NCB v Ian Francis

• Jurisdiction: Grenada
• Court: High Court (Grenada)
• Judge: Glasgow, J.
• Judgment Date: 17 November 2025
• Judgment citation (vLex): [2025] ECSC J1117-1
• Docket Number: CLAIM NO. GDAHCV2024/0041 (formerly GDAHCV2005/0209)

Between:

In the Matter of Section 22 of the West Indies Associated States Supreme Court of Grenada Act Chapter 336 of the 1990 Revised Edition of Laws of Grenada

And in the Matter of the Application of the National Commercial Bank of Grenada Limited

Claimant

and

[1] Ian Francis

[2] Ian Francis (In his capacity as personal representative of the estate of Juliana Francis)

Defendants/Ancillary Claimants

[1] Renwick & Payne, A Firm

[2] Margaret Blackburn

[3] Michelle Emmanuel Steele

[4] Nigel Stewart

Ancillary Defendants

[2025] ECSC J1117-1

Before:

The Hon. Mr. Justice Raulston L. A. Glasgow High Court Judge

CLAIM NO. GDAHCV2024/0041 (formerly GDAHCV2005/0209)

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Mr. Gregory Delzin SC, Ms. Ariel Agostini and Mrs. Amy Bullock-Jawahir for the Claimant and Ancillary Defendants

Ms. Gennilyn Ettienne for the Defendants and Ancillary Claimants

Glasgow, J.

1 This judgment addresses two primary issues: first, whether, as alleged in the counterclaim, the claimant (hereafter referred to as “the bank”) and the ancillary defendants (hereafter referred to as “the lawyers”) were negligent or otherwise failed in their duties to the defendants/ancillary claimants (hereafter referred to as “the Francises”); and second, whether the Francises remain obligated to satisfy the mortgage and further charges executed over the property in any respect or at all.

Factual Background

2 The relevant facts are as follows. On 27 ^th August 1992, Simeon Francis purchased two lots of land (Lot 4 and Lot 5) from Elisha Baptiste by virtue of a conveyance which contained, among others, the following restrictive covenants, as raised in paragraph 5 of the claim by the bank:

“(d) Not to erect on the said property more than one main building with garage accommodation and permitted outbuildings.

(e) Not to erect or maintain on the said property or any part thereof any building which with its garage and permitted out-buildings shall cost less than one hundred and fifty thousand dollars to be calculated at the net cost of material and labour or construction estimated at prices current at first January one thousand nine hundred and ninety-one”

3 Simeon Francis subsequently subdivided “Lot 5” into two parcels and sold one of those parcels to the first defendant (hereafter referred to as “Mr. Francis”) by a conveyance dated 4 ^th July 1997.

4 Mr. Francis financed the purchase of the parcel of land (hereafter referred to as “the property”) by way of a mortgage from the bank, also dated 4 ^th July 1997. On 19 ^th July 1999, the Francises executed a first deed of further charge, followed by a second deed of further charge on 26 ^th April 2002 intending to facilitate the construction of a dwelling house and other related matters with respect to the property. It is this intention to erect a dwelling house which gave rise to a potential breach of restrictive covenant “(d)”, ultimately leading to the circumstances discussed in this claim. For the purpose of this judgment, any reference to the “restrictive covenant” is accordingly a reference to covenant “(d)”.

Case History

5 This matter was bifurcated. On 1 ^st July 2022, this court issued a judgment interpreting the orders made in Suit Nos. 582 of 1999 and 185 of 2000, specifically regarding the restrictive covenant on “Lot 5”. It was determined that the proper construction of those orders did not preclude the Francises and their successors in title from constructing or occupying a dwelling house on the property 1.

6 The trial continued on 2 ^nd November 2024 and 2 ^nd May 2025 for the purpose of determining the remaining issues arising from the bank's prayer for relief as outlined in paragraph three of the claim form filed on 27 ^th April 2005, and from the Francises counterclaim filed on 9 ^th June 2005. In paragraph three of its prayer, the bank seeks a declaration that the Francises are liable for the mortgage debt. By their counterclaim, the Francises seek a declaration that the deeds of further charge are not binding on them, as well as general and special damages, including all costs incurred subsequent to their acquisition of the property.

The Current Proceedings

7 The Francises have failed to pay the bank as agreed in the terms of the mortgage and deeds of further charge. The bank asserts that it has suffered loss as a result of this default with arrears continuing to accumulate. The bank therefore seeks a declaration that the Francises are liable to pay the sums due under the mortgage and deeds of further charge.

8 In their defence and counterclaim, the Francises allege that the bank breached the duty of care arising in the context of a banker-client relationship. They contend that the bank failed to ensure that they were adequately informed about the restrictive covenant prior to executing the deeds of further charge.

9 The Francises further allege that the lawyers, acting as their solicitors, failed to properly advise them of the restrictive covenant affecting the property. They assert that by accepting instructions and payment, the lawyers were duty bound to provide competent legal advice. The Francises contend that the alleged failure to identify and disclose the restrictive covenant amounts to a breach of that duty, resulting in loss and damage. The Francises also claim the bank is tasked with the negligence of the lawyers.

Legal Analysis

10 The Francises raise several issues in submissions filed on their behalf, including allegations of a breach of joint retainer and negligence by the lawyers, the bank's responsibility in agency for that alleged negligence, failure of being afforded the opportunity for independent legal advice, negligent misrepresentation by omission, and breach of the banking agreement by the bank. The sole issue raised by the bank is whether the Francises are liable to pay the debt.

Case for the Francises

11 Having reviewed the Francises' pleadings, two issues arise for determination. The first is whether the lawyers owed the Francises a duty of care to advise them on the restrictive covenant at the time of the deeds of further charge. The second is whether the bank, by advising the Francises to retain the lawyers, is responsible for any loss suffered by the Francises as a result of the alleged negligence of the lawyers.

12 The drafting of the defence and counterclaim left some room for confusion. However, after some effort, the case for the Francises was decipherable. It seems that the crux of the Francises' claim against the bank and the lawyers is set out in the defence filed on their behalf especially at paragraphs A3 and B26 to 28 and in the counterclaim. While reciting all of the defence and counterclaim may lengthen this ruling, replicating the defence and counterclaim may aid elucidation of what transpired and the basis of the Francises' defence

“A. THE FIRST AND SECOND-NAMED DEFENDANTS' REPLY TO THE STATEMENT OF CLAIM.

A1. Save as in [sic] hereinafter expressly admitted the First and Second-named Defendants deny each and every allegation contained in the Claimant's Statement of Claim and put the Claimant to the strict proof thereof.

A2. As to paragraph 1 of the Statement of Claim, the First and Second-named Defendants have no knowledge of the Claimant's legal constitution other than the Claimant purports to be a Bank and as such is subject to the provisions of the Banking Act No. 4 of 1993.

A3. As to paragraph 2 of the Statement of Claim, the First and Second-named Defendants state that their joint and several relationship with the Claimant is subject to the provisions of the aforesaid Act, and to the various Banking Agreements, Loan Agreements and Indentures of Mortgage and Indentures of further charge executed by the First and Second-named Defendants. In particular, the First and Second-named Defendants state that the Claimant had at all material times a fiduciary duty towards the Defendants and, arising out of the appointment of the Claimant's agents, Messrs. Renwick and Payne, the Claimant owed a duty of care to the Defendants with respect to any and all acts of commission or omission on the part of Messrs. Renwick and Payne.

A4. Paragraphs 4, 5, 6, 7 and 8 of the Statement of Claim are admitted.

A5. Paragraph 9 of the Statement of Claim is admitted with respect only to the first and fourth sentences thereof which for convenience are reproduced below: “Master Cottle opined that the judgement against Simeon Francis in Suit No. 582 of 1999 was binding on his successors in title and the said Ian Francis in Suit No. 582 of 1999 ‘would be in contempt of court if he persisted in behavior which was in breach of the covenants of the deed’”, and ‘Master Cottle informed the second and third applicants herein (Simeon Francis and Ian Francis) who were then present in court, that they would be in contempt of court if they were to live in the house they had constructed on the Lot.’

The remaining sentences of the said paragraph are denied and the Claimant will be put to the strict proof thereof.

A6. Paragraph 10 of the Statement of Claim is admitted as a fact.

A7. Paragraph 11 of the Statement of Claim is denied and the facts upon which this denial is made are set out hereunder.

A8. Paragraph 12 of the Statement of Claim is denied and the Claimant will be put to the strict proof thereof and the facts upon which this denial is made are set out hereinunder.

B. THE FACTS AND REASONS FOR THE FIRST AND SECOND-NAMED DEFENDANTS' DENIAL OF THE CLAIM

B1. The First and Second-named Defendants were, in 1997, engaged to be married. They are now married to each other. Neither the First-named Defendant nor the Second-named Defendant had, prior to 1997, been involved in the purchase or sale of property, and neither of them had any experience or expertise in this area.

B2. The First and Second-named...