Richards J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION LEGAL AID NO. LACV 0125/2018 IN THE MATTER OF THE LEGAL AID LAW 2015 IN THE MATTER OF AN APPLICATION FOR LEGAL AID BY THE APPLICANTS BLONDE UZZLE AND CLINTON POWERY AND IN THE MATTER OF AN APPEAL OF THE DECISION OF THE DIRECTOR OF LEGAL AID PURSUANT TO SECTIONS 4 AND 38 OF THE LEGAL AID LAW (2015 REVISION) TAKEN ADMINISTRATIVELY ON THE PAPERS WITHOUT A HEARING HEADNOTE Legal Aid Law (2015 Revision) – Sections 4 and 38 – Legal Aid Regulations (2016) – Reconsideration of Legal Aid application – Issues arising: Allegation of Fraud, Merits of the case. No substantive question of law. JUDGMENT INTRODUCTION
By Notice of Appeal dated 7th December 2018, the Applicants, Ms. Blonde Uzzle and Mr. Clinton Powery appeal the decision of the Director of Legal Aid (the “Director”) to refuse their application for legal aid to continue civil proceedings G033 of 2008¹.
Those proceedings were initiated by the Applicants by a writ of summons filed on the 16th July 2008 against the First Defendant, Terridean Powery and the Second Defendant, the Registrar of Lands. By this writ, the Applicants, who are the Personal Representatives of the Deceased, Andrew Powery, who died on 9th June 2005, allege a fraudulent transfer of property in favour of the First Defendant, a granddaughter of the Deceased. The Applicants were at that time represented by Attorneys, Mourant du Feu & Jeune. The matter proceeded in the following way: i. 16th January 2008: The Plaintiffs filed an Ex parte Summons for registration of an inhibition. This was supported by the Affidavit of Blonde Uzzle dated 11th July 2008. ii. 7th August 2008: An Inhibition Order was made. iii. 13th October 2018: Affidavit of Service was filed by the Plaintiffs. iv. 20th October 2008: Acknowledgement of Service was filed by the First Defendant indicating an intention to defend. v. 19th November 2008: Defence and Counterclaim filed by First Defendant. vi. 8th February 2008: Reply to Defence and Counterclaim filed by Plaintiffs. vii. 31st August 2009: Summons filed by Plaintiffs seeking directions as to arrangements for trial. ¹ Blonde Rachel Ann Uzzle and Clinton Credoc Powery v Terridean Camella Powery and Registrar of Lands viii. 9th October 2009: Order made as to filing and service of documents and exchange of witness statements. ix. 1st June 2010: Change of Attorneys for Plaintiffs from Mourant du Feu & Jeune to Mourant Ozannes. x. 8th November 2017: The First Defendant filed a notice of intention to proceed. This was filed by their new attorneys McKinney Reid. xi. 25th April 2018: The Plaintiffs filed a Notice to Proceed in person and Notice of Intention to act in person. APPLICATION FOR LEGAL AID
On the 19th July 2018, the Plaintiffs applied to the Director of Legal Aid and gave as their reason for the application, inter alia: "We are unable to financially complete this matter for trial. We have gone as far as to obtain an order dated 9th October 2009 which has listed the matter for the first available date for 14 days later. We no longer have the funds to continue to bring this matter to a close therefore we are making an application for legal aid so that the trial can take place and bring the matter to a conclusion."
The application was not supported by a copy of an opinion from an attorney at law on the merits of the case although they indicated on their application form, dated 19th July 2018, that they had already instructed an Attorney at Roulstone Law.
On the 27th July 2018, the Director refused the application giving as the reason that the circumstances do not justify the expenditure of public funds on this matter. The Director’s additional notes recorded that the Applicants have some $13,000.00 in the Credit Union, that they both have assets and also reference the delay in proceedings.
In response to a request for review, the Director on the 28th August 2018 refused the application stating: “Having reviewed the application again and all documents filed in G333/2008, our position remains that the prospects of success of this matter are remote and thus the circumstances do not justify the expenditure of public funds for the continuation /contesting of this matter. The Applicants provided no supporting evidence on their position, the issue of delay in dealing with the matter is also considered. The applicants can make their own private arrangements as the Personal Representatives of the estate to deal with this private matter.”
The Applicants appeal on the following grounds: i. The Legal Aid Director erred in finding that the Applicants should fund the matter themselves without reasonable cause. ii. The Director failed in accepting that the Applicants are persons of limited means. The evidence provided shows that the Applicants have taken the matter as far as they could. iii. The Director failed to recognize that the estate has no cash (personalty) but only land (realty). iv. The Director failed to give reasonable details why the Applicants should fund the matter privately not taking into consideration the element that a fraud has arisen. v. The Director failed to take into consideration Section 19 (4) of the Legal Aid Law that in the interests of justice the Director may in the circumstances of a particular case disregard the disposable income of assisted persons. vi. The Applicants have provided evidence on the issue of delay by the Order for Directions as the matter did not go beyond that point failing to reach a trial date being the reason for making the legal aid application. vii. The Director failed to inquire from the attorney as to how much it would cost to take the matter to trial. viii. The Director erred in failing to determine the full understanding of the Writ in Cause 333/2008 in her decision. ix. The Director did not state that the Applicants could make a contribution from any funds that may be derived if the case is successful. THE LEGAL AID LAW (2015 REVISION)
By s.4 of the Legal Aid Law 2015, legal aid may be granted in civil proceedings in the Grand Court subject to ss.(3) and ss.(5). Subsection (3) relates to family proceedings and subsection (5) prohibits the grant of legal aid for certain civil matters such as defamation. Section 4(6) provides that legal aid may be granted to individual natural persons who are parties in civil proceedings and civil appeals.
Section 4 (5) is the important qualifying section: "Legal aid in civil proceedings may only be granted if the Director is satisfied after making inquiries under section 16 that the applicant appears to have a reasonable prospect of succeeding on the merits of the case."
The inquiries to be made pursuant to s.16 include inquiries as to the means and condition of the applicant and as to the merits of his case.
Section 17(3) and (4) provide that an applicant for legal aid under s.4 may be granted a certificate by the Director, in his discretion, and in the exercise of that discretion the Director shall consider, inter alia, whether it is in the interests of justice to grant legal aid. Matters which shall be considered under the heading of interests of justice include whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law and whether the Applicant may be able to understand the proceedings or to state his own case.
By s.19, the Director may, where it is appropriate, require an assisted person to make a contribution or may, where the interests of justice require, disregard the disposable income of a person and not require him to make a contribution.
Section 42 of the Law provides for the making of Regulations inter alia as to the general regulation of the grant of legal aid certificates. THE LEGAL AID REGULATIONS 2016
Regulations 7 to 10 of the Legal Aid Regulations 2016 relate to legal aid for civil proceedings. Regulation 8 provides: "8. (1) A certificate shall be granted if the Director is satisfied that the applicant appears to have a reasonable prospect of succeeding on the merits of the case." THE MERITS OF THE CASE
The submission of the Applicants that means is not determinative of an application and that the law provides for contributory arrangements where appropriate is correct.
Indeed, the Director may also disregard the disposable income of assisted persons if the interests of justice so require.
The primary consideration for this appeal is thus whether the Applicants have a reasonable prospect of succeeding on their case.
The two Applicants are the personal representatives of the Estate of Deceased, Andrew McField Powery, pursuant to a will which he made and signed on the 16th September 1997. Mr. Powery died on the 9th June 2005 at the age of 92 years and 11 months. The Applicants were granted probate on the 26th September 2007. The will provided that with the exception of 12,500 square feet of property known as West Bay North East, Block 8 A Parcel 36, which was bequeathed to the said First Defendant, all the Deceased’s real and personal property was to be divided equally among his eight children.
By her First Affidavit filed 16th July 2008, Ms. Uzzle states that Mr. Powery could not read or write at all during his lifetime. She states further that since the year 2000 he suffered from Alzheimer’s disease, dementia and confusion and was also hard of hearing and had poor eyesight. He was admitted to hospital on 4th March 2001, 25th March 2001, 14th July 2001 and again on three occasions in 2002 - 10th May, 24th June and on 26th August 2002, when his state of dementia for two and a half years was noted on his records.
Following his death, the Applicants and his children discovered that an instrument of transfer dated 9th March 2002 had been completed, transferring a two-acre parcel of land to the First Defendant and Mr. Powery jointly for natural love and affection. The First Defendant became the sole owner of this property upon his death.
The allegation is that the transfer was obtained fraudulently, that the First Defendant brought a justice of the peace into her mother’s house for the transfer documents to be executed by the bedside of Mr. Powery without the knowledge of his children, that she unduly influenced him while he was in a reduced mental state and not capable of understanding the nature, contents and effect of the Instrument of Transfer.
It is further alleged that the signature on the instrument of transfer was not consistent with his usual signature. In support of this latter assertion, Ms. Uzzle states: “the First Defendant had mentioned to a family member that she had “assisted” Andrew Powery to execute the Instrument of Transfer.”
In reply, the First Defendant in her Defence and Counterclaim asserts that Mr. Powery could and did know how to sign his name as evidenced by his signing of the will which the Plaintiffs rely on. It is further asserted in reply that Mr. Powery loved the First Defendant dearly and it was his wish that the transfer be made during his lifetime. The First Defendant and her mother were caregivers for Mr. Powery and at no time did the Doctors who visited him mention that he was suffering from any form of dementia or confusion. 2 Affidavit dated 11th July 2008 – paragraph 15.9
The transfer was made at a time when he was in in his right mind and he remained alert and talkative up until his death. The transfer was executed by Mr. Powery in the presence of Justice of the Peace, Floyd Bush who knew him and spent at least one hour chatting with him at the time the transfer of land was executed.
In considering the merits of the case of the Applicants, it is noted that there is no mention in the account given by Ms. Uzzle in her Affidavit of any other witness who was present at the material time who would be available to support her allegation that the signature of Mr. Powery was fraudulently obtained. Neither is there any mention of the availability of handwriting expert evidence. There are no medical records on file neither is there a report from a medical practitioner. There is no detail provided as to whether at the time of his hospital visit prior to execution of the Transfer Instrument in March 2002, the stage of his Alzheimer’s disease and dementia was mild, moderate, moderately severe or severe. In particular there is no reference to his level of functionality at the material time.
My view is that the Plaintiffs will struggle to prove the alleged fraud given the presence of the Justice of the Peace at the time of the execution of the transfer instrument, and the likely evidence from the First Defendant that this was for at least one hour.
Additionally, prior to the date of execution of the instrument in March 2002, the Deceased had last been at the hospital some seven months prior to that, on the 14th July 2001. At that time the complaints were fever and confusion. It is not clear whether these were interrelated or whether the confusion was separate and part of his general continuing state or his state on that occasion. About two months after the execution of the transfer on 10th May 2002, he was admitted for weakness and pyrexia. Significantly, there is no reference at this point to confusion but Ms. Uzzle states that “his state of Dementia for two and half years was noted on his records.”
Proof of the Plaintiff’s case would, in my view, require medical evidence to the standard of on a balance of probabilities that, despite not having examined Mr. Powery on the day or close to the time of the execution of the transfer, the continuum of his illness, as well as the stage of his illness, must have meant that he was incapable of understanding the nature of his acts on that day, at that particular time. Alternatively proof of the case would require some evidence from a witness who was present, as to his state of mind, or observation of some fraudulent influence, or from a witness as to whether or not it is possible to say that the signature on the document was not in fact made by him. As to possible factual non-expert witnesses from whom affidavits have not yet been obtained, I am concerned as to whether their recollections may be viewed as reliable given that some 16 years have now passed since the instrument was executed.
This is not a matter that requires the consideration of a substantial question of law. There are no complex issues to be resolved. The fact that fraud is alleged does not alter the nature of the case. In my view none of the considerations under s.17(4) of the Law appear to apply such that it could be said that the interests of justice require that legal aid ought to be granted in the instant case.
This is essentially a factual dispute as to whether, despite his age and illnesses, the Deceased was functioning and had the mental capacity, three years before his death, to know what he was doing when he executed the questioned transfer.
I bear in mind that an interlocutory injunction had been granted but note that this was on an ex parte basis prior to the filing of the Defence and Counterclaim.
On all the material that is presently available, I am unable to conclude, as the Law requires, that the Applicants appear to have a reasonable prospect of succeeding on the merits of the case.
The Applicants did not provide the Director with a copy of an attorney at law’s opinion on the merits of the case as per Regulation 7 (2) of the Legal Aid Regulations 2016. They have provided no additional material as to the merits of the case, or as to any additional evidence which is in hand or is likely to be in hand. In the absence of this, an assessment has therefore been made on the material available, which includes the detailed affidavit of Ms. Uzzle.
I conclude from my review that there is no proper basis to grant legal aid in this case. I would decline to grant legal aid even for the limited purpose of obtaining an attorney at law’s opinion. The circumstances are not such as to justify this.
The appeal from the decision of the Director is therefore refused. Dated this the 23rd day of January 2019 Honourable Justice Cheryll Richards Q.C. Judge of the Grand Court