Bank of Scotland Plc v Gray & Doyle

JurisdictionIreland
CourtHigh Court
JudgeMs. Finlay Geoghegan
Judgment Date14 Dec 2012
Neutral Citation[2012] IEHC 545
Docket Number[2011 No. 4759 S]

[2012] IEHC 545

THE HIGH COURT

[No. 4759 S/2011]
[No. 16 COM/2012]
Bank Of Scotland Plc v Gray & Doyle
IN THE MATTER OF THE ESTATE OF JOHN O'MEARA (DECEASED)

BETWEEN

BANK OF SCOTLAND PLC.
PLAINTIFF

AND

RANDAL GRAY AND MARK EDMUND DOYLE
DEFENDANTS

RSC O.37 r7

O'MEARA v BANK OF SCOTLAND PLC UNREP LAFFOY 28.10.2011 2011/42/11969 2011 IEHC 402

SUCCESSION ACT 1965 S27(4)

CIVIL LIABILITY ACT 1961 S9

GAFFNEY v FAUGHNAN 2006 1 ILRM 481 2005/27/5571 2005 IEHC 367

FINNEGAN v RICHARDS & MADIGAN 2007 3 IR 671 2007 2 ILRM 487 2007/23/4783 2007 IEHC 134

SUCCESSION ACT 1965 S13

FLACK v PRESIDENT OF HIGH COURT & FLACK UNREP HIGH COURT COSTELLO 29.11.1983 1984/2/402

CREED v CREED 1913 1 IR 48

INGALL v MORAN 1944 KB 160 1944 1 AER 97

AUSTIN v HART 1983 2 AC 640 1983 2 WLR 866 1983 2 AER 341

RSC O.79

RSC O.79 r22

PROBATE LAW

Administration of estates

Proceedings issued against defendants as administrators where no grant of administration issued - Grant of administration issued subsequent to issuing of proceedings - Status of defendants as administrators subsequent to order granting liberty to apply for grant of administration but before obtaining grant of administration - Whether proceedings properly constituted and maintainable at law - Contingent competency to represent estate - Doctrine of relation back - Austin v Hart [1983] 2 AC 640; Creed v Creed [1913] 1 IR 48; Finnegan v Cementation Co Ltd [1953] 1 QB 688; Finnegan v Richards [2007] IEHC 134, [2007] 3 IR 671; Flack v President of the High Court (Unrep, Costello J, 29/11/1983); Gaffney v Faughnan [2005] IEHC 367, [2006] 1 ILRM 481; Hilton v Sutton Steam Laundry [1946] KB 65; Ingall v Moran [1944] K.B. 160; [1944] 1 All ER 97 and O'Meara v Bank of Scotland plc [2011] IEHC 402, (Unrep, Laffoy J, 28/10/2011) considered - Rules of the Superior Courts 1986 (SI 15/1986) , O 79 - Succession Act 1965 (No 27), s 27(4) - Proceedings properly constituted and maintainable against defendants (2011/4759S - Finlay Geoghegan J - 14/12/2012) [2012] IEHC 545

Bank of Scotland v Gray

Facts: The plaintiff had applied for summary judgment in relation to the estate of Mr John O'Meara (deceased) and it was agreed with the defendants at that stage that the court should determine the preliminary issue of whether the proceedings were properly constituted and maintainable. The plaintiff contended that they had advanced monies and provided banking facilities to the deceased during the course of his lifetime which became repayable upon his death on the 27th November 2009. The deceased had appointed two executors in his will but they had renounced their roles shortly following his death. The defendants were named as administrators of the estate on the 24th November 2011 and averred that the plaintiff's proceedings were invalid on the basis that they were issued on the 18th November 2011, prior to their selection.

The solicitors for the defendant had wrote to the plaintiff in March 2011 advising them that they intended to apply for the defendants to be named as administrators pursuant to s. 27(4) of the Succession Act 1965 and this was subsequently made on the 11th April 2011 but was adjourned on a number of occasions due to another creditor of the deceased insisting the proper course of action was to administer the estate in bankruptcy proceedings. This objection was eventually withdrawn and on the 11th July 2011, the court ordered that the defendants were at liberty to apply for a Grant of Letters of Administration. There was confusion as to whether the defendants had been appointed as administrators in subsequent correspondence. Proceedings were subsequently issued on the 18th November 2011 and the defendants received the letters of administration on the 24th November. The grant was stated to be "By Order of Court dated 11th day of July 2011".

Held by Finlay Geoghegan J that the judgement of the 11th July 2011 outlined that a grant of administration under s. 27(4) of the Succession Act 1965 was considered as beneficial due to the special circumstances and the need for expediency in the case. It was accepted that the judgement then ordered that the defendants be at liberty to apply for this grant and, whilst its content may suggest otherwise, the order was in its correct form and a proper grant had in fact been made. There were a number of formalities that the defendant's had to comply with before the grant could be issued but they had still become attached to the estate from that moment onwards. The fact that the solicitors for the defendants had responded to the plaintiff in correspondence in this intervening period expressing some responsibility for the estate suggested this.

It was accepted that there was a lack of legal precedent as to the exact status of the defendants in the period between the 11th July 2011 and the 24th November 2011 but until such precedents were presented to convince the court otherwise, it was held that the proceedings would be considered valid lest there be a significant injustice created.

Proceedings considered to be properly constituted and maintainable against the defendants.

1

1. This judgment is given on an issue which the parties agreed, in the course of the hearing of the plaintiff's application for summary judgment, should be determined by the Court as a preliminary issue. It was agreed this was permissible pursuant to O. 37, r. 7 of the Rules of the Superior Courts.

2

2. The issue to be determined is whether or not the proceedings, which issued on 18 th November, 2011, are properly constituted and maintainable against the defendants.

3

3. The objection made to the validity of the proceedings is that the defendants are sued as administrators of the estate of Mr. John O'Meara, deceased, while the grant of administration to them only issued on 24 th November, 2011, i.e.: after the commencement of the proceedings.

The Facts
4

4. During the life of Mr. John O'Meara, the plaintiff had advanced monies and otherwise provided banking facilities to him. It is alleged that these facilities stated that upon his death, principal and interest became immediately repayable.

5

5. Mr. O'Meara died on 27 th November, 2009. He left a will appointing executors, Ms. Gaye Hillary and Mr. Tom McParland. They renounced their appointments on 2 nd December, 2009.

6

6. On 5 th January, 2010, the plaintiff purported to exercise a right of lien and set off in respect of two deposit accounts in the joint names of Mr. O'Meara and his wife, Mrs. Claire O'Meara. The monies were applied to reduce the sums due by the estate of the late Mr. O'Meara (the "Estate"). In June 2010, Mrs. O'Meara issued proceedings seeking declarations, inter alia, that the monies in the relevant accounts were her property. Those proceedings were determined by Laffoy J. on 28 th October, 2011 [2011 IEHC 402] with a finding in favour of Mrs. O'Meara in respect of one of the accounts.

7

7. The deceased, at the date of his death, had significant investments in development property, both in Ireland and abroad, and extensive borrowings from a wide range of banks and credit institutions, including the plaintiff. There were multiple potential claims against the Estate. The question as to whether or not the Estate is insolvent has not been determined. Nothing turns on this for the purpose of the preliminary issue but it appears to have contributed to the delay in taking out a grant of administration.

8

8. Throughout 2010, there was correspondence between the plaintiff and solicitors acting for proposed administrators of the Estate. The original proposal was not pursued. In January 2011, a second firm of solicitors wrote to the plaintiff enclosing draft motion papers intending to apply for the appointment of other persons as administrators. That motion was not pursued.

9

9. Ultimately, in March, 2011, Actons solicitors, the solicitors now on record for the defendants in these proceedings, wrote to the solicitors for the plaintiff proposing that the defendants be appointed as administrators of the Estate. The second named defendant is a solicitor and member of that firm.

10

10. On 11 th April, 2011, a motion was issued returnable for 16 th May, 2011, seeking, inter alia, an order pursuant to s. 27(4) of the Succession Act 1965, granting the defendants letters of administration with will annexed to the Estate. That application was adjourned from time to time. ACC, to which it was alleged the Estate also had liabilities, objected, initially, to the appointment of the defendants. It contended the Estate should be administered in bankruptcy. The application to have the defendants appointed as administrators with will annexed was ultimately adjourned to 11 th July, 2011.

11

11. In the meantime, on 6 th July, 2011, the plaintiff issued a motion seeking to have a Mr. Eamonn Freaney appointed as administrator ad litem in relation to an intended claim against the Estate by Bank of Scotland, which is the claim sought to be pursued in these proceedings.

12

12. On 11 th July, 2011, the High Court (Ryan J.) made an order pursuant to s. 27(4) of the Succession Act 1965. The order records that the Court was of opinion in the special circumstances of this case, "it is expedient to appoint some person to be the Administrator of the estate of the said deceased other than the person who under the Succession Act 1965, would be entitled to such Grant". The order then made was "That Randal Gray and Mark Doyle, the Applicants herein, be at liberty to apply for a Grant of Letters of Administration with will annexed in the estate of [John O'Meara, deceased]". The order also records that counsel for ACC Bank and the plaintiff herein were heard as notice parties. ACC Bank did not pursue its objection to the appointment of...

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