Title:	McHugh -v- McHugh & anor
Neutral Citation:	[2015] IESC 101
Supreme Court Record Number:	214/12
High Court Record Number:	2004 2719 P
Date of Delivery:	12/17/2015
Court:	Supreme Court
Composition of Court:	McKechnie J., MacMenamin J., Laffoy J.
Judgment by:	McKechnie J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring McKechnie J. Link MacMenamin J., Laffoy J.

MacMenamin J.

Laffoy J.

BETWEEN

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 17th day of December, 2015

Introduction:
1. The plaintiff is a security officer and part-time farmer and resides at 4 Palace Fields, Tuam, in the County of Galway. In addition he, the plaintiff:-

(a) is a brother of the first and second named defendants herein. They also had two sisters, one now deceased, making a total of five siblings;

(b) is a lawful son of the late Michael McHugh, who died on the 9th May, 1976, and the late Rita McHugh, who died on the 12th January, 1998; and

(i) on the death of his father, Gerard inherited the lands comprised in Folio 53169F of the Register of Freeholders of the County of Galway;

(ii) prior to her death, Mrs. McHugh was entitled to be registered as full owner of the property the subject matter of the within proceedings, namely the lands and hereditaments comprised in and described on Folio 43217F of the Register of Freeholders of the County of Galway (sometimes referred to as “the subject lands”), such entitlement arising from the provisions of a Marriage Settlement executed in 1943, evidently on the marriage of the parents to the parties herein;

(c) is a grandson of the late Mary Ellen Dunne, mother of Rita McHugh, who died on the 23rd June, 1985, and who prior to her death was registered as limited owner of the aforesaid lands on Folio 43217F of the Register of Freeholders of the County of Galway.

2. These proceedings, howsoever formulated and howsoever worded, essentially involve a dispute between the three brothers in relation to the subject lands. The plaintiff challenges the validity of a Deed of Transfer of such lands made by his late mother to the defendants in 1990. In the circumstances occurring, which are more fully described later in this judgment, he claims that for the several reasons as pleaded, he – and not his brothers – should be regarded as the rightful owner of these lands. The defendants issued a motion to have the proceedings dismissed on the basis that the same were not maintainable against them and were bound to fail; Murphy J. acceded to such application in a judgment delivered on the 10th February, 2012. Mr. Gerard McHugh (“the plaintiff” or “the appellant”) has appealed to this Court from the entirety of such judgment and the resulting order, dated the 28th February, 2012, and perfected on the 3rd May, 2012.

3. In addition to the headline details set out at para. 1 above, the following events which took place on the dates specified are important factors in an understanding of this case:-

• 9th July, 1987: Mrs Rita McHugh (“the deceased”) made her last Will and Testament in which, having nominated the plaintiff as her sole executor, she devised and bequeathed all of her property, both real and personal, of every kind and nature and wheresoever situate, to her son Gerard, absolutely.

• 5th February, 1990: the deceased executed a Deed of Transfer of the subject lands in favour of the defendants, who duly lodged the executed Transfer with the Land Registry for registration.

• 19th February, 1991: the defendants became registered as full owners in fee simple of the subject lands.

• 12th January, 1998: the deceased, as above stated, died.

• 26th October, 2011: Probate of the last Will and Testament of the deceased was granted to the plaintiff.

4. Whatever may be the legal outcome of this appeal, it can with both certainty and conviction be said that this is a most tragic case which has created deep and suffering divisions within the McHugh family. Not for the first time this Court has witnessed first-hand how families can be irreparably divided on issues such as due entitlements, property inheritance and the cruelty of real or perceived ingratitude. In fact, such disputes can be everlasting in memory and affect not simply the immediate members who are personally embattled in conflict, but also many members of their extended families. It is of enormous regret that some less confrontational forum could not have been settled upon which might have helped to resolve this conflict in a less attritional and harrying manner, and at least to have achieved some degree of acceptance for those involved, even if that should have fallen short of the harmonious relationship which we all strive for in a family context. Alas, even that bit of good fortune was beyond the McHughs.

5. The best which this Court can hope for now is that, irrespective of the decision which I am about to give, some measure of finality will be brought to these proceedings so that the parties involved can, at least in some respect, reposition this dispute and concentrate more fully on their lives and the lives of their loved ones, without the ever constant reminder of the underlying hurt which the further continuation of this case would inevitably perpetuate. Even though earnestly stated, I have no doubt but that the aggrieved party will still feel wronged and will find little comfort in what I have said. However, having accessed the legal process and having ended up before this particular Court, I hope that the expressed sentiments will not be entirely discarded. They apply with equal authority to the parties who will feel more satisfied with the outcome, but both Myles and Anthony McHugh should not forget that they too have played a significant role in this saga. There are, to use the awful phrase, no ultimate winners in this conflict.

A Bit More Detail:
6. In order to understand more fully the issues raised in this appeal, it is necessary to refer to the pleadings, and firstly to note that the date of the issue of the Plenary Summons was 4th March, 2004. For reasons not entirely clear, but fortunately not of real significance at this point in time, the exchange of documentation in this case certainly took a leisurely course, with the joint defence being delivered only on the 24th January, 2007. Ultimately, however, some movement of substance was achieved by the delivery of an amended defence and counterclaim on the 23rd March, 2011, which came about in circumstances which I will outline in a moment. First, however, reference must be made to the claim advanced on behalf of the plaintiff:

7. In the Statement of Claim the following reliefs were sought:-

(a) an Order directing that the purported Deed of Transfer by the said Rita McHugh, dated 5th February, 1990, of the lands in question to the first and second named defendants be set aside, revoked and cancelled;

(b) an Order providing that Probate in Solemn Form of the last Will and Testament of the said Rita McHugh, made on the 9th July, 1987, be granted to the plaintiff;

(c) a Declaration pursuant to the provisions of s. 117 of the Succession Act 1965 that the said Rita McHugh failed in her moral duty to make proper provision for the plaintiff in accordance with her means;

(d) a Declaration that the defendants are estopped from asserting title to the subject lands and a Declaration that they be regarded as holding such lands on trust for the plaintiff; in either event, a further Order was sought that such lands be conveyed to the plaintiff;

(e) an Order that the plaintiff is entitled to be registered as owner of the said lands “pursuant to the provisions of the Registration of Title Act 1964”.

8. The Defence and Counterclaim in its original form was delivered on the 24th January, 2007. It did not contain any plea referable to statutory time bars, although it did raise as an issue the matter of delay based on common law/equitable principles. That was to change, however, which change had an important bearing on this case. Following the issue of a Notice of Motion to that effect, the High Court, by Order dated the 17th January, 2011, permitted the defendants to file an Amended Defence and Counterclaim. The significance of this was that for the first time the defendants decided to meet the claim by asserting statutory time barriers: they did so under the heading of “Preliminary Objections”. These were pleaded as follows:-

“Preliminary Objections:

(I) Save to the extent that these proceedings comprise a claim to prove the purported last will and testament of the late Margaret (otherwise Rita) McHugh (“the Deceased”), dated 9th July, 1987, they are not maintainable by the Plaintiff against the Defendants and ought to be struck out on the grounds that:-

(a) insofar as they comprise a claim made pursuant to sections 117 and/or 121 of the Succession Act, 1965, same are not maintainable as against the Defendants herein who are not the personal representatives of the Deceased;

(b) insofar as they comprise an application to set aside the transfer of 5th February, 1990, the Plaintiff is neither a party to the said transfer nor the personal representative of a party thereto and as such the plaintiff does not have locus standii (sic) to maintain such an application;

(c) insofar as they comprise a claim based on an alleged agreement made between the Deceased and the Plaintiff and/or representations or promises allegedly made by the Deceased to the Plaintiff and/or upon the alleged legitimate expectation on the part of the Plaintiff arising as a result of the Deceased’s conduct, same are not maintainable as against the Defendants, neither of whom are the personal representatives of the deceased; and

(d) insofar as they comprise a claim for damages, any claim for damages, even if valid (which is denied), is a claim against the estate of the deceased and is not maintainable against the Defendants herein.

(II)Insofar as the plaintiff seeks to set aside the aforesaid transfer of 5th February, 1990 pursuant to s. 121 of the Succession Act, 1965, such an application is not maintainable in respect of a disposition occurring in excess of three years prior to the death of the disponer and so is not maintainable in respect of the said transfer since the same was executed by the Deceased almost eight years prior to her death.”

9. Very shortly after filing this Amended Defence and Counterclaim, for which a further extension of time was required, the defendants, energised by the antecedent order of the 17th January, 2011, issued a motion dated the 9th June, 2011, in which they sought to have the plaintiff’s claim dismissed, save to the extent that Probate in Solemn Form of the last Will and Testament of the deceased was being claimed. They did so on the basis set out in that amending document. In addition, they sought, if appropriate, a Declaration that the purported will constitutes the only valid and duly executed will of their mother and they also looked for a default judgment in respect of the counterclaim. The application was moved on the grounding affidavit of their solicitor, Mr. John Murphy. With issue having being joined on the factual and evidential matters as averred to, the application came on for hearing before Murphy J. in November, 2011, who delivered his judgment in February, 2012. The resulting order, which was perfected on the 3rd May, 2012, dismissed the plaintiff’s claim, awarded full costs against him and granted judgment in default on the counterclaim (see para. 22 infra for full details). It was a complete victory, one might say, for the defendant brothers. It is against both the judgment and the Order that Gerard McHugh has appealed to this Court: he has done so on the several grounds set out in his Notice of Appeal dated the 18th May, 2012. This is my decision on such appeal.

Family Background: Assertion and Counter Assertion:
10. As pleaded, the plaintiff says that he was attending Athenry Agricultural College in or about 1974 when his father fell ill. He forwent his studies and at the time returned to work and live on the home farm in Tuam in order to support the family, as his father was no longer able to do so. As stated, he became owner or entitled to ownership of the lands contained in Folio 53169 of the Register of the Freeholders of the County of Galway on his father’s death. On many occasions throughout the years, the plaintiff’s mother represented to him that the lands in Folio 43217 F would fall to be his upon her death. He says that both parcels of land are contiguous and would obviously farm as a unit: the defendants deny this. In any event, the plaintiff claims that he relied on these statements of his mother and in so doing irretrievably altered his position and standing in life, all to his long term detriment.

11. By working as he did and where he did, the plaintiff was able to provide support for his mother, father and grandmother until each of their respective deaths. His mother became seriously incapacitated in and from 1988 onwards, with the plaintiff and his wife caring for her for the following two years. In September, 1990, Mrs. Rita McHugh was admitted to a nursing home and there she was to remain until her death on the 12th January, 1998. The plaintiff says that he discharged the entirety of the expenses associated with this care, whilst also considerably improving the lands the subject matter of this dispute.

12. Mrs. McHugh, as above noted, made a Will on the 9th July, 1987, devising all her property, including realty, to the plaintiff, who was also named as sole executor of her Estate. However, by Deed of Transfer dated the 5th February, 1990, the said testatrix purported to convey the said lands to the defendants, who were registered as owners in the Land Registry on 19th February, 1991. The plaintiff maintains that this Deed of Transfer was obtained by unlawful means, including the exercise of improper and undue influence and the application of inappropriate pressure on his mother by the defendants. He furthermore asserts that his mother was, at the date of the purported Deed, of unsound mind and was both physically and mentally incapable of resisting the pressure of which he speaks; in addition, she received no independent legal advice at the time, which, if she had, might well have seen a revocation clause being included, or at least might have ensured that adequate consideration was inserted at an appropriate value. Even more astonishing was the absence of any life interest or right of residence, despite her illness, or any right of maintenance and support. Whilst I do not have to explore these issues, given the view which I have taken of the case, it cannot but be acknowledged that in different circumstances these may well be worthy of serious and critical investigation.

13. Gerard McHugh goes on to say that the defendants did not make him aware of their purported ownership of the lands until after their mother’s death, sometime around May, 1998. From that time onwards, the defendants have wrongfully sought to exclude him from the use, enjoyment and ownership of the subject lands contained in Folio 43217 F of the relevant Register of the County of Galway. He has thus suffered serious loss and damage as a result.

14. The plaintiff also claims that in making the Deed of Transfer, his mother breached agreements, promises and representations made to him over the years, all to the effect that the lands would be his, thus acting in breach of trust and in breach of his legitimate expectation. A separate cause of action is also couched within the meaning of s. 117 of the Succession Act 1965, in which context he points out that each of the plaintiff’s two brothers were provided with a third level education by their parents, which enabled them to become established in substantive and remunerative occupations. Each of his two sisters was afforded the same support, even if for different reasons neither availed of it. In any event, this leads the plaintiff to say that, within the meaning of the said section, his mother therefore made proper, adequate and appropriate provision in accordance with her means for all of her other children, including in particular the defendants.

15. Finally, the plaintiff claims that it would be unjust, unconscionable and inequitable to allow the defendants to disregard the promises so made to him and to insist on their legal rights, if any, to the said lands. He states that the defendants hold the land in trust for him.

16. The defendants take issue with much of the detail as asserted by Mr. Gerard McHugh: they deny that he was ordered or requested to forgo his education in order to support the family on the farm; they in fact assert that he returned to the home place of his own volition. They also state that the plaintiff was adequately compensated for his work on the farm inter alia by obtaining ownership of the lands in Folio 53169 F, comprising 33.4 acres (para. 1 supra): this of itself constituted proper, adequate and appropriate provision for him under the Succession Act. They take issue with the alleged promises and representations and strongly claim that the plaintiff knew of their parents’ wishes, namely that the subject lands would pass to the defendants upon the survivor’s death.

17. The defendants continue their narrative by seriously disputing virtually all of the germane allegations made by their brother: it is unnecessary, however, to further impose on this judgment the manner in which this confrontation continues, as it does so in such a personal way as, for example, by questioning who, when and how often Mrs. McHugh was visited whilst in nursing home care. Only you, the family, know the full and true story. In any event, further elaboration of matters of similar disposition is legally unnecessary and, certainly from my point of view, ought to be strongly avoided.

The High Court Judgment:
18. The learned High Court judge took the view that, at the time of initiation of the action in 2004, the plaintiff, whilst nominated as the Estate’s executor in the Will of his mother, was not the legal personal representative of the deceased as no grant of probate had either been applied for or obtained at that time. This as a matter of law is unquestionably correct.

19. Insofar as he purported to make a claim against the Estate, the plaintiff was, according to Murphy J., precluded from doing so in his capacity as executor. Mr. McHugh could not suppose to prosecute, and in the same breath to defend a claim, both on behalf of and against the Estate. If he wished to pursue a cause of action, he should not have sought a grant, or if he had already obtained same he should renounce it, in which case an independent person would be required to extract a grant of representation with Will annexed so as to administer the Estate, and as part thereof to consider the merits of the claim made and if necessary to defend it. This applied to both applications made under ss. 117 and 121 of the Succession Act 1965, respectively.

20. The learned judge stated that it is clear from the provisions of s. 9(2)(b) of the Civil Liability Act 1961, as amended (“the 1961 Act”) that the relevant limitation period for maintaining a cause of action which has survived against the estate of a deceased person “is that which first expires, the period of two years after the date of death, or, at most, a twelve year period from the 5th February, 1990”, the transfer date. The court was satisfied that the plaintiff did not have standing to challenge the Deed of 5th February, 1990, and that the purported claims were not maintainable by reason of the efflux of time and in the face of the statutory period for the bringing of same. There had been undue and inordinate delay, and the reasons advanced to explain it could not excuse it.

21. The transfer was made in 1990 and registered in 1991. Rita McHugh died in January, 1998. Proceedings did not issue until more than six years later, on the 4th March, 2004. Furthermore, the plaintiff remained on the land for some time after his mother’s death. The Court was satisfied that such a delay was inexcusable in the circumstances. Even in light of the plaintiff’s submission that he was not aware of the defendants’ ownership of the lands until they sought possession shortly after his mother’s death, it was still a further six years before he took action. The Court was “satisfied that s. 9(2) of the Civil Liability Act 1961 precludes the plaintiff from making a claim after two years from the date of the death of the deceased.” Accordingly, the Court granted the defendants’ application and made the orders as next appearing.

High Court Order:
22. The High Court, in an Order dated the 28th February, 2012, and perfected on the 3rd May, 2012, ordered that the action be dismissed and that the plaintiff pay all costs, including reserved costs. The “lis pendens” registered on the lands in Folio 43217 F was vacated. The plaintiff was refused liberty to deliver a defence to the Counterclaim; judgment was entered against him in respect of that claim with damages to be assessed by a judge sitting alone. A stay on the High Court Order was refused. Further, although not so expressly stated, the learned judge in his judgment also effectively refused to allow the plaintiff to deliver an Amended Statement of Claim. In this regard, however, let it be immediately said that even if allowed the amendments would not, in the learned judge’s view, cure the inordinate and inexcusable delay point and, more specifically, could not overcome the statutory bar contained in s. 9(2) of the 1961 Act.

Notice of Appeal:
23. By Notice of Appeal dated the 18th May, 2012, the appellant indicated his intention of appealing to this Court against the judgment and Order of the High Court. The grounds relied upon are numerous, involving much repetition and duplication: rather than setting these out or even attempting to paraphrase them, I think that I do no injustice whatsoever to Gerard McHugh if I quote para. 8 of his affidavit sworn on 20th February, 2015; it reads:-

“The plaintiff contends and will contend at the hearing of the plaintiff’s motion and the hearing of the plaintiff’s appeal and any subsequent hearing in relation to this case, the following:-
(A) That the plaintiff is entitled to be considered the legal personal representative of his mother, the late Rita McHugh, and in March, 2004 to bring proceedings in this case.

(B) That the said “Deed of Transfer” dated 5th February, 1990, was a wholly improvident Deed and would likely be declared null and void and struck out by a court on a number of grounds, said grounds have been set out in the plaintiff’s submissions elsewhere.

(C) That the plaintiff’s case should not have been dismissed by Justice Murphy on the grounds that it is barred under the Statute of Limitations.

(D) That the plaintiff is not guilty of causing inordinate delay either in bringing his case against the defendants, Myles and Anthony McHugh, or in bringing said case to trial and that any such delay should not be deemed to be inexcusable, and

(E) That the Supreme Court is empowered under O. 58(8) of the Rules of the Superior Courts 1986, to allow the plaintiff adduce evidence as contained in the plaintiff’s documents index and not least in circumstances where there is such a clear dispute on facts.”

Notice of Motion:
24. On the 12th December, 2013, the appellant issued a motion, returnable before this Court, seeking permission to include in the Books of Appeal a collection of documents described as an “Exhibit Index”, so that the same might be referred to and used by him as part of his appeal. This application was grounded upon a supplemental affidavit in which, over almost 100 paragraphs (in fairness all very brief), he identifies each document, what in broad terms it covers and how, in his view, it is relevant to the appeal. As the respondents objected to the admission of virtually every such document, the court decided to adjourn further consideration of the application, to the appeal proper. Hence, that issue is also before this Court.

Submissions of the Appellant:
25. In his “Written Submissions for Permission to Appeal”, Gerard McHugh described the judgment of Murphy J. as being based on two grounds: a) that he was not the legal representative of the deceased at the time of bringing the proceedings in 2004; and b) that his case was outside the time allowed for bringing such action under the Statute of Limitations and further, that there was inordinate and inexcusable delay. He strongly challenged both of these conclusions.

26. The plaintiff in person presented his address on these issues and responded in a succinct and admirable manner to any engagement instigated by the court. He referred to s. 10(1) of the Succession Act 1965 (“the 1965 Act”), which provides that both the real and personal estate of a deceased person shall on his/her death, notwithstanding any testamentary disposition, devolve on and become vested in his/her personal representative(s). He said that an executor who carried out certain acts or functions in relation to an estate might be deemed to have accepted the office. His intention from the outset, he submitted, was to prove the Will and as the sole beneficiary he also had a particular interest in the prosecution of these proceedings.

27. Mr. McHugh also referred to McGlynn v. Gallagher [2007] I.E.H.C. 329, a case which he said touched upon the locus standi of a beneficiary to bring an administration suit. In that case the plaintiffs had extracted a grant of probate 18 months after the death of the deceased, having been nominated as executors in her last Will and Testament. Edwards J. dismissed the first named defendant’s appeal from a comprehensive order of the Circuit Court, which endeavoured to cover every aspect of that long running litigation. The plaintiffs had a grant of probate and the court was not entitled to look behind it. While the defendants were beneficiaries and the plaintiffs were not, the issue of the locus standi of such beneficiaries to seek a Grant simply did not arise in these circumstances.

28. The appellant submitted that the jurisdiction of the court to strike out or stay proceedings exists so as to ensure that an abuse of process does not take place. Barry v. Buckley [1981] I.R. 306, per Costello J. Thus proceedings will be stayed if they are frivolous or vexatious or if it is clear that the claim as advanced must fail. The other purpose of the jurisdiction is to ensure that litigants are not subjected to the time consuming, expensive and worrying process of being asked to defend a claim which is unstateable and which therefore cannot succeed. His claim, he submitted, did not fall into either of these categories.

29. Mr. McHugh conceded that his claim under s. 117 of the 1965 Act and his reliance on estoppel principles could not be asserted against the defendants/respondents. Nevertheless, the remainder of the cause of action was a serious and significant claim concerning the validity of the deed of transfer. Where a relationship giving rise to a presumption of undue influence is established, and where it is shown that a “substantial benefit” has been obtained, the onus lies on the donee(s) to prove that the gift or transaction in question resulted from the “free exercise of the donor's will”. Carroll v. Carroll [1999] 4 I.R. 241 was cited as an authority for this proposition.

30. On the issue of delay it was also submitted that there could be no possible prejudice in allowing the case to proceed, as all of the key witnesses were available to give evidence.

Respondents’ Submissions:
31. The respondents identify the issues arising on this appeal as being “(a) whether the plaintiff should be permitted to maintain a claim to set aside the Transfer; (b) whether the plaintiff should be entitled to amend his Statement of Claim to include a plea of estoppel against the Defendants; and (c) whether the default judgment in respect of the Defendants’ counterclaim ought to be set aside.”

32. The respondents submit that the High Court Order as made by the learned trial judge constitutes a “final order” for the purposes of the Rules of the Superior Courts 1986. The Minister for Agriculture v. Alte Leipziger AG [2000] 4 I.R. 32 at pp. 44 and 50; Woods v. Woods (unrep.) 3rd April, 2003. Accordingly, leave to adduce any new evidence is required. They say that the appellant cannot satisfy two of the requirements for the admission of such evidence, being those identified in Lynagh v. Macken [1970] I.R. 180. Firstly, he has not explained why the evidence which he now seeks to adduce was not used in the High Court. Secondly, he has not sought to explain the influence which such documents might have on the result of case. It is not appropriate, they say, for the court to form its own view as to either of these matters: there must be evidence to meet the criteria which, in the respondents’ view, simply does not exist in this case.

33. In Keating on Probate (4th ed.), the author, having referred to Ingall v. Moran [1944] 1 K.B. 160 at para. 21-28, says:-

“It is well established that an executor can institute proceedings and maintain an action before probate of the testator’s will is obtained, but a grant will be necessary before the hearing of the action.”

34. In the present case, on no occasion from the time of death in 1998, through the issue of the Statement of Claim in 2004 and right up to 2011, did the appellant seek to sue or maintain a cause of action in his capacity as executor of the deceased: his only claim in this regard being limited to obtaining a Grant of Probate to the Estate of the deceased person. Mr. McHugh did not extract a Grant until 2011, some 13 years after the date of death and over 20 years subsequent to the Deed of Transfer. In the interim he had put forward claims under ss. 117 and 121 of the Succession Act 1965, as well as claiming promissory estoppel against the deceased; these claims were entirely inconsistent with the position of a legal personal representative.

35. The respondents submit that allegations based on the alleged breach of legitimate expectation and promissory estoppel were barred in law by the time of the institution of the within proceedings. Any claim which the plaintiff could now bring as executor would appear to be in equity, in which case the principle of laches, as well as those involving inordinate and inexcusable delay, would apply.

36. The respondents say that the appellant, in the institution and in the prosecution of these proceedings, has been guilty of inordinate and inexcusable delay and that his claim, on this ground alone, should be dismissed. It is said that the principles underlying such a rule are well established. Firstly, the court must determine that the delay has been both inordinate and inexcusable; the onus of establishing the same is on the party so alleging. Secondly, even where an inordinate and inexcusable delay is found to exist, the court must exercise a judgment on whether in its discretion the balance of justice is in favour of or against the continuation of the case. Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 at p. 567 (“Rainsford”); Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459.

37. The respondents address two specific issues in this context, both of which have been the subject of judicial discussion in recent years: firstly, the impact of the European Convention on Human Rights (ECHR) on applications to dismiss and, secondly, the extent to which a defendant’s inactivity is taken into account when addressing the balance of justice point. The former, i.e. the Convention, was looked at in cases such as Gilroy v. Flynn [2005] 1 I.L.R.M. 290, Stephens v. Paul Flynn Ltd [2008] 4 I.R. 31, Desmond v. M.G.N Ltd [2009] 1 I.R. 737, Rodenhuis and Verloop BV v. HDS Energy Ltd [2011] 1 I.R. 611 and Comcast International Holdings Inc v. Minister for Public Enterprise [2012] I.E.S.C. 50 (“Comcast”). The respondents submit that despite a difference in judicial views as to whether the ECHR requires a “tightening up” of the test applicable to cases of delay, such that the courts should be less indulgent than previously, in practice the relevant principles remain unchanged.

38. As regards the role of alleged inactivity on behalf of a defendant as an ingredient to be considered when determining where the balance of justice lies (Rainsford), the respondents state that later decisions suggest that little weight should be given to this consideration. Anglo Irish Beef Processors v. Montgomery [2003] I.R. 510; De Braam Mineral Water Company Ltd v. BHP Exploration Inc [2011] I.E.H.C. 46. The respondents acknowledge the judgment of McKechnie J. in Comcast, where certain circumstances were identified which might result in a defendant’s inactivity being treated as a significant factor militating against granting an application to dismiss: however, it was forcibly argued that no such factors are present in the instant case.

39. The respondents say that, in light of facts of this case, the trial judge could not have come to any conclusion other than that there had been inordinate and inexcusable delay in the commencement of these proceedings given that they had issued in March 2004, almost six years after the plaintiff had become aware of the Transfer and had been evicted from the lands. Furthermore, they state that Mr. McHugh then failed to progress the proceedings to the point where the pleadings were closed and the issues were properly defined for a further period of seven years. Thus, the High Court was justified in concluding that there had been inordinate and inexcusable delay in prosecuting the claim. The respondents further assert that a trial which was concerned with factual issues which occurred over twenty years ago could not be fair. They submit that the Court should also have due regard for the value of the subject land and that the continuation of the present litigation would be disproportionate to that value.

40. The respondents further submit that the High Court was correct in dismissing all other aspects of the appellant’s claim, a situation which in effect he himself has acknowledged by indicating that the only cause of action with which he now wishes to proceed is the challenge to the Deed of Transfer.

41. As regards the Counterclaim, they say that in the absence of a reply and defence thereto, the High Court was entitled to grant judgment in such circumstances and that the order so declaring should stand. Any issues in relation to quantum can be addressed in the context of the hearing to assess damages.

42. The respondents’ answer to the motion which had been issued (para. 24 supra) is to say that the proposed amendments to the Statement of Claim, even if allowed, could not have saved the claim from being dismissed by the court in the exercise of its inherent jurisdiction and as such the court was correct to refuse the relief prayed for in that motion.

43. By a supplemental legal submission, the respondents addressed the level of review that this Court should engage in when considering an appeal against a discretionary Order of a High Court Judge. They say that the Court should not interfere with such an Order provided that, as in this case, it is within the limits of the trial judge’s reasonable discretion.

Decision:
44. The jurisdiction to terminate an action without a due merits consideration of the issues involved is one which produces a truncated form of justice and is one, even if very well established, which is inherently capable of creating an unforeseen injustice, unless the many safeguards which a series of cases have established are clearly understood and correctly applied, with a generous measure of scepticism to the fore. However, where the required searching type analysis is properly carried out, there is no doubt but that both under the Rules of the Superior Courts and by its inherent jurisdiction, a court not only has the competence but also is duty bound to strike out a case at that point in the proceedings, if justified in so doing. An unsuccessful claimant can have no justifiable grievance at such a course, as a respondent also has an equal right to justice and should not be forced to continue meeting a claim which, within established parameters, is, for example, bound to fail. Classically, this doctrine most appropriately fits situations where the facts (both primary and secondary), their meaning, and any inference(s) that may be relied upon are not disputed and are positioned in the context of particular statutory provisions, such as, for example, limitation periods. This is one such type case. Accordingly, if the learned trial judge on the limitation issue correctly applied the relevant provisions of either the Civil Liability Act 1961 and/or the Statute of Limitations 1957 to the undisputed facts, taking the appellant’s version at its highest, then he would have been justified in law in dismissing the action.

45. At the outset, it is important to note that on an application such as this the Court does not involve itself in an exercise of adjudicating on disputed issues of fact, or of resolving rival contentions made by or on behalf of the respective parties. It proceeds on the basis of taking the claim as made “at its high watermark”, and as assuming that the factual context pleaded, unless demonstrably wrong or self-evidently incredulous, is correct. This particular approach is required by law and should not be taken as being in any way equivalent to a judgment following a full trial, wherein the judge sets out his findings and prefers or accepts one version of the story as against and above another version. Therefore, in the context of this case the conflicting accounts, whilst noted, are not to be regarded as having been resolved. In fact, they are not, as it is not necessary to do so in order to apply the principles of law above set out. It is on such basis that this appeal is being determined.

46. Given this approach it is not necessary to deal with the Notice of Motion issued by the appellant in which he seeks to have admitted, for the purposes of this application, the “Exhibit Index” so referred to. Whilst I note that he has assembled what appears to be an impressive array of affidavits from different individuals, which to some greater or lesser degree support his case, nonetheless their consideration is not necessary for the reasons given. This equally applies to the medico-legal report of Dr. John A. Waldron, dated 9th July, 2003, to the admission and discharge records from Merlin Park Hospital for the period October 1978 to March 1991, and to a report dated 5th September, 1990, signed by the Registrar to Dr. O’Loughlin from the Mater Hospital, all of which relate to the medical condition and prognosis of his mother. In other circumstances and in a different context, the same could be highly material, but for present purposes cannot be so regarded.

47. Many issues have been canvassed on the documentation, a number of which have been referred to in the High Court judgment. The submissions, in as helpful a way as possible, have addressed these points. However, having given careful consideration to this matter, both in a narrow but also in a wider sense, I have come to the conclusion that the application can and, given the context of the dispute, as a matter of the utmost prudence and necessity, must be resolved by way of a simple issue. That relates to the asserted time bar contained in the Civil Liability Act 1961 (“the 1961 Act”) and perhaps far more pertinently in the Statute of Limitations 1957 (“the 1957 Act”).

48. This means that in addition to the “Exhibit Index” not being essential, the merits of the underlying case, as such, are not highly material. The only factors of real note are the events referred to in the earlier part of this judgment, coupled with an acknowledgement by Mr. Gerard McHugh that he/his solicitors obtained a copy of the relevant Folio No. 43217 F, in February, 1998. That folio, without doubt, showed both respondents as being full owners of one undivided half share each of the subject lands, having been registered as such on the 19th February, 1991. The referenced delay or the reasons therefor in the appellant obtaining a copy of the Deed of Transfer are not material to the question of knowledge regarding the ownership of these lands, if that issue had still been relevant. Since 1991, the respondents have been named on the relevant folio. The fact that their mother was never registered as such, and that the registered owner immediately preceding the entry of Myles and Anthony McHugh was their grandmother, is perfectly explainable as a matter of routine conveyancing practice. Once the folio was obtainable – and certainly once obtained – it was clear ex facie who the registered owners were.

49. It seems rather obvious, given the absence of any caveat being lodged, that there may have been no justification for the appellant in his Statement of Claim seeking an order granting him liberty to apply for a Grant of Probate: the continuation of that plea, however, was entirely justified in light of the allegation pleaded in the defence, namely that the said Will of the deceased had been procured by undue influence and by the improper exercise of pressure by the appellant on his mother. Whilst that plea was formally withdrawn in 2011, I am entirely satisfied that there was never any factual or sustainable basis for its making in the first instance, and that it was a highly inappropriate plea to have ever been included in the defence.

50. In this context, I accept that the Mr. McHugh at all times intended to obtain a Grant of Probate but that he was not advised at the earliest possible time that he should have taken steps to apply for such a grant. Therefore, his delay in so doing cannot be attributed to any inconsistent stance being adopted or ulterior motive being pursued by him: the simple explanation being that as given.

51. Lest by the approach which I have adopted I should be taken as in any way agreeing that the judge’s findings on the issue of non-statutory delay were correct, I should say this on the point. Whilst I agree that the delay was inordinate, I would if anything be of the view that it may in fact be capable of being excused: even if not, I would be inclined to think that on the balance of justice the case should not have been terminated on such basis. An important consideration in this regard was the fact that the respondents did not move to amend their defence, in such a crucial manner, until early 2011, almost four years after filing that document in its original form. There are other factors which in my view would also tend against granting the application on such basis. However, as I have said, a conclusive view on this issue is not necessary.

52. There is a further matter that ought to be addressed. It was entirely surprising to find on a motion, the essence of which was to have the plaintiff’s claim dismissed on the basis of being bound to fail, that the learned trial judge also gave judgment on the Counterclaim. This was remarkable for many reasons, including the correspondence which had passed between the plaintiff’s then solicitors, Scarry O’Connor, and the solicitors representing the defendants, Murphy Ballantyne. On the 21st April, 2011, the latter issued a twenty one day warning letter seeking a reply to the Counterclaim. On the 3rd May, 2011, Messrs. Scarry O’Connor indicated their intention to come on record and sought a letter of consent to the late filing of a reply to the amended defence and counterclaim. Without apparently any further correspondence the motion issued and, even more surprisingly, the Counterclaim was dealt with by the trial judge in the manner indicated. Irrespective of whatever outcome this appeal should otherwise have, I would be strongly of the view that it was inappropriate to proceed in this manner, and that in respect of a claim where the special damages, as of March 2011, were said to be almost €60,000.00 and continuing, to have given a judgment in this context, without directing a hearing in the normal way, could not be justified. In fact, I do not understand counsel for the respondents to now dispute this proposition.

53. This issue, however, is no longer one of real agitation. In the course of hearing this appeal, there were exchanges between counsel representing the defendants/respondents and the court regarding the Counterclaim. Therefrom I am taking the situation to be that in the event of the respondents being successful and that the appellant’s claim cannot go further, then it would not be his clients’ intention to proceed with the Counterclaim. Whilst I appreciate that only one of his clients was in court, nonetheless, that, so far as I am concerned, was the stated position when this discussion had been finalised.

54. Under s. 71 of the 1957 Act, it is provided that where a cause of action is based on the fraud of the defendant or his agent, or that the right of action is concealed by the fraud of any such person(s), then the appropriate limitation period shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have so discovered it. Somewhere amidst the evidence or submissions or arguments made in this case, there lingers a suggestion that the respondents, as a matter of law, may have enabled the appellant, by their actions, to rely on these provisions. I am perfectly satisfied that this is not the case. As stated on more than one occasion previously, the respondents were registered within a relatively short time of the Deed of Transfer having been executed. Thus, that information had been available for almost seven years before the death of Mrs. Rita McHugh. In such circumstances, whilst the appellant may well feel aggrieved at a moral, social or relationship level that he had not been specifically told of the transfer, nonetheless such cannot be said to create a sustainable ground upon which the provisions of s. 71 may be invoked.

55. The provisions of s. 72 of the 1957 Act, which deals with the commencement of the limitation period where “mistake” is in issue, do not arise for consideration on the facts of this case.

56. Although the discussion travelled far and wide as to what at this point in time the appellant’s real case is, I think that the answer can again be found in an affidavit sworn by him on 20th February, 2015 where, at para. 13, he says:-

“I say and believe and am so advised that the central and core issue of the plaintiff relates to the validity of the said Deed of Transfer and that the plaintiff accepts that he cannot make any case under s. 117 of the Succession Act as against the defendants herein and likewise that it is not appropriate to raise a case on estoppel or legitimate expectation against these defendants.”

“4. I say that the core of the Plaintiff’s claim is that he, as executor of his late mother’s estate, under her last Will and Testament made on the 9th July 1987, wishes to proceed with his claim to challenge the validity of a Deed subsequently entered into by his deceased mother and made on the 5th February 1990.

13. I say and believe and am so advised that the central and core issue of the Plaintiff relates to the validity of the said Deed of Transfer and that the Plaintiff accepts that he cannot make any case under s. 17 of the Succession Act as against the Defendants herein and likewise that it is not appropriate to raise a case on estoppel or legitimate expectation against those Defendants.”

57. It is thus clear that the legal challenge is no longer one under the provisions of s. 117 of the 1965 Act, or one based on estoppel or legitimate expectation. One can also add in s. 121 of the 1965 Act, as well as pointing out that the inconsistent claim to adverse possession under s. 49 of the Registration of Title Act 1964, though advanced by Mr. McHugh in his affidavit of 9th July, 1998, is likewise not being pursued. Therefore, his claim is directly based and solely focused on having the Deed of Transfer invalidated, on whatever ground.

58. In that context there are two statutory provisions which must be referred to: the first is s. 9 of the Civil Liability Act 1961, which in its material wording reads as follows:-

“9 – (1) In this section “the relevant period” means the period of limitation prescribed by the Statute of Limitations or any limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either -

(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or

(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.

59. Section 13 of the 1957 Act is the other provision; subs (2) reads:-

“13 – (2) The following provision shall apply to an action by a person (other than a state authority) to recover land –
(a) subject to subpara. (b) of the subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it…

(b) …”

60. References to other potential sections of either the 1957 Act or the 1961 Act do not add anything further to this discussion. Therefore, the provisions of ss. 14, 18 and 46 of the 1957 Act will not be addressed, and neither will s. 7 of the 1961 Act. In addition, I cannot see how, even if he was not bound by the six year period therein provided for, he could hope to invoke s. 45 of the 1957 Act as substituted by s. 126 of the 1965 Act. The decision of the Supreme Court in Gleeson v. Feehan (No 1) [1991] I.L.R.M. 783 confirmed the obiter dictum of McMahon J. in Drohan v. Drohan [1981] I.L.R.M. 473 to the effect that s. 45 of the 1957 Act does not apply to actions brought by a personal representative to recover land from someone in possession thereof. In such circumstances, the twelve year limitation period laid down in s. 13(2) of the 1957 Act applies.

61. At the date of the institution of these proceedings the plaintiff had not obtained a Grant of Probate and his attempted reliance on the provisions of s. 10 of the 1965 Act, as in essence having the same effect as a Grant, is misplaced. It is therefore likely that he was acting in a personal capacity in making and pursuing these claims. I say “likely” because there is the possibility that, in certain circumstances, he could come within the principles as described by Keating at para. 33 above. Indeed, as a matter of fact he did have a Grant when the respondents’ motion came on for hearing before the High Court in November, 2011.

62. However, when one looks at the underlying reality it will be utterly clear that Mr. McHugh’s ambition was to obtain ownership of the subject lands. Obviously he could not do so unless the registered owners, i.e. his brothers, were named as defendants in any such proceedings which he might issue. As these lands were not part of the Estate of the deceased at the date of her death, it is impossible to see any point in suing the Estate, even if all of the other infirmities above described had been resolved. Certainly without the Deed of Transfer being set aside and for so long as that remained the position, the lands simply stood outside the Estate and thus no possible benefit could be obtained by the plaintiff in suing the Estate, given his intended purpose. Therefore, I cannot agree that it can be said that the instant cause of action was one which fell within the provisions of s. 9 of the 1961 Act. Consequently, it has to follow that the within proceedings could not be statute barred by virtue of these provisions.

63. In my view, however, the correct way of assessing and thus of approaching this case is to consider that the proceedings had been instituted in the plaintiff’s personal capacity, with the intention of recovering the lands in question for his sole use and benefit. Therefore, the most pertinent statutory provision must be s. 13 of the 1957 Act.

64. It will be recalled that the Deed of Transfer was dated the 5th February, 1990, and that the respondents became the registered owners on the relevant Folio as of the 19th February, 1991. Therefore, any such action for the intended purpose, even if properly formulated, would have to be instituted within twelve years from the date when the right of action accrued. Given that the Plenary Summons did not issue until the 4th March, 2004, it obviously follows that such proceedings were out of time in respect of the cause of action so construed. As there is no applicable provision by which the period may be extended, that statutory barrier of itself has the effect of preventing the appellant from continuing with the claim as so framed.

65. Even if, however, I should be incorrect in this regard, and that it could be said that the appellant was acting in either an executor capacity or some capacity equivalent or analogous to that, then quite evidently he could not as a matter of law act in effect as prosecutor and defender in the same cause of action. Furthermore, and again notwithstanding what I have said, if the claim, despite the most unconventional and not altogether clearly understood manner of how it is pleaded, is to be regarded as one against the estate of the deceased person, then under the provisions of s. 9(2) of the 1961 Act, it is self evident that the same would be statute barred.

66. Therefore, whichever way one approaches this case, it seems to me that as a matter of a statutory limitation, which cannot be extended, these proceedings are bound to fail. Accordingly, for these reasons I would dismiss the appeal.