Court name
Supreme Court of Turks and Caicos Islands
Case number
32 of 2021

Fatima Garcia Cox v Gloria Cox and James Cox (32 of 2021) [2022] TCASC 19 (29 July 2022);

Media neutral citation
[2022] TCASC 19
Case summary:

By writ of summons filed 22 April 2022 the plaintiff (“Fatima”) seeks (among other things) declarations and an order of conveyance in relation to a parcel of land located at 56 to 55 Walter Cox Drive, registered at Parcel 60606/398 (“the Land”). The Land forms part of a larger estate which belonged to the 2nd defendant’s (“James”) father Walter Cox, who is now deceased.

In late 2008 or early 2009 Fatima moved to the Turks and Caicos Islands. She alleges that in the course of several conversations at around that time, James told her that there was an incomplete structure situated on the Land (“the Home”) and that the 1st defendant (“Gloria”) would give him the Land. Fatima claims that thereafter, personally and together with James, she repaired and made additions to the Home. Fatima also claims that in 2012 with the assistance of her brother, she constructed another building on the Land. In 2011 Fatima and James were married, and from 2011 to 2019 she, James and her children lived at the Home. In 2019 James left the Home because his relationship with Fatima had deteriorated. Shortly after, in 2020 Gloria commenced proceedings to have Fatima evicted from the Home.

Fatima claims Gloria’s conduct is unconscionable, as she was well aware that Fatima has been residing at the Home with her children, of the extensive work Fatima had done on the Home and as she had not previously expressed that Fatima was a “mere guest” in the Home (proprietary estoppel). Fatima also says that until shortly before filing this action she was unaware that Gloria had not transferred the Home to James. Gloria has not filed a defence.

Gloria applied pursuant to O. 18 r 19 (1) of the Rules of the Supreme Court 2000 to strike out Fatima’s writ of summons on the grounds that (a) it discloses no reasonable cause of action against Gloria; and/or (b) it is scandalous, frivolous or vexatious; and/or (c) it is an abuse of process of the Court. Fatima applied for summary judgment pursuant to O. 14 Rules of the Supreme Court 2000, based on the ground that Gloria has no defence to the claim.

Headnote and holding:

Gloria’s summons to strike out the Fatima’s writ of summons, was dismissed.  Fatima’s summons for summary judgment, was dismissed. Gloria was granted permission to file a defence within 14 days of the order. No order as to costs were made on either application.

The Court found that although Gloria’s application relied on all three grounds in the rule, her primary ground was that the writ and statement of claim discloses no reasonable cause of action against her. In order to succeed on an application to strike out an action on this ground, a defendant must satisfy the Court that even if the plaintiff proves all the pleaded allegations, the action would still fail. [14] to [15]. Royal Bank of Scotland International Ltd v JP SPC 4 [2022] UKPC 18 considered.

Gloria’s counsel pointed out that there is no allegation that Gloria made an express representation to Fatima. However, an express representation or assurance is not necessary to found a claim of proprietary estoppel; depending on the circumstances silence may be sufficient. [17] Mohammed v Gomez and others [2019] UKPC 46 considered. The Court made no finding as to the credibility of Fatima’s allegations, but found if she proves them at the trial of this action, it cannot be said that her pleaded claim is bound to fail. It would be open to the trial judge to find that a claim based on proprietary estoppel has been established. It followed that Gloria had not shown that Fatima’s pleadings do not disclose a reasonable cause of action against her, and the summons to strike out the action on that ground failed. [18] The Court also found that the claim was not scandalous, frivolous or vexatious and there had been no abuse of process. [19] to [20]

As regards Fatima’s application for summary judgment, the court said on a summary judgment application, the parties and the court are not restricted to a consideration of the pleadings. The court may (and indeed, should) consider all the evidence before it. [23] To have been successful Fatima would have had to satisfy the court that Gloria has no defence to the proprietary estoppel claim which has a realistic prospect of success. The nature of Gloria’s potential defence, is primarily that she made no representations to Fatima and that any representations were made by James, who was not the legal owner of the Home. Gloria effectively denies that in the circumstances, her silence or conduct could constitute the representation necessary to establish a claim based on proprietary estoppel. [24] to [25]

The Court found there are conflicts of fact on the affidavit evidence.  If pleaded and proved, Gloria’s defence has a realistic prospect of success.  The outcome of the trial will depend to a large extent, on the trial judge’s findings of fact after the witnesses have given oral evidence and that evidence has been tested under cross examination. Fatima will have to establish the three elements of proprietary estoppel: representation, reliance and detriment. The basis of the ‘representation’ claim is essentially that Gloria stood by in silence while Fatima developed the Home. Whether in all the circumstances this was a sufficiently clear representation, and one on which Fatima relied, are disputed issues that will require evidence at a trial. In the circumstances the application for summary judgment also failed [26] to [28].

IN THE SUPREME COURT OF                                                                Action No. CL 32/21

THE TURKS AND CAICOS ISLANDS

 

BETWEEN:

FATIMA GARCIA COX

Plaintiff

-and-

(1)  GLORIA COX

(2) JAMES COX

Defendants

__________________________________

JUDGMENT

__________________________________

 

CORAM:                               The Hon. Mr. Justice B. St. Michael Hylton QC (Ag)

 

Appearances:                        Mr. Mark Fulford and Ms Chloe McMillan for the plaintiff

Mr. Selvyn Hawkins Jr and Ms Shantae Francis for the 1st defendant.

No appearance by the 2nd defendant

 

Hearing Date:                        6 July 2022

Venue:                                    Court No. 5, Graceway Plaza, Providenciales

Date Delivered:                     29 July 2022

 

 

Background

 

  1. By writ of summons filed 22 April 2022 the Plaintiff seeks (among other things) declarations and an order of conveyance in relation to a parcel of land located at 56 to 55 Walter Cox Drive, registered at Parcel 60606/398 (“the Land”). The Land forms part of a larger estate which belonged to the 2nd defendant’s father Walter Cox, who is now deceased.

 

  1. For ease of reference and intending no disrespect, I will refer to the plaintiff as “Fatima”, the 1st defendant as “Gloria”, the 2nd defendant as James”, and the 2nd defendant’s father as “Walter”.

 

  1. Walter and Gloria were James’ parents, James and Fatima are married, and Gloria was the administrator of Walter’s estate.  

 

  1. In late 2008 or early 2009 Fatima moved to the Turks and Caicos Islands. She alleges that in the course of several conversations at around that time, James told her that there was an incomplete structure situated on the Land (“the Home”) and that Gloria would give him the Land. Fatima claims that thereafter, personally and together with James, she repaired and made additions to the Home. Fatima also claims that in 2012 with the assistance of her brother, she constructed another building on the Land.

 

  1. In 2011 Fatima and James were married, and from 2011 to 2019 she, James and her children lived at the Home. In 2019 James left the Home because his relationship with Fatima had deteriorated. Shortly after, in 2020 Gloria commenced proceedings to have Fatima evicted from the Home.  

 

  1. Fatima claims Gloria’s conduct is unconscionable, as she was well aware that Fatima has been residing at the Home with her children, of the extensive work Fatima had done on the Home and as she had not previously expressed that Fatima was a “mere guest” in the Home. Fatima also says that until shortly before filing this action she was unaware that Gloria had not transferred the Home to James.

 

  1. Gloria has not filed a defence. Instead, on 21 March 2022, Gloria filed a summons to strike out Fatima’s writ of summons. On 1 April 2022 Fatima filed a summons for summary judgment. James has neither acknowledged service nor filed a defence.

 

The Summonses

 

Summons to strike out

 

  1. Gloria applies pursuant to O. 18 r 19 (1) of the Rules of the Supreme Court 2000 to strike out Fatima’s writ of summons on the following grounds:
    1. it discloses no reasonable cause of action against Gloria; and/or
    2. it is scandalous, frivolous or vexatious; and/or
    3. it is an abuse of process of the Court.

 

  1. Gloria has not personally sworn an affidavit in support of the striking out summons. The striking out summons is instead supported by the affidavit of her daughter, Felicita Cox-Walkin (“Felicita”). Fatima has not filed an affidavit in answer to the summons to strike out.

 

Summons for summary judgment

 

  1. Fatima’s application pursuant to O. 14 Rules of the Supreme Court 2000, is based on the ground that Gloria has no defence to the claim. Fatima’s application is supported by her affidavit filed on 1 April 2022. Gloria has not filed an affidavit in answer to the summons for summary judgment.

 

 

Related proceedings

 

  1. In their affidavits and submissions in support of their respective summonses, Counsel for Fatima and Gloria rehearsed lengthy and conflicting factual backgrounds about prior related proceedings which have no bearing on the summary judgment application, and minimal bearing in respect of the striking out application (possibly relevant only to the abuse of process ground). The circumstances surrounding the related proceedings can be summarised as follows:
    1. On 15 October 2020, Fatima applied in the Magistrates Court for an order restraining Gloria from evicting her from the Home. On 20 October 2020 the Magistrates Court granted an interim injunction. Gloria subsequently made an application in that court for possession of the Home. On 3 November 2020 the Magistrate discharged the injunction and gave directions for the hearing of Gloria’s application for possession.
    2. Prior to the determination of the Magistrates Court proceedings, Fatima commenced proceedings in the Supreme Court CL152/20 on 3 December 2020. The proceedings were filed in the wrong form, by originating summons, instead of by a writ of summons. At a hearing on 7 January 2021, Fatima withdrew the incorrectly filed originating summons. There is a dispute between the parties as to what happened at that hearing. Gloria claims that the learned Judge expressed certain views about the merits of Fatima’s claim, and ordered her to pay Gloria’s costs. Fatima denies that the Court made any order on 7 January 2021.
    3. Fatima subsequently filed the present action.
    4. On 22 February 2022 this Court stayed the Magistrates Court proceedings until a determination is made by this Court in this action.

 

  1. This Court has not based its determination of either summons on any comments which may or may not have been made at the hearing of the originating summons on 7 January 2021, but on the pleadings, evidence and submissions before me.

 

  1. I will consider Gloria’s summons to strike out first, both because it was first in time, and more importantly, because an affirmative ruling on that summons will obviate the need for a determination on the summary judgment summons. 

 

The law on striking out

 

  1. Although Gloria’s application relies on all three grounds in the rule, her primary ground was that the writ and statement of claim disclose no reasonable cause of action against her. In order to succeed on an application to strike out an action on this ground, a defendant must satisfy the Court that even if the plaintiff proves all the pleaded allegations, the action would still fail. I must therefore proceed on the premise that if the action goes to trial, Fatima will be able to prove all the allegations in her statement of claim.  

 

  1. Royal Bank of Scotland International Ltd v JP SPC 4 is a very recent decision of the Privy Council. The learned Law Lords summarized the law in this way[1]:

 

An application to strike out should not be granted unless the court is certain that the claim is bound to fail...a claim should not be struck out unless it is effectively unarguable, has no chance of succeeding and as such is a plain and obvious case.

 

Determination of the summons to strike out

 

  1. Fatima is seeking to rely on a proprietary estoppel against Gloria. The statement of claim makes the following references to Gloria who is the registered owner of the Home:

 

16. The Plaintiff has lived at the property with her children and her husband as a family, from 2011 to March 2019 (when the 2nd Defendant left the family home), but the Plaintiff has personally resided at the property from or around 2009 to present date, with the full knowledge of the 1st Defendant, depriving herself of the opportunity of constructing a home elsewhere for her family.

 

17. This was well known to the 1st Defendant, who is well aware that the Plaintiff has been residing there with her children, and her husband, the 2nd Defendant for years and that the Plaintiff has done extensive work on the property. Ms Gloria Cox would go to the soup kitchen weekly and would carry back plant skins and give to the Plaintiff for her garden. She would also on occasion stop by when the works were ongoing and observe; on some of those occasions she saw the Plaintiff working and would make jokes about her work ethic.

21. Neither the 1st Defendant or the 2nd Defendant expressed to Plaintiff that she was a mere guest on the property prior to 2nd Defendant’s departure from the property and prior to legal proceedings that were commenced in 2020.

24. In the circumstances the conduct of the 1st Defendant is unconscionable.

 

 

  1. Gloria’s counsel pointed out that there is no allegation that Gloria made an express representation to Fatima. However, an express representation or assurance is not necessary to found a claim of proprietary estoppel; depending on the circumstances silence may be sufficient. In Mohammed v Gomez and others[2] (another recent decision by the Privy Council on appeal from the Court of Appeal of Trinidad and Tobago) Lord Carnwath  summarized the applicable principles. He explained:

[23] Before turning to the judgments under this heading, it is necessary to refer briefly to the principles governing different forms of proprietary estoppel. Of particular assistance, in the Board's respectful view, is the discussion of the authorities, judicial and academic, by Robert Walker LJ (or Lord Walker as he became) in a succession of cases in the Court of Appeal and House of Lords: Gillett v Holt [2001] Ch 210; Jennings v Rice [2002] EWCA Civ 159; Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776.

 

[24]  In Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776, Lord Walker at the outset of his speech commented on the difficulty of precise definition:

“this appeal is concerned with proprietary estoppel. An academic authority (Simon Gardner, An Introduction to Land Law (2007) p 101) has recently commented:

 

'There is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither).'”

 

However, he noted a measure of agreement among most scholars that -

“... the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance ...” (para 29)

 

[25] Later in the judgment he commented on a submission that the required assurance must be “clear and unequivocal”. He said:

“There is some authority for the view that the 'clear and unequivocal' test does not apply to proprietary estoppel. That view was expressed by Slade LJ in Jones v Watkins (unreported) 26 November 1987; [1987] CA Transcript No 1200. The same view has been expressed in at least the past three editions of Treitel, Law of Contract. The current (12th) ed (2007) by Mr Edwin Peel, in a passage comparing promissory and proprietary estoppel, states, at para 3-144:

 

'promissory estoppel arises only out of a representation or promise that is “clear” or “precise and unambiguous”. Proprietary estoppel, on the other hand, can arise where there is no actual promise: eg where one party makes improvements to another's land under a mistake and the other either knows of the mistake or seeks to take unconscionable advantage of it.'

 

The present appeal is not of course a case of acquiescence (or standing-by) ... But if all proprietary estoppel cases (including cases of acquiescence or standing-by) are to be analysed in terms of assurance, reliance and detriment, then the landowner's conduct in standing by in silence serves as the element of assurance. As Lord Eldon LC said over 200 years ago in Dann v Spurrier (1802) 7 Ves 231, 235-236:

 

'this court will not permit a man knowingly, though but passively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is in many cases as strong as using terms of encouragement.'

 

56. I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context ...” (paras 54-55)

 

[26]  In the light of that discussion, the Board doubts how far it is possible or useful in the context of proprietary estoppel to draw fine distinctions between different categories. It is true that such issues seem to have attracted lively academic debate (see eg the references in Snell's Equity 33rd ed (2014), para 12-033). However, as Lord Walker makes clear, once one has moved beyond claims based on specific contractual rights, there may be no clear division between the nature and quality of any alleged verbal assurances, and the conduct of the respective parties in response. Depending on the factual context acquiescence may be seen as one aspect of assurance.

(emphasis mine)

 

  1. I make no finding as to the credibility of Fatima’s allegations, but if she proves them at the trial of this action, it cannot be said that her pleaded claim is bound to fail. It would be open to the trial judge to find that a claim based on proprietary estoppel has been established. It follows that Gloria has not shown that Fatima’s pleadings do not disclose a reasonable cause of action against her, and the summons to strike out the action on that ground fails.

 

  1. As to the second ground, I do not find Fatima’s claim to be scandalous, frivolous or vexatious. The evidence in Fatima’s affidavit in support of her application for summary judgment, which includes photographs of construction and salary deductions for the purchase of building material, discloses a claim which carries some degree of conviction.

 

  1. Finally, there is no evidence that Fatima has abused the process of the Court, or that an unsatisfied costs order exists. Fatima commenced proceedings in the wrong forum or manner on two occasions, resulting in a dismissal (at the Magistrate’s Court) and a voluntary withdrawal (the originating motion). However, there is no suggestion that she is attempting to re-litigate matters which have already been determined. 

 

  1. In the premises I dismiss Gloria’s summons to strike out.

 

Determination of the summons for summary judgment

 

  1. Order 14 R 1 Rules of the Supreme Court 2000 provides:

 

Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that the defendant has no defence to the claim included in the writ, or to particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the court for judgment against that defendant.

 

  1. Fatima has applied for judgment pursuant to this rule. On a summary judgment application, the parties and the court are not restricted to a consideration of the pleadings. The court may (and indeed, should) consider all the evidence before it.

 

  1. To succeed on this application, Fatima would have to satisfy the court at this stage that Gloria has no defence to the proprietary estoppel claim which has a realistic prospect of success. In Royal Bank of Scotland the Privy Council also commented on the approach to an application for summary judgment[3]:

 

The courts have discouraged mini-trials in complex cases on disputed issues. The rule is designed to deal with cases that are not fit for trial at all

 

  1. As indicated earlier, Gloria has not filed a defence. The nature of her potential defence, which Felicita’s affidavit sets out, is primarily that she made no representations to Fatima and that any representations were made by James, who was not the legal owner of the Home. Gloria effectively denies that in the circumstances, her silence or conduct could constitute the representation necessary to establish a claim based on proprietary estoppel.

 

  1. There are conflicts of fact on the affidavit evidence. For example, there is a dispute as to whether Fatima thought Gloria had promised to give the Land to James. At paragraph 6 of her Statement of Claim (which she relied on pursuant to paragraph 2 of her affidavit), Fatima says “James also informed me that his mother who was the Administrator of his father’s estate would give him the land”. However, at paragraph 8(a) of her exhibited affidavit (originally filed on 6 January 2021 in CL-152/20) Felicita says that “Fatima herself acknowledged that Gloria never communicated anything to suggest that James possessed any sort of right in the land.”

 

  1. If pleaded and proved, Gloria’s defence has a realistic prospect of success.  The outcome of the trial will depend to a large extent, on the trial judge’s findings of fact after the witnesses have given oral evidence and that evidence has been tested under cross examination.

 

  1. Fatima will have to establish the three elements of proprietary estoppel: representation, reliance and detriment. The basis of the ‘representation’ claim is essentially that Gloria stood by in silence while Fatima developed the Home. Whether in all the circumstances this was a sufficiently clear representation, and one on which Fatima relied, are disputed issues that will require evidence at a trial. In the circumstances the application for summary judgment also fails.

Disposition

 

  1. It is declared and ordered that:

 

    1. The 1st defendant’s summons to strike out the plaintiff’s writ of summons, filed on the 21st day of March 2022 is dismissed.
    2. The plaintiff’s summons for summary judgment, filed on the 1st day of April 2022 is dismissed.
    3. The 1st defendant is permitted to file a defence within 14 days of this order.
    4. No order as to costs on either application.

 

 

 

The Hon. Mr. Justice B. St. Michael Hylton QC

Judge of the Supreme Court

29 July 2022

 

[1] [2022] UKPC 18, at paragraph 29.

[2] [2019] UKPC 46.

[3] Paragraph 31.