Cawley and Another -v- Lilis

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 21 February 2012
• Neutral Citation: [2012] IEHC 70
• Court: High Court
• Date: 21 February 2012

Cawley & Lillis v Lillis

[2012] IEHC 70

IN THE MATTER OF THE ESTATE OF CELINE CAWLEY LATE OF ROWAN HILL, WINDGATE ROAD, HOWTH IN THE COUNTY OF DUBLIN DECEASED

AND

IN THE MATTER OF QUESTIONS ARISING IN THE COURSE OF THE ADMINISTRATION OF THE SAID ESTATE

BETWEEN

CHRISTOPHER CAWLEY AND SUSANNA CAWLEY

AND

BY ORDER GEORGIA LILLIS

PLAINTIFFS

AND

EAMON LILLIS

DEFENDANT

[2012] IEHC 70

[No. 410 SP/2010]

THE HIGH COURT

PRACTICE AND PROCEDURE

Costs

Settled proceedings - Whether standard rules regarding costs in probate applied - Whether Rules of Superior Courts 1986, O 99 applied - Whether Calderbank offers dictated where costs lay - Whether offer made shortly before hearing dictated where costs lay - Whether actions of defendant necessitated hearing - Elliott v Stamp [2008] IESC 10, [2008] 3 IR 387 applied - Schobelt v Barber (1966) 60 DLR (2d) 519 and Roache v News Group Newspapers Ltd Times Law Report, 23/11/1992 approved - In bonis Morelli; Vella v Morelli [1968] IR 11 and Re Pechar (Decd) [1969] NZLR 574 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 99 - Rules of the Superior Courts (Costs) 2008 (SI 12/2008) - Order for costs made (2010/410SP - Laffoy J - 21/2/2012) [2012] IEHC 70

Cawley v Lillis (No 2)

CAWLEY & LILLIS v LILLIS UNREP LAFFOY 6.12.2011 2011 IEHC 515

MORELLI, IN BONIS; VELLA v MORELLI 1968 IR 11

ELLIOT v STAMP 2008 3 IR 387 2008 2 ILRM 283 2008/22/4840 2008 IESC 10

RSC O.99 r1

RSC O.99

RULES OF THE SUPERIOR COURTS (COSTS) 2008 SI 12/2008

RSC O.99 r1APECHAR (DECEASED), IN RE; GRBIC (DECEASED), IN RE 1969 NZLR 574

SCHOBELT v BARBER 1966 60 DLR (2D) 519

ROACHE v NEWS GROUP NEWSPAPERS LTD & ORS 1998 EMLR 161

RSC O.99 r1A(1)(B)

1 Judgment of Miss Justice Laffoydelivered on 21st day of February, 2012.

2 1. This judgment concerns the costs of these proceedings in which I gave judgment on 6 ^th December, 2011 ( [2011] IEHC 515) on the questions raised in the special summons. When the matter was back before the Court on 24 ^th January, 2012 the Court was told that the matter had been settled save in relation to costs. The terms of settlement were handed into Court and orders were made in the terms of the terms of settlement. For present purposes, it is only necessary to record that the implementation of the terms of settlement will create a fund arising from the realisation of the assets which were jointly held by the defendant and the late Celine Cawley (the Deceased) at the date of the death of the Deceased. I will refer to thatfund as the "joint fund" in this judgment. Submissions on where liability for the costs of the proceedings should lie were made by counsel for both sides on 14 ^th February, 2012.

3 2. While the proceedings are entitled "In the matter of the Estate of the Deceased" and the original plaintiffs brought the proceedings as personal representatives of the Deceased, the reality of the situation is that the proceedings relate to the resolution of questions concerning the ownership of, and title to, assets which did not form part of the estate of the Deceased. Having said that, the proceedings were properly brought by way of special summons, involving as they did questions affecting the rights and interests of the estate of the Deceased on the one hand, and the defendant, on the other hand, in relation to those assets.

4 3. While I propose to analyse the nature of these proceedings in greater depth later, I think it is important to record first that I consider that the special jurisprudence in relation to payment of costs out of the estate in probate actions, which had developed in this jurisdiction for the reasons set out by Budd J. in In bonis Morelli; Vella v. Morelli [1968] 1 I.R. 11, and was applied by him in that case and was more recently considered by the Supreme Court in Elliott v. Stamp [2008] 3 I.R. 387, has no application to the circumstances of these proceedings. The rationale of the special jurisprudence was explained as follows by Budd J. (at pp. 34 to 35):

"In our country the results arising from the testamentary disposition of property are of fundamental importance to most members of the community and it is vital that the circumstances surrounding the execution of testamentary documents should be open to scrutiny and be above suspicion. Accordingly, it would seem right and proper to me that persons, having real and genuine grounds for believing, or even having genuine suspicions, that a purported willis not valid, should be able to have the circumstances surrounding the execution of that will investigated by the court without being completely deterred from taking that course by reason of a fear that, however genuine their case may be, they will have to bear the burden of what may be heavy costs. It would seem to me that the old Irish practice was a very fair and reasonable one and was such that, if adhered to, would allay the reasonable fears of persons faced with making a decision upon whether a will should be litigated or not. If there be any doubt about its application in modern times, these doubts should be dispelled and the practice should now be reiterated and laid down as a general guiding principle bearing in mind that, as a general rule, before the practice can be operated in any particular case the two questions posed must be answered in the affirmative."

5 The two questions referred to in that passage are whether:

6 (a) there was reasonable ground for litigation, and

7 (b) whether it was conducted bona fide.

8 The guiding principle laid down by the Supreme Court in that case does not apply to these proceedings, which are not concerned with execution of a testamentary document. That is not to say, however, that the Court, in the exercise of its discretion in relation to costs should not to have appropriate have regard to issues of the type involved in the questions posed by the Supreme Court.

9 4. While these proceedings raised a novel and a difficult point of law, in essence, they involved a contest between the estate of the Deceased, on the one hand, and the defendant, on the other hand, as to the beneficial ownership of the assets which had been jointly held by the Deceased and the defendant (the joint assets). As I stated in the judgment, the resolution of the issues which were raised in the proceedings turnedon the application of established principles of law and equity, primarily, in the area of real property law.

10 5. The proceedings were properly brought by the original plaintiffs in their capacity as personal representatives of the Deceased, because in that capacity the plaintiffs had to protect the interests of the estate and, in particular, the interests of Georgia Lillis (the Beneficiary), who was joined as a plaintiff by order of the Court made on 27 ^th June, 2011, but who had not attained her majority when the proceedings were initiated. The proceedings were unquestionably necessary. They were not initiated prematurely. On the contrary, prior to their initiation on 15 ^th June, 2010, the personal...