in the supreme court of grenadawebopac.ttlawcourts.org/.../2015/cv_15_02452dd28apr2017.pdfclaim no....

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IN THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2015-02452

BETWEEN

ADRIAN DAVID ACHE Claimant

AND

RACHAEL CYRUS Defendant

Before The Honourable Madame Justice Margaret Y Mohammed

Dated the 28th April 2017

Appearances:

Mr. Anthony Manwah Attorney-at-Law for the Claimant.

Ms. Annabelle Sooklal Attorney-at-Law for the Defendant.

JUDGMENT

1. The Claimant is a Businessman and the Defendant is an Attorney at law whom

he had engaged to do legal work on his behalf. The relationship has soured and

the Claimant has instituted the instant action. The Claimant contends that he

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retained the Defendant as his attorney at law around November/ December 2012

to obtain for him a grant de bonis non (“the de donis non grant”) for the estate of

Olivia Ache (“the deceased”). He averred that he paid the Defendant a deposit of

$3,000.00 for the work for the de bonis non grant which she obtained on the 16th

August 2013, with the estate valued at $1,067,500.00. The Claimant contends that

the legal fees for the estate of the deceased is to be calculated in the sum of

$15,875.00 based on Legal Notice No. 77 of 1997. However, the Defendant

invoiced the Claimant by letter dated 17th July 2013 for legal fees in the sum of

$1,429,450.00 for the grant and $1,125.00 for disbursements (“the Defendant’s

fees”).

2. Subsequent to the invoice, on the 9th September 2013, the Defendant caused the

Claimant to execute a deed of assignment that assigned the proceeds of the sale

of the land from the estate of the deceased to the Defendant which was to operate

as security for the payment of the Defendant’s fees (“the deed of assignment”).

The Claimant also executed contemporaneously a promissory note where he

promised to pay said sum to the Defendant (“the promissory note”).

3. According to the Claimant the execution of the deed of assignment and the

promissory note were procured by the Defendant’s undue influence over him

since the attorney-client relationship between the parties created a presumption

of influence held by the Defendant over the Claimant, and that the Claimant

reposed trust and confidence in the Defendant as his attorney-at-law. The

Claimant averred that proof of the alleged undue influence was that the

Defendant prepared, was a party to and witnessed the Claimant’s execution of

the deed of assignment and that he first saw it and the promissory note on the 9th

September 2013 when he executed them. He contended that he relied on the

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Defendant’s advice, explanation, accuracy of the Defendant’s fees and the nature

and effect of the deed of assignment and the promissory note and that he had no

opportunity to consult with anyone else prior to the execution of deed of

assignment and the promissory note.

4. The Claimant also pleaded that the Defendant represented to him that the legal

fees were reasonable/ lawful and she insisted that he execute the deed of

assignment and promissory note to secure payment of the Defendant’s fees. The

Claimant contended that he relied on and was induced by this representation

when he executed the deed of assignment and promissory note. He alleged that

the Defendant’s representation was untrue and that her representation was made

fraudulently since she knew it was untrue, or was reckless in that she did not

care whether it was true or false. The Claimant’s position was that the Defendant

as an attorney-at-law knew or ought to have known that the Defendant’s fees

were unlawful and/or unreasonable.

5. The Claimant stated that he paid to the Defendant the sums of $125,000.00 and

$10,000.00 as part payment of the Defendant’s fees on the 9th October 2013 and

the 21st October 2013 respectively and he agreed to pay the balance of the

Defendant’s fees by installments. However, subsequent to the agreement, on the

10th December 2013 the Claimant informed the Defendant that the correct legal

fees were in the sum of $15,875.00 and he requested the Defendant to release the

deed of assignment and proposed a mechanism for her refunding to the

Claimant for his overpayment to her.

6. By letter dated 20th December 2013 the Defendant responded to the Claimant’s

request for the refund and she stated that the Defendant’s fees were calculated

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based on the value of the deceased estate at the time that the application for the

de bonis non grant was made, which is the Probate Registry practice. The

Defendant also stated that the attorneys at law use valuation reports outlining

the property’s market value to calculate legal fees and that it would be unfair,

unreasonable and unjust to require her as an attorney at law to charge legal fees

based on the value of the property at the time of the deceased’s death in 1989,

just as it would be unfair to expect the Claimant as the legal personal

representative of the deceased to sell lands from the deceased estate based on

their value in 1989.

7. The Claimant further claimed that on the 26th of February 2014 the Defendant

wrongfully filed a Caveat in Certificate of Title Volume 5633 Folio 109 Inst. No19

(“the said CT”) which prevents any dealing with the property (“the property”)

which is part of the deceased estate. Her grounds for the said Caveat was that

she had an interest in the lands by virtue of the deed of assignment and the

promissory note. He contends that he has not been able to complete 15

agreements for sale of the property due to the Caveat placed by the Defendant.

8. The relief the Claimant is seeking based on his pleaded facts are: (a) a

declaration to set aside the deed of assignment and the promissory note on the

basis that it was procured by the Defendant’s undue influence, or alternatively

by misrepresentation; (b) an order that the Defendant deliver up the deed of

assignment and for the promissory note to be cancelled forthwith; (c) a

determination of the amount of fees lawfully due to the Defendant pursuant to

her retainer; (d) an order that the Defendant pay to the Claimant the difference

between $135,000.00 and said sum to be determined and interest thereon at such

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rates and for such period as the Court may think fit; (e) an order that the Caveat

which the Defendant placed on the property be removed and costs.

9. The Defendant’s position is that the Claimant is not entitled to any of the reliefs

he has sought in his claim and she has counterclaimed for the payment of the

Defendant’s fees in the sum of $1,333,009.50 with interest at the statutory rate

from the 8th September 2014 and costs. On the matters raised by the Claimant, the

Defendant admitted that she was retained by the Claimant to obtain the de bonis

non grant for the deceased estate and that she was paid a deposit of $3,000.00.

However she stated that she was also retained to do additional work namely:

a) Conduct searches of the property under the estate of the deceased

which were registered under the Real Property Ordinance and to

ascertain whether they were sold, distributed, mortgaged,

transferred or otherwise dealt with by the legal personal

representative of the deceased’s estate (“the former LPR”) prior to

his death.

b) Review all the Claimant’s records (including plans and prior title

reports) pertaining to the property under the deceased’s estate

which were not registered under the Real Property Ordinance to

ascertain whether they were similarly affected by the former LPR.

c) Prepare agreements for sale for execution by land tenants waiting to

complete purchase of the parcels of the property that they occupied.

d) Receive and respond to written and oral communication from

prospective purchasers and/ or their attorneys at law.

e) Prepare Deeds of Conveyance or Memoranda of Transfer to

prospective purchasers.

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f) Settle the Claimant’s correspondence to land tenants with whom

the Claimant was in negotiations for an agreement for them to

purchase their occupied parcels of property.

g) Give general advice relative to all of the above.

10. In addition the Defendant stated that she also did the following work:

a) Commissioned a title search and provided a title report to the

Claimant by letter dated 18th January 2013.

b) Reviewed the Claimant’s records on the property registered under

the Conveyancing and Law of Property Ordinance and prepared a

draft Inventory on what she believed to be the remaining property

in the deceased’s estate.

c) Prepared agreements for land tenants who paid their purchase

price, and forwarded them to the Claimant.

d) Responded to oral and written queries from attorneys at law for

prospective purchasers.

e) Settled correspondence to prospective purchasers.

f) Met with and telephoned the Claimant frequently to give advice on

any arising issue of difficulty.

g) Prepared Deeds of Conveyance for the ready parties.

11. The Defendant admitted that she obtained the de bonis non grant, but she denied

that the correct legal fee was $15,875.00. Instead she contended that the legal fees

were calculated according to practice and the Legal Profession Act1 (“the Legal

Profession Act”) which amounted to the sum of $1,429,450.00, as set out in her

1 Chapter 90:03

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17th July 2013 fee note which she annexed. The Defendant denied that the legal

fees were not calculated according to the prescribed scale. She contended that the

law and practice is to use the current value of the estate to calculate legal fees for

de bonis non grant applications.

12. The Defendant admitted she prepared and witnessed the execution of the deed of

assignment and the promissory note. However she denied that the execution was

procured by undue influence since she stated that the Claimant was experienced

in business, land transactions and legal matters as he was a former contractor,

landlord, estate owner, director of Construction Rentals Limited and a

businessman. She asserted that the Claimant had experience with retaining and

instructing attorneys at law in similar estate matters which he did in order to

obtain the Grant in the Estate of Louis Ache, deceased. The Claimant also had

the advice and support of Susan Dorman, his assistant and real estate agent,

throughout the transaction.

13. The Defendant claimed that the Claimant requested to pay the legal fees by

installments in a meeting held on 17th July 2013 to which the Defendant agreed

and that the Claimant received a copy of the draft deed of assignment at a follow

up meeting on 25th July 2013 by letter from the Defendant. In those

circumstances, she denied that the Claimant did not have an opportunity to

consult any third party before its execution. The Defendant also contended that

she advised the Claimant of the deed of assignment’s content and effect, and she

invited him to read and carefully consider it in his own time. Therefore the

Defendant denied that the Claimant only saw the deed of assignment for the first

time on the date of its execution since the Claimant had a copy in his possession

for approximately 6 weeks before execution.

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14. It was also averred by the Defendant that the only representations she made to

the Claimant were those in her letter dated 17th July 2013 where she outlined the

matter’s history, the Claimant’s covenant by way of the deed of assignment and

promissory note and the outstanding payments to be made by the Claimant.

Therefore the Defendant denied that she acted unlawfully, unreasonably or

fraudulently in dealing with the Claimant and she has put the Claimant to strict

proof as to his being subject to any undue influence.

15. The Defendant admitted receipt of the Claimant’s part payment of $125,000.00

and $10,000.00 however her position is that the Claimant is not able to allege

want of consideration of the deed of assignment as the grant de bonis non was

issued to him. The Defendant denied that the Claimant suffered loss and

damage. The Defendant admitted that she filed the Caveat by virtue of the terms

of the deed of assignment and the promissory note. She stated that she would be

gravely prejudiced if it was removed as the Claimant had indicated that he did

not intend to pay the Defendant’s fees and the Caveat was her means of

compelling payment. The Defendant also referred to a cheque that she received

from the Claimant on 19th February 2013 for $8,650.00 which was dishonoured by

his bankers on two occasions. The Defendant denied that the Caveat is

preventing the completion of 17 sales agreements and of the alleged consequent

legal repercussions threatened by the tenants, and put the Claimant to strict

proof of such delay.

16. From the pleadings the following facts were not in dispute:

The Claimant and Defendant had an attorney at law/client

relationship.

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The Defendant was retained by the Claimant to obtain the de bonis

non grant and to incorporate a company Buena Vista Development

(“the Company”).

By letter dated the 17th July 2013 the Claimant presented her invoice

to the Defendant for her legal fees in the sum of $1,429,450.00.

The Defendant obtained the de bonis non grant on the 16th August

2013.

The Defendant prepared and witnessed the execution of the

promissory note and the deed of assignment by the Defendant on

the 9th September 2013.

The Claimant agreed to pay the Defendant her legal fees by

installments.

The Claimant had paid the Defendant the sums of $3,000.00;

$125,000.00 and $10,000.00 as legal fees.

The Claimant filed a Caveat in the said CT

17. Based on the matters in dispute the issues to be determined by the Court at the

trial are:

(a) Was the deed of assignment and the promissory note procured by

undue influence?

(b) If yes, is the agreement enforceable under the Legal Profession Act?

(c) If not, what is the basis for the calculation of attorneys at laws at

law fees for a grant of de bonis non in this jurisdiction?

18. Each party filed a witness statement and was cross examined at the trial.

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Was the deed of assignment and the promissory note procured by undue

influence?

19. Snell’s Equity2 describes the law of undue influence as:

“Undue influence is one of the grounds of relief developed by the courts

of equity as a court of conscience. The objective is to ensure that the

influence of one person over another is not abused.” The doctrine of

undue influence enables C to obtain relief where he or she has been

induced by the influence of D to enter into or participate in a transaction

in circumstances where the court considers that the influences were

exerted improperly or unfairly. …… in cases of this kind equity intervenes

to prevent or reverse unconscionable conduct. The kind of conduct which

will attract the court’s intervention may involve threats or other overt acts

of coercion. But the court may also intervene where D has exercised no

overt pressure on C because he or she has such a power of influence that

this is unnecessary. Although the circumstances which are capable of

giving rise to a claim for undue influence are potentially very wide cases

where the doctrine operates are conventionally divided into two classes.

The first class consists of cases of actual undue influence. The second class

consists of cases of presumed undue influence. The legal burden of

proving undue influence remains on C throughout but if C established the

existence of a relationship of influence and the nature of the transaction is

so suspicious that it calls for an explanation, this satisfies the evidential

burden of proving undue influence and the burden moves to D to provide

a satisfactory explanation for the transaction. In the absence of a

satisfactory explanation the inference of undue influence can be drawn

and the legal burden of proof will be satisfied even if there is no direct

evidence of undue influence. The court imposes the burden of providing a

satisfactory explanation on D as a matter of public policy. Further, where

the relationship between the parties falls into one of a number of

recognised categories of parent and child, guardian and ward, trustee and

beneficiary, solicitor and client or medical or spiritual adviser and patient

or follower a relationship of influence is presumed. This is an irrebuttable

2 31st Ed

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legal presumption (as opposed to an evidential one) although in order to

establish undue influence it remains necessary in all cases for C to

establish that the transaction called for an explanation on the basis that it

was “immoderate or irrational” or cannot “be reasonably accounted for on

the grounds of friendship, relationship, charity, or other motives on which

ordinary men act.”3

20. Lord Nicholls in his judgment in Royal Bank of Scotland v Etridge (No 2)4 at

paragraph 24 gave the following guidance on the approach the Court is to take in

applying the presumption of undue influence as:

"It would be absurd for the law to presume that every gift by a child to a

parent, or every transaction between a client and his solicitor or between a

patient and his doctor, was brought about by undue influence unless the

contrary is affirmatively proved. Such a presumption would be too far-

reaching. The law would be out of touch with everyday life if the

presumption were to apply to every Christmas or birthday gift by a child

to a parent, or to an agreement whereby a client or patient agrees to be

responsible for the reasonable fees of his legal or adviser. The law would

be rightly open to ridicule, for transactions such as these are

unexceptionable. They do not suggest that something may be amiss. So

something more is needed before the law reverses the burden of proof,

something which calls for an explanation. When that something more is

present, the greater the disadvantage to the vulnerable person, the more

cogent must be the explanation before the presumption will be regarded

as rebutted." (Emphasis mine).

21. The Claimant pleaded a case of presumed undue influence. The Claimant

averred in his pleading that the execution of the deed of assignment and

promissory note were not a transaction which could be readily explained by the

relationship of the parties. In particular, the Claimant averred that he first saw

3 Paragraph 8-09 4 [2002] 2AC 773

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the deed of assignment and promissory note on the said 9th September, 2013 at

the Defendant’s office and he relied on the Defendant’s advice and explanation

as to the correctness of the said fees and the nature and effect of the deed of

assignment and promissory and he had no opportunity to consult with anyone

else prior to the execution thereof.

22. The Claimant and the Defendant had an attorney at law and client relationship at

the time the promissory note and deed of assignment were executed therefore

this is sufficient for the Court to presume that the Claimant reposed trust and

confidence in the Defendant.

23. However the onus was still on the Claimant to prove that the Defendant abused

the Claimant’s trust and confidence in her when he executed the deed of

assignment and the promissory note and there was something in the nature of

the transaction which was not readily explicable by the two parties and which

aroused suspicion. If the Claimant satisfied this evidential burden of proving

undue influence then the burden is shifted to the Defendant to provide a

reasonable explanation.

24. There were 2 material disputes of facts between the Claimant and the Defendant.

They had opposing positions on whether the Claimant was aware of the basis for

the calculation of his fees for the de bonis non grant; and whether there was a

meeting between the Claimant and the Defendant on the 25th July 2013 where the

Defendant gave the Claimant a letter of the same date with a draft deed of

assignment enclosed for his consideration.

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25. The Claimant denied in his pleaded case that a meeting on the 25th July 2013

occurred5 and his witness statement was silent of any meeting with the

Defendant on 25th July, 2013.

26. According to the Claimant’s witness statement when he retained the Defendant

to obtain the de bonis non grant she told him that her fees would be the usual

fees for such applications and in all his dealings with her, he relied on her advice

as being correct and he made his decisions and acted based on her advice.

27. The Claimant also stated that, subsequently, the Defendant told him that she had

to put a value of the property in the application for the de bonis non grant which

she estimated to be $142,425,000.00. He stated that he was shocked at that value

but he accepted her word. He attended her office several times and signed

several documents which she had prepared. On one of these occasions she told

him that there was an error in the value of the property and that the correct value

was $1,067,500.00. Again, he accepted this as he trusted her to do what was

correct.

28. The Claimant further testified that after the company was registered the

Defendant sent him an invoice dated the 18th February 2013 in the sum of

$8,650.006. He said that he sent her a cheque for this amount dated 19th February,

2013 but that the cheque was dishonoured by the bank.

29. According to the Claimant, in early July 2013 and before obtaining the de bonis

non grant the Defendant asked him to attend a meeting at her office. On 17th

5 Paragraph 3(c) of the Defence to Counterclaim filed 4th December, 2015 6 Exhibit “ADA2” to the Claimant’s witness statement

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July, 2013, the Claimant accompanied with his real estate agent, Susan Dorman,

attended the Defendant’s office when the Defendant handed him a letter dated

17th July, 2013 which was her invoice for her legal services for obtaining the de

bonis non grant. The invoice was for $1,429,450.00 for the legal fees and

$1,125.00 for her disbursements7. According to the Claimant’s witness statement

upon obtaining the said invoice he was shocked since the Defendant’s fees were

greater than the value of the estate.

30. The Claimant stated that the Defendant explained to him that legal fees for an

estate de bonis non were calculated on the present day value of the property i.e.

$142,425,000.00 and not on the value at the time of the death of the person i.e. of

$1,067,500.00. He accepted the explanation and he then requested to pay her

legal fees by instalments from the proceeds of the sale of property after the de

bonis grant was obtained and she agreed to accept payment in such instalments.

31. In late August or September, 2013, the Claimant stated that the Defendant asked

him to come to her office and he did so on the 9th September, 2013 where she

handed him 2 documents which he saw for the first time. He asked her what

these were and she explained that they were a promissory note where he agreed

to pay her legal fees and a deed of assignment by which the money he received

when he sold the property would go to her first so that she was sure to get her

fees. She also told him that that was the usual way that attorneys at law operated

to make sure that they get their fees and insisted that he sign the promissory note

and the deed of assignment. According to the Claimant he accepted what the

Defendant said as being true and he executed the deed of assignment and the

7 Exhibit “ADA3” to the Claimant’s witness statement

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promissory note. He annexed copies of the promissory note and deed of

assignment are hereto annexed as “ADA 4” and ADA 5” respectively.

32. On the 9th October, 2013, the Claimant said that he paid the Defendant

$125,000.00 as a part payment and on the 21st October, 2013 he made a further

payment of $10,000.00 on account of the fees he had for her and they had agreed

that the fees for the incorporation of the company would come out of these

amounts. The Claimant then stated that sometime in November, 2013 he learnt

that the fees charged by the Defendant were very excessive and that the correct

fees for obtaining such an estate was about $15,000.00. He did not state the source

of his information.

33. The Claimant’s demeanour during cross examination was very hostile and

extremely discourteous. His evidence in cross examination was he was 81 years

old and he has been involved in the construction business for more than 60 years.

He has purchased property for his own personal use and he has used attorneys

at laws at law to conduct such transactions. While his brother was alive he

assisted him with the sale of parcels of the property to the tenants but after his

brother died he took full responsibility for the sale of the said property to the

tenants. He recalled that after his brother died, Mr Hannays attorney at law, and

another attorney at law assisted him with the said transactions. He said that

Susan Dorman was one of his employees who assisted him with the sales and she

received a commission based on the value of the sales.

34. The Claimant agreed that during the time he retained the Defendant, he met with

her and Ms Dorman sometimes attended the meetings and at least on one

occasion his son attended with him. The Claimant was unsure that his first

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meeting with the Defendant was in December 2012. He did not recall anything in

the initial discussion with the Defendant and he did not recall each meeting he

had with the Defendant. The Claimant also admitted that he did not keep a

detailed record of his meetings and he did not know if Ms Dorman kept a record

of the meetings but he recalled that he received the de bonis non grant. The

Claimant was also unsure what other work the Defendant had to do in addition

to obtaining the grant de bonis non. Yet he recalled with great clarity that he had

tenants who wanted to purchase parcels of the property; tenants who had signed

agreements to purchase parcels of the property; tenants who had paid the full

price for their parcels of the property but whom had not received a deed and

tenants who were paying rent and who did not indicate that they wished to

purchase. He agreed that he asked the Defendant to respond to the tenants who

had sent him letters from attorneys at law. Yet he could not recall if he asked the

Defendant to do letters to tenants who did not wish to purchase.

35. The Claimant was uncertain if the Defendant indicated that a search was

necessary to determine if his brother had sold property from the deceased’s

estate. He could not recall if he paid an initial deposit for the search to be done

and he could not recall if the Defendant indicated that she needed a valuation.

He also did not recall if the Defendant stated that a survey of the property would

have been useful. He did not recall what work the Defendant actually did for

him since he said it was several years ago and his memory had faded. As such he

could not state definitely if the Defendant had prepared deeds for persons who

had paid for property and he did not recall that he signed any deeds.

36. The Claimant also stated that he did not ask the Defendant initially what her fees

were but he said that when he employed someone he usually discussed it and

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agreed on it. He said that he knew that since the Defendant was doing work for

him he expected to get a bill at the end of the transaction. He accepted that the

Claimant issued a bill for the incorporation of the company and his cheque was

dishonoured on 2 occasions. He admitted that after the second occasion he made

some effort to pay the fees.

37. In light of the Claimant’s selective memory it was not surprising that the

Claimant did not recall the meeting with the Defendant on the 17th July 2013 and

he did not recall receiving a bill at the said meeting from the Defendant. This was

in stark contrast to the Claimant’s evidence in his witness statement that on the

17th July 2013 he and Ms Dorman attended a meeting with the Defendant where

the latter presented a bill for her legal fees and he was shocked. In my opinion it

was not credible that the Claimant could not recall the meeting of the 17th July

2013 when he was presented the bill which according to him shocked him. In my

view, it was more plausible that the Claimant would have recalled such a

significant event. I therefore find that on the 17th July 2013 the Claimant and Ms

Dorman attended a meeting with the Defendant and it was at that meeting the

latter presented her invoice to him.

38. According to the Claimant’s witness statement the reason for him being shocked

when he received the Defendant’s invoice on the 17th July 2013 was because the

legal fees in the invoice was greater than the value of the estate in the de bonis

non grant application. The Claimant stated in cross examination that he did not

recall at any meeting any discussions about the value of the property. However,

he recalled that on one occasion the Defendant told him that a real estate agent

valued the property at $1 million per acre which he agreed. It was put to him

that he had signed a supplemental affidavit in the de bonis non grant application

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where he explained that he had stated the value of the un-administered estate of

the deceased was the “ current market value” and that the value at the time of

death was $1,067,500.00. He refused to accept that he signed the supplemental

affidavit.

39. Exhibit “RC.4” to the Defendant’s witness statement comprised 2 supplemental

affidavits filed in the application for the de bonis grant of the deceased’s estate.

Both affidavits were signed by the Claimant. Both were expressed at paragraph

1 to be in answer to queries from the Probate Registry. Both explained that the

value given for the estate in the Inventory was the current market value of the

un-administered Estate. Both give the value of the un-administered Estate at the

date of the death of the deceased in 1989 as $1,067,500.00. In my opinion, paragraph

3 of the Claimant’s witness statement that the Claimant told him that there was

an error in the value of the property and that the correct value was $1,067,5000.00

was untrue since it was clear that based on the Claimant’s own affidavits that he

was fully aware of that there was no error in the value of the property and that

the Probate Registrar wished to have the value of the property at the date of the

death of the deceased and not the current value which was stated in the

Inventory filed with the application for the de bonis non grant.

40. Therefore, I have concluded that the Claimant was fully aware and understood

that the amendment of the value in the Inventory to reflect the value as at the

date of death of the deceased was at the request of the Registrar and not for some

unknown or sinister purpose which he alleged and he was well aware that the

current value of the estate of the deceased was $142,425,000.00.

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41. The Claimant also stated that the Defendant did not explain to him that she

needed to secure the payment of her fees. He stated that Ms Dorman and his son

were with him at the Defendant’s office when she presented the deed of

assignment and the promissory note to him and she told him to sign them. When

it was put to him, by Counsel for the Defendant that the deed of assignment and

promissory note were explained to him before he signed them, he stated that he

could not recall. However, he accepted that when he received the Defendant’s

bill he agreed to pay it by installments. This evidence from the Claimant under

cross examination was in stark contrast to paragraph 6 of his witness statement

where the Claimant described the conversation he had on the 9th September 2013

with the Defendant prior to the execution of the deed of assignment and the

promissory note as:

“I asked her what these were and she explained that they were a

promissory note where I agree to pay her legal fees and a deed of

assignment by which the money I receive when I sell the lands would go

to her first so that she is sure to get her fees. She also told me that that

was the usual way that lawyers operated to make sure that they get their

fees and insisted that I sign the note and deed. I accepted what she said as

being true and based on that I executed the said deed and promissory

note.”

42. Based on the Claimant’s witness statement the Defendant had explained the

nature of the promissory note and the deed of assignment and the method of

calculation of the fees to him. Therefore, the inconsistency between the

Claimant’s evidence on the details surrounding the execution of the promissory

note and the deed of assignment undermined the credibility of his assertion.

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43. The Claimant was asked by Counsel for the Defendant what caused him to

change his mind about paying the Defendant’s fees to which he responded that

he could not remember the exact circumstances. The reason the Claimant

proffered for not wanting to pay the Defendant the balance of her fees was

because she was a thief and she had misled him as his attorney at law. He denied

that the reason he no longer wanted to pay the Defendant her fees was because

he had started to receive money from the deceased’s estate. He stated that at the

time he agreed to pay the Defendant fees he was sick in his head but that he was

reasonably well at the time of the trial.

44. In my opinion the Claimant was not a witness of truth. I formed the view that he

deliberately set out to deceive the Court. It was clear from the Claimant’s

evidence that he is a man of some considerable experience in business and that

he had the support of his son and Susan Dorman throughout his dealings with

the Defendant. He claimed to be unable to remember most of the events of 2012

and 2013 yet he was able to recall the day he signed the promissory note and the

deed of assignment. In my view the conflicts in the Claimant’s evidence on a

critical issues undermined the credibility of his position such as he did not

understand the nature of the deed of assignment and the promissory note and

the method of calculation of his fees. It was also apparent from paragraph 5 of

the Claimant’s witness statement and his oral evidence that he agreed to pay the

fee charged. In light of the Claimant’s evidence, there was no basis from the

Claimant’s denial that a meeting took place since in the absence of recall and

records he was in no position to deny the Defendant’s version of those events. In

my opinion the Claimant’s evidence on the issue of the change in the value of the

estate in the de bonis non application and the meeting of the 25th July 2013 was

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manifestly unreliable and the Claimant was prepared to lie under oath to

buttress his case in order to support of the allegation of undue influence.

45. The Defendant testified that she first met with the Claimant at his office at No. 2

Toucan Avenue, Tumpuna Crescent, Arima in December 2012 at his request and

his assistant Susan Dorman was present. At the first meeting the Claimant

introduced himself as a contractor, landowner, retired Director of Construction

Rentals Limited and a businessman. The Claimant instructed her that the

deceased died leaving extensive property and his brother Louis Ache obtained a

grant of the deceased’s estate. His brother Louis Ache subsequently died in 2010

without fully administering the deceased’s estate and the Claimant had

previously retained Mr. David Hannays to take the necessary steps to vest the

property in him so that he could complete the sales of several portions of the

property. He further instructed her that in error Mr. Hannays obtained a grant of

his brother’s estate although the property remained vested in the deceased’s

estate from which they had never been transferred, and so he found himself

unable to complete the sales and he was facing imminent financial ruin.

According to the Defendant, the Claimant appeared to clearly understand the

process of applying for a grant from his recent dealings with Mr. Hannays.

46. The Defendant’s evidence was that at the first meeting the Claimant also

instructed her that he wanted to put the property in the name of the company as

he did not want the transactions in his personal name. He informed her that in

the past he had done business in his name and he had to sell his personal assets

when things went awry.

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47. The Defendant advised the Claimant that it was necessary to begin with title

searches to confirm whether the property remained vested in the name of

deceased or whether they had been transferred to Louis Ache prior to his death.

The Claimant was very anxious to proceed and he gave her copies of all the title

documents in his possession and asked her to proceed with urgency as he

wished to complete the sales. The Defendant asked the Claimant to make a

deposit of $1,000.00 on account of the title searches. He told her that he did not

have the funds and that his difficulty was caused by the delay in completing the

sales and he pleaded with her to proceed with the searches without a deposit.

The Defendant agreed to do so out of sympathy for the Claimant and for those

purchasers who had already paid in full for their land and were unable to

acquire a Deed of Conveyance or Memorandum of Transfer. The Claimant made

a payment in December 2012 to cover the cost of disbursements to be incurred.

48. After the first meeting the Defendant stated that in early January 2013 she

completed the title searches which revealed that the property was still vested in

deceased. She sent a letter to the Claimant providing him with a copy of her

report and several Agreements which she had prepared. She exhibited a copy of

that letter dated 18th January, 2013 as “RC.1”.

49. The Defendant met with the Claimant at his office in January 2013 to advise him

of the findings and the need to make an application for the de bonis non grant for

the deceased’s estate in order to proceed to complete the sales. At that meeting,

the Claimant instructed her to proceed with the application for the de bonis non

grant as a matter of urgency as he again stressed that the delay in completing the

sale of portions of the property was causing him financial difficulty. The

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Defendant immediately began the process by lodging a Search with the Probate

Registry.

50. According to the Defendant she met with the Claimant and his assistant Ms

Susan Dorman on several occasions over the period January to April 2013 at his

office or at her office at #71 6th Street Barataria to settle the application for the de

bonis non grant and to deal with other matters concerning the deceased’s estate.

51. The application for the de bonis non grant was filed on the 19th April, 2013. She

exhibited a copy of the application as “RC.2”. The Defendant also explained that

the process was quite difficult since contrary to her advice, the Claimant refused

to retain a surveyor to help to identify which portions of the deceased’s property

remained in the estate. The Claimant also refused to retain a valuer to assess the

value of the property in order to settle the Inventory, on the basis that he could

not afford to pay either a surveyor or a valuer.

52. According to the Defendant, in order to settle the Inventory, the Claimant

instructed her to use the title searches she had conducted and the documents he

had provided her with at the first meeting in December 2012. The Defendant

stated that to assist the Claimant she consulted with Mr. Curtis Rigsby, a Valuer

as to the value of the property and he advised that a very conservative value was

approximately $1 million per acre in that area. The Defendant informed the

Claimant of Mr Rigsby’s advice. The Claimant instructed her to use that estimate

for the purpose of calculating the value of the deceased’s estate in the de bonis

non application since he would sell the property for double the value. The

application signed by the Claimant therefore reflected the value of the estate as

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$142,425,000.00 which appeared on the Inventory and in accordance with the

Claimant’s instructions.

53. The Defendant further stated that she did not require the Claimant to make a

deposit on account of the legal fees for the de bonis non grant application prior to

its filing as is her usual procedure because the Claimant continued to impress

upon her that he could not do so until he was able to sell portions of the property

from the estate.

54. The Defendant stated that she also incorporated the company in which the

Claimant planned to vest the property once the de bonis non grant was issued.

According to the Defendant’s witness statement, she issued a fee note on 18th

February 2013 to the Claimant for several items of work including the

incorporation of the company. The Claimant paid the fee note with a cheque

which was returned by his bankers for insufficient funds. She informed the

Claimant of what had occurred and he requested that she re-deposit the cheque

however it was again returned for insufficient funds. She attached copies of the

fee note and the cheque as “RC.3”.

55. The Defendant said that at the Claimant’s request she agreed to wait until the

issue of the de bonis non grant for payment of this fee note.

56. According to the Defendant, once the application was filed she liased with the

Assistant Registrar, Ms. Kerriann Oliverie at the Probate Registry continuously

through telephone calls and letters in an effort to get the de bonis non grant

issued quickly. The Assistant Registrar requested that the Claimant provide the

value of the deceased’s estate at the date of death on the 21st October 1989. On the

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28th May 2013, a supplemental affidavit providing that information was filed. A

further supplemental affidavit enclosing another amended Inventory was filed

on 26th July, 2013. The bundle of containing the supplemental affidavits and the

Inventories were annexed as “RC.4”.

57. The Defendant further stated that she also continued to prepare Agreements for

Sale to tenants of the property, to correspond with them and their Attorneys at

law and to advise the Claimant whenever a difficult issue arose. She annexed

copies of some of the correspondence as “RC.5”

58. According to the Defendant on 17th July 2013 she met with the Claimant and

Susan Dorman, and gave him a letter with her fee note attached and asked what

arrangements he wished to make for the settlement of same. The Claimant told

her that he would pay the fees once he obtained the de bonis non grant and he

had sold portions of the estate. She annexed a copy of the said letter as “RC.6”.

She said she had calculated her fees on the value of the deceased’s at the time the

application was made which value was advised by Mr. Rigsby and accepted and

instructed by the Claimant and this was the practice she had always followed

and known to be followed by other practitioners.

59. Pursuant to the discussions on the 17th July 2013 the Defendant said she

proceeded to prepare in draft the deed of assignment. She met with the Claimant

on the 25th July, 2013 at her office to discuss the structure for the payment of fees

and the terms of the deed of assignment. She gave him a copy of the draft deed of

assignment for his consideration under cover of a letter under her hand. She told

the Claimant to read the document carefully in his own time, she outlined to him

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the terms proposed and she told him that if he had any queries or concerns he

should contact her.

60. At the meeting on the 25th July 2013, according to the Defendant, the Claimant

raised for the first time that the de bonis non application might in error included

20 acres of land that had been transferred to him. The Defendant said she

assured the Claimant that if this was so she would accordingly reduce her fees to

match the reduced value of the deceased’s estate. The Claimant again assured

the Defendant that he would honour his commitment to pay her fees. She

attached a copy of her letter as “RC.7”.

61. According to the Defendant she did not see the Claimant again until 9th

September 2013 when he visited her office together with his son, Alan Ache and

his assistant in response to a telephone call from her indicating that she had

obtained the Grant. On that day the Claimant signed the promissory note and

deed of assignment in the presence of his assistant Susan Dorman and his son

Alan Ache. He did not ask her any questions neither did he have any comments

on its contents. By this date the Claimant had the draft for more than 6 weeks.

62. The Defendant also stated that her fees were calculated on the value of the

deceased estate at the time the application was made which value was advised

by Mr. Rigsby and accepted and instructed by the Claimant. She stated that she

have been admitted to practice since 1993 and she have been doing and

reviewing administration applications since 1995 and she had worked with Mr

Hector Mc Clean in his private practice as well as with the firms of Lex

Caribbean and M Hamel Smith and Company. She was also an Assistant

Registrar General in charge of the Land Registry and in house attorney at law at

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Home Construction Limited. In her own private practice for the past 7 years she

has specialized in corporate commercial transactions, real property matters of

every description and estate applications. The Defendant stated that when she

was employed with the firms of Lex Caribbean and M Hamel Smith and

Company the practice was to obtain valuation report for the value of the real

estate and the legal fees are calculated based on that value.

63. The Defendant was calm, co-operative and forthright in her answers under cross

examination. The Defendant’s evidence in cross examination was that on the 17th

July 2013 she sent a fee note to the Claimant for the sum of approximately $1.4

million and that she was subsequently paid $135,000.00 in October 2013. The fee

note was for the de bonis non grant and that the fee of $1.4 million was based on

the value of the deceased’s estate which was $142 million. She acknowledged

that the balance of her fee was $1,333,009.50 which is the sum she is asking for in

her Counterclaim. She stated that the fee for an estate worth $1million on the

prescribed scale of fees was $15,000.00 depending on the circumstances. She

admitted that she did not have a valuation to show that the property was valued

at $142 million. She stated that she told the Claimant that based on information

from the valuer, Mr Rigsby the property was worth approximately $142 million.

She said she gave him a copy of the draft deed of assignment and she told him to

read it over and contact her if he had any issue. The Defendant also admitted that

she had done about 5 de bonis non applications previous to the de bonis non

application for the deceased’s estate. She stated that the value of the estate in the

inventory was the value at the time of death of the deceased and that a de bonis

non grant is a continuation of the original grant.

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64. Unlike the Claimant who was evasive and who had selective recollection of the

events, the Defendant’s evidence was consistent with and supported her

pleadings. Her account of the events was buttressed by the documents attached

to her witness statement and she was able to provide a clear explanation for the

reason why the value of the property was changed in the de bonis non

application. Her evidence on the meeting on the 25th July 2013 was also clear and

unchallenged in cross examination. In my opinion the Defendant was a witness

of truth.

65. It was submitted on behalf of the Claimant that he relied on and accepted the

Defendant’s advice that the value of the deceased’s estate was $142,425,000.00.

The Claimant accepted and signed the promissory note and the deed of

assignment because the Claimant was his attorney at law and he depended on

her for advice. The Defendant knew that the value of $142,425,000.00 was not the

true value of the deceased’s estate but she nevertheless represented this as the

value for obtaining the de bonis no grant. This was false and by relying in this,

the Claimant signed the deed of assignment and promissory note. Consequently,

this amounted to misrepresentation by the Defendant.

66. I do not agree with the Claimant’s submission. The Claimant has not disputed

that the current value of the estate was $142,425,000.00 he has only disputed that

the Defendant’s legal fees should not have been calculated on the current value

but it should have been calculated on the value at the time of the death of the

deceased. In my opinion it was clear from the evidence that the Claimant knew

how the value of the estate was arrived at and how his fees were calculated.

Therefore the Defendant did not knowingly and deliberately use the current

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value in the Inventory for the sole purpose of extracting greater fees from the

Claimant.

67. It was also submitted on behalf of the Claimant that even if the Defendant’s

version is accepted which is that the Claimant had the deed of assignment before

as stated in the letter “RC 7”, this letter called upon the Claimant to contact the

Defendant for information and advice which meant that the Claimant had no

independent advice.

68. Having examined the evidence in my opinion the weight of the evidence

supports the Court finding as a fact that the Claimant had the draft deed of

assignment from 25th July, 2013. The Claimant also had every opportunity to seek

independent legal advice and query same before he executed it on the 9th

September 2013. He was a businessman who had experience in probate

applications and other transactions. He had the support of his son and his

assistant Susan Dorman who attended meetings with him. He was fully aware of

the changes and the reasons for the changes made on the value of the deceased’s

estate on the de bonis non grant application as shown from the supplemental

affidavits which he signed. For these reasons, I am satisfied that on a balance of

probabilities that the Claimant has failed to prove that the Defendant abused the

trust and confidence he had in her when the Claimant executed the deed of

assignment and the promissory note.

69. In my opinion, the circumstances surrounding the execution of the documents

did not arouse suspicion.

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70. In any event, while the burden did not shift to the Defendant, in my opinion,

even if it did, she had a reasonable explanation. The Defendant’s evidence on the

Claimant’s conduct upon receipt of the grant was set out at paragraph 15 of her

witness statement as:

“Once the Claimant received the Grant he immediately began to make

attempts to resile from his commitment to pay my fees. He became cold

and un cooperative. He repeated that the amount of land stated in the

Inventory exceeded the amount of land owned by the Estate of Olivia

Ache. After receipt of the said Grant and in accordance with my

instructions from the Claimant, I immediately began to make efforts to

complete the pending Agreements for Sale by preparing in draft the

Deeds/Memoranda and I also began writing to the purchasers to contact

my office to complete. The Claimant however did not want to abide by

the terms of the Deed of Assignment.”

71. Her explanation for taking the precautionary step to secure the payment of her

fees was set out at paragraph 14 of her witness statement which stated:

“I say that it in Probate matters all Attorneys at laws are careful to secure

the payment of their fees because once a Grant is signed by the Registrar

and issued the applicant can go directly to the Registry and obtain an

office copy and has no need of the Attorney thereafter. Some Attorneys

require the payment of fees in full prior to the filing of the application. In

cases where the applicant genuinely has no means to pay the fees until the

grant is obtained and the estate administered, Attorneys secure the

payment of fees by having the applicant sign promissory notes,

assignments, instructions to third party creditors for the direct payment of

the fees to the Attorney or such other documents as may be appropriate

depending on the assets of the Estate. I say therefore that there is nothing

unusual in the steps I took to secure the payment of the fees and they were

particularly necessary because the Claimant was not a client with whom I

had a long standing relationship and he had issued me a cheque which

had been dishonoured not once but twice.”

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72. In my opinion the Defendant’s explanation for taking the steps in September

2013 to secure the payments of her fees by the execution of the promissory note

and the deed of assignment did not arouse suspicion given her explanation. The

Defendant’s action was reasonable since the Claimant had paid her by cheque on

2 previous occasions which were dishonoured and the Claimant had only made a

payment in December 2012 to cover the costs of disbursements incurred.

Is the agreement enforceable under the Legal Profession Act?

73. Section 53 of the Legal Profession Act provides:

“53 (1) Whether or not any rules are in force under section 52, an

Attorney-at-law and his client may either before or after or in the course of

the transaction of any non-contentious business by the Attorney-at-law,

make an agreement as to the remuneration of the Attorney-at-law in

respect thereof.

(2) The agreement may provide for the remuneration of the

Attorney-at-law by a gross sum, or by commission or by percentage, or by

salary, or otherwise, and it may be made on the terms that the amount of

the remuneration stipulated in the agreement shall not include all or any

disbursements made by the Attorney-at-law in respect of searches, plans

travelling, stamps, fee or other matters.

(3) The agreement shall be in writing and signed by the person

to be bound or his agent.

(4) The agreement may be sued and recovered on or set aside in

the same manner and on the same grounds as an agreement not relating to

the remuneration of an Attorney-at-law; but if on any taxation of costs the

agreement is relied on the Attorney-at-law and objected to by the client as

unfair or unreasonable, the taxing officer may inquire into the facts and

certify them to the Court, and if on that certificate it appears just to the

Court that agreement should be cancelled, or the amount payable under it

reduced, the Court may order the agreement to be cancelled, or the

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amount payable under it to be reduced, and may give consequential

directions as the Court may think fit.”

74. This provision permits a client to enter into an agreement with his attorney at

law to pay his/her fees. The agreement must be in writing and signed by the

party to be bound. In the instant case the agreement is contained in 2 written

documents, the promissory note and the deed of assignment. The Claimant has

admitted that he signed both documents in the presence of the Defendant, his

son and his assistant Susan Dorman. The Defendant has admitted that the reason

for both documents was to secure the payment of her fees.

75. The Claimant's pleaded case contained no defence to the enforcement of the

agreement as evidenced by the deed of assignment and the promissory note and

the section provides that it is enforceable even where there is a scale of fees for

the work in question.

76. Having found that the deed of assignment and the promissory note were not

tainted by undue influence, in my opinion they are enforceable.

If not, what is the basis for the calculation of the attorney at law fees for a

grant de bonis non?

77. While this issue has no direct impact on the outcome of this matter I have

decided to still address it since it raises a matter of interest to the profession as a

whole.

78. It was submitted on behalf of the Claimant that the legal fees on a grant of

probate de bonis non is to be calculated using the value of the estate in the

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inventory to the application in accordance with Legal Notice No. 77 of 1997 (“the

Legal Notice”). The Claimant argued that the words “value of estate” legally

means “value as stated in the inventory” as this is the only “value” mentioned in

the Wills and Probate Act8 (“the Act”) and the Legal Notice was to set the fees

for matters under the Act. The Claimant submitted that the linguistic meaning of

the words “value of estate” is quite clear and unambiguous. The Claimant

therefore contended that applying the scale of charges in the Legal Notice, for an

estate valued at $1,067,500.00 as stated on the inventory, the fees which are

payable by the Claimant to the Defendant are $15,875.00.

79. The Defendant, on the other hand, claims that such fees are calculated, not on the

value disclosed on the inventory, but on a different value; that is the current

value of the estate. It was argued on behalf of the Defendant that the Claimant

has no reason for applying the meaning he has ascribed to the words “value of

the estate” since the Act is silent on a meaning. The Defendant also submitted

that in interpreting the words “value of estate” the Court should take into

account the whole language of Schedules 1-4 in the Legal Notice and that if it

was the intention of the framers of the Legal Notice to refer to a value other than

the current value the language would have expressly stated so.

80. The Legal Notice which came into effect on the 1st May 1997 was made by the

Law Association of Trinidad and Tobago with the approval of the Chief Justice

and the Minister of Legal Affairs under section 52 of the Legal Profession Act. It

fixed the fees for attorneys at law for transactions under Common Law

Conveyancing transactions, Conveyancing transactions under the Real Property

8 Chapter 9:03

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Ordinance, other conveyancing transactions and work done in connection with

applications for Probate and Letters of Administration.

81. Schedule 4 of the Legal Notice provides the scale of fees applicable for preparing

applications for Probate or Letters of Administration in common form and for all

preliminary work done in connection therewith, including searches at the

Depository of Wills of living persons and the Probate Registry, the taking of

instructions and preparation of an inventory of estate and attendance to obtain or

reseal a Grant. The scale which is set out is:

“Value of estate Scale of Charges

(a) Not exceeding $10,000.00 Five per cent of such value with

a minimum fee of $500.00.

(b) Exceeding $10,000.00 and Five per cent on the first $10,000.00

Not exceeding $250,000.00 of such value and three per cent on

the excess beyond $10,000.00.

(c) Exceeding $250,000.00 The same fee chargeable if the value of

the Estate were $250,000.00 plus one per

cent on the excess beyond $250,000.00”

82. The provisions prescribing fees for probate applications refer to "value of estate"

but both the Act and the Legal Notice are silent as to the date on which that value

is to be assessed. The provisions also provide no guidance with reference to de

bonis non grants.

83. In interpreting the words “value of estate” in the Legal Notice the Court is

obliged to consider section 10 of the Interpretation Act9 which states that laws

are to be construed as always speaking and the use of the present tense requires

that the law be applied to the circumstances as they occur. It states:

9 Chapter 3:01

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“10 (1) Every written law shall be construed as always speaking and if

anything is expressed in the present tense it shall be applied to the

circumstances as they occur so that effect may be given to each written law

according to its true spirit, intent and meaning.”

84. On an application of section 10 aforesaid, the present tense for the words “value

of estate” would mean the value of the estate at the time of the making of the

application for the de bonis non grant and not the value of the estate at the time

of death of the deceased.

85. The Court is also obliged to presume that the maker of the Legal Notice in 1997

which was the Law Association of Trinidad and Tobago intended that a literal

meaning is to be applied to the said words. Bennion on Statutory

Interpretation10 describes the term “ literal meaning” as

“...the literal meaning is one arrived at from the wording of the enactment

alone, without consideration of other interpretative criteria”

86. If one is to apply the literal meaning to the words “value of estate” as appears in

the Legal Notice it may mean the value of the estate as stated in the inventory of

the application for a grant of probate or a grant of letter of administration since in

both instances the value of the estate in the inventory is consistent with the

current value of the deceased’s assets. However, more often than not, de bonis

non grants are sought long after the death of the deceased when the value of the

estate may have changed significantly as is the instant case where 24 years

elapsed between the date of death of the deceased and the application for the de

bonis non grant. If the same literal meaning is applied to an application for a

grant de bonis non, it would mean that if the deceased died in the 1960s when

the value of the property would have been far less than the date of the

10 6th Ed

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application, the effect of applying a literal meaning would be that the attorney at

law’s remuneration would bear no relation to the value of the transaction. In my

opinion this could not have been the intention of the maker of the Legal Notice.

The purpose of the Legal Notice was to prescribe a scale of fees for estate

applications in order to maintain consistency and to fairly remunerate attorneys

at law for the work in such matters. Therefore, a literal interpretation of linking

the value of the estate in de bonis non grant applications to the value in the

inventory in my view would produce an absurd result where the death occurred

long before the application.

87. Where the consequences of following the ordinary meaning of the words provide

an ambiguous meaning, the presumption that the words are to be given a literal

meaning is displaced. Donaldson MR in British Concrete Pipe Association’s

Agreement11 described the task of the Court as:

“Our task as I see it, is to construe [the Act], and in so doing the prima

facie rule is that words are to have their ordinary meaning, But that is

subject to the qualification that if, giving words their ordinary meaning,

we are faced with extraordinary results which cannot have been intended

by Parliament, we then have to move on to a second stage in which we re-

examine the words…”

88. The next stage was described by Lord Blackburn in River Wear Comrs v

Adamson12 as:

“….that we are to take the whole statute together, and construe it together

giving the words their ordinary signification , unless, when so applied

they produce an inconsistency, or an absurdity or inconvenience so great

11 [1938] 1 All ER 203 at 205 12 (1877) 2 App Cas 743 at 764

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as to convince the Court that the intention could not have been to use

them in their ordinary signification.”

89. In interpreting the words “value of estate” the Court strives to apply a meaning

that is consistent with to the internal meaning in the rest of the Legal Notice.

Therefore in considering the meaning of the words “value of estate “in Schedule

4, the Court must consider the language of Schedule 1 which stipulates legal fees

for conveyancing transactions. According to Schedule 1 Deeds of Assent attract

one half the scale fee calculated on the value of the property and Deeds of Gift

attract the full scale fee calculated on the value of the property if title is being

investigated. It is clear that these provisions could only refer to the current

value. It would therefore be inconsistent for an attorney at law to be required to

charge legal fees for the estate for example a de bonis non grant, based on some

past value but be entitled to charge fees for the Deed of Assent based on the

current value.

90. Further, Schedule 3 provides that the value of property is relevant in determining

fees for conveyancing transactions not specified and Clause 3 of Schedule 4

makes this provision relevant to fees for administration. Having examined the

provisions of Schedules 1-4 there is nothing retrospective in the language of these

provisions.

91. In my opinion, the provisions for calculation of legal fees for Conveyancing and

Probate contemplate associating the fees to the value of the transaction to the

client. If it were the intention of the framers of the Legal Notice for them to refer

to a value other than the present value the language would have so expressly

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stated. Therefore, taken as a whole the language of Schedules 1-4 refer to the

current value.

92. The Court also strives to apply a meaning that would not produce an absurd

result. The Claimant submitted that the value of estate is at the date of the first

application. In my view such an interpretation would produce an absurd result

since the effect of such an approach would be that an attorney at law

remuneration would bear no relation to the value of the transaction, which runs

contrary to the principles underlying the provisions of Schedules 1 to 4. It would

therefore be inconsistent for an attorney at law to be required to charge legal fees

for the estate based on some past value but be entitled to charge fees for the Deed

of Assent based on the current value.

93. For the aforesaid reasons I have concluded that the words “ value of estate” in

the Legal Notice is the current value of the estate for the purpose of calculation of

the attorney at law fees for a de bonis non grant.

ORDER

94. The Claimant’s action is dismissed.

95. Judgment for the Defendant on the Counterclaim.

96. The Claimant is to pay the Defendant the sum of $1,333,009.50.

97. The Claimant is to pay the Defendant costs in the prescribed sum of $133,975.71.

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98. The Claimant is to pay the Defendant interest at the rate of 2.5% per annum on

the sum of $1,333,009.50 from the 16th July 2015 to the date of judgment.

Margaret Y. Mohammed

Judge

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