Bissessur and Another v McMillen

• Jurisdiction: Ireland
• Judge: Ms. Justice Emily Farrell
• Judgment Date: 24 April 2024
• Neutral Citation: [2024] IEHC 220
• Court: High Court
• Docket Number: Record No.: 2023/1342 JR

Between/

Laksmee Bissessur and Philip Smith

Applicants

and

Evelyn McMillen as Personal Representative of the estates of both Adeline Keppel and Rita Keppel.

Respondent

A Judge of the Dublin Circuit Court

Notice Party

[2024] IEHC 220

Record No.: 2023/1342 JR

THE HIGH COURT

JUDGMENT ofMs. Justice Emily Farrelldelivered on the 24 ^th day of April 2024.

1 These proceedings relate to the hearing of an application made by the Respondent for an order directing the Applicants to vacate a property which forms the estate of Adeline Keppel and Rita Keppel.

2 The application before the Court is a telescoped hearing, whereby the Applicants seek leave to apply, and if leave is granted, an order of certiorari quashing the Orders made by the Circuit Court on 14 ^th November 2023. On 14 ^th November 2023, the Circuit Court made an Order directing the Applicants to vacate the property, subject to a stay for 14 days, and an order for costs. The Respondent sued in her capacity as the Personal Representative of the estates of Adeline Keppel and Rita Keppel. The property is a registered property and is still registered in the name of Adeline Keppel, who died in 2001.

3 Three grounds are relied upon in the Statement of Grounds. Firstly, it is alleged that the Circuit Court Judge fettered his discretion by refusing to consider whether the grants of administration had been obtained by fraud and refused to look behind the Orders of the High Court. It is alleged that this breached the Applicants' rights under Article 40.3.2 of the Constitution.

4 Taken together, the second and third grounds contend that the hearing was conducted in breach of fair procedures by reason of the interventions of the Circuit Court Judge during the cross-examination of the Respondent by the Applicants' counsel.

The Circuit Court proceedings

5 The Circuit Court proceedings commenced by way of an Equity Civil Bill dated 21 ^st June 2022 in which the Respondent was identified as Personal Representative of the estates of both Adeline Keppel and Rita Keppel. She relied on letters of administration which were granted on 23 ^rd May 2022, appointing her as administrator of both estates. At paragraph 11 of the Equity Civil Bill, it was pleaded that the Applicants had been called upon to vacate the premises but had not done so, “ in consequence of which the estates of the deceased have suffered and continue to suffer loss and damage”.

6 The number or identity of the beneficiaries of the estate were not specified in the Equity Civil Bill, nor was it necessary for such details to be included. The Respondent has not asserted, whether in the Circuit Court proceedings, or otherwise that she is the sole beneficiary of the estates of Adeline Keppel and/or Rita Keppel.

7 The Applicants delivered a Defence to those proceedings on 1 ^st September 2022, which Defence denied the pleas in the Equity Civil Bill, although it was accepted that Adeline Keppel is currently the registered owner of the property. At paragraphs 2, 9 and 10 of the Defence, the Applicants pleaded fraud. In particular, it was pleaded that:

“2. If the plaintiff has procured a grant of representation in the estates of either Adeline Keppel of Rita Keppel, same was procured by fraud in that it was represented that the Plaintiff was the attorney of Florence Chambers whom it was wrongly claimed was a second cousin of both Adeline Keppel and Rita Keppel and as such was entitled to a share in the estate of one or both of them.

…

9. If letters of administration in the estate of Adeline Keppel were granted appointing the Plaintiff herein as Personal Representative in her estate on the 23 ^rd day of May 2022 same were procured by fraud as set out in paragraph 2 above.

10. If Letters of Administration in the estate of Rita Keppel were granted, appointing the Plaintiff herein as Personal Representative in her estate on the 23 ^rd day of May same were procured by fraud as set out in paragraph 2 above.”

8 It was also denied, at paragraph 5, that Rita Keppel was the sole surviving sister of Adeline Keppel or that they were sisters. It was accepted at paragraph 6 that both Adeline and Rita Keppel resided at the property in question and paragraph 7 pleads “ if Rita continued to reside therein post her sister's death in 2001 it was in adverse possession to the estate of Adeline.” The fact that they were sisters is accepted at paragraph 7.

9 At paragraph 12 of the Defence, the Applicants denied having wrongfully occupied the premises and denied that they wrongfully continued to occupy the premises. No positive plea was made as to the basis on which they were or are in occupation of the property. During the hearing before me, counsel for the Applicants confirmed that the Applicants are squatters.

Requirement to Plead Particulars of Fraud

10 An allegation of fraud is a very serious matter, particularly where, as here, the allegation is that the Respondent has abused the judicial process and obtained two orders of the High Court and letters of administration in respect of two estates through fraud. The applications to the High Court were made ex parte.

11 It is a long-established practice of the courts that when fraud or misrepresentation is alleged, particulars must be set out in the pleadings. In Hanley v. Finnerty[1981] ILRM 198, Barrington J. stated, in relation to the plea of undue influence:

“ undue influence as a plea similar to fraud and it appears to be that it would be quite unfair to require a party against whom a plea of undue influence is made to go to court without any inkling of the allegations of fact on which the plea of undue influence rests because of the seriousness of the plea Council will not likely put his name to a pleading containing a plea of undue influence so that his solicitor will usually have in his possession some allegations of fact which justify the raising of the plea or at least excuse the plea from being irresponsible.”

12 This has been approved by Dunne J. In Keaney v. Sullivan[2015] IESC 75 in which case she held:

“ it is necessary to set out the allegations of fact in a statement of claim or pleading on which the plea concerned rests. That is required by the rules and as is made clear in that passage from the judgment of Barrington J., it is a fundamental requirement. The reason is, as Barrington J. said, that it would be quite unfair to require a party against whom such an allegation is made to go into court without any idea whatsoever as to the nature of the allegations of fact on which that plea rests. The second point highlighted by Barrington J. in that passage is the seriousness of such a plea. One does not lightly make an allegation of fraud against another party. It has to be borne in mind that absolute privilege attaches to pleadings in court proceedings (see s. 17(2)(g) of the Defamation Act 2009). The fact that absolute privilege attaches to pleadings in legal proceedings is not a licence to make unsubstantiated allegations of a serious nature such as fraud against another party. Care must be taken before making such an allegation.There must be available facts to support such a plea and those facts must be particularised in the pleading concerned. The seriousness of such a plea is underlined by the express requirement contained in Order 19, rule 5 of the RSC to properly particularise such allegations. Bullen and Leake in the passage set out earlier sets out how this should be done.” (emphasis added)

13 Dunne J. also considered the judgment of Clarke J. (as he then was) in National Educational Welfare Board v. Ryan[2008] 2 I.R. 816 and stated that one must bear in mind that a plaintiff alleging fraud has to pass the threshold “ in a sufficient manner to give the defendant a reasonable picture as to the fraud contended for”.

14 The obligation to plead fraud with particularity stems from the right to fair procedures and not solely from the Rules of Court. The requirement to plead fraud with sufficient particularity applies equally to defendants who seeks to rely on fraud to defeat a claim made against them.

15 In this case, the sole particular of fraud pleaded by the Applicants was that:

“ the Plaintiff was the attorney of Florence Chambers whom it was wrongly claimed was a second cousin of both Adeline Keppel and Rita Keppel and as such was entitled to a share in the estate of one or both of them.”

16 No additional particulars were set out at paragraphs 9 and 10 of the Defence, in which fraud was also asserted.

17 It is accepted by the Applicants that this plea contains an error — the Applicants accept that the Respondent was the daughter of Florence Chambers and they do not contend that she held power of attorney for her mother.

18 The plea (made as an alternative to the denial that the Respondent was the Personal Representative of the estates of both Adeline Keppel and Rita Keppel) is that it was “ wrongly claimed” that Florence Chambers was a second cousin of Adeline and Rita Keppel. It is not pleaded that that claim was advanced dishonestly, nor is it asserted that the Respondent made the application in the knowledge that her mother was not related to Adeline or Rita Keppel. At its height, the Applicants would have to rely on an inference of dishonesty being drawn from the fact that the particular is a particular of fraud. I do not consider that it is appropriate to draw such an inference in circumstances where the obligation to plead the material facts of the fraud alleged is a fundamental requirement. Carrying out an act wrongly does not amount to fraud without an element of dishonesty.

The Proceedings before the High Court under the Succession Act 1965

19 The orders of the High Court dated 10 ^th February 2020 (Hyland J.) and dated 8 ^th February 2021 (Allen J.), which the Applicants assert were obtained by fraud were made under section 27 (4) of the Succession Act 1965.

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