Estella John v Randolph Carr

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES SVGHCV2015/0071 IN THE MATTER OF AN APPLICATION UNDER THE REGISTRATION OF BIRTHS AND DEATHS ACT CAP 242 OF THE REVISED LAWS OF SAINT VINCENT AND THE GRENADINES 2009 AND – IN THE MATTER OF AN APPLICATION UNDER SECTION 10 OF THE STATUS OF CHILDREN ACT CAP 243 OF THE REVISED LAWS OF SAINT VINCENT AND THE GRENADINES 2009 AND – IN THE MATTER OF AN APPLICATION BY ESTELLA JOHN (ALSO KNOWN AS ESTELLE JOHN) FOR A DECLARATION OF PATERNITY THAT THE RELATIONSHIP OF FATHER AND CHILD EXISTED BETWEEN LEON O’GARRO DECEASED AND HULDA O’GARRO DECEASED BETWEEN: ESTELLA JOHN (otherwise known as ESTELLE JOHN) CLAIMANT of Arnos Vale AND – RANDOLPH CARR DEFENDANT Appearances: Mr Parnel R. Campbell Q.C. Counsel for the Claimant, and Ms Keisal Peters holding for Mr Carlyle Dougan Q.C. Counsel for the Defendant. ------------------------------------------ 2015: Jul. 13 & 15 ------------------------------------------- JUDGMENT BACKGROUND

[1]Henry, J.: Ms Estella John aka Estelle John is the late Hulda O’garro’s mother. Hulda O’Garro was Paul O’Garro’s mother. Ms John applies by Fixed Date Claim for a declaration that Leon O’Garro deceased is Hulda O’garro’s father. Randolph Carr who has an interest in Leon O’Garro’s estate opposes the grant of such declaration of paternity. He has applied to the court for an order striking out Estella John’s statement of case on the grounds that: 1. she has no reasonable ground for bringing the claim; 2. the affidavits in support disclose insufficient evidence to meet the standard of proof required by the Status of Children Act, and 3. it is an abuse of the process of the court. Ms John resists his application.

ISSUE

[2]The issue before the court is whether Estella John’s statement of case should be struck out?

ANALYSIS

Issue – Should Estella John’s statement of case be struck out?

[3]Randolph Carr’s application to strike out Ms John’s statement of case, is made pursuant to rule 26.3 (1) (b) and (c) of the Civil Procedure Rules 2000 (“CPR”) which provides: “26.3 (1) In addition to any other power under these rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that – (b) the statement of case or the part to be struck out does not disclose any reasonable ground for brining or defending a claim; (c) the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings;”

[4]Rule 26.3 (1) gives the court a wide discretion to strike out a statement of case if it discloses no reasonable ground for bringing or defending the claim. The court may make the order of its own initiative or on an application, provided it gives any party likely to be affected, an opportunity to make representations. In exercising its discretion, the court must consider the overriding objective to deal with cases justly. The court will strike out a statement of case “only in the most clear and obvious cases … because it errs on the side of having trials on the merits of cases.” When considering such an application the court examines the particulars in the statement of case to ascertain if a cause of action is made out; but it is not necessary for the court to conduct a detailed and minute examination of facts, allegations in it or the documents exhibited.

[5]Even if the case is weak and appears unlikely to succeed, this will not provide a basis for striking out the claim if it discloses a cause of action or raises a question for the judge to decide. The court is not concerned with determining whether the claimant can prove his case. I now turn to consider Mr Carr’s application in light of those guiding principles and the applicable legislation.

[6]Estella John brought her application under section 10 of the Status of Children Act Cap 243 of the 2009 Revised Edition. She seeks: a declaration that the relationship of father and child existed between Leon O’Garro deceased who died on September 27th, 2009 and Hulda O’Garro who was born on June 13th 1938 and who died on November 18th 1998, “in accordance with section 10 of the Status of Children Act Cap 243 of the Laws of Saint Vincent and the Grenadines Revised Edition 2009” (“the former Act”); and an order directing the Registrar to enter the name Leon O’garro as father in the registry of births in respect of Hulda O’Garro’s birth; and costs. (bold mine)

[7]Randolph Carr’s attack on the application exclusively referenced the former Act. That Act has been repealed and replaced by a new Status of Children Act. The new Act came into force on March 25, 2015, two months before Estella John filed her claim. Mr Carr limited his submissions to the meaning and effect of several provisions of the former Act and appeared not to have given any consideration to the current law, although its existence was brought to the attention of both parties at the hearing. The 2011 Act is substantially different from the former Act. For this reason, the arguments made on Mr Carr’s behalf are not capable of being transposed to provisions of the 2011 Act. It is therefore unnecessary to consider them.

[8]Suffice it to so that Mr Carr’s application centred on dicta emerging from the case of Adolphus David McKenzie v David Sampson in which Saunders JA (as he then was) interpreted section 10 of the former Act and made a distinction between the standard of proof required for declarations of paternity: 1. simpliciter which is granted in cases where the applicant is uninterested in succeeding to property; and 2. where the applicant is desires to inherit property on the strength of the declaration. Justice Saunders declared that while the standard of proof for both is on a balance of probabilities, more cogent proof is required in cases concerned with claims to a deceased person’s estate.

[9]As it turns out, Ms John relies on a non-existent statute as the legal basis for her claim. It is trite law that legislation which has been repealed is ineffective to confer rights or interests. Ms John’s claim for a declaration of paternity discloses no cause of action as it has no legal basis. Her claim falls within the category of “clear and obvious cases” referred to previously. Although learned Queen’s Counsel for Ms John was invited to address the court on the provisions of the 2011 Act and its relevance to the proceedings, no such submissions were made. In the circumstances, Ms John’s application must fail. I accordingly order that Ms John’s statement of case be struck out pursuant to CPR 26.3 (1) (b) because it discloses no reasonable ground for bringing the claim.

ORDER

[10]It is ordered as follows: 1. Estella John’s statement of case is struck out and her claim is dismissed. 2. As agreed by the parties, there is no order as to costs.

[11]I wish to thank both counsel for their submissions. ….………………………………… Esco L. Henry HIGH COURT JUDGE