Breidegam v Reilly

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Power
• Judgment Date: 07 April 2020
• Neutral Citation: [2020] IEHC 186
• Docket Number: Record Number: 2018/1517P
• Date: 07 April 2020

BETWEEN/

MARY BREIDEGAM

PLAINTIFF

- AND -

DANIEL J. REILLY

DEFENDANT

[2020] IEHC 186

Power J.

Record Number: 2018/1517P

THE HIGH COURT

Specific performance – Application to remit – Delay – Defendant seeking to remit the proceedings to the Circuit Court – Whether it was reasonable for the plaintiff to have commenced proceedings in the High Court

Facts: The defendant, Mr Reilly, applied to the High Court pursuant to Order 49, rule 7(1) of the Rules of the Superior Courts and/or pursuant to s. 25 of the Courts of Justice Act 1924 to remit proceedings to the Circuit Court, specifically, to the Eastern Circuit sitting in the County of Louth. The application was brought by Notice of Motion dated 10 December 2019 and was grounded upon the affidavit of the defendant. The proceedings were instituted by Plenary Summons dated 12 November 2018. The Statement of Claim was delivered on the 7 March 2019 and the Defence was filed on 1 October 2019. Essentially, the General Indorsement of Claim on the Plenary Summons sought specific performance of an agreement made in March 2008 whereby the property of the deceased father of the plaintiff, Ms Breidegam, was to be sold and the proceeds thereof distributed in accordance with the terms of said agreement. In the alternative, the plaintiff sought damages in lieu of specific performance, damages for breach of contract and further or other relief. The Defence pleaded issues of delay and/or laches and raised the Statute of Limitations 1957 (the Statute) in relation to the claim for damages in lieu and/or damages for breach of contract.

Held by Power J that: (1) the plaintiff’s claim for specific performance was within the jurisdictional limits of the Circuit Court by reason of s. 22 of the Courts (Supplemental Provisions) Act 1961 and the provisions of the Third Schedule thereto; (2) the property, which was the subject of the agreement in respect of which specific performance was sought, came within the limits specified therein; (3) insofar as the plaintiff claimed damages as an alternative to an order for specific performance, she could not reasonably contemplate the recovery of a sum of damages beyond the jurisdiction of the Circuit Court; (4) the proceedings could have been commenced in the Circuit Court; (5) notwithstanding (4) above, it was necessary to consider whether, having regard to all the circumstances, it was reasonable that these proceedings were commenced in the High Court; (6) this case had no special features or specific circumstances by reason of which the action ought to have been brought in the High Court; and (7) she was not satisfied that it was reasonable for the plaintiff to have commenced proceedings in the High Court within the meaning of s. 11(2) of the Courts of Justice Act 1936.

Power J held that she would allow the defendant’s application and direct that the proceedings be remitted from the High Court to the Circuit Court in accordance with s. 25 of the 1924 Act.

Application allowed.

JUDGMENT of Ms. Justice Power delivered on the 7th day of April 2020

1 This is an application brought by the defendant pursuant to Order 49, rule 7(1) of the Rules of the Superior Courts and/or pursuant to section 25 of the Courts of Justice Act 1924, as amended (the ‘Act of 1924’) to remit the proceedings herein to the Circuit Court, specifically, to the Eastern Circuit sitting in the County of Louth.

2 The application is brought by Notice of Motion dated 10 December 2019 and is grounded upon the affidavit of the defendant herein. The proceedings were instituted by Plenary Summons dated 12 November 2018. The Statement of Claim was delivered on the 7 March 2019 and the Defence was filed on 1 October 2019. Essentially, the General Indorsement of Claim on the Plenary Summons seeks specific performance of an agreement made in March 2008 whereby the property of the plaintiff's deceased father was to be sold and the proceeds thereof distributed in accordance with the terms of said agreement. In the alternative, the plaintiff seeks damages in lieu of specific performance, damages for breach of contract and further or other relief. The Defence pleads issues of delay and/or laches and raises the Statute of Limitations 1957 (hereinafter the ‘Statute’) in relation to the claim for damages in lieu and/or damages for breach of contract.

Background

3 The facts of the case are set out in the pleadings and they may be summarised as follows. Mr. Joseph L. Reilly died on 14 May 1995. In his will, he left pecuniary legacies to the eight of his ten children who had survived him and to his grandchildren alive at the time of his death. Other bequests were made and the balance of his estate, including his property, was left to the defendant. The defendant was the executor of the will and is described therein as the ‘good and loyal friend’ of the testator. Probate proceedings seeking to condemn the will were instituted against the defendant by five of Mr. Reilly's surviving children, including, the plaintiff. A settlement agreement was reached by the parties on 31 March 2008 (hereinafter the ‘March 2008 agreement’). Essentially, it provided that the property of the deceased known as ‘Weirhope House’ was to be sold and that, after deductions for identified costs were made, the net estate was to be divided in the following manner. The defendant was to receive 55% and the remaining 45% was to be divided equally among nine of the testator's children in such a way that the five who were alive at the time of his death took their one ninth share of the 45% and the one ninth share of each of the four who were no longer alive at the time of settlement went to their issue/estates on a per stirpes basis. There was no disagreement between the parties about the fact that the March 2008 agreement resulted in the plaintiff being entitled to a payment of the value of a one ninth share of 45% of the estate—or, in other words, to 5% of the estate (after the aforesaid deductions had been made).

4 The terms of settlement were signed by the plaintiff (she, being one of five) on the one part and by the defendant, on the other. The solicitors who represented her in those probate proceedings, Messrs Benen Fahy Associates, also represented the four other plaintiffs.

5 The March 2008 agreement was made the subject of an Order of the High Court (McGovern J.) on 7 April 2008. That Order confirms that on that date the Court received and filed the terms of settlement agreed between the parties and ordered as follows:-

(i) That the testamentary document dated 10 day of February 1995 be established as the Will of Joseph L. Reilly Deceased;

(ii) All Caveats and Warnings and Appearances entered herein be here and the same set aside;

(iii) The costs of the Plaintiffs and the Defendant and the signatories to the Terms of Settlement be paid out of the estate of the Deceased to be taxed in default of agreement on the Executor's scale save and except the costs of Margaret Reilly (if any) be taxed prior to payment from the estate;

(iv) The proceedings do stand struck out; and

(v) The parties to have liberty to apply.

6 Of some significance (for reasons that will become apparent) is the fact that the Order of McGovern J. confirmed that the Court had heard the oral evidence of Marie Foley and was satisfied as to the due execution of the will of Joseph L. Reilly, deceased, which said will was dated 10 February 1995 and established same as the true and original last will and testament of Joseph L. Reilly deceased.

7 The events which followed the March 2008 agreement are set out in the defendant's affidavit sworn on 10 October 2019. His evidence (much of which is also pleaded in the Defence) is that subsequent to the March 2008 agreement he entered into a further agreement with the plaintiff's sister, Ms. Ann Waldron, who was acting on her own behalf and on the instructions of all of her living siblings, with the exception of the plaintiff whom she stated she was unable to contact, and on the instructions of the estates of her deceased siblings (‘the other plaintiffs in the probate proceedings.’) Under this new agreement of October 2016, the defendant, who already had a majority share in the estate of the deceased, agreed to buy out the interests of the other plaintiffs in the probate proceedings by paying them €25,000 each in lieu of their share of the property. €25,000 was to be paid to Ms Waldron and to each of her living siblings, including the plaintiff, notwithstanding that she was not a party to the October 2016 agreement, and €25,000 to the estates of the deceased siblings. The Court was informed by counsel for the defendant that the agreement of October 2016 resulted from an initial approach made by Ms Waldron to the defendant.

8 According to the Defence filed herein, the figure of €25,000 to each of the nine beneficiaries was agreed based on a valuation of the property in October 2016 by Colliers International in the amount of €675,000 and following the deduction of certain crystallised and anticipated costs that are set out in the Defence.

9 Various efforts were made by the defendant to pay the plaintiff her 5% share of the estate. The first was made in October 2017 when a cheque for US$28,670 (being at that time equivalent to €25,000) was sent to the plaintiff. This was rejected. In August 2019 the property was valued by Colliers International at between €685,000 and €700,000. The defendant offered to purchase the plaintiff's 5% of the property based on the upper end of that valuation and after the deduction of costs, as aforesaid. To this end, an increased offer in the sum of €33,750 was made to the plaintiff in September 2019 with an undertaking to defray the plaintiff's reasonable costs which would be on the Circuit Court scale given the figures advanced. The plaintiff, it is said, failed to engage and that offer remained open at the hearing...