Desir and another v Alcide

Actual undue influence is established by proof of actual wrongdoing, and a court may draw appropriate inferences from the evidence. Once actual wrongdoing is found, questions about presumed undue influence, presumed fraud and related burdens of proof do not arise. A claimant must plead the material facts supporting a cause of action, rather than the law, and the relevant documents may be read together. Appellate courts should be highly cautious before disturbing concurrent findings of fact, especially where the trial judge had an evidential advantage. Apparent bias is assessed by asking whether a fair-minded and informed observer, considering the context, would see a real possibility of bias. An authentic deed cannot be improbated outside the prescribed procedure, but that does not necessarily preclude separate relief for undue influence.

Mrs Alcide challenged Mrs Desir’s control of bank funds and the transfer of valuable property by Mrs Butcher, alleging actual undue influence, lack of capacity and related wrongdoing. The High Court found actual undue influence, ordered accounts and improbated the deed of sale. The Court of Appeal upheld the findings and account orders but set aside the improbation order because the notaries who made the deed had not been joined as parties. Mrs Desir appealed on undue influence, pleading, factual findings and apparent bias. Mrs Alcide appealed against the decision on improbation. The central issues before the Board were whether the findings and procedural rulings should stand and what relief remained available.

The Board dismissed both appeals.

1. Appeal No 0042. The Board was not persuaded that the relevant exceptions in Civil Code Cap 4.01 displaced the application of English law. However, the questions concerning presumed fraud, presumed undue influence and the burdens in articles 927 and 2066 did not arise because the judge had found actual wrongdoing, and that finding was upheld.
2. The claim was sufficiently pleaded. A party must plead the material facts showing a cause of action, not the law applicable to those facts. The claim form, amended statement of claim and witness statements could be considered together.
3. The Board applied the principles summarised in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11 and the settled approach in Devi v Roy [1946] AC 508. Concurrent findings of pure fact should not be disturbed save in very limited circumstances. An appellate court must be especially cautious about primary factual findings, while evaluative conclusions involving the weighing of factors may legitimately differ.
4. The evidence entitled the judge to find actual undue influence. It included Mrs Butcher’s vulnerability, the trust and confidence placed in Mrs Desir, control of financial affairs, the joint accounts, the sale at a substantial undervalue and the absence of independent legal advice. The approach was consistent with the descriptions of actual undue influence in Allcard v Skinner (1887) 36 ChD 145 and Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773. It was unnecessary to consider presumed undue influence or other forms of wrongdoing.
5. The apparent-bias test was whether a fair-minded and informed observer, considering the context, would conclude that there was a real possibility of bias. Applying Porter v Magill [2001] UKHL 67, and the contextual approach in Mitchell v Georges [2014] UKPC 43 and R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83, the judge’s interventions did not establish apparent bias.
6. Appeal No 0044. The Court of Appeal was right to set aside the improbation order. Under article 1142 of the Code of Civil Procedure, the deed could not be improbated in the proceedings because the notaries who made it had not been joined. The deed therefore remained valid as a deed, although separate relief arising from undue influence remained possible.
7. The Board reserved final relief concerning CWL and directed written submissions. Mrs Desir was required to account for dealings with Mrs Butcher’s accounts and property. Pending further order, she and CWL were restrained from disposing of or dealing with CWL interests or assets, subject to ordinary business and mortgage obligations.

• Privy Council. In [2015] UKPC 24, both appeals were dismissed. The improbation order was set aside, account orders were maintained, final relief and costs were reserved, and interim restrictions were imposed.
• Court of Appeal of the Eastern Caribbean Supreme Court (Saint Lucia). The appeal by Mrs Desir was dismissed on the merits but allowed on the improbation issue. The remaining orders in favour of Mrs Alcide were affirmed.
• High Court of Saint Lucia. The judge found actual undue influence, ordered accounts and directed that the deed of sale be improbated.