Lawrence v. Poorah (Trinidad and Tobago) [2008] UKPC 21 (3 April 2008)

Privy Council Appeal No 88 of 2006

Muriel Lawrence								Appellant

v.

Edna Poorah (Deceased by Representative
of her Estate Tim Poorah) (and Shirley Poorah
appointed to represent the Estate of Edna Poorah) 	Respondent

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO

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REASONS FOR DECISION OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE
	6th March 2008, Delivered the 3rd April 2008

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Scott of Foscote
	Lord Walker of Gestingthorpe
	Lord Brown of Eaton-under-Heywood
	Lord Neuberger of Abbotsbury
	
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[Delivered by Lord Walker of Gestingthorpe]

1.	On 6 March 2008 their Lordships announced that this appeal would be allowed with costs for reasons to be given at a later date.  These are the Board’s reasons.

2.	The appeal is concerned with a claim to set aside a conveyance dated 19 May 1992 by which Mrs Edna Poorah conveyed her family home at Jerningham Junction Road, Cunupia to her daughter, Mrs Muriel Lawrence.  Mrs Poorah was at that time 77 years old.  She had recently lost her husband, John Poorah, who died on 23 March 1992.  They had six children, two daughters and four sons, to whom their Lordships will refer (for simplicity and without any disrespect) by their familiar first names: Muriel, Shirley, Tim, Kelvin, Fred and Eddie.  On 22 May 1995 Mrs Poorah, acting by her son Tim as her next friend, issued proceedings claiming that the conveyance should be set aside on the ground that at the time of the conveyance she was not of sound mind, memory and understanding.

3.	Mrs Poorah died on 4 September 1998, before the action had come to trial.  Her cause of death was certified as “respiratory failure, senility”.  The claim was pursued by Tim as the representative of her estate.  On 8 November 2001 Moosai J dismissed the claim for reasons to be given later.  His written reasons were given on 17 September 2003.  After reviewing the evidence he concluded that Mrs Poorah was of sound mind, memory and understanding when she executed the conveyance.  

4.	Tim appealed to the Court of Appeal but he died before the appeal came on for hearing.  His sister Shirley was appointed in his place as the representative of Mrs Poorah’s estate.  On 9 November 2005 the Court of Appeal (Warner, John and Archie JJA) allowed the appeal and set aside the conveyance as an improvident transaction on which Mrs Poorah did not receive independent legal advice.  Muriel  appealed to the Board.  The essential issue in the appeal as developed by Mr Beharrylal (who addressed their Lordships with admirable clarity and brevity) was whether the Court of Appeal was entitled to set aside the judge’s order on grounds which had not been pleaded, which had not been relied on before the judge, and for which permission to raise new points had not been sought from, or granted by, the Court of Appeal.

5.	Mrs Poorah did not inherit the family house from her husband.  She had always been its sole owner.  Most of her children lived either with her or nearby.  In particular Tim had always lived at the house.  Shirley lived there until the birth of her second son (about 1965).  She then lived at Hassarath Road (close by) and returned to the family house with her sons in 1994.  Muriel lived just across the road with her husband Roy, but they and their daughter Kathleen had earlier lived in the family house.  Fred and Eddie seem to have lodged nearby.  Kelvin was away for some years but in 1992 he returned to live in the neighbourhood.  

6.	Mrs Poorah could not write or even sign her own name (she executed the conveyance with a thumb print).  The attorney who acted for her (Mr Chadeesingh) treated her as illiterate (his evidence was that he saw an average of five illiterate clients a week).  There does not seem to have been any evidence as to whether Mrs Poorah had any reading ability.  

7.	At the trial of the action (which occupied a single day) the judge heard oral evidence from Tim and Shirley in support of the claim and from four witnesses in opposition to it: Mr Chadeesingh; Roy and Muriel; and Mrs Ellen Simmons, who had been Mrs Poorah’s next-door neighbour for over forty years.

8.	There was a considerable conflict of evidence about the circumstances in which the conveyance had been executed.  But certain basic facts were not in doubt.  It was common ground that Mrs Poorah had, only a few days after her husband’s death, gone to live with Muriel, and had stayed with her for a period of about three months (during which the conveyance was executed).  Mrs Simmons, the neighbour, said that Mrs Poorah asked her (the witness) to call Muriel and that Muriel collected her and took her to Muriel’s house.  Mrs Simmons also said that on 8 July 1992 Kelvin told her that he was going to look after his mother for a few days.  This was in contrast to Tim’s evidence that Kelvin found his mother wandering about in the road, in a distressed and dirty condition, and brought her back to the family home.  In any case it is common ground that Mrs Poorah spent the rest of her life back at the family home with Tim and (after 1994) Shirley and her sons.

9.	There was also a considerable conflict of evidence on the issue of Mrs Poorah’s mental capacity.  Tim said that his mother was “going off her senses” before his father died, that she did not know what she was doing, and that when spoken to she only laughed.  He said that he took her to the doctor, but the doctor (identified in re-examination as Dr Munilal) was not called, nor was there any documentary evidence in the form of medical records.  Shirley’s evidence was to a similar effect, but with the important exception that she said that the trouble began in 1994, and that before 1994 her mother used to understand.

10.	Mr Chadeesingh’s evidence was that he saw Mrs Poorah twice, once to take instructions and once to have the conveyance executed.  At the first interview only the two of them were present; at the second interview Mr Chadeesingh was accompanied by his assistant.  Neither Muriel nor Roy was present on either occasion.  The interviews took place in a parked car, because Mr Chadeesingh’s office was up three flights of stairs which Mrs Poorah could not manage.  He said that he took instructions for only about five minutes but that he was satisfied that Mrs Poorah understood him and knew what she was doing.  She wanted to give the house to Muriel.  She understood that the effect of the conveyance would be that Muriel became absolute owner of the house to the exclusion of Mrs Poorah’s other children.  Roy, Muriel and Mrs Simmons all gave evidence that Mrs Poorah was in good mental health in 1992.

11.	The conveyance of 19 May 1992 was made an exhibit but has not been included in the record before the Board.  It appears, however, that it was expressed to be made in consideration of $125,000, and no doubt there was a standard-form receipt clause.  Mr Chadeesingh was cross-examined about this and stated (after some prompting) that it was he who suggested that the conveyance should be made for value.  He said that so far as he knew no money was paid.  He did not explain why he suggested an apparently fictitious consideration, and this point was not pressed further in cross-examination.

12.	The judge’s reasons show that he had little or no difficulty in deciding the case.  He found Tim to be an unreliable witness, and expressly rejected some of his evidence about a conversation with Mr Chadeesingh (which the latter denied).  He noted that Shirley’s evidence was that Mrs Poorah “used to understand things” before 1994.  He accepted the evidence of Mr Chadeesingh in its entirety, and also the evidence of Mrs Simmons, whom he treated as a reliable independent witness.  He found Muriel’s testimony “quite cogent and compelling” and he also accepted her husband’s evidence about Mrs Poorah’s mental state.  

13.	Tim gave notice of appeal stating as his grounds of appeal that the decision was contrary to the weight of the evidence.  This notice was given before the judge’s reasons were available, but no application was made to add further grounds of appeal.  In his skeleton argument before the Court of Appeal the appellant’s counsel did (in the course of lengthy and rather diffuse submissions) make some reference to cases (such as Inche Noriah v Shaik Allie Bin Omar [1929] AC 127) that are concerned with undue influence.  But it is clear from the final section of the skeleton (paras 37-40) that the appellant’s case was essentially that the trial judge had erred in his conclusion on Mrs Poorah’s mental capacity.  There was no application to rely on undue influence or unconscionable bargain.

14.	The only judgment in the Court of Appeal was given by Warner JA, with whom John and Archie JJA concurred.  Warner JA noted that there had been only one issue before the judge (para 9):

“The material facts on which the plaintiff relied were, that at the time the deed was executed the plaintiff was not of sound mind, memory and understanding.  There was no allegation of undue influence and indeed, in this Court, counsel for the appellant informed the Court that the case was not based on that ground.”

She noted the peculiarity of the gift having been disguised as a conveyance for a money consideration (which was not in fact paid).  Then she turned to the evidence.

15.	Warner JA noted that the judge had taken an unfavourable view of Tim’s evidence, and that Shirley had said that Mrs Poorah did understand things before 1994.  She noted that the trial judge had accepted the evidence of Mr Chadeesingh in its entirety, and had also relied on the evidence of Mrs Simmons, Roy and Muriel.  She noted (para 17),

“The only ground of appeal was that the decision of the trial judge was contrary to the weight of the evidence. Mr Parsad recognised that he faced a difficult task to convince this Court to reverse the trial judge’s findings of fact.  He however, submitted that the learned judge had not drawn proper inferences from the facts, particularly so in relation to the evidence surrounding the preparation and execution of the deed.”

16.	Down to this point in her judgment Warner JA would appear to have been moving to the inevitable conclusion that the Court of Appeal could not interfere with the clear findings of fact which the trial judge had made, on the evidence before him, as to Mrs Poorah’s mental capacity.  But then Warner JA made a sudden change of course (para 19):

“As I have indicated, the case was not argued on the footing of undue influence, but in my view, that is not the end of the matter.  The pleadings themselves are not precisely drawn.  However, the general import of the plea that the deceased received no consideration for the conveyance, did in my view, raise an issue of the improvidence of the transaction.”

17.	This point as to the pleadings does not seem to have been raised by the appellant’s counsel, either in his skeleton argument or (so far as their Lordships can discern) in his oral submissions.  None of the authorities mentioned in the last part of Warner JA’s judgment appears in the skeleton.  They seem to have been the fruits of her own researches.  They would have been highly relevant if undue influence or unconscionable bargain had been an issue in the case.

18.	In their Lordships’ view the statement of claim simply cannot be understood, on a fair reading, as raising issues of undue influence or unconscionable bargain.  Neither of those expressions is used in the pleading.  It is of course correct that pleadings are intended to set out concise averments of fact, not law: but nowhere does the pleading allege that Muriel or Roy was in a special position of trust or confidence in relation to Mrs Poorah, or that either of them abused that trust or confidence, or exercised dominion or influence over Mrs Poorah’s mind.  The reference to “care and control” in para 7 of the statement of claim falls far short of that, especially when read with the averment in para 8 that:

“[Mrs Poorah] was completely dependent on her daughter, the said Shirley Poorah and the said Tim Poorah, even before the death of [Mrs Poorah’s] husband.”

19.	The Court of Appeal may have felt that there were, on the evidence before the trial judge, matters which could and should have been examined more closely.  Warner JA and her colleagues may (for instance) have wondered, as some of their Lordships have wondered, why Mr Chadeesingh saw fit to disguise a gift as a sale, whether this aspect of the matter was explained to Mrs Poorah (and if so how), and whether Mr Chadeesingh explained to his client that her position might be better protected, during the rest of her life, if she gave the family home to Muriel by her will.  But these matters were not directly relevant to the only issue before the judge, that is whether Mrs Poorah was of sound mind.  If an application had been made to the Court of Appeal to introduce new issues, it would almost certainly have been opposed, and very probably opposed successfully, on the ground that the respondent to the appeal would have wished to adduce further evidence on these issues at trial (in particular, Mr Chadeesingh’s evidence in chief would no doubt have covered several other topics, and so probably would the evidence of the other witnesses for the defence).  In the absence of such an application the Court of Appeal should have suppressed its curiosity and refrained from attempting to investigate other issues which were not raised (even though they might well have been raised) before the trial judge.

20.	Mr Beharrylal began to make some interesting submissions about the relationship between the equitable doctrines of undue influence and unconscionable bargain.  In particular he drew attention to some observations by Mr A W H Charles (as he then was) in Langton v Langton [1995] 2 FLR 890, 907-909, and showed that in the light of those observations the latest edition (31st edition, p229) of Snell’s Equity differs from the earlier edition relied on by Warner JA.  But it is unnecessary and inappropriate for their Lordships to embark on any lengthy discussion of these topics which, although interesting and difficult, are simply not part of the subject matter of this case.  It is sufficient to say that the doctrines of undue influence and unconscionable bargain share a common root—equity’s concern to protect the vulnerable from economic harm—but they are generally regarded as distinct doctrines: see National Westminster Bank Plc v Morgan [1985] AC 686, 707-708 (Lord Scarman) and Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144, 151 (Nourse LJ).  In particular, although the doctrine of unconscionable bargain involves the exploitation of the plaintiff’s vulnerability, it does not depend on a pre-existing relation of actual or presumed confidence. The doctrine of unconscionable bargain appears to be particularly vigorous in Australian jurisprudence (Meagher, Gummow & Lehane, Equity Doctrines & Remedies, 4th edition (2002) pp525-533).  

21.	For these reasons their Lordships announced at the end of the oral hearing that the appeal would be allowed with costs, both before the Board and in the courts below.