Winston Hinkson v Elvira Bull Nee Martelly
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SAINT LUCIA
CLAIM NO. SLUHCV2008/0217
BETWEEN:
WINSTON HINKSON
CLAIMANT
AND
ELVIRA BULL NEE MARTELLY
REPRESENTATIVE OF THE ESTATE OF ELIZABETH MARTELLY
DEFENDANT
APPEARANCES:
Cynthia Hinkson-Ouhla of Counsel for and of the Claimant
Ellaine French of Counsel for the Defendant

2014: February 3rd 11th

DECISION ON AN INTERIM APPLICATION
[1] Taylor-Alexander M: Mr. Winston Hinkson is an attorney at law who on the instructions of his
client Elizabeth Martelly, undertook to fully and finally administer the estate of her late husband
Michael Martelly, and of his father Savery Martelly. He pleads that having completed the work and
on the 4th March 2002, a bill of $80,000.00 was submitted for all of the work done including
expenses for stamps and registration of documents and generally for the administration. He
required settlement of the invoices by the 31st March 2002. The invoice was addressed to Elvira
Bull the daughter of Elizabeth Martelly who had taken over communications with the claimant on
behalf of her ailing mother. It is pleaded that Elvira Bull responded agreeing to settle the invoice by
means of the payment of $16,000 each by herself and four other family members named in her
letter.
[2] It is pleaded that Elizabeth Martelly passed in 2006 without the bill being settled and following a
period of one year after her death, no letters of administration were taken out for her estate. The
children entitled as beneficiaries under her estate all resided in the United Kingdom. Consequent
upon, it is further pleaded that her estate vested by law in the Administrator General by virtue of
Article 608 of the Civil Code of Saint Lucia Cap 4.01 whereon, a claim filed to recover the amounts
owed was instituted in the name of the Administrator General who was served with the claim form
and statement of claim filed on the 3rd March 2008.
[3] On the 19th November 2007 and unknown to the claimant, Elvira Bull had applied for and was
granted letters of administration, as personal representative for the estate of Elizabeth Martelly.
[4] Following service on the Administrator General the claimant’s case remained in abeyance from
2008 until 2011 when it came on for status hearing. Counsel in the form of Ms. Elaine French
eventually appeared in the proceedings representing Elvira Bull, who by amendment, was
substituted as the defendant representing the estate of Elizabeth Martelly. Immediately following
the appointment of new counsel for the defence, there was an application for the claim form and
statement of claim to be struck out. The defendant’s application is advanced on two grounds (1)
the claim form had expired prior to its service pursuant to CPR 2000 Part 8.12 (1), there being no
service on the defendant during the validity of the claim form; (2) that in any event the claimant was
unable to amend a claim form that had amended; (3) any right or remedy available to the claimant
had expired under Article 2121 of the Civil Code, six years having elapsed prior to service of the
amended claim form and statement of claim.
[5] The evidence in support of the application of Elvira Bull briefly addressed the preliminary issues of
the validity of the claim, concentrating instead on recounting the already well documented history of
the case. I agree with the claimant’s submission that this evidence is irrelevant to the procedural
challenges with which the court is now charged to consider.
Issues.
[6] The issues for determination are (a) whether the claim form was properly served on the
Administrator General (b) whether the cause of action had expired, and; (c) the impact of the
amended claim.
Service of the Claim Form.
[7] A cause of action to recover for professional services rendered is prescribed by six years. Unless
time is extended, Part 8.12 of CPR 2000, provides for service of the claim form to be within 6
months from the date of its issue and CPR 5.1 provides as a general rule for service within the
jurisdiction to be by personal service on each defendant. There are exceptions to that rule. Service
on a company or on a partnership, a legal practitioner, minor, and patients and on a body corporate
for instance, follow their own regime. Instead of personal service, a party may choose an alternate
method of service and where that is used, the party serving must provide poof satisfactory to the
court that the method used was sufficient to have brought notice of the suit and its content to the
intended recipient.
[8] The claim brought by Winston Hinkson was filed and served on the Administrator General as the
defendant to the proceedings. This was done pursuant to Article 608 of the Civil Code and on the
basis that the estate was without a representative or that the succession was without a
representative for 12 months after the death of Elizabeth Martelly.
[9] Article 608 of the Civil Code of St. Lucia provides a statutory exception in cases of actions brought
on intestacy or where an estate is without a representative. It provides that “….whenever any
person dies intestate and the persons entitled as heirs have renounced their interest in the
succession, or whenever the heirs or the executors of the will of any deceased person are absent
from Saint Lucia and not represented therein, or whenever from any cause a succession is without
a representative for 12 months after the death of a person, the succession of such deceased
person shall, notwithstanding anything in any other law contained, vest in the Administrator
General who shall administer the same and perform all the duties and have and enjoy all the rights,
powers privileges attached by law to the office of an administrator appointed by the Court under
this Chapter”.
Was service on the Administrator General proper in the circumstances?
[10] Article 608 requires a succession to be without a representative for 12 months before such estate
can vest in the Administrator General. In fact, only a period of three months had passed since
Elvira Bull’s appointment as personal representative for the estate of Elizabeth Martelly, as such
the estate of Elizabeth Martelly was incapable by law of vesting in the Administrator General.
Service of the amended claim
[11] The defendant’s submissions on this issue are somewhat misguided. She alleges that at the time
of the amendment of the claim substituting Elvira Bull for the Administrator General the cause of
action had expired and had required an application to the court to allow for service of the claim
after the expiration of the limitation period pursuant to part 19.4 of the CPR 2000.
[12] Part 19.4 of the CPR 2000 is a provision inapplicable to St. Lucia. Civil Law in St. Lucia is largely
governed by a civil law regime contained in the Civil Code of St. Lucia. That law refers to
prescription rather than limitation by which a cause of action is brought to an end with the effect
being that with extinctive prescription, as would apply here, the judicial remedy is barred and the
substantive right is extinguished on the expiry of a time period. Limitation on the hand may bar a
judicial remedy but may not extinguish the cause of action.
[13] Had there been service on the Administrator General of the claim form in keeping with the Civil
Code, it would have interrupted the operation of prescription as of the 3rd of March 2008, the date
of service of the claim form. The subsequent amendment of the claim form to replace the
Administrator General with the personal representative of the estate of Elizabeth Martelly cannot
be a substitution but it was merely a replacement of the representative for the party to the
proceedings.as The Administrator General steps into the role of the Administrator, in effect to
preserve the estate. The Code provides for him/her to relinquish that role at any time when the
properly appointed administrator steps in. As such the act of substituting the Administrator General
with the personal representative, contrary to the submissions of the defendant did not change the
defendant to the proceedings.
[14] Despite these findings the claimant is still challenged in the continuity of his claim. The original
claim had improperly enjoined the Attorney General as Administrator General when in fact the
estate of Elizabeth Martelly had recently appointed a representative. The claim was therefore
improperly commenced and served. I also find that both the claim form and the cause of action had
long expired when in 2011 the amended claim form and statement of claim had enjoined the proper
administrator and was properly served. The cause of action had expired on or about the 5th March
2008.
Conclusion
[15] The application to strike out the claim form and statement of claim is upheld, the claim is struck out
and judgment entered for the defendant with damages to be agreed or otherwise to be calculated
on the basis of prescribed costs.
V. GEORGIS TAYLOR-ALEXANDER
HIGH COURT MASTER