Werner Fuhrken Batista v Dietrich Fuhrken Batista

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL TERRITORY OF THE VIRGIN ISLANDS BVIHCVAP2022/0015 BETWEEN: WERNER FUHRKEN BATISTA Appellant and DIETRICH FUHRKEN BATISTA Respondent Before: The Hon. Mr. Mario Michel Justice of Appeal The Hon. Mde. Esco L. Henry Justice of Appeal [Ag.] The Hon. Mr. Robert Levy KC Justice of Appeal [Ag.] Appearances: Mr. Peter Ferrer for the Appellant Mr. Jerry Samuel and Ms. Allana-J Joseph for the Respondent ____________________________ 2023: May 26; 2024: January 18. ____________________________ Interlocutory appeal – Application to adduce fresh evidence – Principles in Ladd v Marshall – Eastern Caribbean Supreme Court (Non-contentious Probate and Administration of Estates) Rules 2017 – Role of the Registrar – Whether the learned judge erred in finding that all applications for probate are to be made to the Registrar and that rule 67(1) confers exclusive jurisdiction on the Registrar to entertain and dispose of such applications, to the exclusion of a judge of the High Court – Contentious probate proceedings – Costs – Whether the learned judge erred in failing to give the parties an opportunity to be heard on the issue of costs – Assessed costs Mr. Eliezer Batista da Silva died testate in Brazil on 18th June 2018. In his Last Will and Testament, he appointed his son Dietrich Fuhrken Batista as Executor and Administrator, in his absence Helmut Fuhrken Batista and in Helmut’s absence, Werner Fuhrken Batista, preference to be given to the one who resides in Rio de Janeiro. At the material times, Werner resided in Florida, USA, while Dietrich resided in Rio de Janeiro. A few months after his father’s death, Dietrich Batista applied for probate of the will in Brazil. He subsequently learned that he had to apply separately in the BVI for probate of the BVI portion of the estate. For over 2 years he took no steps to do so. On 24th March 2021, his brother Werner Batista caused a citation to be issued by the BVI Court under rule 66 (1) of the Eastern Caribbean Supreme Court (Non-contentious Probate and Administration of Estates) Rules 2017 (“the NCPR”) to compel him to accept or refuse the grant. It was served on him on 22nd February 2022. Helmut Batista had in the meantime renounced his right to apply for probate and consented to Werner being appointed executor in place of Dietrich Batista. On 21st March 2022, Dietrich Batista filed an acknowledgement of service to the citation and indicated his intention to apply for probate. Werner Batista conducted a probate search on 26th May 2022 and discovered that Dietrich Batista had not yet applied for probate. Soon after, on 7th June 2022, Dietrich Batista applied to the Registrar of the High Court for probate under rule 67(1) of the NCPR. Without performing a further search Werner Batista filed the instant application on 24th June 2022, under rule 67(1) seeking permission of the High Court judge to apply for a grant of probate of his father’s estate. On 24th June 2022, Dietrich Batista learned of his brother’s application and immediately notified him that he had already applied for probate. He asked Werner Batista to discontinue and withdraw his application. Werner Batista refused and by email dated 13th July 2022 from his solicitors, signalled his intention to proceed with his application. He filed a further caveat on 22nd July 2022 against the issue of a grant to Dietrich Batista. When his application came on for hearing before the learned judge it was opposed by Dietrich Batista. It was common ground between the brothers that the resulting dispute and the competing nature of the applications rendered Werner Batista’s rule 67(1) application a contentious probate proceeding. The learned judge issued directions (“the directions order”) on 25th July 2022 for the hearing of Werner Batista’s application. By joint application on 23rd September 2022, the parties proposed changes to the directions order. They agreed that permission should be granted to Werner Batista to file an amended application for a grant of probate in place of his application for permission. The Court gave him leave to file the amended application in terms of the exhibited draft. He did so. The parties were also directed to file supplemental affidavit evidence. The hearing of the amended application proceeded on 30th November 2022. By decision rendered that day, the judge dismissed Werner Batista’s application and awarded costs to Dietrich Batista, to be assessed if not agreed. She held that an application under rule 67(1) of the NCPR must be made to the Registrar; that a High Court judge does not have the jurisdiction to grant probate under the NCPR at the initial stage; and that it is highly improper and/or an abuse of the court’s process and resources for Werner to continue the present application while proceedings are pending before the Registrar for grant of probate. She held further that the court could not use its case management powers under CPR 26.1(2)(w) or 26.9 to put matters right, and thereby treat the rule 67(1) application as a claim under CPR Part 68. Being dissatisfied with the decision of the learned judge, Werner appealed and 5 main issues fell to be determined by this Court: (1) Whether Werner Batista should be granted leave to adduce a Brazilian judgment dated 25th November 2022 and a Brazilian ruling as fresh evidence in the appeal; (2) Whether the learned judge erred by misinterpreting and/or misapplying rule 67(1) of the NCPR, and as a result concluded erroneously that the rule – (a) mandates that all applications for probate are to be made to the Registrar; (b) confers exclusive jurisdiction on the Registrar to entertain and dispose of such applications, to the exclusion of a judge of the High Court; (3) Whether the learned judge erred in law or fact by finding that it was improper and/or an abuse of process and/or otherwise inappropriate to continue with a rule 67(1) application and by refusing to consider to whom probate should be granted; (4) Whether the learned judge erred in law or fact by holding that the initiation of contentious proceedings under the NCPR is not a mere procedural irregularity that can be dealt with under the court’s case management powers under CPR. 26.1(2)(w) or 26.9; and (5) Whether the learned judge erred in law by awarding costs to Dietrich Batista to be assessed if not agreed. Held: allowing the appeal in part, and making the orders set out at paragraph 154 below, that: 1. When considering an application for leave to adduce fresh evidence the Court is engaged in the exercise of discretion. In the exercise of its discretion, the Court must seek to give effect to the overriding objective to do justice between the parties. In doing so, it must act judicially and cautiously. The Court will take into account a number of factors including whether either party will be prejudiced by or obtain an unfair advantage by the grant or refusal of permission to adduce the fresh evidence. Furthermore, the three criteria in Ladd v Marshall must be satisfied i.e. the proposed new evidence must be such that it could not have with reasonable diligence been obtained for use at the hearing in the lower court; the evidence would likely have an important but not necessarily a decisive bearing on the outcome of the appeal; and the proposed evidence must be credible but not necessarily irrefutable. However, a more flexible approach is to be taken to the application of those principles in interlocutory matters. In the instant case, it is not disputed that the Brazilian judgment was not available at the time of the hearing before the learned judge. As it emanated from a court of law in Brazil, it is credible. However, it is not likely to have an important bearing on this appeal, since the issues before this Court relate largely to the interpretation and application of rule 67(1) of the NCPR, the learned judge’s exercise of discretion relative to case management and the award of costs, and those matters would not benefit from considerations which influenced the Brazilian court or that appear in the Brazilian judgment and ruling. Accordingly, the application to adduce the Brazilian judgment and ruling as fresh evidence is refused. Ladd v Marshall [1954] 3 All ER 745 applied; Adam Bilzerian v Gerald Lou Weiner et al SKBHCVAP2019/0033 (delivered 21st July 2020, unreported) followed. 2. Rule 5 of the NCPR expressly stipulates that all applications for probate or grant of letters of administration must be made to the Registrar and be filed at the registry; while rules 7(1) and 67(1) provide respectively for ‘an application under the NCPR [to be] made in the first instance to the court’, and similarly one for a grant of probate to a citor to be made ‘to the court’. These three rules speak to where the applications are to be sent. In other words, they deal with the depository for such applications, not which judicial officer is authorized to deal with them. Read in isolation rule 5 may suggest that the Registrar is the only judicial officer who may entertain and dispose of an application for a grant of probate. However, it must be read in context which is a sine qua non of statutory comprehension. This reveals that rule 5 merely provides for such applications to be directed to the Registrar and does not forbid an applicant from transmitting or addressing it to another judicial officer. Notably, it contains no prohibition against such application being made to another judicial officer and imposes no sanctions in such a case. When the aforementioned rules are considered within the overall legislative context of the NCPR and in accordance with rules of interpretation, including the presumption against absurdity, it is clear that, rules 5 and 67(1) speak to the court and Registrar in the capacity of depository, while rule 7(2) deals with jurisdiction. Dennis Donovan v Irene Donavan BVIHCV2009/0058 (delivered 31st March 2010, unreported) distinguished; Re Stevens, Cooke v Stevens 1894 S. 1752 distinguished; Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al BVIHC(COM) 134 of 2018 (delivered 25th October 2018, unreported) distinguished. 3. A citor who wishes to contest a grant of probate to the citee, must engage the probate arm of the court, by filing a rule 67(1) application under the NCPR. Significantly, rule 67(1) makes no provision for a citor to apply for a grant of probate if, following the citation, the citee has applied for a grant under rule 66(7) expeditiously and prosecutes it with reasonable diligence. The rules contemplate that in such a case, the registry will process and issue a grant to the citee on receipt of the relevant application for probate. A citor who desires to contest a grant to a citee in those circumstances is required to engage the probate division of the court in contentious proceedings under CPR Part 68, by filing and issuing a fixed date claim and a statement of claim or supporting affidavit. Such proceedings would be triggered not by the citee’s rule 66(7) application, or by a rule 67(1) application by the citor but rather by the institution of a probate claim under CPR Part 68. By filing a rule 67(1) application, Werner was seeking to pursue CPR Part 68 contentious probate proceedings under the non-contentious regime in a manner not provided for under the NCPR generally or rule 67(1) specifically. While the NCPR expressly provides that the CPR applies to non-contentious probate practice, the converse is not expressed. It follows that the procedures applicable under the NCPR in respect of non-contentious probate business are inapplicable for purposes of contentious probate proceedings under the CPR. Accordingly, Werner’s contention that rule 67(1) is inherently contentious runs contrary to judicial precedent and the practice and procedure in the probate division of the Supreme Court. Thus, his contention that his rule 67(1) application is non-contentious and must for this reason be made to the Registrar holds no merit. The learned judge therefore erred by construing rule 5 as mandating that applications for the grant of probate under rule 67(1) must be made to the Registrar and this ground of appeal is allowed. In re Jolley, dec’d, Jolley v Jarvis and Another [1964] 2 WLR 556 applied. 4. On the issue of jurisdiction, subrule 7(2) expressly empowers all judicial officers throughout the court’s hierarchy (from the Registrar at the lower level to the Chief Justice at the apex) to execute any of the court’s functions relative to the determination of such non-contentious probate applications and to issue directions unless some law or practice direction provides otherwise. Another consideration is that there is nothing in the NCPR that expressly precludes a judge of the High Court from determining an application for the grant of probate under rule 67(1). Additionally, it is commonly known that within the civil jurisdiction of the Supreme Court, a judge at times carries out judicial functions that are routinely performed by the Registrar or Deputy Registrar, even where the rules specify the Registrar as the authorized functionary. This suggests that the NCPR in general and rule 7(2) in particular contemplates that an application for probate under any of its provisions may be determined by the Registrar, a master or any judge of the Eastern Caribbean Supreme Court unless expressly provided for otherwise. While the learned judge was correct to take the entire legislative scheme into consideration and to consider rules 5, 7 and 8 when construing rule 67(1), she erred in law in holding that rule 67(1) applications for probate must be made to and be determined only by the Registrar. 5. As illustrated in Hunter v Chief Constable of West Midlands abuse of process arises where the court’s process is being used or manipulated for a purpose that is manifestly different from its ordinary and proper use. The learned judge’s rationale for holding that Werner’s application was an abuse of the court’s process was based on what she considered to be an unnecessary duplication of processes with the same objective. She reasoned that no prejudice would be occasioned to Werner if his application was discontinued and further it would lead to less of the court’s resources being deployed to address the issues that arose for determination. She was clearly of the view that it was manifestly unfair for Werner to be permitted to persist with his application in those circumstances. The learned judge took into account the applicable legal principles and relevant matters and cannot be justifiably criticised for so concluding. Therefore, this ground of appeal must fail. Hunter v Chief Constable of West Midlands Police and another [1981] 3 All ER 727 applied; Re Majory v F. A. Dumont LD [1955] Ch. 600, CA applied; In re Jolley, dec’d, Jolley v Jarvis and Another [1964] 2 WLR 556 considered. 6. The practice and procedure in the court with respect to the uncontested grant of probate is settled, is inherently a non-contentious process and is governed by the NCPR. Constituting as it does a contentious dispute, Werner’s rule 67(1) application could in no way be considered an application for non-contentious probate. Accordingly, the learned judge could not ignore the prescriptions of the legislated procedure under the NCPR, and invoke the court’s inherent jurisdiction and the overriding objective of the CPR to justify processing the application as a fixed date claim under CPR part 68 and determining who should be granted probate when the NCPR and CPR dictated otherwise. In all the circumstances, the learned judge did not err in law either in refusing to determine which Batista brother should be granted probate; or by not referring the application to the Registrar with directions as to which of them should be granted probate. In arriving at her determination she took into account all of the relevant legal principles and factual matters and did not rely on any irrelevant considerations. She did not err in principle and did not make a determination that was blatantly wrong. Accordingly, this ground of appeal must also fail. Texan Management Limited et al v Electric Wire & Cable Company Limited [2009] UKPC 46 applied; Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al BVIHC(COM) 134 of 2018 (delivered 25th October 2018, unreported) distinguished. 7. It is well-established that the failure to give parties a chance to make representation runs counter to procedural fairness and principles of natural justice and would invalidate a determination. This Court has pronounced on the necessity of affording affected persons an opportunity to be heard before a determination is made as to their rights or interests. Failure to hear from parties before making a costs order infringes the principles of natural justice and is fatal. Accordingly, the sixth ground of appeal must be allowed, albeit limited to the issue of lack of procedural fairness. Despite this finding, the assessed costs regime under CPR rule 65.11 is applicable and in keeping with the general rule the successful party would be entitled to his costs. Werner’s complaint that the judge erred by applying the incorrect rule was not made out. Her errors were the failure to seek submissions and to indicate the reasons for the award. Accordingly, the learned judge correctly utilized the assessed costs regime and was not clearly wrong in so doing. Webster Dyrud Mitchell (A Partnership) and others v Jenny Lindsay AXAHCVAP2017/0001 (delivered 20th September 2021, unreported) followed; Patricia Ann Huggins v Lloyd Browne SVGHCVAP2018/0007 (delivered 14th June 2021, unreported) followed. JUDGMENT Introduction

[1]HENRY JA [AG.] This interlocutory appeal raises procedural questions as to whether an application for a grant of probate under rule 67(1) of the Eastern Caribbean Supreme Court (Non-contentious Probate and Administration of Estates) Rules 20171 (“the NCPR”) must be made to the Registrar of the High Court (“the Registrar”) - as opposed to a High Court judge; and whether under the NCPR a judge has jurisdiction to entertain and dispose of such an application.

Factual Background

[2]The underlying dispute arose between two brothers, Werner Fuhrken Batista and Dietrich Fuhrken Batista, with respect to the administration of their deceased father Eliezer Batista da Silva’s estate. Their father died testate in his native Brazil on 18th June 2018. In his Last Will and Testament,2 he appointed his son Dietrich Fuhrken Batista as Executor and Administrator, in his absence Helmut Fuhrken Batista (another son) and in Helmut’s absence, Werner Fuhrken Batista, preference to be given to the one who resides in Rio de Janeiro. At the material times, Werner resided in Florida, USA. Dietrich lives in Rio de Janeiro.

[3]The testator bequeathed his entire estate to his seven children in equal shares. A sizeable part of the estate comprises shares in Kaku Management Corporation Limited (“Kaku”), a BVI company, whose main asset is an investment bank account in Switzerland.

[4]A few months after his father’s death, Dietrich Batista applied for probate of the will in Brazil. He subsequently learned that he had to apply separately in the BVI for probate of the BVI portion of the estate. For over 2 years he took no steps to do so. On 24th March 2021, his brother Werner Batista caused a citation to be issued by the BVI Court under rule 66 (1) of the NCPR to compel him to accept or refuse the grant. It was served on him on 22nd February 2022. Helmut Batista had in the meantime renounced his right to apply for probate and consented to Werner being appointed executor in place of Dietrich Batista.

[5]On 21st March 2022, Dietrich Batista filed an acknowledgement of service to the citation and indicated his intention to apply for probate. Werner Batista conducted a probate search on 26th May 2022 and discovered that Dietrich Batista had not yet applied for probate.

[6]Soon after, on 7th June 2022, Dietrich Batista applied to the Registrar of the High Court for probate under rule 67(1) of the NCPR. Without performing a further search Werner Batista filed the instant application on 24th June 2022, under rule 67(1) seeking permission of the High Court judge to apply for a grant of probate of his father’s estate.

[7]On 24th June 2022, Dietrich Batista learned of his brother’s application and immediately notified him that he had already applied for probate. He asked Werner Batista to discontinue and withdraw his application.

[8]Werner Batista refused and by email dated 13th July 2022 from his solicitors, signaled his intention to proceed with his application. He filed a further caveat on 22nd July 2022 against the issue of a grant to Dietrich Batista. When his application came on for hearing before the learned judge it was opposed by Dietrich Batista. It is common ground between the brothers that the resulting dispute and the competing nature of the applications has rendered Werner Batista’s rule 67(1) application a contentious probate proceeding.

[9]The learned judge issued directions (“the directions order”) on 25th July 2022 for the hearing of Werner Batista’s application. By joint application on 23rd September 2022, the parties proposed changes to the directions order. They agreed that permission should be granted to Werner Batista to file an amended application for a grant of probate in place of his application for permission. The Court gave him leave to file the amended application in terms of the exhibited draft. He did so. The parties were also directed to file supplemental affidavit evidence.

[10]Hearing of the amended application proceeded on 30th November 2022. By a decision rendered that day, the judge dismissed Werner Batista’s application and awarded costs to Dietrich Batista, to be assessed if not agreed. She held that an application under rule 67(1) of the NCPR must be made to the Registrar; that a High Court judge does not have the jurisdiction to grant probate under the NCPR at the initial stage; and that it is highly improper and/or an abuse of the court’s process and resources for Werner to continue the present application while proceedings are pending before the Registrar for grant of probate. She held further that the court could not use its case management powers under CPR 26.1(2)(w) or 26.9 to put matters right, and thereby treat the rule 67(1) application as a claim under CPR Part 68.

[11]Werner is dissatisfied with the decision. On 14th December 2022, he filed an application for leave to appeal and for permission to adduce and rely on new evidence in the appeal. By order of Price-Findlay JA dated 31st January 2023, he was granted leave to appeal the learned judge’s orders. His application for permission to adduce fresh evidence was adjourned for consideration by the Full Court.

[12]By Notice of Appeal filed on 20th February 2023, Werner Batista advanced six grounds of appeal: (1) The learned judge erred in finding that an application under rule 67(1) of the NCPR must be made to the Registrar. (2) The learned judge erred in finding that a High Court judge does not have jurisdiction to grant probate pursuant to that Rule. (3) The learned judge erred in finding that it was improper and/or an abuse of process and/or otherwise inappropriate to continue with a rule 67(1) application. (4) The learned judge erred in refusing to consider the issue of who should be granted probate. (5) The learned judge erred in finding that the court’s case management powers could or should not be used to correct any procedural irregularities or perceived defects; and (6) The learned judge erred in holding that Werner Batista should pay the costs of Dietrich Batista on an assessed basis, if not agreed.

[13]Werner Batista applied to this Court by Notice of Application filed on 14th December 2022, for leave to adduce as fresh evidence in the appeal, a judgment made by a Brazilian Court on 29th November 2022 removing Dietrich Batista as executor of the deceased’s estate in Brazil and a ruling made to clarify its effect. Dietrich Batista opposed the application.

[14]The fresh evidence application is refused for the reasons set out in this judgment. The interlocutory appeal is granted in part.

[15]Purely for convenience, I take the liberty of referring to the Batista brothers by their Christian names throughout the judgment. No disrespect is intended and I trust that none is apprehended.

Issues

[16]The issues to be determined on this appeal are: (1) Whether Werner Batista should be granted leave to adduce a Brazilian judgment dated 25th November 2022 and a Brazilian ruling as fresh evidence in the appeal; (2) Whether the learned judge erred in law or fact by misinterpreting and/or misapplying rule 67(1) of the NCPR, and as a result concluded erroneously that the rule – (a) mandates that all applications for probate are to be made to the Registrar; (b) confers exclusive jurisdiction on the Registrar to entertain and dispose of such applications, to the exclusion of a judge of the High Court; (3) Whether the learned judge erred in law or fact by finding that it was improper and/or an abuse of process and/or otherwise inappropriate to continue with a rule 67(1) application and by refusing to consider to whom probate should be granted; (4) Whether the learned judge erred in law or fact by holding that the initiation of contentious proceedings under the NCPR is not a mere procedural irregularity that can be dealt with under the court’s case management powers under CPR. 26.1(2)(w) or 26.9; and (5) Whether the learned judge erred in law by awarding costs to Dietrich Batista to be assessed if not agreed. I shall deal with them seriatim.

Fresh Evidence Application

[17]The application for leave to adduce fresh evidence is supported by an affidavit of Gerrard Tin3 an Associate in the Litigation Department of Harneys, Werner’s legal practitioners. The proposed new evidence consists of a judgment of the Court of the Second Family and Probate Court of the Rio de Janeiro State Judiciary, the Court of Justice, dated 25th November 2022 and made by Judge Carlos Augustus Borges (“the removal judgment”); and a ruling issued on 16th December 2022 for the purpose of clarifying the removal judgment. They were exhibited respectively as parts of ‘GNT-1’ and ‘RNC-1’.

[18]Mr. Tin averred that the application was made on the basis that Dietrich’s removal as executor in Brazil was sought on the same grounds on which his rule 67(1) application was made. He stated that the Brazilian judgment demonstrates the weakness of Dietrich’s position as executor and the strength of the underlying application for probate pursuant to rule 67(1). The Brazilian judgment was not available before the decision was rendered by the learned judge.

[19]Werner submitted that the removal judgment will be relevant to the question of removal in the instant case, should this Court agree that rule 67(1) of the NCPR empowers the court to grant probate to a person other than the executor. He noted that the clarification ruling integrates the removal judgment and is an official Brazilian Probate document that makes clear that the removal judgment was effective immediately on its pronouncement. He added that they should be read together to fully understand the scope and effect of the removal judgment.

[20]He contended that the proposed fresh evidence is credible and demonstrates that the court of the jurisdiction where the will was made considered it appropriate to remove Dietrich given his delays and negligence in administering the estate. This he says, demonstrates the extent of Dietrich’s failings and ought to be taken into account in determining whether rule 67(1) embodies a procedure that he (Werner) should have been able to use. He added that the removal judgment demonstrates the weakness of Dietrich’s position as executor and the strength of the underlying rule 67(1) application. Citing Emmerson International Corporation et al v Victor Vekselberg4 he reasoned that the proposed new evidence is relevant to the issue of whether the learned judge should have used her case management powers to assist him in circumstances where the executor failed to comply with his duties.

[21]Dietrich countered that the fresh evidence application does not satisfy all limbs of the Ladd v Marshall5 test as it would probably not have an important influence on the Appeal. Further, he was removed as executor by the Brazilian Court because he was not progressing administration of the Brazilian estate in a timely and efficient manner. This, he contended is completely irrelevant to the rule 67(1) application and whether he failed to proceed with the probate application in the BVI with reasonable diligence following the February 2022 citation and the filing of his acknowledgment of service a month later. He argued that these are matters that have not been determined and which do not arise for consideration in this appeal. Rather, they go to the substantive merits of the rule 67(1) application.

[22]He submitted that the Brazilian Court made no relevant findings that would assist this court in determining this appeal. He relied on Adam Bilzerian v Gerald Lou Weiner et al,6 Honourable Guy Joseph (In his personal capacity and in his capacity as Parliamentary Representative for Castries South East) v The Constituency Boundaries Commission et al,7 Hertfordshire Investments Ltd. v Bubb,8 Emmerson International and Flavio Maluf v Durant International Corp et al.9 Discussion

[23]When considering an application for leave to adduce fresh evidence the court is engaged in the exercise of discretion. In the exercise of its discretion, the Court must seek to give effect to the overriding objective to do justice between the parties. In doing so, it must act judicially and cautiously. The Court will take into account a number of factors including whether either party will be prejudiced by or obtain an unfair advantage by the grant or refusal of permission to adduce the fresh evidence.

[24]It is now settled that an appellate court will be slow to interfere with the exercise of discretion by a court at first instance. It would only venture to do so in a case where a judge erred in principle in the exercise of such discretion by taking account of irrelevant matters or by failing to have regard to relevant considerations or even by attaching too much or too little weight to relevant factors and by reason of such error, made a determination that is plainly wrong. This principle is quite eloquently explained in Dufour and Others v Helenair Corporation Ltd and Others10 by Chief Justice Sir Vincent Floissac and is captured in Charles Peterson et al v Douglas Riegels et al11. I shall keep them firmly in mind when assessing the learned judge’s exercise of discretion in this case.

[25]The threshold test for granting permission to adduce fresh evidence in an appeal is well-established. It was articulated by Denning LJ in Ladd v Marshall. Three criteria must be satisfied. Firstly, the proposed new evidence must be such that it could not have with reasonable diligence been obtained for use at the hearing in the lower court. Secondly, it must be evidence that would likely have an important but not necessarily a decisive bearing on the outcome of the appeal. Thirdly, the proposed evidence must be credible but not necessarily irrefutable.

[26]The principles enunciated in Ladd v Marshall have been further developed in two material respects. As noted by Farara JA in Adam Bilzerian v Gerald Lou Weiner et al those principles: “[26]…are to receive a somewhat more relaxed application when treating with appeals from interlocutory matters, as distinct from when treating with an appeal from a decision of a court after a trial on the merits…

[27]…a more flexible or relaxed approach is called for, in the interest of justice, when dealing with applications to adduce fresh evidence in an appeal from a decision on an interlocutory application or an application which was not decisive of the merits of the matter… [29] The second development of significance in the application of the Ladd v Marshall principles, is that they are just that, ‘principles’, and not strict or special rules to be rigidly applied by an appellate court... They are principles, not rules, which must be applied broadly, but relaxed, in appropriate cases, having regard to the overriding objective to do justice.” [27] I am guided by the foregoing principles and apply them in the resolution of this issue. It is not disputed that the Brazilian judgment was not available at the time of the hearing before the learned judge. Emanating as it does from a court of law in Brazil, it is credible. It is not likely to have an important bearing on this appeal, since the issues before this Court relate largely to the interpretation and application of rule 67(1) of the NCPR, the learned judge’s exercise of discretion relative to case management and the award of costs. I am satisfied that the determination of those matters by this Court would not benefit from considerations which influenced the Brazilian court or that appear in the Brazilian judgment and ruling. I would accordingly refuse the application to adduce them as fresh evidence in this appeal.

Appellant’s Opportunity to Respond to the Jurisdictional Point

Werner’s submissions

[28]The appellant raised a concern that is best considered as a preliminary point in this appeal. Werner submitted that the learned judge erred in several material respects in addressing the application. This included not affording him an opportunity to respond on this issue of jurisdiction. He contended that the jurisdictional point was taken for the first time in written submissions filed after the hearing on 10th November 2022 and therefore he had no chance to address them. He stated that the judge considered those submissions and factored them into her decision and this constituted a breach of the rules of natural justice. He submitted that as a result, her reliance on them was unfair and unjust. He cited Corporal Philbert Bertrand v The Secretary, PSC12 in which this Court opined: “The first rule of natural justice is the audi alteram partem rule which requires that each party be heard by the adjudicating authority... The Third is the elementary and obvious imperative that judgment should not be reached until the parties have had an opportunity to be heard.”13 Dietrich’s submissions

[29]Dietrich argued that since this was not one of the grounds of appeal, the argument was merely an afterthought, a last-ditch effort to attack the judgment and should be disregarded. He contended that in any event, the parties were afforded a fair opportunity to make submissions on jurisdiction and they did so. Accordingly, the law in relation to natural justice, summarized in Corporal Philbert Bertrand v The Secretary, PSC has no application to the instant case.

[30]He added that contrary to Werner’s submission, the issue of jurisdiction was not a novel point raised late in the day, but one that featured in the case from the inception. He pointed out that the issue of procedural jurisdiction was first raised by Ellis J (as she then was) at the hearing on 25th July 2022. She made several pointed interventions requiring Werner to explain the jurisdictional basis upon which the judge was being asked to determine the rule 67 application, particularly in circumstances where there was a contiguous application before the Registrar.

[31]Dietrich highlighted Ellis J’s observation where she inquired: “… How exactly do you see that is supposed to work? I’m just curious. So are you saying that your application has to be heard first? Because you recognise that there is an application pending before the Registrar. This is not an application that is before this Court. It is an application before the Registrar which is the appropriate place in my view … and it will no doubt end up in contentious proceedings before the Court at some point, because a caveat procedure has been initiated. The warning has to be issued to the caveator. You would put in your Defence to that. That will be fully litigated. What do you say is supposed to be happening at the same time as here? I am supposed to be dealing with your application as well?” … “THE COURT: Yes. You see, the difficulty is, Miss Joseph, … In circumstances where it is that there are two matters running contiguous to each other, just running together, this is an untenable situation.”

[32]Yet again, at the hearing on 10th November 2022, the learned judge brought the issue of jurisdiction into focus when the parties were invited to provide supplemental written submissions to address whether the application should have been made by way of claim form, rather than in the manner pursued by Werner. Before this Court, Dietrich submitted that it would be gross over-simplification to misconstrue this invitation as being limited to clarifying which form should be completed by a party. He posited that in reality, having had the benefit of extensive oral submissions during the hearing, the learned judge was seeking substantive clarification from the parties as to what was their respective stance in relation to the source and scope of the judicial officer’s procedural and statutory jurisdiction to determine the rule 67(1) application. He emphasized that in response he had anchored his arguments14 in the statutory jurisdiction conferred by rule 7(1) of the NCPR.

[33]Dietrich reasoned that having been invited to address the court on this issue on those occasions, it is not open to Werner to feign being ambushed by the supplemental submissions in response. Furthermore, Werner was entitled to and had a chance to deal with any perceived new point by way of reply submissions and must be taken to have opted to waive any such right. Moreover, he could have raised this concern when the draft judgment was circulated to the parties before it was sealed. His failure to avail himself of those opportunities precludes him from successfully relying on the breach of natural justice argument.

Discussion

[34]Werner’s complaint that he did not have a chance to address the court on the jurisdictional issue was not set out in his grounds of appeal as stipulated by CPR 62.4(1) and (8). Those provisions state: “62.4 (1) A notice of appeal must be in Form 23 and must give details of – (a) … (c) the grounds of the appeal; and … (8) The appellant may not rely on any ground not mentioned in the notice of appeal without the permission of the court.” 14 At paragraphs 3 and 4 of his Supplemental Skeleton Argument dated 15th November 2022.

[35]Further, Werner did not amend his Notice of Appeal to include this breach of natural justice point as a new ground of appeal and he did not apply for permission to rely on it as a new ground of appeal. The language of CPR 62.4(8) is quite clear and unambiguous. In those circumstances, I would neither grant leave to Werner to add this issue as a new ground of appeal nor permission to rely on it at this stage and I would not entertain it.

[36]For completeness, I note from the record that Werner had ample opportunity to address the learned judge on this matter, his attention having been directed to the potential problem as early as 25th July 2022. Once again on 10th November 2022, counsel for Dietrich raised the point in his submissions before the learned judge.15 In his reply, counsel for Werner touched on it briefly, as is recorded at pages 278- 280 of the transcript. He stated simply: “There is the contention that this should be before the Registrar and not the Court, and I disagree with that.16 … And even if there is some ambiguity in what ‘court’ means, to suggest that because there is a particular practice, it doesn’t follow that means you don’t have jurisdiction. It would be absurd to suggest that the Registrar has jurisdiction which you as the judge of the court does not have.”17

[37]The learned judge inquired further of Werner’s counsel in the hearing: “How do you respond to Counsel’s argument that this is the Non- Contentious Probate Rules and Administration of Estates. It is not envisioned for these kind of contentious proceedings which are here before this court.”18

[38]Finally, each party filed post-hearing written submissions which would have allowed them to supplement any arguments made orally on 10th November 2023. In my estimation, Werner’s decision not to treat with the issue at that stage of the proceedings could not be attributed to ignorance that it formed part of Dietrich’s case. I am satisfied that he had ample notice of the point and repeated opportunities to address the court on the point, if he so desired. His belated argument at this stage would therefore be of no assistance to him. More fundamentally, his failure to apply to this Court for leave to raise it as a new ground of appeal means that he may not rely on this contention at this stage.

Legislative Framework

[39]The issues raised in this appeal involve a broad-gauged examination of several provisions in the NCPR and a few from the Civil Procedure Rules 2000 (“CPR”). It is helpful to set them out before embarking on a discussion of the grounds of appeal.

[40]The legal contentions focused primarily on rule 67(1) of the NCPR. Rules 2, 3, 5, 6, 7, 8, 43, 44, 45 and 66 also featured in the submissions. I shall return to rules 5, 7 and 67 later. To the extent relevant, rules 2, 3 and 6 provide respectively: “2. ‘Court’ is defined in rule 2 to mean ‘the Eastern Caribbean Supreme Court’ while the meaning ascribed to ‘Judge’ is ‘a judge of the Eastern Caribbean Supreme Court’. 3. Subject to the provisions of these Rules and to any enactment, the CPR 2000 shall apply to non-contentious probate matters, except that nothing in Part 3 of the CPR 2000 shall prevent time from running in the Long Vacation.’ 6. (1) An application for a grant of probate or letters of administration may be made (a) through an attorney-at-law; (b) by the propounder of a will; or (c) by a proposed administrator in person. (2) An application or a notice of application for a grant of probate or letters of administration shall (a) bear the signature of the attorney-at-law, propounder or proposed administrator in person; and (b) contain an address for service for the attorney-at-law, propounder or administrator in person, including an email address and contact numbers.

[41]Rule 8(1) lists the documents to be filed for a probate grant. It states: “8. (1) Except in the case of a notarial will in Saint Lucia which is subject to rule 11, an executor who applies for a grant of probate shall file at the registry (a) an application for a grant of probate in Form P1; (b) a certificate of search confirming that (i) no other grant of probate has been issued; (ii) no other application for a grant of probate has been made; and (iii) no caveats have been filed; (c) an oath in Form P3; (d) the will marked in accordance with rule 18(1); (e) a certified copy of the death certificate or in the absence of the death certificate, an affidavit together with the burial certificate or other relevant document to the satisfaction of the court; (f) an affidavit of due execution of the will in the form and manner prescribed by rule 17(1), or where the circumstances so require an affidavit in the form prescribed by rule 17 (2) to (6), as the case may be; (g) a declaration and account of the estate of the deceased in Form P6, and in the case of the Territory of the Virgin Islands, Form P6A; (h) the appropriate affidavit under rule 22, if required; and (i) a certificate from the Commissioner of Inland Revenue that the duty has been paid or a letter stating that satisfactory arrangements have been made for the payment of duty, where any enactment in a Member State requires payment of stamp duty, estate duty or succession duty.”

[42]Werner relied also on rule 45. It provides: “45. (1) An application for an order for a grant of letters of administration under the discretionary powers conferred on the court under the relevant statutory provision of the respective Member State shall be made to the court in the first instance, and such application shall be supported by affidavit evidence setting out the grounds of the application. (2) The application for an order under paragraph (1) shall include in its title the statutory provision and Act under which the application is made.” (Emphasis added)

[43]The citation at the centre of this case was made under rule 66(1). The material parts of the rule provide: “66. (1) A person who would be entitled to a grant in the event of the citee renouncing his or her rights to a grant may issue a citation to accept or refuse a grant in Form P23 or Form P24, as the case may be. … (5) A person served with a citation shall file an acknowledgment of service in Form P22 and shall serve a copy of such acknowledgment on the citor. (6) The time for filing and serving an acknowledgment of service is 28 days after service of the citation. (7) After filing an acknowledgment of service, a citee may apply to the court for an order for a grant to himself or herself. (8) An application under paragraph (7) may be made without notice, but must be supported by affidavit evidence.” (Emphasis added)

[44]The relevant CPR rules are rules 2.2(3)(c), 2.4, 2.5 and Part 68. Rule 2.2(3)(c) provides: “(3) These Rules do not apply to the following– (a) …; (b) …; (c) non-contentious probate proceedings;’ (Emphasis added)

[45]At rule 2.4 of the CPR, ‘Court’ is defined as ‘the High Court and, where the context so admits and in Part 62, the Court of Appeal’. As to who may exercise the powers of the court rule 2.5 provides: “Who may exercise the powers of the court (1) Except where any enactment, rule or practice direction provides otherwise the functions of the High Court may be exercised by – (a) a master; (b) a registrar; (c) a single judge of the court whether or not assigned to the Member State or Territory in which the proceedings are taking place; (d) the Chief Justice; or (e) the Chief Registrar, in accordance with these Rules and any practice direction made by the Chief Justice.”

[46]Part 68 of the CPR deals with contentious probate proceedings. CPR rule 68.2 outlines the procedure for making a probate claim. It provides: “How to commence probate proceedings 68.2 (1) Probate proceedings must be commenced by issuing a fixed date claim form in Form 2. (2) The claim form must state the nature of the interest of the claimant and of the defendant in the estate of the deceased person to which the claim relates. (3) The claimant must file a statement of claim with the claim form.” Having set out these rules, I turn next to consider the grounds of appeal.

Jurisdiction

[47]Werner’s first and second grounds of appeal relate to his contentions that the learned judge erred by holding that a rule 67(1) application must be made to the Registrar and cannot be determined by a judge. I shall deal with them together because the applicable rules are connected and are the same in some instances.

[48]On those matters, the learned judge ruled: “[17] The Court is of the considered view that an application under rule 67(1) of the Probate Rules is required to be made to the Registrar… [18]…In light of the clear and unambiguous language of r.5, in the absence of express language in rule 67(1) directing the citor to apply to a single judge, the application must be made to the court through the Registrar in compliance with rule 5. Further it must be made in the manner set out in rule 8, which is the only rule dealing with how an application for probate is to be made… [20] On the basis of the Court’s conclusion that an application for probate under rule 67(1) of the Probate Rules is required to ne made to the Registrar, this application is dismissed on the ground that a high court judge does not have the jurisdiction to grant probate under the Probate Rules at the initial stage. The judge may be called upon to make a determination on the question of who is entitled to a grant of probate, but not in the manner pursued by the Applicant.”19 Werner’s submissions

[49]As to whether the application must be made to the Registrar, Werner submitted that purely non-contentious applications by an executor for probate that entail nothing more than administrative processing must be directed to the Registrar as provided by rule 5. However, notwithstanding the explicit mandate under rule 5 to transmit applications to the Registrar, that rule must be read in light of the rules that follow, such as rules 8 – 16 which deal with what he referred to as administrative applications.

[50]He contended that one must look to rules 7(2) and 67 which provide guidance as to whom rule 67(1) applications are to be made. He pointed out that the active term used under those provisions is ‘the court’ which signifies that the application may be made to a high court judge who was empowered by rule 7(2) to entertain such an application. He submitted that the learned judge failed to appreciate this.

[51]He added that the stipulation under rule 5 for applications to be transmitted to the Registrar was not intended to apply to all applications under the NCPR and it certainly did not extend to rule 67(1) applications. He argued that the procedure under rule 67(1) applies exclusively to ‘inherently contentious’ or adversarial proceedings that may be initiated by someone other than an executor who has either not acknowledged a rule 66 citation or who has failed to apply for probate with reasonable diligence after acknowledging the citation.

[52]On Werner’s behalf, learned counsel Mr. Ferrer stated that similarly, rule 6 has no bearing on rule 67(1) but simply makes provision for administrative applications to be sent to the Registrar by the applicant’s attorney at law, the propounder of a will or by the proposed administrator in person.

[53]He argued that the requirement to give notice of a rule 67(1) application to the citee, signals that it is inherently contentious or at least likely to be, since it may be opposed. This he said, explains why rule 67(1) provides for the application be made ‘to the court’ as opposed to the Registrar as stipulated in rule 5. He noted further that ‘court’ is defined as ‘the Eastern Caribbean Supreme Court’. He reasoned that this implies that the intention was that such applications are to be heard and determined by a judge who exercises a judicial discretion and not by the Registrar who performs an administrative function. He contended that by failing to distinguish between administrative applications to the Registrar under rule 5 and contentious applications under rule 67(1) the learned judge erred in law and did not appreciate that rule 5 does not apply to applications under rule 67(1).

[54]Citing section 12 of the Eastern Caribbean Supreme Court (Virgin Islands) Ordinance,20 learned counsel stated that the learned judge compounded her error by not having regard to that provision. which states: “12. Any judge of the High Court may in accordance with rules of Court, or so far as such rules shall not provide, in accordance with the practice and procedure which shall for the time being be in force in the High Court of Justice in England, exercise, in Court or in Chambers, all or any of the jurisdiction vested in the High Court.”

[55]On the jurisdiction issue, he submitted that the judge’s reliance on the case of Dennis Donovan v Irene Donavan21 was misplaced since it is wholly inapplicable to the instant case on two counts. Firstly, she used it in support of a jurisdictional issue which was not in dispute at the November 2022 hearing. Secondly, in Donovan the application was not made under rule 67(1). He said that the judge should have distinguished the application in Donovan from the rule 67(1) procedure and should have found that Donovan supports the proposition that the Registrar is the appropriate officer to adjudicate administrative-type applications for probate by an executor, but not contentious applications under rule 67(1). Having not done so, she erred.

[56]Learned counsel contended further that rule 45 of the NCPR was another relevant provision that the learned judge should have considered because it provides for application to the ‘court in the first instance’ for the grant of letters of administration. He submitted that reference to ‘the court in the first instance’ should be interpreted as meaning to a single judge of the High Court as was done in Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al.22 Respondent’s submissions

[57]Dietrich countered that rule 5 is of general application under the NCPR and is applicable to all applications for grant of probate or letters of administration unless another rule provides otherwise, whether expressly or implicitly. He argued that rule 7 is also of general application and prescribes when and to whom applications for probate, letters of administration with or without will annexed are to be made. He argued that rule 7(2) puts beyond doubt that only the Registrar may entertain any such application under the NCPR. He relied on Dennis Donovan v Irene Donovan -.

[58]Dietrich submitted that the jurisdiction issue can be resolved by considering whether the instant proceedings are contentious or non-contentious. He reasoned that if the Court concludes that they are non-contentious, such a finding would demolish Werner’s argument that rule 67(1) applications are inherently contentious, and by extension his challenge to the learned judge’s finding on lack of jurisdiction.

[59]He argued that on a plain reading of rule 67, the citation procedure under the NCPR is intended to be inherently non-contentious. Further, that its primary purpose is to call on a person entitled to a grant, to act on that entitlement by taking steps to apply for a grant of probate with ‘reasonable diligence’. Highlighting the pre-2020 English practice as articulated in Tristram and Coote’s Probate Practice,23 he noted that rule 47 the equivalent provision in the English NCPR 1987, is similar in most respects to the BVI NCPR except that a deadline is stipulated in sub-rule (3) for an intermeddling executor to apply for probate. He pointed out that the English NCPR was amended in 2020 to allow for such applications to be made to a District Judge as an alternative to the Registrar.

[60]On Dietrich’s behalf, learned counsel Mr. Samuel stated that rules 65, 66 and 67 of the NCPR illustrate what are the aims of the citation procedure. Importantly, the procedure under rule 67(1) serves two purposes: firstly, it compels the persons primarily entitled to take the grant to decide whether they intend to do so; and secondly, it creates an avenue for an alternative grantee to apply for a grant where the primary ‘grantee’ renounces or refuses to apply. Additionally, rule 67(1) enables a person interested in the estate to cite an executor who has intermeddled in the estate to extract a grant.

[61]Learned counsel stated that having entered an appearance by acknowledging service of the citation, Dietrich was entitled to apply for a grant in Form P1 as illustrated by Re Stevens, Cooke v Stevens.24 He argued that by filing his application for probate Dietrich unequivocally expressed his intention to obtain a grant in accordance with the will. Consequently, the citation had been properly answered and having achieved its lawful purpose the citation process should have come to an end. Furthermore, Dietrich has not renounced his rights as executor. It was therefore not open to Werner to subsequently file a competing application for a grant of probate under the NCPR by relying on contentious grounds.

[62]He submitted that any contentious dispute arising after the probate application was filed, must first be resolved by determination of a probate claim in contentious proceedings under the CPR, before the appellant would become entitled to proceed with a competing application for a grant under the NCPR. Therefore, the judge was correct to conclude that she could not determine the rule 67(1) application in the manner pursued by Werner.

[63]Learned counsel submitted that CPR Part 68 deals with contentious probate business. He cited Halsbury’s Laws of England25 as authority. He contended that Werner made the rule 67(1) application contentious by contesting and putting in issue his suitability and right to obtain probate and by including seriously contested factual allegations of misconduct, mismanagement, misappropriation and extortion. He added that it is undesirable and wholly inappropriate for such disputed facts to be resolved under rule 67(1) and furthermore unlike the CPR, the NCPR simply does not contain the procedural and evidential safeguards required to efficiently and fairly dispose of such factual disputes at a trial.

Discussion

Depository

[64]In the court below, Dietrich made a novel argument that an application under rule 67(1) may only be made to the Registrar and never to the judge. It found favour at first instance. The opposing contentions focused then and now on to whom such an application is to be transmitted or addressed, thereby highlighting that the issue is really about the appropriate depository. I shall therefore refer to this as the ‘depository’ issue.

[65]Let me first clarify the apparent misunderstanding about the role of the Registrar as an officer and functionary of the court. It is a matter of law that not only does the Registrar carry out administrative functions, but the postholder is in fact a judicial officer and is authorised to perform certain judicial functions.

[66]Turning next to rule 67(1), it is immediately apparent that the rule does not state expressly whether the application under it may be made to the Registrar, the judge or other judicial officer. However, rules 5 and 7 shed light on how and to whom applications are to be made.

[67]They provide respectively: “5. An application for a grant of probate or letter of administration shall be made to the registrar of the court and shall be filed at the registry where all caveats, warnings, citations, acknowledgements of service and notices of application under these Rules shall be filed. 7. (1) An application under these Rules shall be made in the first instance to the court in Form P1 or Form P2, as the case may be. (2) Except where any enactment, rule or practice direction provides otherwise, the functions of the court may be exercised in accordance with these Rules and any direction made by (a) the Chief Justice; (b) a single judge; (c) a master; or (d) the registrar.” (Emphasis added)

[68]Rule 67(1) uses language similar to rule 7(1) It states: “67. (1) Where a person makes a citation under rule 66(1) and the citee has filed an acknowledgment of service but (a) has not applied for a grant under rule 66(7); or (b) has failed to proceed with his or her application with reasonable diligence; the citor may apply to the court on notice to the citee for a grant to himself or herself.” (Emphasis added)

[69]Sub-rules (2) and (3) of rule 67 are also relevant. They provide: “(2) Where the person makes a citation under rule 66(2) and the citee has filed an acknowledgment of service but (a) has not applied for a grant under rule 66(7); or (b) has failed to proceed with his or her application with reasonable diligence; the citor may apply to the court on notice to the citee for an order striking out the acknowledgment of service and that a note be made on the grant that (i) the executor in respect of whom power was reserved has been duly cited; (ii) that executor has not filed an acknowledgment of service; and (iii) his or her rights in respect of the executorship have wholly ceased. (3) Where the person makes a citation under rule 66(3) and the citee has filed an acknowledgment of service but (a) has not applied for a grant under rule 66(7); or (b) has failed to proceed with his or her application with reasonable diligence; the citor may apply to the court on notice to the citee for an order requiring the citee to take a grant within a specified time or for a grant to the citee or to some other person specified in the application.” (Emphasis added)

[70]It is instructive that rule 5 expressly stipulates that all applications for probate or grant of letters of administration must be made to the Registrar and be filed at the registry; while rules 7(1) and 67(1) provide respectively for ‘an application under the NCPR [to be] made in the first instance to the court’, and similarly one for a grant of probate to a citor to be made ‘to the court’.

[71]What is striking about these three rules, is that they speak to where the applications are to be sent. In other words, they deal with the depository for such applications, not which judicial officer is authorized to deal with them. Rule 7(2) on the other hand is the only rule that identifies the judicial officers who are empowered to determine applications filed under the NCPR, unless a contrary provision exists.

[72]Read in isolation rule 5 may suggest that the Registrar is the only judicial officer who may entertain and dispose of an application for a grant of probate. However, it must be read in context which is a sine qua non of statutory comprehension. This reveals that rule 5 merely provides for such applications to be directed to the Registrar and does not forbid an applicant from transmitting or addressing it to another judicial officer. Notably, it contains no prohibition against such application being made to another judicial officer and imposes no sanctions in such a case. Taking the legislative context into consideration lends operational perspective to the statutory framework and demonstrates that the Registrar and the court office in rules 5, 7(1) and 67(1) are identified as the depository of the documents while rule 7(2) names the possible adjudicators.

[73]It seems to me therefore that Dietrich’s reliance on Donovan v Donovan is misplaced. In that case, the learned judge opined: “[26] It seems to me that a High Court Judge only becomes involved in applications of this nature where there is a doubtful execution: see section (sic) 13 of the Probate Rules which states: “if on perusing the affidavit setting forth the facts of the case it appears doubtful whether the will has been duly executed, the Registrar may require the parties to bring the matter before a Judge in Chambers for his ruling thereon.” Of course, decisions of the Registrar in probate proceedings are subject to appeals to the High Court. No such situations have arisen here. [27] Therefore, at this initial stage, a Judge is not the proper judicial officer to deal with applications for Grant of Probate or Letters of Administration as is evident in section (sic) 3(1). Such applications must be made to the Registrar for her determination after making all the enquiries as stipulated in section (sic) 10. For these reasons, the 15 July 2009 Order ought to be set aside.’26 (Underlining added)

[74]It appears that the learned judge’s attention in Donovan v Donovan was not directed to rule- 5 or 7(2). Likewise, rule 67(1) was not under consideration. It is highly probable that having not considered rule 7(2) the judge did not realize that express provision is made in the NCPR for judicial officers other than the Registrar to determine applications for probate and letters of administration. In any case, it is trite law that a decision from the High Court on a point of law is not binding on the Court of Appeal. For those reasons, Donovan v Donovan does not assist Dietrich.

[75]Similarly, Re Stevens, Cooke v Stevens on which Dietrich relied, is a decision from a first instance court and this Court is not bound to follow it. More importantly, the ratio decidendi has no bearing on the issues under consideration by this Court. In that case, North J was called on to decide whether executors could be required to account for wilful default where they paid out estate interest before obtaining either probate or the proceeds of the testator’s insurance policy. The judge held that the executor who had accepted the office but did not prove the will would be liable to account and that he could not renounce probate. It does not appear that the judge was considering an equivalent rule to any of those under consideration in this matter. That decision is therefore not helpful for present purposes.

[76]The decision in Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al did not advance Werner’s case. It is distinguishable from the instant case because it was initiated by a fixed date claim in which the claimants sought various reliefs including an order ad colligenda bona appointing interim administrators and the appointment of a receiver. The learned judge summarized the case as follows: “[4] The dispute is about (i) the law governing the succession; (ii) whether the Estate falls to be distributed in accordance with the English will or in accordance with rules of intestacy in Belgium. A determination is sought of the Deceased’s place of domicile at the time of his death to determine which country and which person is entitled to carry out probate of the will or as the case may be the administration of the Estate in case of an intestacy.”27

[77]Recognizing that rule 45 of the NCPR makes express provision for the processing of applications for grants ad colligenda bona, he referred the matter to the Registrar with a specific direction as to whom the grant should be made and he stipulated that the usual papers be filed at the registry. He opined at paragraph 37: “[37] The court’s jurisdiction to make such an order is contained in the Eastern Caribbean (NonContentious Probate and Administration of Estates) Rules 2017. … In reality, on the facts of this case, rule 45 where the court can exercise its discretion in exceptional circumstances seems the only appropriate gateway.”

[78]To summarize, Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al does not illustrate that ‘court in the first instance’ in rule 67(1) means judge of the High Court as contended by Werner. It simply demonstrates that if a rule 45 application is made to a High Court judge by fixed date claim, the judge may entertain it. He may also in that action resolve any contentious proceeding regarding to whom the grant should be issued, as the judge did in that case.

[79]In the final analysis, when rules 5 and 7(2) are considered within the overall legislative context of the NCPR and in accordance with rules of interpretation, including the presumption against absurdity, it is clear that, rules 5 and 67(1) speak to the court and Registrar in the capacity of depository, while rule 7(2) deals with jurisdiction.

[80]But that is not the end of the matter. A major pillar of Werner Batista’s argument regarding to whom an application for probate is to be made has to do with whether proceedings under rule 67(1) are non-contentious or contentious. This is perplexing in view of his concession that his rule 67(1) application is contentious. Be that as it may, the key to the resolution of that sub-issue is an appreciation of the distinction between non-contentious and contentious probate business. The NCPR does not contain a definition of ‘non-contentious business or proceedings’. However, the CPR definition of ‘probate claim’ is instructive.

[81]‘Probate claim’ is defined at rule 68.1(2) as follows: ‘(2) In this Part – “probate claim” means a claim for the grant of probate of the will or letters of administration of the estate of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being a claim which is non- contentious or common form probate business.’ (Emphasis added)

[82]Halsbury’s Laws of England provides a working description of both contentious and non-contentious probate business. The learned authors explain: “Common form business consists of the obtaining of grants of probate and letters of administration where there is no contention as to the right to obtain them, including the passing of probates and administrations through the court in contentious cases when the contest is terminated, and all business of a non-contentious nature in matters of testacy and intestacy, not being proceedings in any action, and also the business of lodging caveats against the grant of probate or administrations. All other business of the court, except the warning of caveats is contentious.”28 This description is based on the UK Senior Courts Act Part V. 28 Halsbury’s Laws of England (Volume 102 (2021) para. 686.

[83]In this jurisdiction, although neither the NCPR nor the CPR defines, classifies or describes probate business expressly, historically, by practice and procedure the NCPR has been accepted and applied for purposes of non-contentious probate business. Undoubtedly, this tradition emanated and subsisted from the court practice prior to the establishment of the Eastern Caribbean Supreme Court.29 Moreover, the differentiation articulated in Halsbury’s Laws of England reflects the practice and procedure as codified in the local provisions of the NCPR and CPR.

[84]This leads to the question of whether a rule 67(1) application for grant of probate is inherently contentious. The clear language of the provision reflects that an application under that rule is permissible where a citation is issued under rule 66(1) and the citee has filed an acknowledgement of service but has not applied for a grant of probate; or has applied under rule 66(7) but is not prosecuting such application with alacrity.

[85]In either case, a citor who wishes to contest a grant of probate to the citee, must engage the probate arm of the court, by filing a rule 67(1) application under the NCPR. The circumstances in this case do not fit that scenario because Dietrich has acknowledged the citation and filed an application for probate. Werner’s complaint is not that Dietrich did not apply under rule 66(7) with dispatch following the citation, but rather that he had delayed in applying for the grant following the testator’s death.

[86]Significantly, rule 67(1) makes no provision for a citor to apply for a grant of probate if, following the citation, the citee has applied for a grant under rule 66(7) expeditiously and prosecutes it with reasonable diligence. The rules contemplate that in such a case, the registry will process and issue a grant to the citee on receipt of the relevant application for probate. The procedure is outlined in Tristram and Coote’s30 based on the equivalent UK NCPR rules.31

[87]A citor who desires to contest a grant to a citee in those circumstances is required to engage the probate division of the court in contentious proceedings under CPR Part 68, by filing and issuing a fixed date claim and a statement of claim or supporting affidavit. Such proceedings would be triggered not by the citee’s rule 66(7) application, or by a rule 67(1) application by the citor but rather by the institution of a probate claim under CPR Part 68. Werner sought to do this by filing a rule 67(1) application. This is problematic for him because he was thereby seeking to pursue CPR Part 68 contentious probate proceedings under the non- contentious regime in a manner not provided for under the NCPR generally or rule 67(1) specifically.

[88]On this point, the learned judge quite rightly adopted the learning from In re Jolley, dec’d, Jolley v Jarvis and Another32 where she quoted from the ruling of Danckwerts L.J. of the UK Court of Appeal that ‘non-contentious rules can only apply to non-contentious business’. It is to be noted that the holding was based on Section 175 of the UK Supreme Court of Judicature (Consolidation) Act 1925 which expressly differentiates between non-contentious and contentious probate business and has no parallel in the BVI. Willmer LJ made the observation that what Mr. Jolley was seeking to do under the rules governing non-contentions probate involved highly contentious probate proceedings under which he sought an order for the revocation of probate that was already issued to executors. Like Danckwerts LJ, Willmer LJ was resolute that this could not be done. That ratio decidendi is just as applicable in the case at the appeal bar.

[89]Notwithstanding the absence of a law akin to section 175 of the UK statute, the reasoning in Re Jolley is just as apt in this case and is inescapable when considered in light of the interplay between the BVI NCPR and CPR. In this regard, it is noteworthy that while the NCPR expressly provides that the CPR applies to non-contentious probate practice,33 the converse is not expressed. It follows that the procedures applicable under the NCPR in respect of non-contentious probate business are inapplicable for purposes of contentious probate proceedings under the CPR.

[90]For the foregoing reasons, I would find that Werner’s contention that rule 67(1) is inherently contentious runs contrary to judicial precedent and the practice and procedure in the probate division of the Supreme Court. I am satisfied that proceedings under the NCPR are non-contentious by nature while those under CPR 68 are contentious. Werner’s contention that his rule 67(1) application is non- contentious and must for this reason be made to the Registrar holds no merit.

[91]This analysis of the interplay between rules 3, 5, 7 and 67(1) of the NCPR and the distinction between contentious and non-contentious probate business demonstrate on the one hand, that the apparent ambiguity among the referenced rules as to the depository is contrived and not real; and on the other hand that the procedures under the NCPR were not intended to and cannot be transposed on the CPR track in the same way that procedures under the CPR may be transposed on the NCPR track as contemplated by NCPR rule 3. I would hold therefore that the learned judge erred by construing rule 5 as mandating that applications for the grant of probate under rule 67(1) must be made to the Registrar.

[92]On the issue of jurisdiction, subrule 7(2) expressly empowers all judicial officers throughout the court’s hierarchy (from the Registrar at the lower level to the Chief Justice at the apex) to execute any of the court’s functions relative to the determination of such non-contentious probate applications and to issue directions unless some law or practice direction provides otherwise.

[93]Another consideration is that there is nothing in the NCPR that expressly precludes a judge of the High Court from determining an application for the grant of probate under rule 67(1). Moreover, the appellant makes a compelling argument that a judge is so authorized by section 12 of the Supreme Court Act. In this regard, the law is pellucid.

[94]Additionally, it is commonly known that within the civil jurisdiction of the Supreme Court, a judge at times carries out judicial functions that are routinely performed by the Registrar or Deputy Registrar, even where the rules specify the Registrar as the authorized functionary. For example, a judge will at times conduct an oral examination of a judgment debtor under CPR rule 44.5 although the Registrar is the officer charged with doing so. No doubt, this is in recognition of the guidance enshrined in CPR rule 2.5 which is similar in language and effect to rule 7(2) of the NCPR.

[95]This suggests that the NCPR in general and rule 7(2) in particular contemplates that an application for probate under any of its provisions34 may be determined by the Registrar, a master or any judge of the Eastern Caribbean Supreme Court unless expressly provided for otherwise. As explained earlier, I would not interpret rule 5 of the NCPR as containing a contrary provision. Further, it is entirely irrelevant whether the application is being made by an executor, an administrator, an attorney at law, a citee or person otherwise so authorized.35 This interpretation reflects the draftsman’s intention, is in keeping with the legislative context and objective and conforms to long-established practice and procedure.

[96]For the foregoing reasons, I would hold that the learned judge was quite correct to take the entire legislative scheme into consideration and to consider rules 5, 7 and 8 when construing rule 67(1). However, in my view, she erred in law in holding that rule 67(1) applications for probate must be made to and be determined only by the Registrar. For those reasons, I would uphold grounds of appeal 1 and 2.

Abuse of Process or Improper Application

Appellant’s submissions

[97]I turn next to the abuse of process aspect of the appeal. It is Werner’s contention that the learned judge erred by holding that it was improper, inappropriate or an abuse of process to continue with his rule 67(1) application while proceedings were pending before the learned Registrar. Further, he submitted that she was wrong to find that rule 67(1) cannot be properly used where a citee has applied for a grant of probate and a dispute subsists between him and the citor regarding who should be granted probate. He argued that the scenarios described in rule 67(1) are separate and they allow a citor to apply for a grant where the citee delays in progressing his application.

[98]Werner reasoned that the learned judge was wrong to find that he should have discontinued the application and commenced a new process by caveat under the rules. In his opinion, she failed to consider the contentious nature of the rule 67(1) application and the prejudice that such an approach could cause to him, in view of Dietrich’s unreasonable delay in seeking a grant coupled with his opposition to the rule 67(1) application. He argued that this has resulted in a waste of time and costs; is not a judicious use of the court’s time and resources; and is contrary to the overriding objective to deal with cases justly. He submitted that the learned judge erred further by finding that he had provided no good reason why Dietrich’s application for probate should not be allowed to take its normal course and by failing to consider the merits of his application and his many reasons for filing it.

[99]Another error that he claimed was made by the learned judge was that she attached weight to the absence of any application or order to stay Dietrich’s application for a grant. He submitted that it was clear that the caveat he filed prevented Dietrich from proceeding with his application without first filing a warning. Therefore, even though no formal stay was in place, those circumstances effectively created one as at 10th November 2022 when the application was heard. Learned counsel argued that he would be further prejudiced by not having had a substantial determination of the rule 67(1) application sooner.

[100]Werner contended that the facts of this case take it outside of what constitutes abuse of process. Citing Attorney General v Walker36 and Hunter v Chief Constable of West Midlands Police and another37 he submitted that abuse of process has been described as ‘a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’. He cited Tower v Wills,38 Solland International Ltd and others v Clifford Harris and Co (a firm),39 Gravit v Doctor,40 David Phelps v Peter Button,41 Wallis v Valentine,42 McDonald’s Corporation v Steel43 and Consolidated Contractors International Company SAL v Masri (Bermuda)44 as further exemplifying how abuse of process is applied.

[101]He contended that his conduct is not comparable to the circumstances in the cited cases and his application represented the quickest, most cost-effective and efficient way of dealing with the matter. He argued that it was supported by voluminous evidence and in no way constituted an abuse of process. Respondent’s submissions [2000] EWHC 453 (Admin). [1981] 3 All ER 727; [1982] AC 529.

[102]Dietrich submitted that Jolley v Jarvis and Another is relevant as it makes clear that contentious matters arising from the citation procedure cannot be dealt with under the NCPR. On his behalf, learned counsel argued that the procedural abuse in the instant case is remarkably pronounced for several reasons that were taken into account by the learned judge. Firstly, Werner concedes that the matter is contentious. Secondly, he inappropriately invoked rules 66(1) and 67(1) where there has been intermeddling in the BVI estate. Thirdly, he did not carry out a timely search before applying for probate. Fourthly, he refused to withdraw the application even after being notified that Dietrich had filed an application for probate.

[103]Dietrich contended that the abuse of process is exacerbated by the inherent conflict in the rule 67(1) application. He submitted that this conflict arose because, by that process, Werner is seeking simultaneously to prevent Dietrich from being appointed formally as executor and attempting to hold him to account as executor to recover losses allegedly caused to the BVI estate through his alleged maladministration. Learned counsel argued that this is an irreconcilable posture that demonstrates Werner’s misconception of the citation procedure under rules 66(3) and 67(3), by which an intermeddling executor may be compelled to take probate and account to beneficiaries, and it constitutes a misuse of rule 67(1) which may be invoked merely to compel the taking of a grant simpliciter.

[104]He submitted that Werner would not have been prejudiced if he elected to withdraw his application under rule 67(1) because the citation proceedings would have proceeded, and he suffered no prejudice by the dismissal of his application. He argued further that by agreement of the parties the present proceedings are likely to crystallize into a contentious probate claim.

[105]Like his brother, Dietrich relied on Hunter v Chief Constable of West Midlands. He argued that the court is imbued with power to prevent misuse of its process that would result in manifest unfairness to one party or that would otherwise bring the administration of justice into disrepute. He submitted that the instant application is an abuse of the court’s process because it attempts to misuse the citation procedure to commence an application for probate, a purpose that the legislature did not intend and one that would usurp the nature and purpose of the citation procedure. He cited Myrna Norde v Jacqueline Mannix,45 Castanho v Brown & Root and Another,46 Re Majory v F. A. Dumont LD47 and Jolley v Jarvis and another.

[106]Learned counsel argued that Werner’s insistence to continue with his application under the NCPR after being informed that Dietrich had applied for a grant of probate was a prime example of the type of abuse discussed in Castanho v Brown. He added that Werner’s amendment of the application was aimed at correcting his blatant and egregious error in not conducting a registry search before filing it and his failure to file a claim under CPR Part 68 as exemplified by In the Estate of Enrico Julian.48 Discussion

[107]The parties quite correctly noted that the concept ‘abuse of process’ is not restricted to a limited range or set of circumstances, but rather is applicable in countless scenarios that would justify a court in exercising its inherent discretion to prevent misuse of and to control its process. It has been said that the possible ‘varieties of abuse of process are only limited by human ingenuity’.49

[108]More recently, in Hunter, the House of Lords described the type of circumstances that would justify the application of the abuse of process classification and attract appropriate censure by the court in accordance with its duty and established principles. Lord Diplock opined: “My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied;...It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.”50 (Emphasis added)

[109]I keep those principles firmly in mind and am guided by them as I review the learned judge’s determination on the issue of abuse of process. Essentially, the learned judge concluded that it was highly improper and/or an abuse of the court’s process and resources to continue with the rule 67(1) application while there were earlier proceedings pending before the Registrar in which Werner could advance the very objection and arguments on which he relies in the present proceedings. She concluded that in the absence of an application or order staying them, it is proper to allow the caveat proceedings to advance in accordance with the NCPR.

[110]Here again, Re Jolley is instructive. In the words of Lord Willmer: “… it seems to me that procedure by way of motion under rule 47 of the Non-Contentious Probate Rules, 1954, is quite inappropriate to the situation in the present case… … it seems to me quite impossible to say that the situation with which we are here dealing is one to which the non-contentious rules apply and, therefore, proceedings under rule 47 (2) of the Non-Contentious Probate Rules, 1954, appear to be wholly inappropriate.”51

[111]In Re Majory, the English Court of Appeal had this to say as to the consequences of utilizing an inappropriate or improper originating process for purposes other than those for which they were designed or in circumstances that would confer a benefit on the applicant: “…court proceedings may not be used … for the purpose of obtaining for the person so using … them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using … proceedings will be liable to be held guilty of abusing the process of the court, and, therefore, disqualified from invoking the powers of the court by proceedings he has abused.”52 Re Jolley and Re Majory are compelling authoritative precedents that support the learned judge’s determination on this point.

[112]As illustrated in Hunter v Chief Constable of West Midlands abuse of process arises where the court’s process is being used or manipulated for a purpose that is manifestly different from its ordinary and proper use. The learned judge’s rationale for holding that Werner’s application was an abuse of the court’s process was based on what she considered to be an unnecessary duplication of processes with the same objective. She reasoned that no prejudice would be occasioned to Werner if his application was discontinued and further it would lead to less of the court’s resources being deployed to address the issues that arise for determination. She was clearly of the view that it was manifestly unfair for Werner to be permitted to persist with his application in those circumstances. In my opinion, she cannot be justifiably criticized for so concluding.

[113]It seems to me that the learned judge took into account the applicable legal principles and all relevant matters in arriving at this conclusion. In the exercise of her discretion, I am satisfied that she did not err in principle or make a decision that is blatantly wrong. I would not interfere with it and would therefore dismiss ground of the appeal number 3.

Refusal to decide to whom probate should be granted

Appellant’s submissions

[114]The thrust of Werner’s fourth ground of appeal is that the learned judge erred by not deciding who should be granted probate. He submitted that she was wrong in finding that she could not make such a determination because of the way he pursued the matter. He argued that in view of section 12 of the Supreme Court Act, she had wide discretion to entertain his application and would have come to that conclusion had she taken that provision into account.

[115]Another line of argument pursued by Werner was that even if the application was somehow flawed, the judge should have found that it was in the interests of justice to determine who was entitled to be granted probate and she should have given directions regarding the proper procedure to be followed to obtain such a grant. He reasoned that contrary to the overriding objective, the judge failed to have regard to the significant time and cost expended by the parties in preparing evidence and other documentation. Further, even if she was resolute that she did not have jurisdiction, she could have remitted the matter to the registrar with a direction as to which one of them should be granted probate. For this proposition, he relied once more on Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al.

Respondent’s submissions

[116]Dietrich countered that Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al is distinguishable from the present case because it was started by a fixed date claim. He reiterated that Werner’s insistence on using the NCPR to advance a contentious matter is wrong in principle and this argument does not assist him. He cited Texan Management Limited et al v Electric Wire & Cable Company Limited53 where the Board held that it would be wrong to exercise the court’s inherent jurisdiction by adopting a different approach to the one prescribed in order to arrive at a different outcome than would be permissible through the application of the rules.

Discussion

[117]As indicated earlier, the practice and procedure in the court with respect to the uncontested grant of probate is settled, is inherently a non-contentious process and is governed by the NCPR. Constituting as it does a contentious dispute, Werner’s rule 67(1) application could in no way be considered an application for non-contentious probate.

[118]Congruent with the learning in Texan Management Limited, ‘although the inherent jurisdiction may supplement rules of court, it cannot be used to lay down procedure which is contrary to… them’. Accordingly, the learned judge could not in the circumstances of this case, ignore the prescriptions of the legislated procedure under the NCPR, and invoke the court’s inherent jurisdiction and the overriding objective of the CPR to justify processing the application as a fixed date claim under CPR part 68 and determining who should be granted probate when the NCPR and CPR dictated otherwise.

[119]Furthermore, the decision in Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al does not assist Werner for two reasons. Firstly, in that case, a claim involving non-contentious and contentious probate matters was filed under CPR 68 and was properly adjudicated in accordance with that regime. However, as mandated by the NCPR, aspects of the proceeding had to be processed under those provisions and were accordingly transferred to the non- contentious probate arm of the Probate division, not by deeming the Fixed Date Claim to be properly filed under the NCPR but by mandating that the non- contentious application be commenced in the probate registry using the applicable forms, supporting documentation54 and procedures.

[120]The referral of that application to the Registrar gave effect to the procedure stipulated by the NCPR. This was necessary not because the judge could not dispose of the application but evidently because the relevant forms and documentation were not before him. The direction regarding to whom the grant was to be issued emanated from the contentious element of the claim and constituted the judge’s determination of that dispute. That case is therefore distinguishable from the case at the appeal bar. The procedure adopted by the learned judge in Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al could not be transposed onto the circumstances in the instant case in the absence of the issuance of a fixed date claim form which is required for contentious proceedings.

[121]In all the circumstances, the learned judge in the case at the appeal bar did not err in law either in refusing to determine which Batista brother should be granted probate; or by not referring the application to the Registrar with directions as to which of them should be granted probate. In arriving at her determination she took into account all of the relevant legal principles and factual matters and did not rely on any irrelevant considerations. She did not err in principle and did not make a determination that was blatantly wrong. I would not disturb her ruling and would dismiss ground 4 of the appeal.

Case management powers and procedural irregularities

Appellant’s Submissions

[122]Werner took issue with the learned judge’s refusal not to use her case management powers to rectify his error in commencing a contentious probate claim by a rule 67(1) application. He argued that the judge erred in law by failing to find that rule 3 of the NCPR came into force after CPR rule 2.2(3) and therefore superseded it, so that any inconsistency between them was immaterial. He maintained that his rule 67(1) application was correctly commenced, the learned judge erred in finding otherwise and this led her to erroneously conclude that the case management powers under CPR 26.1(2)(w) and 26.9 were not engaged.

[123]He contended further that since Forms P1 and P2 were prescribed to be used, the NCPR envisages that a rule 67(1) application may be commenced without using a Fixed Date Claim Form. Consequently, the judge should have considered that the use of the application process was essentially a procedural irregularity in initiating a contentious proceeding and because the CPR is applicable to non-contentious proceedings she was empowered to use her case management powers to correct the form.

[124]He contended that Reniston Ltd. v Nedland Overseas Inc.55 and Intrust Trustees (Nevis) Limited et al v Naomi Darren56 are authority for the proposition that a trial judge is entitled to exercise her discretion under CPR 26.9(3) to put things right where a claimant commences proceedings by an incorrect form. In both cases, the court applied CPR 26.9 to regularize the originating process. In the former, the claimant had filed a Fixed Date claim and not a regular claim as required and the converse happened in the latter. The court in Intrust Trustees remarked: “To sacrifice substance by way of slavish adherence to form for the purpose of defeating a genuine claim defeats the overriding objective of CPR rather than gives effect to it.”57

[125]Werner also cited Broad Idea International v Convoy Collateral.58 He submitted that had the learned judge considered whether she could deploy her case management powers to regularize the originating process, she would have ruled that it was appropriate and in the interest of justice to make such an order. Alternatively, she could have invoked the court’s inherent jurisdiction to put things right. In support, he cited Halsbury’s Laws of England where the learned authors explained: “In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.”59 Respondent’s submissions

[126]Dietrich countered that the procedural blunders made by his brother could not be cured by transforming Form P2 under the NCPR into a Fixed Date Claim Form under the CPR. He submitted that the ratio decidendi in Broad Idea is not applicable in this case because it is irrelevant to the issues at hand. In this regard, he noted that the legal principle to be extracted from Broad Idea is that the Court may grant free standing interim freezing orders and other interim injunctions in aid of foreign proceedings in the absence of a substantive claim; and those principles are not pertinent for present purposes.

Discussion

[127]The impugned determination by the judge is set out in paragraph 25 of her decision. She ruled simply: “The failure of the Applicant to commence this admittedly contentious matter properly is by no means a mere procedural irregularity that can be dealt with under rr. 26.1(2)(w) or 26.9 of the CPR. The Applicant has filed these proceedings under the Probate Rules, not under CPR. For these reasons, the authorities the Applicant relies on … to put things right do not assist. The Court therefore dismisses this application on this additional ground.”

[128]The appellant’s posture in relation to this issue is grounded like others in his apparent misunderstanding of the distinction between contentious and non- contentious probate proceedings. As explained earlier, each of those proceedings is designed to follow different routes. The NCPR deals with routine proceedings that usually do not require oral evidence and do not involve disputes, whereas the CPR 68 contentious probate procedure necessitates a trial (even if only in a summary way) to resolve a dispute between two or more parties.

[129]Form P1 or P2 are prescribed for use in a rule 67(1) application.60 Both of them are very simple and elicit limited details about the applicant such as his name, address, occupation, the estate concerned and the nature of the relief sought, be it a grant of probate and/or directions. The Fixed Date Claim Form under the CPR is more detailed and at the very least requires the names of the claimant and defendant, the relief sought, and it must be accompanied or supplemented by a statement of claim or affidavit evidence.

[130]The difficulty for Werner is that the rule 67(1) application that he made is essentially a contentious matter and can be pursued only as a contentious proceeding and not as a non-contentious matter. As already explained, such an application cannot be accommodated under rule 67(1) because it is contentious. Having conceded as much, Werner cannot be heard to say that he can invoke the non-contentious rules to initiate a contentious proceeding. Having utilized the incorrect procedure, he is bound to it and cannot transfer his application to the CPR track without filing a fixed date claim form under Part 68. The Court in Re Jolley makes this point forcefully and I adopt - its reasoning and conclusion.

[131]In the premises, the learned judge was being invited to apply the CPR rules to an application that was incorrectly conceived and formulated and in relation to which no legal or other justifiable basis existed for it to be made under the NCPR. As submitted by Dietrich Broad Idea does not assist Werner because the learning is not applicable. Further, Reniston and Intrust Trustees would not assist Werner because the applications in those matters were in the case of the former, one to a change from a fixed date claim to a regular claim; and in the latter was characterized as either a clerical error or procedural irregularity. Both of those matters are routinely addressed under the court’s CPR case management powers and are substantially different from the circumstances that presented themselves in the instant case.

[132]For those reasons, the learned judge’s refusal to put things right pursuant to the court’s inherent jurisdiction cannot be faulted in law. It was an exercise of discretion based on her evaluation of the factual and legal circumstances. She was entitled to hold as she did. I perceive no failure on her part to consider any relevant factor or pertinent legal principle. It cannot be said that her decision is plainly wrong. Accordingly, I would not interfere with her determination and would dismiss the 5th ground of appeal.

Prescribed or Assessed Costs

[133]Werner’s final criticism of the judgment relates to the costs award. The learned judge dealt with the issue of costs very succinctly. She did not provide reasons for her decision. At paragraphs 27 and 28 of the judgment, she stated: “[27] The Applicant shall pay the Respondent’s costs of this application to be assessed, if not agreed. [28] It is therefore ordered as follows: 1. … 2. The Applicant shall pay the Respondent’s cost (sic) of the application, to be assessed if not agreed.” Appellant’s Submissions

[134]Werner submitted that by awarding costs to be assessed the judge applied the wrong costs regime, failed to consider that the substantive issues in dispute have not yet been resolved, and formed the view inappropriately that the issues in dispute could be resolved in Dietrich’s probate application. He argued that costs should have been awarded under the prescribed costs regime because the rule 67(1) application was a claim to which no monetary value had been affixed. He submitted that the proceeding should therefore have been treated either as a claim for US$50,000.00 under CPR rule 65.5(2)(b) or one for a value that could have been agreed by the parties or stipulated by the court in accordance with CPR rule 65.5(2)(a).

[135]He contended that the parties were not invited to make submissions on costs and the judge should have either given directions for the filing of further submissions on the matter, or ordered that the issue of costs be reserved for determination following the outcome of the substantive probate action.

Respondent’s Submissions

[136]Dietrich argued that to ensure the fair and proper administration of justice it was within the Court’s inherent jurisdiction to make an order for costs that was reasonable and proportionate to the circumstances of the case. He contended that notwithstanding Werner’s procedural blunders, the parties had submitted to the jurisdiction of the Court to make orders in personam against them.

[137]He submitted that the judge made a final decision by dismissing the application and was entitled to determine costs liability between the parties. In these circumstances where the Court dealt with volumes of evidence, primary and supplemental submissions and held a 1-day hearing, it would be fanciful to suggest that the manner in which the Judge exercised the court’s discretion in relation to costs was blatantly wrong.

[138]He submitted further that there are settled authorities within the jurisdiction where the High Court has confirmed that a judge has a wide discretion as to the costs in probate actions, and they do not restrict the parties to prescribed costs. Further, the award should be upheld since the costs incurred in relation to the Rule 67 application would not be recoverable in the contentious probate claim.

Discussion

[139]This ground of appeal brings into sharp focus the importance of and rationale for giving litigants an opportunity to make representations in relation to an issue in dispute even if it is about costs. Regrettably, the learned judge made the costs order without the benefit of submissions by the parties on the issue. This was compounded by her failure to state the reasons why she made the costs order.

[140]I remind myself that the award of costs arises from the exercise of discretion. An appellate court’s reluctance to disturb such a ruling has been the subject of judicial pronouncement in this court. The principle was expressed by Lord Woolf M.R. in AEI Rediffusion Music Limited v Phonograhic Performance Ltd61 as follows: “It was correctly accepted by the judge that his right to interfere with the tribunal decision on costs was constrained in the same way that this court’s discretion is constrained in relation to decisions of judges of first instance.”62

[141]Likewise, it is well-established that the failure to give parties a chance to make representation runs counter to procedural fairness and principles of natural justice and would invalidate a determination. This Court has pronounced on the necessity of affording affected persons an opportunity to be heard before a determination is made as to their rights or interests. The decisions in Webster Dyrud Mitchell (A Partnership) et al v Jenny Lindsay63 and Patricia Ann Huggins v Lloyd Browne64 make the point that as a matter of procedural fairness, a judge must hear from the parties before making a costs order. Failure to do so infringes the principles of natural justice and is fatal. In the premises, it falls to this Court to exercise that discretion at this level. I would accordingly allow the sixth ground of appeal limited to the issue of lack of procedural fairness.

Prescribed costs or assessed costs

[142]The principles on which the Court will make an award as to costs are settled. They have been rehearsed from time to time by this Court. The award of costs is a matter of discretion for the judge making the order. The discretion must be exercised judicially and in furtherance of the overriding objective of the CPR to do justice between the parties.

[143]The first consideration is whether the costs regimes under the CPR are applicable to proceedings commenced under the NCPR. Rule 3 of the NCPR answers that question in the affirmative.

[144]Under the CPR, several costs regimes are specified in Parts 64 and 65. Prescribed costs are dealt with in 65.5 and assessed costs are covered by CPR rules 65.11 and 65.12.

[145]The relevant portion of CPR 65.5 provides: “65.5 (1) The general rule is that where rule 65.4 does not apply and a party is entitled to the costs of any proceedings, those costs must be determined in accordance with … paragraphs (2) to (4) of this rule. (2) The “value” of the claim, whether or not the claim is one for a specified or unspecified or unspecified sum, coupled with a claim for other remedies is to be decided in the case of the claimant or defendant – (a) by the amount agreed or ordered to be paid; or if the claim is for damages and the claim form does not specify an amount that is claimed, such sum as may be agreed between the party entitled to, and the party liable to, such costs or, if not agreed, a sum stipulated by the court as the value of the claim; …” (underlining added)

[146]CPR rules 65.11(1) and 65.12(2) provide respectively: “Assessed costs – procedural applications 11(1) On determining any application except at a case management conference, pre-trial review or the trial, the court must – (a) decide which party, if any, should pay the costs of that application; (b) assess the amount of such costs; and (c) direct when such costs are to be paid. Assessed costs – general 65.12(1) This rule applies where costs fall to be assessed in relation to any matter or proceedings, or part of a matter or proceedings, other than a procedural application.” (underlining added)

[147]From the language used in the referenced rules, it is readily apparent that the prescribed costs regime applies exclusively to claims, while the assessed costs regime is applicable to applications. Rule 65.12 merely sets out the procedure and the quorum for assessing costs.

[148]This brings me to the question of whether the rule 67(1) application was a claim or an application. Rule 2.4 describes both terms. Rules 8.1 and 11.2 are also engaged. They provide respectively: “2.4 In these Rules, unless otherwise provided for or the context otherwise requires – “application” has the meaning given in rule 11.2; “claim” is to be construed in accordance with Part 8;’ and (underlining mine) … 8.1 (1) A claimant starts proceedings by filing in the court office the original and one copy (for sealing) of – (a) the claim form; and (subject to rule 8.2) (b) the statement of claim; or I if any rule or practice direction so requires – an affidavit or other document. …’, and … 11.1 This Part deals with applications for court orders made before, during or after the course of proceedings. 11.2 In this Part – “applicant” means a person who seeks a court order by making an application;”

[149]Those rules reflect that a claim is a civil proceeding that is commenced by a claim form (whether regular or fixed date) while an application is begun by a notice of application. This means that prescribed costs is the proper award in proceedings that are initiated by claim form while assessed costs are awarded in respect of applications.

[150]The case at the appeal bar was not begun by claim form or fixed date claim form. It was initiated by application under rule 67(1) of the NCPR and before a claim was filed. It can only be classified as an application made before proceedings akin to those made under rule 11.1 of the CPR. It matters not that it was not begun by notice of application in Form 6 under the CPR. It required the attention of the judge and was heard by her. It was not an application that could have been dealt with at case management, pre-trial review or consequentially at trial.

[151]The assessed costs regime under CPR rule 65.11 is therefore applicable and in keeping with the general rule the successful party would be entitled to his costs. Werner’s complaint that the judge erred by applying the incorrect rule is not made out. Her errors were the failure to seek submissions and to indicate the reasons for the award as contended by Werner.

[152]While he has succeeded on this ground, it is only a partial victory simply because the end result is commensurate with the rules. I would find therefore that the learned judge quite properly utilized the assessed costs regime and was not clearly wrong in so doing. I would allow ground of appeal No. 6 only to the extent that the judge failed to invite submissions on the issue of costs. However, for the reasons articulated in this judgment, I would order that Werner pays costs to Dietrich to be assessed if not agreed in relation to the proceedings before her in the High Court. This effectively affirms the learned judge’s award.

Costs

[153]The parties have each had a measure of success on appeal and there is no outright winner. It is just therefore to order that each party bears his own costs.65 Disposition

[154]For the foregoing reasons, the appeal is upheld in part. (1) I would therefore refuse the fresh evidence application. (2) I would uphold the appeal against the learned judge’s order that applications for probate under rule 67(1) of the NCPR may be made only to the Registrar and must be determined by the Registrar. (3) I would dismiss the appeal against the learned judge’s ruling that it was improper and/or an abuse of process and/or otherwise inappropriate to continue with the rule 67(1) application; against her refusal to determine to whom probate should be issued; and against her refusal to deploy case management powers to correct perceived defects in the rule 67(1) application. (4) I would uphold the appeal against the costs award in part; and affirm the learned judge’s costs award. (5) I would order that each party shall bear his own costs of the appeal.

[155]I am grateful for the assistance provided by learned counsel on both sides. I concur. Mario Michel Justice of Appeal I concur.

Robert Levy

Justice of Appeal [Ag.]

By the Court

Chief Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL TERRITORY OF THE VIRGIN ISLANDS BVIHCVAP2022/0015 BETWEEN: WERNER FUHRKEN BATISTA Appellant and DIETRICH FUHRKEN BATISTA Respondent Before: The Hon. Mr. Mario Michel Justice of Appeal The Hon. Mde. Esco L. Henry Justice of Appeal [Ag.] The Hon. Mr. Robert Levy KC Justice of Appeal [Ag.] Appearances: Mr. Peter Ferrer for the Appellant Mr. Jerry Samuel and Ms. Allana-J Joseph for the Respondent ____________________________ 2023: May 26; 2024: January 18. ____________________________ Interlocutory appeal – Application to adduce fresh evidence – Principles in Ladd v Marshall – Eastern Caribbean Supreme Court (Non-contentious Probate and Administration of Estates) Rules 2017 – Role of the Registrar – Whether the learned judge erred in finding that all applications for probate are to be made to the Registrar and that rule 67(1) confers exclusive jurisdiction on the Registrar to entertain and dispose of such applications, to the exclusion of a judge of the High Court – Contentious probate proceedings – Costs – Whether the learned judge erred in failing to give the parties an opportunity to be heard on the issue of costs – Assessed costs Mr. Eliezer Batista da Silva died testate in Brazil on 18th June 2018. In his Last Will and Testament, he appointed his son Dietrich Fuhrken Batista as Executor and Administrator, in his absence Helmut Fuhrken Batista and in Helmut’s absence, Werner Fuhrken Batista, preference to be given to the one who resides in Rio de Janeiro. At the material times, Werner resided in Florida, USA, while Dietrich resided in Rio de Janeiro. A few months after his father’s death, Dietrich Batista applied for probate of the will in Brazil. He subsequently learned that he had to apply separately in the BVI for probate of the BVI portion of the estate. For over 2 years he took no steps to do so. On 24th March 2021, his brother Werner Batista caused a citation to be issued by the BVI Court under rule 66 (1) of the Eastern Caribbean Supreme Court (Non-contentious Probate and Administration of Estates) Rules 2017 (“the NCPR”) to compel him to accept or refuse the grant. It was served on him on 22nd February 2022. Helmut Batista had in the meantime renounced his right to apply for probate and consented to Werner being appointed executor in place of Dietrich Batista. On 21st March 2022, Dietrich Batista filed an acknowledgement of service to the citation and indicated his intention to apply for probate. Werner Batista conducted a probate search on 26th May 2022 and discovered that Dietrich Batista had not yet applied for probate. Soon after, on 7th June 2022, Dietrich Batista applied to the Registrar of the High Court for probate under rule 67(1) of the NCPR. Without performing a further search Werner Batista filed the instant application on 24th June 2022, under rule 67(1) seeking permission of the High Court judge to apply for a grant of probate of his father’s estate. On 24th June 2022, Dietrich Batista learned of his brother’s application and immediately notified him that he had already applied for probate. He asked Werner Batista to discontinue and withdraw his application. Werner Batista refused and by email dated 13th July 2022 from his solicitors, signalled his intention to proceed with his application. He filed a further caveat on 22nd July 2022 against the issue of a grant to Dietrich Batista. When his application came on for hearing before the learned judge it was opposed by Dietrich Batista. It was common ground between the brothers that the resulting dispute and the competing nature of the applications rendered Werner Batista’s rule 67(1) application a contentious probate proceeding. The learned judge issued directions (“the directions order”) on 25th July 2022 for the hearing of Werner Batista’s application. By joint application on 23rd September 2022, the parties proposed changes to the directions order. They agreed that permission should be granted to Werner Batista to file an amended application for a grant of probate in place of his application for permission. The Court gave him leave to file the amended application in terms of the exhibited draft. He did so. The parties were also directed to file supplemental affidavit evidence. The hearing of the amended application proceeded on 30th November 2022. By decision rendered that day, the judge dismissed Werner Batista’s application and awarded costs to Dietrich Batista, to be assessed if not agreed. She held that an application under rule 67(1) of the NCPR must be made to the Registrar; that a High Court judge does not have the jurisdiction to grant probate under the NCPR at the initial stage; and that it is highly improper and/or an abuse of the court’s process and resources for Werner to continue the present application while proceedings are pending before the Registrar for grant of probate. She held further that the court could not use its case management powers under CPR 26.1(2)(w) or 26.9 to put matters right, and thereby treat the rule 67(1) application as a claim under CPR Part 68. Being dissatisfied with the decision of the learned judge, Werner appealed and 5 main issues fell to be determined by this Court: (1) Whether Werner Batista should be granted leave to adduce a Brazilian judgment dated 25th November 2022 and a Brazilian ruling as fresh evidence in the appeal; (2) Whether the learned judge erred by misinterpreting and/or misapplying rule 67(1) of the NCPR, and as a result concluded erroneously that the rule – (a) mandates that all applications for probate are to be made to the Registrar; (b) confers exclusive jurisdiction on the Registrar to entertain and dispose of such applications, to the exclusion of a judge of the High Court; (3) Whether the learned judge erred in law or fact by finding that it was improper and/or an abuse of process and/or otherwise inappropriate to continue with a rule 67(1) application and by refusing to consider to whom probate should be granted; (4) Whether the learned judge erred in law or fact by holding that the initiation of contentious proceedings under the NCPR is not a mere procedural irregularity that can be dealt with under the court’s case management powers under CPR. 26.1(2)(w) or 26.9; and (5) Whether the learned judge erred in law by awarding costs to Dietrich Batista to be assessed if not agreed. Held: allowing the appeal in part, and making the orders set out at paragraph 154 below, that:

[1]HENRY JA [AG.] This interlocutory appeal raises procedural questions as to whether an application for a grant of probate under rule 67(1) of the Eastern Caribbean Supreme Court (Non-contentious Probate and Administration of Estates) Rules 2017 (“the NCPR”) must be made to the Registrar of the High Court (“the Registrar”) – as opposed to a High Court judge; and whether under the NCPR a judge has jurisdiction to entertain and dispose of such an application. Factual Background

2.Rule 5 of the NCPR expressly stipulates that all applications for probate or grant of letters of administration must be made to the Registrar and be filed at the registry; while rules 7(1) and 67(1) provide respectively for ‘an application under the NCPR [to be] made in the first instance to the court’, and similarly one for a grant of probate to a citor to be made ‘to the court’. These three rules speak to where the applications are to be sent. In other words, they deal with the depository for such applications, not which judicial officer is authorized to deal with them. Read in isolation rule 5 may suggest that the Registrar is the only judicial officer who may entertain and dispose of an application for a grant of probate. However, it must be read in context which is a sine qua non of statutory comprehension. This reveals that rule 5 merely provides for such applications to be directed to the Registrar and does not forbid an applicant from transmitting or addressing it to another judicial officer. Notably, it contains no prohibition against such application being made to another judicial officer and imposes no sanctions in such a case. When the aforementioned rules are considered within the overall legislative context of the NCPR and in accordance with rules of interpretation, including the presumption against absurdity, it is clear that, rules 5 and 67(1) speak to the court and Registrar in the capacity of depository, while rule 7(2) deals with jurisdiction. Dennis Donovan v Irene Donavan BVIHCV2009/0058 (delivered 31st March 2010, unreported) distinguished; Re Stevens, Cooke v Stevens 1894 S. 1752 distinguished; Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al BVIHC(COM) 134 of 2018 (delivered 25th October 2018, unreported) distinguished.

[2]The underlying dispute arose between two brothers, Werner Fuhrken Batista and Dietrich Fuhrken Batista, with respect to the administration of their deceased father Eliezer Batista da Silva’s estate. Their father died testate in his native Brazil on 18th June 2018. In his Last Will and Testament, he appointed his son Dietrich Fuhrken Batista as Executor and Administrator, in his absence Helmut Fuhrken Batista (another son) and in Helmut’s absence, Werner Fuhrken Batista, preference to be given to the one who resides in Rio de Janeiro. At the material times, Werner resided in Florida, USA. Dietrich lives in Rio de Janeiro.

[3]The testator bequeathed his entire estate to his seven children in equal shares. A sizeable part of the estate comprises shares in Kaku Management Corporation Limited (“Kaku”), a BVI company, whose main asset is an investment bank account in Switzerland.

[4]A few months after his father’s death, Dietrich Batista applied for probate of the will in Brazil. He subsequently learned that he had to apply separately in the BVI for probate of the BVI portion of the estate. For over 2 years he took no steps to do so. On 24th March 2021, his brother Werner Batista caused a citation to be issued by the BVI Court under rule 66 (1) of the NCPR to compel him to accept or refuse the grant. It was served on him on 22nd February 2022. Helmut Batista had in the meantime renounced his right to apply for probate and consented to Werner being appointed executor in place of Dietrich Batista.

[5]On 21st March 2022, Dietrich Batista filed an acknowledgement of service to the citation and indicated his intention to apply for probate. Werner Batista conducted a probate search on 26th May 2022 and discovered that Dietrich Batista had not yet applied for probate.

[6]Soon after, on 7th June 2022, Dietrich Batista applied to the Registrar of the High Court for probate under rule 67(1) of the NCPR. Without performing a further search Werner Batista filed the instant application on 24th June 2022, under rule 67(1) seeking permission of the High Court judge to apply for a grant of probate of his father’s estate.

[7]On 24th June 2022, Dietrich Batista learned of his brother’s application and immediately notified him that he had already applied for probate. He asked Werner Batista to discontinue and withdraw his application.

[8]Werner Batista refused and by email dated 13th July 2022 from his solicitors, signaled his intention to proceed with his application. He filed a further caveat on 22nd July 2022 against the issue of a grant to Dietrich Batista. When his application came on for hearing before the learned judge it was opposed by Dietrich Batista. It is common ground between the brothers that the resulting dispute and the competing nature of the applications has rendered Werner Batista’s rule 67(1) application a contentious probate proceeding.

[9]The learned judge issued directions (“the directions order”) on 25th July 2022 for the hearing of Werner Batista’s application. By joint application on 23rd September 2022, the parties proposed changes to the directions order. They agreed that permission should be granted to Werner Batista to file an amended application for a grant of probate in place of his application for permission. The Court gave him leave to file the amended application in terms of the exhibited draft. He did so. The parties were also directed to file supplemental affidavit evidence.

[10]Hearing of the amended application proceeded on 30th November 2022. By a decision rendered that day, the judge dismissed Werner Batista’s application and awarded costs to Dietrich Batista, to be assessed if not agreed. She held that an application under rule 67(1) of the NCPR must be made to the Registrar; that a High Court judge does not have the jurisdiction to grant probate under the NCPR at the initial stage; and that it is highly improper and/or an abuse of the court’s process and resources for Werner to continue the present application while proceedings are pending before the Registrar for grant of probate. She held further that the court could not use its case management powers under CPR 26.1(2)(w) or 26.9 to put matters right, and thereby treat the rule 67(1) application as a claim under CPR Part 68.

[11]Werner is dissatisfied with the decision. On 14th December 2022, he filed an application for leave to appeal and for permission to adduce and rely on new evidence in the appeal. By order of Price-Findlay JA dated 31st January 2023, he was granted leave to appeal the learned judge’s orders. His application for permission to adduce fresh evidence was adjourned for consideration by the Full Court.

[12]By Notice of Appeal filed on 20th February 2023, Werner Batista advanced six grounds of appeal: (1) The learned judge erred in finding that an application under rule 67(1) of the NCPR must be made to the Registrar. (2) The learned judge erred in finding that a High Court judge does not have jurisdiction to grant probate pursuant to that Rule. (3) The learned judge erred in finding that it was improper and/or an abuse of process and/or otherwise inappropriate to continue with a rule 67(1) application. (4) The learned judge erred in refusing to consider the issue of who should be granted probate. (5) The learned judge erred in finding that the court’s case management powers could or should not be used to correct any procedural irregularities or perceived defects; and (6) The learned judge erred in holding that Werner Batista should pay the costs of Dietrich Batista on an assessed basis, if not agreed.

[13]Werner Batista applied to this Court by Notice of Application filed on 14th December 2022, for leave to adduce as fresh evidence in the appeal, a judgment made by a Brazilian Court on 29th November 2022 removing Dietrich Batista as executor of the deceased’s estate in Brazil and a ruling made to clarify its effect. Dietrich Batista opposed the application.

[14]The fresh evidence application is refused for the reasons set out in this judgment. The interlocutory appeal is granted in part.

[15]Purely for convenience, I take the liberty of referring to the Batista brothers by their Christian names throughout the judgment. No disrespect is intended and I trust that none is apprehended. Issues

[16]The issues to be determined on this appeal are: (1) Whether Werner Batista should be granted leave to adduce a Brazilian judgment dated 25th November 2022 and a Brazilian ruling as fresh evidence in the appeal; (2) Whether the learned judge erred in law or fact by misinterpreting and/or misapplying rule 67(1) of the NCPR, and as a result concluded erroneously that the rule – (a) mandates that all applications for probate are to be made to the Registrar; (b) confers exclusive jurisdiction on the Registrar to entertain and dispose of such applications, to the exclusion of a judge of the High Court; (3) Whether the learned judge erred in law or fact by finding that it was improper and/or an abuse of process and/or otherwise inappropriate to continue with a rule 67(1) application and by refusing to consider to whom probate should be granted; (4) Whether the learned judge erred in law or fact by holding that the initiation of contentious proceedings under the NCPR is not a mere procedural irregularity that can be dealt with under the court’s case management powers under CPR. 26.1(2)(w) or 26.9; and (5) Whether the learned judge erred in law by awarding costs to Dietrich Batista to be assessed if not agreed. I shall deal with them seriatim. Fresh Evidence Application

[17]The application for leave to adduce fresh evidence is supported by an affidavit of Gerrard Tin an Associate in the Litigation Department of Harneys, Werner’s legal practitioners. The proposed new evidence consists of a judgment of the Court of the Second Family and Probate Court of the Rio de Janeiro State Judiciary, the Court of Justice, dated 25th November 2022 and made by Judge Carlos Augustus Borges (“the removal judgment”); and a ruling issued on 16th December 2022 for the purpose of clarifying the removal judgment. They were exhibited respectively as parts of ‘GNT-1’ and ‘RNC-1’.

[18]Mr. Tin averred that the application was made on the basis that Dietrich’s removal as executor in Brazil was sought on the same grounds on which his rule 67(1) application was made. He stated that the Brazilian judgment demonstrates the weakness of Dietrich’s position as executor and the strength of the underlying application for probate pursuant to rule 67(1). The Brazilian judgment was not available before the decision was rendered by the learned judge.

[19]Werner submitted that the removal judgment will be relevant to the question of removal in the instant case, should this Court agree that rule 67(1) of the NCPR empowers the court to grant probate to a person other than the executor. He noted that the clarification ruling integrates the removal judgment and is an official Brazilian Probate document that makes clear that the removal judgment was effective immediately on its pronouncement. He added that they should be read together to fully understand the scope and effect of the removal judgment.

[20]He contended that the proposed fresh evidence is credible and demonstrates that the court of the jurisdiction where the will was made considered it appropriate to remove Dietrich given his delays and negligence in administering the estate. This he says, demonstrates the extent of Dietrich’s failings and ought to be taken into account in determining whether rule 67(1) embodies a procedure that he (Werner) should have been able to use. He added that the removal judgment demonstrates the weakness of Dietrich’s position as executor and the strength of the underlying rule 67(1) application. Citing Emmerson International Corporation et al v Victor Vekselberg he reasoned that the proposed new evidence is relevant to the issue of whether the learned judge should have used her case management powers to assist him in circumstances where the executor failed to comply with his duties.

[21]Dietrich countered that the fresh evidence application does not satisfy all limbs of the Ladd v Marshall test as it would probably not have an important influence on the Appeal. Further, he was removed as executor by the Brazilian Court because he was not progressing administration of the Brazilian estate in a timely and efficient manner. This, he contended is completely irrelevant to the rule 67(1) application and whether he failed to proceed with the probate application in the BVI with reasonable diligence following the February 2022 citation and the filing of his acknowledgment of service a month later. He argued that these are matters that have not been determined and which do not arise for consideration in this appeal. Rather, they go to the substantive merits of the rule 67(1) application.

[22]He submitted that the Brazilian Court made no relevant findings that would assist this court in determining this appeal. He relied on Adam Bilzerian v Gerald Lou Weiner et al, Honourable Guy Joseph (In his personal capacity and in his capacity as Parliamentary Representative for Castries South East) v The Constituency Boundaries Commission et al, Hertfordshire Investments Ltd. v Bubb, Emmerson International and Flavio Maluf v Durant International Corp et al. Discussion

[23]When considering an application for leave to adduce fresh evidence the court is engaged in the exercise of discretion. In the exercise of its discretion, the Court must seek to give effect to the overriding objective to do justice between the parties. In doing so, it must act judicially and cautiously. The Court will take into account a number of factors including whether either party will be prejudiced by or obtain an unfair advantage by the grant or refusal of permission to adduce the fresh evidence.

[24]It is now settled that an appellate court will be slow to interfere with the exercise of discretion by a court at first instance. It would only venture to do so in a case where a judge erred in principle in the exercise of such discretion by taking account of irrelevant matters or by failing to have regard to relevant considerations or even by attaching too much or too little weight to relevant factors and by reason of such error, made a determination that is plainly wrong. This principle is quite eloquently explained in Dufour and Others v Helenair Corporation Ltd and Others by Chief Justice Sir Vincent Floissac and is captured in Charles Peterson et al v Douglas Riegels et al . I shall keep them firmly in mind when assessing the learned judge’s exercise of discretion in this case.

[25]The threshold test for granting permission to adduce fresh evidence in an appeal is well-established. It was articulated by Denning LJ in Ladd v Marshall. Three criteria must be satisfied. Firstly, the proposed new evidence must be such that it could not have with reasonable diligence been obtained for use at the hearing in the lower court. Secondly, it must be evidence that would likely have an important but not necessarily a decisive bearing on the outcome of the appeal. Thirdly, the proposed evidence must be credible but not necessarily irrefutable.

[26]The principles enunciated in Ladd v Marshall have been further developed in two material respects. As noted by Farara JA in Adam Bilzerian v Gerald Lou Weiner et al those principles: “[26]…are to receive a somewhat more relaxed application when treating with appeals from interlocutory matters, as distinct from when treating with an appeal from a decision of a court after a trial on the merits…

[27]…a more flexible or relaxed approach is called for, in the interest of justice, when dealing with applications to adduce fresh evidence in an appeal from a decision on an interlocutory application or an application which was not decisive of the merits of the matter…

[28]The appellant raised a concern that is best considered as a preliminary point in this appeal. Werner submitted that the learned judge erred in several material respects in addressing the application. This included not affording him an opportunity to respond on this issue of jurisdiction. He contended that the jurisdictional point was taken for the first time in written submissions filed after the hearing on 10th November 2022 and therefore he had no chance to address them. He stated that the judge considered those submissions and factored them into her decision and this constituted a breach of the rules of natural justice. He submitted that as a result, her reliance on them was unfair and unjust. He cited Corporal Philbert Bertrand v The Secretary, PSC in which this Court opined: “The first rule of natural justice is the audi alteram partem rule which requires that each party be heard by the adjudicating authority... The Third is the elementary and obvious imperative that judgment should not be reached until the parties have had an opportunity to be heard.” Dietrich’s submissions

[29]the second development of significance in the application of the Ladd v Marshall principles, is that they are just that, ‘principles’, and not strict or special rules to be rigidly applied by an appellate court… they are principles, not rules, which must be applied broadly, but relaxed, in appropriate cases, having regard to The overriding objective to do justice.”

[30]He added that contrary to Werner’s submission, the issue of jurisdiction was not a novel point raised late in the day, but one that featured in the case from the inception. He pointed out that the issue of procedural jurisdiction was first raised by Ellis J (as she then was) at the hearing on 25th July 2022. She made several pointed interventions requiring Werner to explain the jurisdictional basis upon which the judge was being asked to determine the rule 67 application, particularly in circumstances where there was a contiguous application before the Registrar.

[31]Dietrich highlighted Ellis J’s observation where she inquired: “… How exactly do you see that is supposed to work? I’m just curious. So are you saying that your application has to be heard first? Because you recognise that there is an application pending before the Registrar. This is not an application that is before this Court. It is an application before the Registrar which is the appropriate place in my view … and it will no doubt end up in contentious proceedings before the Court at some point, because a caveat procedure has been initiated. The warning has to be issued to the caveator. You would put in your Defence to that. That will be fully litigated. What do you say is supposed to be happening at the same time as here? I am supposed to be dealing with your application as well?” … “THE COURT: Yes. You see, the difficulty is, Miss Joseph, … In circumstances where it is that there are two matters running contiguous to each other, just running together, this is an untenable situation.”

[32]Yet again, at the hearing on 10th November 2022, the learned judge brought the issue of jurisdiction into focus when the parties were invited to provide supplemental written submissions to address whether the application should have been made by way of claim form, rather than in the manner pursued by Werner. Before this Court, Dietrich submitted that it would be gross over-simplification to misconstrue this invitation as being limited to clarifying which form should be completed by a party. He posited that in reality, having had the benefit of extensive oral submissions during the hearing, the learned judge was seeking substantive clarification from the parties as to what was their respective stance in relation to the source and scope of the judicial officer’s procedural and statutory jurisdiction to determine the rule 67(1) application. He emphasized that in response he had anchored his arguments in the statutory jurisdiction conferred by rule 7(1) of the NCPR.

[33]Dietrich reasoned that having been invited to address the court on this issue on those occasions, it is not open to Werner to feign being ambushed by the supplemental submissions in response. Furthermore, Werner was entitled to and had a chance to deal with any perceived new point by way of reply submissions and must be taken to have opted to waive any such right. Moreover, he could have raised this concern when the draft judgment was circulated to the parties before it was sealed. His failure to avail himself of those opportunities precludes him from successfully relying on the breach of natural justice argument. Discussion

[34]Werner’s complaint that he did not have a chance to address the court on the jurisdictional issue was not set out in his grounds of appeal as stipulated by CPR 62.4(1) and (8). Those provisions state: “62.4 (1) A notice of appeal must be in Form 23 and must give details of – (a) … (c) the grounds of the appeal; and … (8) The appellant may not rely on any ground not mentioned in the notice of appeal without the permission of the court.”

[35]Further, Werner did not amend his Notice of Appeal to include this breach of natural justice point as a new ground of appeal and he did not apply for permission to rely on it as a new ground of appeal. The language of CPR 62.4(8) is quite clear and unambiguous. In those circumstances, I would neither grant leave to Werner to add this issue as a new ground of appeal nor permission to rely on it at this stage and I would not entertain it.

[36]For completeness, I note from the record that Werner had ample opportunity to address the learned judge on this matter, his attention having been directed to the potential problem as early as 25th July 2022. Once again on 10th November 2022, counsel for Dietrich raised the point in his submissions before the learned judge. In his reply, counsel for Werner touched on it briefly, as is recorded at pages 278- 280 of the transcript. He stated simply: “There is the contention that this should be before the Registrar and not the Court, and I disagree with that. … And even if there is some ambiguity in what ‘court’ means, to suggest that because there is a particular practice, it doesn’t follow that means you don’t have jurisdiction. It would be absurd to suggest that the Registrar has jurisdiction which you as the judge of the court does not have.”

[37]The learned judge inquired further of Werner’s counsel in the hearing: “How do you respond to Counsel’s argument that this is the Non-Contentious Probate Rules and Administration of Estates. It is not envisioned for these kind of contentious proceedings which are here before this court.”

[38]Finally, each party filed post-hearing written submissions which would have allowed them to supplement any arguments made orally on 10th November 2023. In my estimation, Werner’s decision not to treat with the issue at that stage of the proceedings could not be attributed to ignorance that it formed part of Dietrich’s case. I am satisfied that he had ample notice of the point and repeated opportunities to address the court on the point, if he so desired. His belated argument at this stage would therefore be of no assistance to him. More fundamentally, his failure to apply to this Court for leave to raise it as a new ground of appeal means that he may not rely on this contention at this stage. Legislative Framework

[39]The issues raised in this appeal involve a broad-gauged examination of several provisions in the NCPR and a few from the Civil Procedure Rules 2000 (“CPR”). It is helpful to set them out before embarking on a discussion of the grounds of appeal.

[40]The legal contentions focused primarily on rule 67(1) of the NCPR. Rules 2, 3, 5, 6, 7, 8, 43, 44, 45 and 66 also featured in the submissions. I shall return to rules 5, 7 and 67 later. To the extent relevant, rules 2, 3 and 6 provide respectively: “2. ‘Court’ is defined in rule 2 to mean ‘the Eastern Caribbean Supreme Court’ while the meaning ascribed to ‘Judge’ is ‘a judge of the Eastern Caribbean Supreme Court’.

[41]Rule 8(1) lists the documents to be filed for a probate grant. It states: “8. (1) Except in the case of a notarial will in Saint Lucia which is subject to rule 11, an executor who applies for a grant of probate shall file at the registry (a) an application for a grant of probate in Form P1; (b) a certificate of search confirming that (i) no other grant of probate has been issued; (ii) no other application for a grant of probate has been made; and (iii) no caveats have been filed; (c) an oath in Form P3; (d) the will marked in accordance with rule 18(1); (e) a certified copy of the death certificate or in the absence of the death certificate, an affidavit together with the burial certificate or other relevant document to the satisfaction of the court; (f) an affidavit of due execution of the will in the form and manner prescribed by rule 17(1), or where the circumstances so require an affidavit in the form prescribed by rule 17 (2) to (6), as the case may be; (g) a declaration and account of the estate of the deceased in Form P6, and in the case of the Territory of the Virgin Islands, Form P6A; (h) the appropriate affidavit under rule 22, if required; and (i) a certificate from the Commissioner of Inland Revenue that the duty has been paid or a letter stating that satisfactory arrangements have been made for the payment of duty, where any enactment in a Member State requires payment of stamp duty, estate duty or succession duty.”

[42]Werner relied also on rule 45. It provides: “45. (1) An application for an order for a grant of letters of administration under the discretionary powers conferred on the court under the relevant statutory provision of the respective Member State shall be made to the court in the first instance, and such application shall be supported by affidavit evidence setting out the grounds of the application. (2) The application for an order under paragraph (1) shall include in its title the statutory provision and Act under which the application is made.” (Emphasis added)

[43]The citation at the centre of this case was made under rule 66(1). The material parts of the rule provide: “66. (1) A person who would be entitled to a grant in the event of the citee renouncing his or her rights to a grant may issue a citation to accept or refuse a grant in Form P23 or Form P24, as the case may be. … (5) A person served with a citation shall file an acknowledgment of service in Form P22 and shall serve a copy of such acknowledgment on the citor. (6) The time for filing and serving an acknowledgment of service is 28 days after service of the citation. (7) After filing an acknowledgment of service, a citee may apply to the court for an order for a grant to himself or herself. (8) An application under paragraph (7) may be made without notice, but must be supported by affidavit evidence.” (Emphasis added)

[44]The relevant CPR rules are rules 2.2(3)(c), 2.4, 2.5 and Part 68. Rule 2.2(3)(c) provides: “(3) These Rules do not apply to the following– (a) …; (b) …; (c) non-contentious probate proceedings;’ (Emphasis added)

[45]At rule 2.4 of the CPR, ‘Court’ is defined as ‘the High Court and, where the context so admits and in Part 62, the Court of Appeal’. As to who may exercise the powers of the court rule 2.5 provides: “Who may exercise the powers of the court (1) Except where any enactment, rule or practice direction provides otherwise the functions of the High Court may be exercised by – (a) a master; (b) a registrar; (c) a single judge of the court whether or not assigned to the Member State or Territory in which the proceedings are taking place; (d) the Chief Justice; or (e) the Chief Registrar, in accordance with these Rules and any practice direction made by the Chief Justice.”

[46]Part 68 of the CPR deals with contentious probate proceedings. CPR rule 68.2 outlines the procedure for making a probate claim. It provides: “How to commence probate proceedings

[47]Werner’s first and second grounds of appeal relate to his contentions that the learned judge erred by holding that a rule 67(1) application must be made to the Registrar and cannot be determined by a judge. I shall deal with them together because the applicable rules are connected and are the same in some instances.

[48]On those matters, the learned judge ruled: “[17] The Court is of the considered view that an application under rule 67(1) of the Probate Rules is required to be made to the Registrar…

[49]As to whether the application must be made to the Registrar, Werner submitted that purely non-contentious applications by an executor for probate that entail nothing more than administrative processing must be directed to the Registrar as provided by rule 5. However, notwithstanding the explicit mandate under rule 5 to transmit applications to the Registrar, that rule must be read in light of the rules that follow, such as rules 8 – 16 which deal with what he referred to as administrative applications.

[50]He contended that one must look to rules 7(2) and 67 which provide guidance as to whom rule 67(1) applications are to be made. He pointed out that the active term used under those provisions is ‘the court’ which signifies that the application may be made to a high court judge who was empowered by rule 7(2) to entertain such an application. He submitted that the learned judge failed to appreciate this.

[51]He added that the stipulation under rule 5 for applications to be transmitted to the Registrar was not intended to apply to all applications under the NCPR and it certainly did not extend to rule 67(1) applications. He argued that the procedure under rule 67(1) applies exclusively to ‘inherently contentious’ or adversarial proceedings that may be initiated by someone other than an executor who has either not acknowledged a rule 66 citation or who has failed to apply for probate with reasonable diligence after acknowledging the citation.

[52]On Werner’s behalf, learned counsel Mr. Ferrer stated that similarly, rule 6 has no bearing on rule 67(1) but simply makes provision for administrative applications to be sent to the Registrar by the applicant’s attorney at law, the propounder of a will or by the proposed administrator in person.

[53]He argued that the requirement to give notice of a rule 67(1) application to the citee, signals that it is inherently contentious or at least likely to be, since it may be opposed. This he said, explains why rule 67(1) provides for the application be made ‘to the court’ as opposed to the Registrar as stipulated in rule 5. He noted further that ‘court’ is defined as ‘the Eastern Caribbean Supreme Court’. He reasoned that this implies that the intention was that such applications are to be heard and determined by a judge who exercises a judicial discretion and not by the Registrar who performs an administrative function. He contended that by failing to distinguish between administrative applications to the Registrar under rule 5 and contentious applications under rule 67(1) the learned judge erred in law and did not appreciate that rule 5 does not apply to applications under rule 67(1).

[54]Citing section 12 of the Eastern Caribbean Supreme Court (Virgin Islands) Ordinance, learned counsel stated that the learned judge compounded her error by not having regard to that provision. which states: “12. Any judge of the High Court may in accordance with rules of Court, or so far as such rules shall not provide, in accordance with the practice and procedure which shall for the time being be in force in the High Court of Justice in England, exercise, in Court or in Chambers, all or any of the jurisdiction vested in the High Court.”

[55]On the jurisdiction issue, he submitted that the judge’s reliance on the case of Dennis Donovan v Irene Donavan was misplaced since it is wholly inapplicable to the instant case on two counts. Firstly, she used it in support of a jurisdictional issue which was not in dispute at the November 2022 hearing. Secondly, in Donovan the application was not made under rule 67(1). He said that the judge should have distinguished the application in Donovan from the rule 67(1) procedure and should have found that Donovan supports the proposition that the Registrar is the appropriate officer to adjudicate administrative-type applications for probate by an executor, but not contentious applications under rule 67(1). Having not done so, she erred.

[56]Learned counsel contended further that rule 45 of the NCPR was another relevant provision that the learned judge should have considered because it provides for application to the ‘court in the first instance’ for the grant of letters of administration. He submitted that reference to ‘the court in the first instance’ should be interpreted as meaning to a single judge of the High Court as was done in Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al. Respondent’s submissions

[57]Dietrich countered that rule 5 is of general application under the NCPR and is applicable to all applications for grant of probate or letters of administration unless another rule provides otherwise, whether expressly or implicitly. He argued that rule 7 is also of general application and prescribes when and to whom applications for probate, letters of administration with or without will annexed are to be made. He argued that rule 7(2) puts beyond doubt that only the Registrar may entertain any such application under the NCPR. He relied on Dennis Donovan v Irene Donovan -.

[58]Dietrich submitted that the jurisdiction issue can be resolved by considering whether the instant proceedings are contentious or non-contentious. He reasoned that if the Court concludes that they are non-contentious, such a finding would demolish Werner’s argument that rule 67(1) applications are inherently contentious, and by extension his challenge to the learned judge’s finding on lack of jurisdiction.

[59]He argued that on a plain reading of rule 67, the citation procedure under the NCPR is intended to be inherently non-contentious. Further, that its primary purpose is to call on a person entitled to a grant, to act on that entitlement by taking steps to apply for a grant of probate with ‘reasonable diligence’. Highlighting the pre-2020 English practice as articulated in Tristram and Coote’s Probate Practice, he noted that rule 47 the equivalent provision in the English NCPR 1987, is similar in most respects to the BVI NCPR except that a deadline is stipulated in sub-rule (3) for an intermeddling executor to apply for probate. He pointed out that the English NCPR was amended in 2020 to allow for such applications to be made to a District Judge as an alternative to the Registrar.

[60]On Dietrich’s behalf, learned counsel Mr. Samuel stated that rules 65, 66 and 67 of the NCPR illustrate what are the aims of the citation procedure. Importantly, the procedure under rule 67(1) serves two purposes: firstly, it compels the persons primarily entitled to take the grant to decide whether they intend to do so; and secondly, it creates an avenue for an alternative grantee to apply for a grant where the primary ‘grantee’ renounces or refuses to apply. Additionally, rule 67(1) enables a person interested in the estate to cite an executor who has intermeddled in the estate to extract a grant.

[61]Learned counsel stated that having entered an appearance by acknowledging service of the citation, Dietrich was entitled to apply for a grant in Form P1 as illustrated by Re Stevens, Cooke v Stevens. He argued that by filing his application for probate Dietrich unequivocally expressed his intention to obtain a grant in accordance with the will. Consequently, the citation had been properly answered and having achieved its lawful purpose the citation process should have come to an end. Furthermore, Dietrich has not renounced his rights as executor. It was therefore not open to Werner to subsequently file a competing application for a grant of probate under the NCPR by relying on contentious grounds.

[62]He submitted that any contentious dispute arising after the probate application was filed, must first be resolved by determination of a probate claim in contentious proceedings under the CPR, before the appellant would become entitled to proceed with a competing application for a grant under the NCPR. Therefore, the judge was correct to conclude that she could not determine the rule 67(1) application in the manner pursued by Werner.

[63]Learned counsel submitted that CPR Part 68 deals with contentious probate business. He cited Halsbury’s Laws of England as authority. He contended that Werner made the rule 67(1) application contentious by contesting and putting in issue his suitability and right to obtain probate and by including seriously contested factual allegations of misconduct, mismanagement, misappropriation and extortion. He added that it is undesirable and wholly inappropriate for such disputed facts to be resolved under rule 67(1) and furthermore unlike the CPR, the NCPR simply does not contain the procedural and evidential safeguards required to efficiently and fairly dispose of such factual disputes at a trial. Discussion Depository

[64]In the court below, Dietrich made a novel argument that an application under rule 67(1) may only be made to the Registrar and never to the judge. It found favour at first instance. The opposing contentions focused then and now on to whom such an application is to be transmitted or addressed, thereby highlighting that the issue is really about the appropriate depository. I shall therefore refer to this as the ‘depository’ issue.

[65]Let me first clarify the apparent misunderstanding about the role of the Registrar as an officer and functionary of the court. It is a matter of law that not only does the Registrar carry out administrative functions, but the postholder is in fact a judicial officer and is authorised to perform certain judicial functions.

[66]Turning next to rule 67(1), it is immediately apparent that the rule does not state expressly whether the application under it may be made to the Registrar, the judge or other judicial officer. However, rules 5 and 7 shed light on how and to whom applications are to be made.

[67]They provide respectively: “5. An application for a grant of probate or letter of administration shall be made to the registrar of the court and shall be filed at the registry where all caveats, warnings, citations, acknowledgements of service and notices of application under these Rules shall be filed.

[68]Rule 67(1) uses language similar to rule 7(1) It states: “67. (1) Where a person makes a citation under rule 66(1) and the citee has filed an acknowledgment of service but (a) has not applied for a grant under rule 66(7); or (b) has failed to proceed with his or her application with reasonable diligence; the citor may apply to the court on notice to the citee for a grant to himself or herself.” (Emphasis added)

[69]Sub-rules (2) and (3) of rule 67 are also relevant. They provide: “(2) Where the person makes a citation under rule 66(2) and the citee has filed an acknowledgment of service but (a) has not applied for a grant under rule 66(7); or (b) has failed to proceed with his or her application with reasonable diligence; the citor may apply to the court on notice to the citee for an order striking out the acknowledgment of service and that a note be made on the grant that (i) the executor in respect of whom power was reserved has been duly cited; (ii) that executor has not filed an acknowledgment of service; and (iii) his or her rights in respect of the executorship have wholly ceased. (3) Where the person makes a citation under rule 66(3) and the citee has filed an acknowledgment of service but (a) has not applied for a grant under rule 66(7); or (b) has failed to proceed with his or her application with reasonable diligence; the citor may apply to the court on notice to the citee for an order requiring the citee to take a grant within a specified time or for a grant to the citee or to some other person specified in the application.” (Emphasis added)

[70]It is instructive that rule 5 expressly stipulates that all applications for probate or grant of letters of administration must be made to the Registrar and be filed at the registry; while rules 7(1) and 67(1) provide respectively for ‘an application under the NCPR [to be] made in the first instance to the court’, and similarly one for a grant of probate to a citor to be made ‘to the court’.

[71]What is striking about these three rules, is that they speak to where the applications are to be sent. In other words, they deal with the depository for such applications, not which judicial officer is authorized to deal with them. Rule 7(2) on the other hand is the only rule that identifies the judicial officers who are empowered to determine applications filed under the NCPR, unless a contrary provision exists.

[72]Read in isolation rule 5 may suggest that the Registrar is the only judicial officer who may entertain and dispose of an application for a grant of probate. However, it must be read in context which is a sine qua non of statutory comprehension. This reveals that rule 5 merely provides for such applications to be directed to the Registrar and does not forbid an applicant from transmitting or addressing it to another judicial officer. Notably, it contains no prohibition against such application being made to another judicial officer and imposes no sanctions in such a case. Taking the legislative context into consideration lends operational perspective to the statutory framework and demonstrates that the Registrar and the court office in rules 5, 7(1) and 67(1) are identified as the depository of the documents while rule 7(2) names the possible adjudicators.

[73]It seems to me therefore that Dietrich’s reliance on Donovan v Donovan is misplaced. In that case, the learned judge opined: “[26] It seems to me that a High Court Judge only becomes involved in applications of this nature where there is a doubtful execution: see section (sic) 13 of the Probate Rules which states: “if on perusing the affidavit setting forth the facts of the case it appears doubtful whether the will has been duly executed, the Registrar may require the parties to bring the matter before a Judge in Chambers for his ruling thereon.” Of course, decisions of the Registrar in probate proceedings are subject to appeals to the High Court. No such situations have arisen here.

[74]It appears that the learned judge’s attention in Donovan v Donovan was not directed to rule- 5 or 7(2). Likewise, rule 67(1) was not under consideration. It is highly probable that having not considered rule 7(2) the judge did not realize that express provision is made in the NCPR for judicial officers other than the Registrar to determine applications for probate and letters of administration. In any case, it is trite law that a decision from the High Court on a point of law is not binding on the Court of Appeal. For those reasons, Donovan v Donovan does not assist Dietrich.

[75]Similarly, Re Stevens, Cooke v Stevens on which Dietrich relied, is a decision from a first instance court and this Court is not bound to follow it. More importantly, the ratio decidendi has no bearing on the issues under consideration by this Court. In that case, North J was called on to decide whether executors could be required to account for wilful default where they paid out estate interest before obtaining either probate or the proceeds of the testator’s insurance policy. The judge held that the executor who had accepted the office but did not prove the will would be liable to account and that he could not renounce probate. It does not appear that the judge was considering an equivalent rule to any of those under consideration in this matter. That decision is therefore not helpful for present purposes.

[76]The decision in Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al did not advance Werner’s case. It is distinguishable from the instant case because it was initiated by a fixed date claim in which the claimants sought various reliefs including an order ad colligenda bona appointing interim administrators and the appointment of a receiver. The learned judge summarized the case as follows: “[4] The dispute is about (i) the law governing the succession; (ii) whether the Estate falls to be distributed in accordance with the English will or in accordance with rules of intestacy in Belgium. A determination is sought of the Deceased’s place of domicile at the time of his death to determine which country and which person is entitled to carry out probate of the will or as the case may be the administration of the Estate in case of an intestacy.”

[77]Recognizing that rule 45 of the NCPR makes express provision for the processing of applications for grants ad colligenda bona, he referred the matter to the Registrar with a specific direction as to whom the grant should be made and he stipulated that the usual papers be filed at the registry. He opined at paragraph 37: “[37] The court’s jurisdiction to make such an order is contained in the Eastern Caribbean (NonContentious Probate and Administration of Estates) Rules 2017. … In reality, on the facts of this case, rule 45 where the court can exercise its discretion in exceptional circumstances seems the only appropriate gateway.”

[78]To summarize, Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al does not illustrate that ‘court in the first instance’ in rule 67(1) means judge of the High Court as contended by Werner. It simply demonstrates that if a rule 45 application is made to a High Court judge by fixed date claim, the judge may entertain it. He may also in that action resolve any contentious proceeding regarding to whom the grant should be issued, as the judge did in that case.

[79]In the final analysis, when rules 5 and 7(2) are considered within the overall legislative context of the NCPR and in accordance with rules of interpretation, including the presumption against absurdity, it is clear that, rules 5 and 67(1) speak to the court and Registrar in the capacity of depository, while rule 7(2) deals with jurisdiction.

[80]But that is not the end of the matter. A major pillar of Werner Batista’s argument regarding to whom an application for probate is to be made has to do with whether proceedings under rule 67(1) are non-contentious or contentious. This is perplexing in view of his concession that his rule 67(1) application is contentious. Be that as it may, the key to the resolution of that sub-issue is an appreciation of the distinction between non-contentious and contentious probate business. The NCPR does not contain a definition of ‘non-contentious business or proceedings’. However, the CPR definition of ‘probate claim’ is instructive.

[81]‘Probate claim’ is defined at rule 68.1(2) as follows: ‘(2) In this Part – “probate claim” means a claim for the grant of probate of the will or letters of administration of the estate of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being a claim which is non-contentious or common form probate business.’ (Emphasis added)

[82]Halsbury’s Laws of England provides a working description of both contentious and non-contentious probate business. The learned authors explain: “Common form business consists of the obtaining of grants of probate and letters of administration where there is no contention as to the right to obtain them, including the passing of probates and administrations through the court in contentious cases when the contest is terminated, and all business of a non-contentious nature in matters of testacy and intestacy, not being proceedings in any action, and also the business of lodging caveats against the grant of probate or administrations. All other business of the court, except the warning of caveats is contentious.” This description is based on the UK Senior Courts Act Part V.

[83]In this jurisdiction, although neither the NCPR nor the CPR defines, classifies or describes probate business expressly, historically, by practice and procedure the NCPR has been accepted and applied for purposes of non-contentious probate business. Undoubtedly, this tradition emanated and subsisted from the court practice prior to the establishment of the Eastern Caribbean Supreme Court. Moreover, the differentiation articulated in Halsbury’s Laws of England reflects the practice and procedure as codified in the local provisions of the NCPR and CPR.

[84]This leads to the question of whether a rule 67(1) application for grant of probate is inherently contentious. The clear language of the provision reflects that an application under that rule is permissible where a citation is issued under rule 66(1) and the citee has filed an acknowledgement of service but has not applied for a grant of probate; or has applied under rule 66(7) but is not prosecuting such application with alacrity.

[85]In either case, a citor who wishes to contest a grant of probate to the citee, must engage the probate arm of the court, by filing a rule 67(1) application under the NCPR. The circumstances in this case do not fit that scenario because Dietrich has acknowledged the citation and filed an application for probate. Werner’s complaint is not that Dietrich did not apply under rule 66(7) with dispatch following the citation, but rather that he had delayed in applying for the grant following the testator’s death.

[86]Significantly, rule 67(1) makes no provision for a citor to apply for a grant of probate if, following the citation, the citee has applied for a grant under rule 66(7) expeditiously and prosecutes it with reasonable diligence. The rules contemplate that in such a case, the registry will process and issue a grant to the citee on receipt of the relevant application for probate. The procedure is outlined in Tristram and Coote’s based on the equivalent UK NCPR rules.

[87]A citor who desires to contest a grant to a citee in those circumstances is required to engage the probate division of the court in contentious proceedings under CPR Part 68, by filing and issuing a fixed date claim and a statement of claim or supporting affidavit. Such proceedings would be triggered not by the citee’s rule 66(7) application, or by a rule 67(1) application by the citor but rather by the institution of a probate claim under CPR Part 68. Werner sought to do this by filing a rule 67(1) application. This is problematic for him because he was thereby seeking to pursue CPR Part 68 contentious probate proceedings under the non-contentious regime in a manner not provided for under the NCPR generally or rule 67(1) specifically.

[88]On this point, the learned judge quite rightly adopted the learning from In re Jolley, dec’d, Jolley v Jarvis and Another where she quoted from the ruling of Danckwerts L.J. of the UK Court of Appeal that ‘non-contentious rules can only apply to non-contentious business’. It is to be noted that the holding was based on Section 175 of the UK Supreme Court of Judicature (Consolidation) Act 1925 which expressly differentiates between non-contentious and contentious probate business and has no parallel in the BVI. Willmer LJ made the observation that what Mr. Jolley was seeking to do under the rules governing non-contentions probate involved highly contentious probate proceedings under which he sought an order for the revocation of probate that was already issued to executors. Like Danckwerts LJ, Willmer LJ was resolute that this could not be done. That ratio decidendi is just as applicable in the case at the appeal bar.

[89]Notwithstanding the absence of a law akin to section 175 of the UK statute, the reasoning in Re Jolley is just as apt in this case and is inescapable when considered in light of the interplay between the BVI NCPR and CPR. In this regard, it is noteworthy that while the NCPR expressly provides that the CPR applies to non-contentious probate practice, the converse is not expressed. It follows that the procedures applicable under the NCPR in respect of non-contentious probate business are inapplicable for purposes of contentious probate proceedings under the CPR.

[90]For the foregoing reasons, I would find that Werner’s contention that rule 67(1) is inherently contentious runs contrary to judicial precedent and the practice and procedure in the probate division of the Supreme Court. I am satisfied that proceedings under the NCPR are non-contentious by nature while those under CPR 68 are contentious. Werner’s contention that his rule 67(1) application is non-contentious and must for this reason be made to the Registrar holds no merit.

[91]This analysis of the interplay between rules 3, 5, 7 and 67(1) of the NCPR and the distinction between contentious and non-contentious probate business demonstrate on the one hand, that the apparent ambiguity among the referenced rules as to the depository is contrived and not real; and on the other hand that the procedures under the NCPR were not intended to and cannot be transposed on the CPR track in the same way that procedures under the CPR may be transposed on the NCPR track as contemplated by NCPR rule 3. I would hold therefore that the learned judge erred by construing rule 5 as mandating that applications for the grant of probate under rule 67(1) must be made to the Registrar.

[92]On the issue of jurisdiction, subrule 7(2) expressly empowers all judicial officers throughout the court’s hierarchy (from the Registrar at the lower level to the Chief Justice at the apex) to execute any of the court’s functions relative to the determination of such non-contentious probate applications and to issue directions unless some law or practice direction provides otherwise.

[93]Another consideration is that there is nothing in the NCPR that expressly precludes a judge of the High Court from determining an application for the grant of probate under rule 67(1). Moreover, the appellant makes a compelling argument that a judge is so authorized by section 12 of the Supreme Court Act. In this regard, the law is pellucid.

[94]Additionally, it is commonly known that within the civil jurisdiction of the Supreme Court, a judge at times carries out judicial functions that are routinely performed by the Registrar or Deputy Registrar, even where the rules specify the Registrar as the authorized functionary. For example, a judge will at times conduct an oral examination of a judgment debtor under CPR rule 44.5 although the Registrar is the officer charged with doing so. No doubt, this is in recognition of the guidance enshrined in CPR rule 2.5 which is similar in language and effect to rule 7(2) of the NCPR.

[95]This suggests that the NCPR in general and rule 7(2) in particular contemplates that an application for probate under any of its provisions may be determined by the Registrar, a master or any judge of the Eastern Caribbean Supreme Court unless expressly provided for otherwise. As explained earlier, I would not interpret rule 5 of the NCPR as containing a contrary provision. Further, it is entirely irrelevant whether the application is being made by an executor, an administrator, an attorney at law, a citee or person otherwise so authorized. This interpretation reflects the draftsman’s intention, is in keeping with the legislative context and objective and conforms to long-established practice and procedure.

[96]For the foregoing reasons, I would hold that the learned judge was quite correct to take the entire legislative scheme into consideration and to consider rules 5, 7 and 8 when construing rule 67(1). However, in my view, she erred in law in holding that rule 67(1) applications for probate must be made to and be determined only by the Registrar. For those reasons, I would uphold grounds of appeal 1 and 2. Abuse of Process or Improper Application Appellant’s submissions

[97]I turn next to the abuse of process aspect of the appeal. It is Werner’s contention that the learned judge erred by holding that it was improper, inappropriate or an abuse of process to continue with his rule 67(1) application while proceedings were pending before the learned Registrar. Further, he submitted that she was wrong to find that rule 67(1) cannot be properly used where a citee has applied for a grant of probate and a dispute subsists between him and the citor regarding who should be granted probate. He argued that the scenarios described in rule 67(1) are separate and they allow a citor to apply for a grant where the citee delays in progressing his application.

[98]Werner reasoned that the learned judge was wrong to find that he should have discontinued the application and commenced a new process by caveat under the rules. In his opinion, she failed to consider the contentious nature of the rule 67(1) application and the prejudice that such an approach could cause to him, in view of Dietrich’s unreasonable delay in seeking a grant coupled with his opposition to the rule 67(1) application. He argued that this has resulted in a waste of time and costs; is not a judicious use of the court’s time and resources; and is contrary to the overriding objective to deal with cases justly. He submitted that the learned judge erred further by finding that he had provided no good reason why Dietrich’s application for probate should not be allowed to take its normal course and by failing to consider the merits of his application and his many reasons for filing it.

[99]Another error that he claimed was made by the learned judge was that she attached weight to the absence of any application or order to stay Dietrich’s application for a grant. He submitted that it was clear that the caveat he filed prevented Dietrich from proceeding with his application without first filing a warning. Therefore, even though no formal stay was in place, those circumstances effectively created one as at 10th November 2022 when the application was heard. Learned counsel argued that he would be further prejudiced by not having had a substantial determination of the rule 67(1) application sooner.

[100]Werner contended that the facts of this case take it outside of what constitutes abuse of process. Citing Attorney General v Walker and Hunter v Chief Constable of West Midlands Police and another he submitted that abuse of process has been described as ‘a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’. He cited Tower v Wills, Solland International Ltd and others v Clifford Harris and Co (a firm), Gravit v Doctor, David Phelps v Peter Button, Wallis v Valentine, McDonald’s Corporation v Steel and Consolidated Contractors International Company SAL v Masri (Bermuda) as further exemplifying how abuse of process is applied.

[101]He contended that his conduct is not comparable to the circumstances in the cited cases and his application represented the quickest, most cost-effective and efficient way of dealing with the matter. He argued that it was supported by voluminous evidence and in no way constituted an abuse of process. Respondent’s submissions

[102]Dietrich submitted that Jolley v Jarvis and Another is relevant as it makes clear that contentious matters arising from the citation procedure cannot be dealt with under the NCPR. On his behalf, learned counsel argued that the procedural abuse in the instant case is remarkably pronounced for several reasons that were taken into account by the learned judge. Firstly, Werner concedes that the matter is contentious. Secondly, he inappropriately invoked rules 66(1) and 67(1) where there has been intermeddling in the BVI estate. Thirdly, he did not carry out a timely search before applying for probate. Fourthly, he refused to withdraw the application even after being notified that Dietrich had filed an application for probate.

[103]Dietrich contended that the abuse of process is exacerbated by the inherent conflict in the rule 67(1) application. He submitted that this conflict arose because, by that process, Werner is seeking simultaneously to prevent Dietrich from being appointed formally as executor and attempting to hold him to account as executor to recover losses allegedly caused to the BVI estate through his alleged maladministration. Learned counsel argued that this is an irreconcilable posture that demonstrates Werner’s misconception of the citation procedure under rules 66(3) and 67(3), by which an intermeddling executor may be compelled to take probate and account to beneficiaries, and it constitutes a misuse of rule 67(1) which may be invoked merely to compel the taking of a grant simpliciter.

[104]He submitted that Werner would not have been prejudiced if he elected to withdraw his application under rule 67(1) because the citation proceedings would have proceeded, and he suffered no prejudice by the dismissal of his application. He argued further that by agreement of the parties the present proceedings are likely to crystallize into a contentious probate claim.

[105]Like his brother, Dietrich relied on Hunter v Chief Constable of West Midlands. He argued that the court is imbued with power to prevent misuse of its process that would result in manifest unfairness to one party or that would otherwise bring the administration of justice into disrepute. He submitted that the instant application is an abuse of the court’s process because it attempts to misuse the citation procedure to commence an application for probate, a purpose that the legislature did not intend and one that would usurp the nature and purpose of the citation procedure. He cited Myrna Norde v Jacqueline Mannix, Castanho v Brown & Root and Another, Re Majory v F. A. Dumont LD and Jolley v Jarvis and another.

[106]Learned counsel argued that Werner’s insistence to continue with his application under the NCPR after being informed that Dietrich had applied for a grant of probate was a prime example of the type of abuse discussed in Castanho v Brown. He added that Werner’s amendment of the application was aimed at correcting his blatant and egregious error in not conducting a registry search before filing it and his failure to file a claim under CPR Part 68 as exemplified by In the Estate of Enrico Julian. Discussion

[107]The parties quite correctly noted that the concept ‘abuse of process’ is not restricted to a limited range or set of circumstances, but rather is applicable in countless scenarios that would justify a court in exercising its inherent discretion to prevent misuse of and to control its process. It has been said that the possible ‘varieties of abuse of process are only limited by human ingenuity’.

[108]More recently, in Hunter, the House of Lords described the type of circumstances that would justify the application of the abuse of process classification and attract appropriate censure by the court in accordance with its duty and established principles. Lord Diplock opined: “My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied;…It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.” (Emphasis added)

[109]I keep those principles firmly in mind and am guided by them as I review the learned judge’s determination on the issue of abuse of process. Essentially, the learned judge concluded that it was highly improper and/or an abuse of the court’s process and resources to continue with the rule 67(1) application while there were earlier proceedings pending before the Registrar in which Werner could advance the very objection and arguments on which he relies in the present proceedings. She concluded that in the absence of an application or order staying them, it is proper to allow the caveat proceedings to advance in accordance with the NCPR.

[110]Here again, Re Jolley is instructive. In the words of Lord Willmer: “… it seems to me that procedure by way of motion under rule 47 of the Non-Contentious Probate Rules, 1954, is quite inappropriate to the situation in the present case… … it seems to me quite impossible to say that the situation with which we are here dealing is one to which the non-contentious rules apply and, therefore, proceedings under rule 47 (2) of the Non-Contentious Probate Rules, 1954, appear to be wholly inappropriate.”

[111]In Re Majory, the English Court of Appeal had this to say as to the consequences of utilizing an inappropriate or improper originating process for purposes other than those for which they were designed or in circumstances that would confer a benefit on the applicant: “…court proceedings may not be used … for the purpose of obtaining for the person so using … them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using … proceedings will be liable to be held guilty of abusing the process of the court, and, therefore, disqualified from invoking the powers of the court by proceedings he has abused.” Re Jolley and Re Majory are compelling authoritative precedents that support the learned judge’s determination on this point.

[112]As illustrated in Hunter v Chief Constable of West Midlands abuse of process arises where the court’s process is being used or manipulated for a purpose that is manifestly different from its ordinary and proper use. The learned judge’s rationale for holding that Werner’s application was an abuse of the court’s process was based on what she considered to be an unnecessary duplication of processes with the same objective. She reasoned that no prejudice would be occasioned to Werner if his application was discontinued and further it would lead to less of the court’s resources being deployed to address the issues that arise for determination. She was clearly of the view that it was manifestly unfair for Werner to be permitted to persist with his application in those circumstances. In my opinion, she cannot be justifiably criticized for so concluding.

[113]It seems to me that the learned judge took into account the applicable legal principles and all relevant matters in arriving at this conclusion. In the exercise of her discretion, I am satisfied that she did not err in principle or make a decision that is blatantly wrong. I would not interfere with it and would therefore dismiss ground of the appeal number 3. Refusal to decide to whom probate should be granted Appellant’s submissions

[114]The thrust of Werner’s fourth ground of appeal is that the learned judge erred by not deciding who should be granted probate. He submitted that she was wrong in finding that she could not make such a determination because of the way he pursued the matter. He argued that in view of section 12 of the Supreme Court Act, she had wide discretion to entertain his application and would have come to that conclusion had she taken that provision into account.

[115]Another line of argument pursued by Werner was that even if the application was somehow flawed, the judge should have found that it was in the interests of justice to determine who was entitled to be granted probate and she should have given directions regarding the proper procedure to be followed to obtain such a grant. He reasoned that contrary to the overriding objective, the judge failed to have regard to the significant time and cost expended by the parties in preparing evidence and other documentation. Further, even if she was resolute that she did not have jurisdiction, she could have remitted the matter to the registrar with a direction as to which one of them should be granted probate. For this proposition, he relied once more on Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al. Respondent’s submissions

[116]Dietrich countered that Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al is distinguishable from the present case because it was started by a fixed date claim. He reiterated that Werner’s insistence on using the NCPR to advance a contentious matter is wrong in principle and this argument does not assist him. He cited Texan Management Limited et al v Electric Wire & Cable Company Limited where the Board held that it would be wrong to exercise the court’s inherent jurisdiction by adopting a different approach to the one prescribed in order to arrive at a different outcome than would be permissible through the application of the rules. Discussion

[117]As indicated earlier, the practice and procedure in the court with respect to the uncontested grant of probate is settled, is inherently a non-contentious process and is governed by the NCPR. Constituting as it does a contentious dispute, Werner’s rule 67(1) application could in no way be considered an application for non-contentious probate.

[118]Congruent with the learning in Texan Management Limited, ‘although the inherent jurisdiction may supplement rules of court, it cannot be used to lay down procedure which is contrary to… them’. Accordingly, the learned judge could not in the circumstances of this case, ignore the prescriptions of the legislated procedure under the NCPR, and invoke the court’s inherent jurisdiction and the overriding objective of the CPR to justify processing the application as a fixed date claim under CPR part 68 and determining who should be granted probate when the NCPR and CPR dictated otherwise.

[119]Furthermore, the decision in Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al does not assist Werner for two reasons. Firstly, in that case, a claim involving non-contentious and contentious probate matters was filed under CPR 68 and was properly adjudicated in accordance with that regime. However, as mandated by the NCPR, aspects of the proceeding had to be processed under those provisions and were accordingly transferred to the non-contentious probate arm of the Probate division, not by deeming the Fixed Date Claim to be properly filed under the NCPR but by mandating that the non-contentious application be commenced in the probate registry using the applicable forms, supporting documentation and procedures.

[120]The referral of that application to the Registrar gave effect to the procedure stipulated by the NCPR. This was necessary not because the judge could not dispose of the application but evidently because the relevant forms and documentation were not before him. The direction regarding to whom the grant was to be issued emanated from the contentious element of the claim and constituted the judge’s determination of that dispute. That case is therefore distinguishable from the case at the appeal bar. The procedure adopted by the learned judge in Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al could not be transposed onto the circumstances in the instant case in the absence of the issuance of a fixed date claim form which is required for contentious proceedings.

[121]In all the circumstances, the learned judge in the case at the appeal bar did not err in law either in refusing to determine which Batista brother should be granted probate; or by not referring the application to the Registrar with directions as to which of them should be granted probate. In arriving at her determination she took into account all of the relevant legal principles and factual matters and did not rely on any irrelevant considerations. She did not err in principle and did not make a determination that was blatantly wrong. I would not disturb her ruling and would dismiss ground 4 of the appeal. Case management powers and procedural irregularities Appellant’s Submissions

[122]Werner took issue with the learned judge’s refusal not to use her Case management powers to rectify his error in commencing a contentious probate claim by a rule 67(1) application. He argued that the judge erred in law by failing to find that rule 3 of the NCPR came into force after CPR rule 2.2(3) and therefore superseded it, so that any inconsistency between them was immaterial. He maintained that his rule 67(1) application was correctly commenced, the learned judge erred in finding otherwise and this led her to erroneously conclude that the case management powers under CPR 26.1(2)(w) and 26.9 were not engaged.

[123]He contended further that since Forms P1 and P2 were prescribed to be used, the NCPR envisages that a rule 67(1) application may be commenced without using a Fixed Date Claim Form. Consequently, the judge should have considered that the use of the application process was essentially a procedural irregularity in initiating a contentious proceeding and because the CPR is applicable to non-contentious proceedings she was empowered to use her case management powers to correct the form.

[124]He contended that Reniston Ltd. v Nedland Overseas Inc. and Intrust Trustees (Nevis) Limited et al v Naomi Darren are authority for the proposition that a trial judge is entitled to exercise her discretion under CPR 26.9(3) to put things right where a claimant commences proceedings by an incorrect form. In both cases, the court applied CPR 26.9 to regularize the originating process. In the former, the claimant had filed a Fixed Date claim and not a regular claim as required and the converse happened in the latter. The court in Intrust Trustees remarked: “To sacrifice substance by way of slavish adherence to form for the purpose of defeating a genuine claim defeats the overriding objective of CPR rather than gives effect to it.”

[125]Werner also cited Broad Idea International v Convoy Collateral. He submitted that had the learned judge considered whether she could deploy her case management powers to regularize the originating process, she would have ruled that it was appropriate and in the interest of justice to make such an order. Alternatively, she could have invoked the court’s inherent jurisdiction to put things right. In support, he cited Halsbury’s Laws of England where the learned authors explained: “In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.” Respondent’s submissions

[126]Dietrich countered that the procedural blunders made by his brother could not be cured by transforming Form P2 under the NCPR into a Fixed Date Claim Form under the CPR. He submitted that the ratio decidendi in Broad Idea is not applicable in this case because it is irrelevant to the issues at hand. In this regard, he noted that the legal principle to be extracted from Broad Idea is that the Court may grant free standing interim freezing orders and other interim injunctions in aid of foreign proceedings in the absence of a substantive claim; and those principles are not pertinent for present purposes. Discussion

[129]Form P1 or P2 are prescribed for use in a rule 67(1) application. Both of them are very simple and elicit limited details about the applicant such as his name, address, occupation, the estate concerned and the nature of the relief sought, be it a grant of probate and/or directions. The Fixed Date Claim Form under the CPR is more detailed and at the very least requires the names of the claimant and defendant, the relief sought, and it must be accompanied or supplemented by a statement of claim or affidavit evidence.

[127]The impugned determination by the judge is set out in paragraph 25 of her decision. She ruled simply: “The failure of the Applicant to commence this admittedly contentious matter properly is by no means a mere procedural irregularity that can be dealt with under rr. 26.1(2)(w) or 26.9 of the CPR. The Applicant has filed these proceedings under the Probate Rules, not under CPR. For these reasons, the authorities the Applicant relies on … to put things right do not assist. The Court therefore dismisses this application on this additional ground.”

[128]The appellant’s posture in relation to this issue is grounded like others in his apparent misunderstanding of the distinction between contentious and non-contentious probate proceedings. As explained earlier, each of those proceedings is designed to follow different routes. The NCPR deals with routine proceedings that usually do not require oral evidence and do not involve disputes, whereas the CPR 68 contentious probate procedure necessitates a trial (even if only in a summary way) to resolve a dispute between two or more parties.

[130]The difficulty for Werner is that the rule 67(1) application that he made is essentially a contentious matter and can be pursued only as a contentious proceeding and not as a non-contentious matter. As already explained, such an application cannot be accommodated under rule 67(1) because it is contentious. Having conceded as much, Werner cannot be heard to say that he can invoke the non-contentious rules to initiate a contentious proceeding. Having utilized the incorrect procedure, he is bound to it and cannot transfer his application to the CPR track without filing a fixed date claim form under Part 68. The Court in Re Jolley makes this point forcefully and I adopt – its reasoning and conclusion.

[131]In the premises, the learned judge was being invited to apply the CPR rules to an application that was incorrectly conceived and formulated and in relation to which no legal or other justifiable basis existed for it to be made under the NCPR. As submitted by Dietrich Broad Idea does not assist Werner because the learning is not applicable. Further, Reniston and Intrust Trustees would not assist Werner because the applications in those matters were in the case of the former, one to a change from a fixed date claim to a regular claim; and in the latter was characterized as either a clerical error or procedural irregularity. Both of those matters are routinely addressed under the court’s CPR case management powers and are substantially different from the circumstances that presented themselves in the instant case.

[132]For those reasons, the learned judge’s refusal to put things right pursuant to the court’s inherent jurisdiction cannot be faulted in law. It was an exercise of discretion based on her evaluation of the factual and legal circumstances. She was entitled to hold as she did. I perceive no failure on her part to consider any relevant factor or pertinent legal principle. It cannot be said that her decision is plainly wrong. Accordingly, I would not interfere with her determination and would dismiss the 5th ground of appeal. Prescribed or Assessed Costs

2.The Applicant shall pay the Respondent’s cost (sic) of the application, to be Assessed if not agreed.” Appellant’s Submissions

[133]Werner’s final criticism of the judgment relates to the costs award. The learned judge dealt with the issue of costs very succinctly. She did not provide reasons for her decision. At paragraphs 27 and 28 of the judgment, she stated: “[27] The Applicant shall pay the Respondent’s costs of this application to be assessed, if not agreed.

[134]Werner submitted that by awarding costs to be assessed the judge applied the wrong costs regime, failed to consider that the substantive issues in dispute have not yet been resolved, and formed the view inappropriately that the issues in dispute could be resolved in Dietrich’s probate application. He argued that costs should have been awarded under the prescribed costs regime because the rule 67(1) application was a claim to which no monetary value had been affixed. He submitted that the proceeding should therefore have been treated either as a claim for US$50,000.00 under CPR rule 65.5(2)(b) or one for a value that could have been agreed by the parties or stipulated by the court in accordance with CPR rule 65.5(2)(a).

[135]He contended that the parties were not invited to make submissions on costs and the judge should have either given directions for the filing of further submissions on the matter, or ordered that the issue of costs be reserved for determination following the outcome of the substantive probate action. Respondent’s Submissions

[137]He submitted that the judge made a final decision by dismissing the application and was entitled to determine costs liability between the parties. In these circumstances where the Court dealt with volumes of evidence, primary and supplemental Submissions and held a 1-day hearing, it would be fanciful to suggest that the manner in which the Judge exercised the court’s discretion in relation to costs was blatantly wrong.

[136]Dietrich argued that to ensure the fair and proper administration of justice it was within the Court’s inherent jurisdiction to make an order for costs that was reasonable and proportionate to the circumstances of the case. He contended that notwithstanding Werner’s procedural blunders, the parties had submitted to the jurisdiction of the Court to make orders in personam against them.

[138]He submitted further that there are settled authorities within the jurisdiction where the High Court has confirmed that a judge has a wide discretion as to the costs in probate actions, and they do not restrict the parties to prescribed costs. Further, the award should be upheld since the costs incurred in relation to the Rule 67 application would not be recoverable in the contentious probate claim. Discussion

[141]Likewise, it is well-established that the failure to give parties a chance to make representation runs counter to procedural fairness and principles of natural justice and would invalidate a determination. This Court has pronounced on the necessity of affording affected persons an opportunity to be heard before a determination is made as to their rights or interests. The decisions in Webster Dyrud Mitchell (A Partnership) et al v Jenny Lindsay and Patricia Ann Huggins v Lloyd Browne make the point that as a matter of procedural fairness, a judge must hear from the parties before making a costs order. Failure to do so infringes the principles of natural justice and is fatal. In the premises, it falls to this Court to exercise that discretion at this level. I would accordingly allow the sixth ground of appeal limited to the issue of lack of procedural fairness. Prescribed costs or assessed costs

[139]This ground of appeal brings into sharp focus the importance of and rationale for giving litigants an opportunity to make representations in relation to an issue in dispute even if it is about costs. Regrettably, the learned judge made the costs order without the benefit of submissions by the parties on the issue. This was compounded by her failure to state the reasons why she made the costs order.

[140]I remind myself that the award of costs arises from the exercise of discretion. An appellate court’s reluctance to disturb such a ruling has been the subject of judicial pronouncement in this court. The principle was expressed by Lord Woolf M.R. in AEI Rediffusion Music Limited v Phonograhic Performance Ltd as follows: “It was correctly accepted by the judge that his right to interfere with the tribunal decision on costs was constrained in the same way that this court’s discretion is constrained in relation to decisions of judges of first instance.”

[145]The relevant portion of CPR 65.5 provides: “65.5 (1) The general rule is that where rule 65.4 does not apply and a party is entitled to the costs of any proceedings, those costs must be determined in accordance with … paragraphs (2) to (4) of this rule. (2) The “value” of the claim, whether or not the claim is one for a specified or unspecified or unspecified sum, coupled with a claim for other remedies is to be decided in the case of the claimant or defendant – (a) by the amount agreed or ordered to be paid; or if the claim is for damages and the claim form does not specify an amount that is claimed, such sum as may be agreed between the party entitled to, and the party liable to, such costs or, if not agreed, a sum stipulated by the court as the value of the claim; …” (underlining added)

[142]The principles on which the Court will make an award as to costs are settled. They have been rehearsed from time to time by this Court. The award of costs is a matter of discretion for the judge making the order. The discretion must be exercised judicially and in furtherance of the overriding objective of the CPR to do justice between the parties.

[143]The first consideration is whether the costs regimes under the CPR are applicable to proceedings commenced under the NCPR. Rule 3 of the NCPR answers that question in the affirmative.

[144]Under the CPR, several costs regimes are specified in Parts 64 and 65. Prescribed costs are dealt with in 65.5 and assessed costs are covered by CPR rules 65.11 and 65.12.

[146]CPR rules 65.11(1) and 65.12(2) provide respectively: “Assessed costs – procedural applications 11(1) On determining any application except at a case management conference, pre-trial review or the trial, the court must – (a) decide which party, if any, should pay the costs of that application; (b) assess the amount of such costs; and (c) direct when such costs are to be paid. Assessed costs – general

[147]From the language used in the referenced rules, it is readily apparent that the prescribed costs regime applies exclusively to claims, while the assessed costs regime is applicable to applications. Rule 65.12 merely sets out the procedure and the quorum for assessing costs.

[148]This brings me to the question of whether the rule 67(1) application was a claim or an application. Rule 2.4 describes both terms. Rules 8.1 and 11.2 are also engaged. They provide respectively: “2.4 In these Rules, unless otherwise provided for or the context otherwise requires – “application” has the meaning given in rule 11.2; “claim” is to be construed in accordance with Part 8;’ and (underlining mine) …

[149]Those rules reflect that a claim is a civil proceeding that is commenced by a claim form (whether regular or fixed date) while an application is begun by a notice of application. This means that prescribed costs is the proper award in proceedings that are initiated by claim form while assessed costs are awarded in respect of applications.

[150]The case at the appeal bar was not begun by claim form or fixed date claim form. It was initiated by application under rule 67(1) of the NCPR and before a claim was filed. It can only be classified as an application made before proceedings akin to those made under rule 11.1 of the CPR. It matters not that it was not begun by notice of application in Form 6 under the CPR. It required the attention of the judge and was heard by her. It was not an application that could have been dealt with at case management, pre-trial review or consequentially at trial.

[151]The assessed costs regime under CPR rule 65.11 is therefore applicable and in keeping with the general rule the successful party would be entitled to his costs. Werner’s complaint that the judge erred by applying the incorrect rule is not made out. Her errors were the failure to seek submissions and to indicate the reasons for the award as contended by Werner.

[152]While he has succeeded on this ground, it is only a partial victory simply because the end result is commensurate with the rules. I would find therefore that the learned judge quite properly utilized the assessed costs regime and was not clearly wrong in so doing. I would allow ground of appeal No. 6 only to the extent that the judge failed to invite submissions on the issue of costs. However, for the reasons articulated in this judgment, I would order that Werner pays costs to Dietrich to be assessed if not agreed in relation to the proceedings before her in the High Court. This effectively affirms the learned judge’s award. Costs

[153]The parties have each had a measure of success on appeal and there is no outright winner. It is just therefore to order that each party bears his own Costs Disposition

[154]For the foregoing reasons, the appeal is upheld in part. (1) I would therefore refuse the fresh evidence application. (2) I would uphold the appeal against the learned judge’s order that applications for probate under rule 67(1) of the NCPR may be made only to the Registrar and must be determined by the Registrar. (3) I would dismiss the appeal against the learned judge’s ruling that it was improper and/or an abuse of process and/or otherwise inappropriate to continue with the rule 67(1) application; against her refusal to determine to whom probate should be issued; and against her refusal to deploy case management powers to correct perceived defects in the rule 67(1) application. (4) I would uphold the appeal against the costs award in part; and affirm the learned judge’s costs award. (5) I would order that each party shall bear his own costs of the appeal.

[155]I am grateful for the assistance provided by learned counsel on both sides. I concur. Mario Michel Justice of Appeal I concur. Robert Levy Justice of Appeal [Ag.] By the Court Chief Registrar

1.When considering an application for leave to adduce fresh evidence the Court is engaged in the exercise of discretion. In the exercise of its discretion, the Court must seek to give effect to the overriding objective to do justice between the parties. In doing so, it must act judicially and cautiously. The Court will take into account a number of factors including whether either party will be prejudiced by or obtain an unfair advantage by the grant or refusal of permission to adduce the fresh evidence. Furthermore, the three criteria in Ladd v Marshall must be satisfied i.e. the proposed new evidence must be such that it could not have with reasonable diligence been obtained for use at the hearing in the lower court; the evidence would likely have an important but not necessarily a decisive bearing on the outcome of the appeal; and the proposed evidence must be credible but not necessarily irrefutable. However, a more flexible approach is to be taken to the application of those principles in interlocutory matters. In the instant case, it is not disputed that the Brazilian judgment was not available at the time of the hearing before the learned judge. As it emanated from a court of law in Brazil, it is credible. However, it is not likely to have an important bearing on this appeal, since the issues before this Court relate largely to the interpretation and application of rule 67(1) of the NCPR, the learned judge’s exercise of discretion relative to case management and the award of costs, and those matters would not benefit from considerations which influenced the Brazilian court or that appear in the Brazilian judgment and ruling. Accordingly, the application to adduce the Brazilian judgment and ruling as fresh evidence is refused. Ladd v Marshall [1954] 3 All ER 745 applied; Adam Bilzerian v Gerald Lou Weiner et al SKBHCVAP2019/0033 (delivered 21st July 2020, unreported) followed.

3.A citor who wishes to contest a grant of probate to the citee, must engage the probate arm of the court, by filing a rule 67(1) application under the NCPR. Significantly, rule 67(1) makes no provision for a citor to apply for a grant of probate if, following the citation, the citee has applied for a grant under rule 66(7) expeditiously and prosecutes it with reasonable diligence. The rules contemplate that in such a case, the registry will process and issue a grant to the citee on receipt of the relevant application for probate. A citor who desires to contest a grant to a citee in those circumstances is required to engage the probate division of the court in contentious proceedings under CPR Part 68, by filing and issuing a fixed date claim and a statement of claim or supporting affidavit. Such proceedings would be triggered not by the citee’s rule 66(7) application, or by a rule 67(1) application by the citor but rather by the institution of a probate claim under CPR Part 68. By filing a rule 67(1) application, Werner was seeking to pursue CPR Part 68 contentious probate proceedings under the non-contentious regime in a manner not provided for under the NCPR generally or rule 67(1) specifically. While the NCPR expressly provides that the CPR applies to non-contentious probate practice, the converse is not expressed. It follows that the procedures applicable under the NCPR in respect of non-contentious probate business are inapplicable for purposes of contentious probate proceedings under the CPR. Accordingly, Werner’s contention that rule 67(1) is inherently contentious runs contrary to judicial precedent and the practice and procedure in the probate division of the Supreme Court. Thus, his contention that his rule 67(1) application is non-contentious and must for this reason be made to the Registrar holds no merit. The learned judge therefore erred by construing rule 5 as mandating that applications for the grant of probate under rule 67(1) must be made to the Registrar and this ground of appeal is allowed. In re Jolley, dec’d, Jolley v Jarvis and Another [1964] 2 WLR 556 applied.

4.On the issue of jurisdiction, subrule 7(2) expressly empowers all judicial officers throughout the court’s hierarchy (from the Registrar at the lower level to the Chief Justice at the apex) to execute any of the court’s functions relative to the determination of such non-contentious probate applications and to issue directions unless some law or practice direction provides otherwise. Another consideration is that there is nothing in the NCPR that expressly precludes a judge of the High Court from determining an application for the grant of probate under rule 67(1). Additionally, it is commonly known that within the civil jurisdiction of the Supreme Court, a judge at times carries out judicial functions that are routinely performed by the Registrar or Deputy Registrar, even where the rules specify the Registrar as the authorized functionary. This suggests that the NCPR in general and rule 7(2) in particular contemplates that an application for probate under any of its provisions may be determined by the Registrar, a master or any judge of the Eastern Caribbean Supreme Court unless expressly provided for otherwise. While the learned judge was correct to take the entire legislative scheme into consideration and to consider rules 5, 7 and 8 when construing rule 67(1), she erred in law in holding that rule 67(1) applications for probate must be made to and be determined only by the Registrar.

5.As illustrated in Hunter v Chief Constable of West Midlands abuse of process arises where the court’s process is being used or manipulated for a purpose that is manifestly different from its ordinary and proper use. The learned judge’s rationale for holding that Werner’s application was an abuse of the court’s process was based on what she considered to be an unnecessary duplication of processes with the same objective. She reasoned that no prejudice would be occasioned to Werner if his application was discontinued and further it would lead to less of the court’s resources being deployed to address the issues that arose for determination. She was clearly of the view that it was manifestly unfair for Werner to be permitted to persist with his application in those circumstances. The learned judge took into account the applicable legal principles and relevant matters and cannot be justifiably criticised for so concluding. Therefore, this ground of appeal must fail. Hunter v Chief Constable of West Midlands Police and another [1981] 3 All ER 727 applied; Re Majory v F. A. Dumont LD [1955] Ch. 600, CA applied; In re Jolley, dec’d, Jolley v Jarvis and Another [1964] 2 WLR 556 considered.

6.The practice and procedure in the court with respect to the uncontested grant of probate is settled, is inherently a non-contentious process and is governed by the NCPR. Constituting as it does a contentious dispute, Werner’s rule 67(1) application could in no way be considered an application for non-contentious probate. Accordingly, the learned judge could not ignore the prescriptions of the legislated procedure under the NCPR, and invoke the court’s inherent jurisdiction and the overriding objective of the CPR to justify processing the application as a fixed date claim under CPR part 68 and determining who should be granted probate when the NCPR and CPR dictated otherwise. In all the circumstances, the learned judge did not err in law either in refusing to determine which Batista brother should be granted probate; or by not referring the application to the Registrar with directions as to which of them should be granted probate. In arriving at her determination she took into account all of the relevant legal principles and factual matters and did not rely on any irrelevant considerations. She did not err in principle and did not make a determination that was blatantly wrong. Accordingly, this ground of appeal must also fail. Texan Management Limited et al v Electric Wire & Cable Company Limited [2009] UKPC 46 applied; Olga Vladimirovna Scherbakova et al v Brigita Morina Scherbakova et al BVIHC(COM) 134 of 2018 (delivered 25th October 2018, unreported) distinguished.

7.It is well-established that the failure to give parties a chance to make representation runs counter to procedural fairness and principles of natural justice and would invalidate a determination. This Court has pronounced on the necessity of affording affected persons an opportunity to be heard before a determination is made as to their rights or interests. Failure to hear from parties before making a costs order infringes the principles of natural justice and is fatal. Accordingly, the sixth ground of appeal must be allowed, albeit limited to the issue of lack of procedural fairness. Despite this finding, the assessed costs regime under CPR rule 65.11 is applicable and in keeping with the general rule the successful party would be entitled to his costs. Werner’s complaint that the judge erred by applying the incorrect rule was not made out. Her errors were the failure to seek submissions and to indicate the reasons for the award. Accordingly, the learned judge correctly utilized the assessed costs regime and was not clearly wrong in so doing. Webster Dyrud Mitchell (A Partnership) and others v Jenny Lindsay AXAHCVAP2017/0001 (delivered 20th September 2021, unreported) followed; Patricia Ann Huggins v Lloyd Browne SVGHCVAP2018/0007 (delivered 14th June 2021, unreported) followed. JUDGMENT Introduction

[27]I am guided by the foregoing principles and apply them in the resolution of this issue. It is not disputed that the Brazilian judgment was not available at the time of the hearing before the learned judge. Emanating as it does from a court of law in Brazil, it is credible. It is not likely to have an important bearing on this appeal, since the issues before this Court relate largely to the interpretation and application of rule 67(1) of the NCPR, the learned judge’s exercise of discretion relative to case management and the award of costs. I am satisfied that the determination of those matters by this Court would not benefit from considerations which influenced the Brazilian court or that appear in the Brazilian judgment and ruling. I would accordingly refuse the application to adduce them as fresh evidence in this appeal. Appellant’s Opportunity to Respond to the Jurisdictional Point Werner’s submissions

[29]Dietrich argued that since this was not one of the grounds of appeal, the argument was merely an afterthought, a last-ditch effort to attack the judgment and should be disregarded. He contended that in any event, the parties were afforded a fair opportunity to make submissions on jurisdiction and they did so. Accordingly, the law in relation to natural justice, summarized in Corporal Philbert Bertrand v The Secretary, PSC has no application to the instant case.

3.Subject to the provisions of these Rules and to any enactment, the CPR 2000 shall apply to non-contentious probate matters, except that nothing in Part 3 of the CPR 2000 shall prevent time from running in the Long Vacation.’

6.(1) An application for a grant of probate or letters of administration may be made (a) through an attorney-at-law; (b) by the propounder of a will; or (c) by a proposed administrator in person. (2) An application or a notice of application for a grant of probate or letters of administration shall (a) bear the signature of the attorney-at-law, propounder or proposed administrator in person; and (b) contain an address for service for the attorney-at-law, propounder or administrator in person, including an email address and contact numbers.

68.2 (1) Probate proceedings must be commenced by issuing a fixed date claim form in Form 2. (2) The claim form must state the nature of the interest of the claimant and of the defendant in the estate of the deceased person to which the claim relates. (3) The claimant must file a statement of claim with the claim form.” Having set out these rules, I turn next to consider the grounds of appeal. Jurisdiction

[18]…In light of the clear and unambiguous language of r.5, in the absence of express language in rule 67(1) directing the citor to apply to a single judge, the application must be made to the court through the Registrar in compliance with rule 5. Further it must be made in the manner set out in rule 8, which is the only rule dealing with how an application for probate is to be made…

[20]On the basis of the Court’s conclusion that an application for probate under rule 67(1) of the Probate Rules is required to ne made to the Registrar, this application is dismissed on the ground that a high court judge does not have the jurisdiction to grant probate under the Probate Rules at the initial stage. The judge may be called upon to make a determination on the question of who is entitled to a grant of probate, but not in the manner pursued by the Applicant.” Werner’s submissions

7.(1) An application under these Rules shall be made in the first instance to the court in Form P1 or Form P2, as the case may be. (2) Except where any enactment, rule or practice direction provides otherwise, the functions of the court may be exercised in accordance with these Rules and any direction made by (a) the Chief Justice; (b) a single judge; (c) a master; or (d) the registrar.” (Emphasis added)

[27]Therefore, at this initial stage, a Judge is not the proper judicial officer to deal with applications for Grant of Probate or Letters of Administration as is evident in section (sic) 3(1). Such applications must be made to the Registrar for her determination after making all the enquiries as stipulated in section (sic) 10. For these reasons, the 15 July 2009 Order ought to be set aside.’ (Underlining added)

[28]It is therefore ordered as follows:

1.…

65.12(1) This rule applies where costs fall to be assessed in relation to any matter or proceedings, or part of a matter or proceedings, other than a procedural application.” (underlining added)

8.1 (1) A claimant starts proceedings by filing in the court office the original and one copy (for sealing) of – (a) the claim form; and (subject to rule 8.2) (b) the statement of claim; or I if any rule or practice direction so requires – an affidavit or other document. …’, and …

11.1 This Part deals with applications for court orders made before, during or after the course of proceedings.

11.2 In this Part – “applicant” means a person who seeks a court order by making an application;”