[2025] UKPC 5
Privy Council Appeal No 0091 of 2020
JUDGMENT
Denise Barnes (Appellant)
v
Pearl Moxey and another (Respondents) (Bahamas)
From the Court of Appeal of the Commonwealth of The Bahamas
before
Lord Reed
Lord Leggatt
Lord Stephens
JUDGMENT GIVEN ON
30 January 2025
Heard on 11 April 2024
Thomas Roe KC
Sharon Wilson KC
(Instructed by Charles Russell Speechlys LLP (London))
Respondents
Janet L R Bostwick-Dean
Tavarrie D Smith
(Instructed by Bostwick & Bostwick (Bahamas))
1. Introduction
2. Factual background
3. The proceedings below
(a) The judge's determination of Denise's interlocutory application to strike out the counterclaim
"On the facts, it seems to me that [in] the absence of actual knowledge, no one other than a party to the sale transaction could have become aware of the sale to the Plaintiff until the conveyance was lodged for record on November 21, 2003. Mere occupation did not, of itself, connote ownership. Notwithstanding the fact that at least one of the Defendants was still a minor in November 2003 (the other had been an adult for a month), the transaction could have been discovered by a reasonable search of the registry. If there was concealment, time could not [begin] to [run] prior to November 21, 2003, in which case the 12-year limitation period would not have expired until November 21, 2015. The Counterclaim having been lodged in August 2015 would therefore have been made during the currency of the limitation period." (Emphasis added).
(b) The judgment at the conclusion of the trial
"A personal representative may sell the whole or any part of the estate of a deceased person for the purpose not only of paying debts but also (whether there are or are not debts) of distributing the estate among the persons entitled thereto, but before selling for the purposes of distribution, the personal representative shall, so far as practicable, give effect to the wishes of the persons of full age entitled to the property proposed to be sold ...."
The judge held, at para 18, that the Property was not sold for the purpose of paying any debts of the estate of Pearl Leona Moxey, as there were none. He also held that it was not sold for the purpose of distributing the estate among the persons entitled thereto. The judge concluded, at para 21, that "Eddison [as the executor of the estate of Pearl LC Moxey] did not have the power to sell that undivided one-half interest in the Property which had been devised to" Charles senior by the Will. Therefore, the Conveyance was ineffective to convey the entire interest in the Property to Denise but instead conveyed to her a half share.
"For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration."
The judge held that the claim by the estate of Charles senior could "be described as a recovery of land claim" and therefore "there would be no accrual of time between the death of Charles [senior] and the grant of letters of administration. Time in relation to the counterclaim would therefore not start to run until the grant of letters of administration on 8 July 2015."
(c) The judgment of the Court of Appeal
"[It] could not have been the intention of Parliament that the interests of minors would be completely ignored when properties to which they have an interest is being sold. It seems to [us] that a personal representative would be required to seek the approval of the court or, at minimum, the approval of the parents or guardian of the minor in question."
As no such approval had been sought, the Court of Appeal held that the judge was correct to find that Eddison, as the executor of the estate of Pearl Leona Moxey, did not have the power to sell the undivided one-half interest in the Property which had been devised to Charles senior by the Will.
4. The relevant statutory provisions and legal principles
"No action shall be brought by any person to recover any land after the expiry of twelve years from the date on which the right of action accrued to such person ...."
" (2) ... where in the case of [an action for which a period of limitation is prescribed by this Act] any fact relevant to the plaintiff's right of action has been deliberately concealed from the plaintiff by the defendant, the period of limitation shall not begin to run until the plaintiff has discovered the defendant's concealment of the fact in question or could with reasonable diligence have discovered it."
"(6) References in this section to the defendant include reference to the defendant's agent and to any person through whom the defendant or the defendant's agent claims."
Accordingly, deliberate concealment is not restricted to deliberate concealment by the defendant in person but rather can be deliberate concealment by the defendant's agent or, for instance, by any person through whom the defendant claims.
"A person shall be deemed to claim through another person, if he became entitled by, through, under, or by the act of that other person to the right claimed, ...."
Section 2(4) of the Limitation Act 1995 is the equivalent subsection in that Act to section 31(4) of the Limitation Act 1939. In so far as relevant, section 2(4) provides:
"A person shall be deemed to claim through another person if the person become entitled by, through under or by the act of that other person to the right claimed ...."
Lord Denning stated that he "read [section 31(4) of the Limitation Act 1939] as meaning that a person is deemed to claim property through another person, if he derives his title to the property from that person." (Emphasis added). He considered that this interpretation of section 31(4) of the Limitation Act 1939 was in accord with the interpretation placed upon section 26 by Danckwerts J in Baker (G L) Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216, 1223. The same conclusion can be reached in relation to section 41(2) of the Limitation Act 1995 read with section 2(4).
"The question is not whether the Plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take." (Emphases in the original).
The principles are the same in the context of the exception of deliberate concealment: see OT Computers Ltd v Infineon Technologies AG [2021] EWCA Civ 501, [2021] QB 1183, para 46.
5. Application of the statutory provisions and legal principles to determine whether the counterclaim by the estate of Charles senior is barred by the expiry of the limitation period
6. Conclusion in relation to the issue of limitation
7. Whether Denise obtained a valid title to the entire interest in the Property by the Conveyance
8. Overall conclusion