and should not be the reason to stop the claim; and
c. What public policy will be transgressed if the claim is allowed to proceed?
21 Clearly, as this claim begins, pending evidence, it is premature to attempt to answer these questions.
Presenting authority
22 Obiter, the court wishes to express its concern that so much legal material has been filed, in particular by Counsel Dorsett, on preliminary points which when examined are weak, or obviously unresolvable without trial, almost in an effort to bamboozle the court into submission for fear of misunderstanding so learned a series of treatises by him. To answer the arguments the judge has had to read for many hours, just to understand whether there is any weight in what has been offered. The argument has been like a sustained artillery barrage on a position where there is no enemy, mistakenly or not, in an effort to persuade the court that with so much firepower launched Counsel Dorsett ought to win, though Counsel Kelsick is dug in elsewhere. An observer might say he has had a go at drowning the court in paper and to make it look like his point is better than it is. Such practice is to be discouraged.
23 Further, the court observes selective quoting in and of cases, also recalling with dissatisfaction as above s19 and s21 Stamp Act and s6 Registration and Records Act were not flagged.
a. One example, going to the heart of his stamping point, is where Counsel Dorsett said in his submissions of 09.03.21 at para 12, quoting an ECSC Court of Appeal authority on how an unstamped document is inadmissible:
“Gordon JA in Sengupta v Woods Development Ltd 2003 supra at para 7 was constrained to say:
Let it be said at first that the law is clear that even where parties choose not to take the point of the inadmissibility of an unstamped document that requires stamping, there is a duty on the Court not to admit such a document. Undoubtedly, the thinking behind such a rule is that the Court should not lend itself to be a part of an action that is a fraud on the revenue of the State.”
Yet in that case, from Antigua, the learned judge was seeking to avoid the Registration and Records Act (with similar language as here) finding a way in the very next paragraph to do so by saying there had been a document, a building contract, which was not a ‘deed’, therefore not requiring stamping, adding at para 12 to bar the claim technically for want of stamping would be ‘offensive to a concept of justice’. To my mind the presentation of this authority may have been misleading, as it seems about getting round the Act, not enforcing its strict letter.
b. Another example concerns the arguments on illegality offered by Counsel Dorsett.
i. On 17.05.21, unasked he offered a note inter alia referring to Chettiar v Chettiar 1962 supra, and also to Azucena v de Molina 1991 supra, being a case from Belize, by Meerabux J, where there is illegality in almost identical circumstances to these, where there was under-declaration of land sale value to avoid tax, and the claim was held unenforceable.
ii. However there was no mention of the re-write of the illegality doctrine by the UK Supreme Court in Patel, which Counsel Kelsick raised in his response on 27.05.21.
iii. Then by a swift reply dated same day 27.05.21, Counsel Dorsett asserted Chettiar and Azucena still good law, though agreeing Patel an important case, always known to him, and went on to cite two further Supreme Court cases, developing the Patel doctrine, namely Grondona v Stoffel & Co 2020 supra and Henderson v Dorset Healthcare University NHS Foundation Trust 2020 supra.
iv. Yet, as above, at para 234 Lord Sumption in Patel reviewed the reliance test, specifically citing Chettiar as old law, so to have relied on the case, and by implication further on Azucena, without qualification was wrong.
v. Given the renowned expertise Counsel Dorsett has in the Privy Council, whose judges sit also in the Supreme Court, known to him, and as a legal scholar with PhD, plus the speed of his reply to Counsel Kelsick, the court cannot help but wonder if he may have been keeping quiet about the re-write, hoping unnoticed Chettiar and more pointedly the similar Azucena case would carry the day.
24 Counsel are reminded submissions are to help the Bench, not bury it in tomes, or lead it into error, and there is an especial duty to present authority fully, not slanted.
Police to investigate
25 Finally, the effect of raising illegality compels the court direct insofar as able the Montserrat authorities investigate whether there has been a fraud on the revenue, being it is said in the evidence a regular conveyancing practice on island, per para 7 of Nunns’ affidavit of 30.11.20. Conspiracy to defraud appears to lie at the heart of Counsel Dorsett’s argument, including possibly by his own client as husband of Cummings, who as purchaser would seem the person benefitting from the reduced tax. It is currently only an assertion by Counsel Dorsett but may require independent resolution as a fact to consider the point properly. This may mean police questioning the parties, and the conveyancer (who can be identified from the body of the June 2018 agreement), establishing what taxes were paid or payable, and if a fraud, to whose benefit. To this end, I expect a copy of this ruling be put before the Governor and the Commissioner of Police.
26 While this ruling inviting interest from police and revenue may disappoint, both parties were squarely alerted to its possibility in the court order of 29.03.21, as the illegality point was developed on 26.03.21 with consideration of abuse of process, which inter alia said if the case and arguments were pursued:
FURTHER CONSIDERING exploration of abuse should lead to a helpful published decision, examining whether fraud appears to have arisen, as begged by this claim, though in parallel then leading to possible attention of the police and revenue authorities;…
27 It is unfortunate this preliminary point, so intricately pursued by counsel for both parties, has now led to likely police interest. It begs whether counsel have really thought through this litigation, perhaps showing their considerable learning rather than encouraging settlement to the benefit of their clients.
28 Formally therefore, I dismiss the application for summary judgment as at trial evidence may show the documents admissible unstamped, while I also incline they can likely be stamped if needed during the litigation. And I also find no reason at this stage prior to hearing clarifying trial evidence, and the investigation outcome, for striking out the claim, either proprio motu as abuse of process for relying on a fraud, or on application by Counsel Dorsett the agreement is unenforceable for illegality.
29 The trial will settle all. I direct a defence is filed within 28 days, by 13.08.21. The injunction shall remain in place. There shall be a review on 01.10.21, with update on investigation by the authorities.
Costs
30 Turning to costs, Counsel Dorsett has failed in his arguments on stamping and illegality, where to my mind he has been selective in presenting both, and so costs should follow, separate to being in the cause. Recalling the argument raised ten filings, the figure will be $5000ec, payable within 28 days.
The Hon. Mr. Justice Iain Morley QC
High Court Judge
16 July 2021
Annex
Document 1 – The conveyancing ‘agreement for sale’ of June 2018 (first page)
Document 2 – The ‘confirmation of agreement’ of 03.07.18
Document 3 – The ‘promissory note’ of 12.10.18