Annie McIntyre deceased v Circuit Court Judge Doirbhile Flanagan and Another

• Jurisdiction: Ireland
• Judgment Date: 26 June 2014
• Neutral Citation: [2014] IEHC 378
• Date: 26 June 2014
• Docket Number: Record Number: No.12 JR/2014
• Court: High Court

[2014] IEHC 378

THE HIGH COURT

Record Number: No.12 JR/2014

Kelly & Clarke (estate of McIntyre, deceased) v Circuit Court Judge Flanagan & Anor

No Redaction Needed

Between:

Stacia Kelly and Mary Clarke as Executors of the late Annie McIntyre deceased

Applicants

And

Circuit Court Judge Doirbhile Flanagan

Respondent

And

Edel McIntyre

Notice Party

SUCCESSION ACT 1965 S117

SUCCESSION ACT 1965 S119

Practice and Procedure – Judicial Review – Evidence – Medical Experts – Witnesses – Mental Capacity – s. 117 and s. 119 of the Succession Act 1965

Facts:

The applicants applied by way of judicial review to quash an order made by the respondent in Circuit Court proceedings where the applicants were defendants and the Notice Party was plaintiff. The applicants believed that the Notice Party lacked the necessary capacity to instruct lawyers in relation to the Circuit Court action. The applicants issued a Notice of Motion during the Circuit Court proceedings for an order to have the Notice Party independently medically assessed. The solicitor for the Notice Party filed a replying affidavit and exhibited a report from a Consultant Psychiatrist stating that the Notice Party was competent. The respondent heard the motion and refused to make the order for an independent medical assessment. The first named applicants” grounding affidavit raised two complaints in relation to the hearing of the motion; firstly, the respondents refusal to allow the independent doctor to give evidence and secondly, the respondents direction that the matter be heard “in camera.” The applicants said the matter should have been heard in open court and the respondents” refusal to allow the independent doctor to give oral evidence contradicted the principles of natural justice.

Held by Peart J:

The Court determined that the grounds raised by the applicant did not reach the level of arguability required. The applicants did not suffer any prejudice because the application was heard in camera. Also, where a claim is made under section 117 of the Succession Act 1965, section 119 requires that it be dealt with in camera. There was no basis for arguing that the respondents” direction in that regard breached the applicants rights thereby rendering the court order unlawful. Motions of this kind are usually heard by way of affidavit and the applicants were not entitled to demand that their independent medical witness be heard in evidence. The applicants were permitted to have their medical expert swear an affidavit in support of their application but chose not to do this. The applicants had a right to appeal and mistakenly chose to challenge the legality of the respondents order without having arguable grounds to do so. The court therefore refused the application.

Decision to refuse leave to seek Judicial Review reliefs

26 th Day of June 2014:

1 The applicants appear in person in these proceedings.

2 They have applied for leave to seek reliefs by way of judicial review, namely an order quashing an order made by the respondent on the 1^st October 2013 in certain Circuit Court proceedings before her (Record Number138/2006 Sligo Circuit Court) and in which they are defendants, and the Notice Party (their sister) is the plaintiff.

3 In those proceedings a number of reliefs no longer being pursued are set forth. What remains is a claim to have a certain Deed of Transfer set aside, as well as a claim for conversion of certain monies received on foot of a personal injuries claim. The details of the claim do not particularly matter for my present purposes.

4 The Notice Party in the present proceedings was put on notice of this application by the direction of this Court. The same solicitor appears for her before me now as appears for her, as plaintiff, in the Circuit Court proceedings.

5 Those Circuit Court proceedings are in progress. In fact a Notice of Trial was served at the end of 2008. The proceedings have been held up since then in various ways which I do not need to go into. However, the present applicants believe that the Notice Party lacks the capacity necessary to enable her to instruct her lawyers for the Circuit Court action. The Notice Party's solicitors do not agree. As far back as 2011 they swore an affidavit stating that they had interviewed their client on a number of occasions and that she had no difficulty in understanding her instructions on each occasion, and that on each occasion their client has been clear, careful and direct in relation to her instructions. The last such interview was stated to have been in November 2010. Her solicitor also exhibited a medical report dated 2006 from a GP, Dr Sorcha Dunne which confirmed that the Notice Party did not need to be made a Ward of Court. That pre-dated the commencement of the proceedings.

6 Nevertheless the applicants on the present application remain convinced that their sister lacks capacity.

7 Because of their concerns, they issued a Notice of Motion in the Circuit Court proceedings seeking an order that their sister be independently medically examined by a particular doctor named as Dr Canavan, a consultant psychiatrist. In their grounding affidavit they exhibited a letter from a different GP but from the same GP practice as Dr Dunne in which a Dr Dick stated that it had been five years since he had seen her, and that he would not be able to impart confidential information about their sister without her consent. He stated that he was unsure if she would be able to give"reliable written consent" and thought...