Connors v Kinsella

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 25 July 2022
• Neutral Citation: [2022] IECA 167
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2022/12

Between

Jean Connors

Plaintiff

and

Daniel Kinsella

and

David Tarrant and Andrew Tarrant Practising Under the Style and Title of Tarrant and Tarrant Solicitors

Defendants

[2022] IECA 167

Costello J.

Faherty J.

Allen J.

Appeal Number: 2022/12

THE COURT OF APPEAL

CIVIL

Costs – Interlocutory injunction – Damages – Plaintiff appealing against so much of the order of the High Court as ordered that the plaintiff should pay the costs of the first defendant of a failed application for an interlocutory injunction – Whether the High Court judge both erred in fact and in law in adjudicating on the issue of costs in circumstances in which there were fundamental issues in dispute between the parties which would be revisited at trial

Facts: The plaintiff, Ms Connors, appealed to the Court of Appeal against so much of the order of the High Court (Sanfey J) made on 15th December, 2021 as ordered that the plaintiff should pay the costs of the first defendant, Mr Kinsella, of a failed application for an interlocutory injunction and directed an inquiry as to the damages suffered by the first defendant by reason of the making of an interim injunction which was later discharged. It was suggested that the High Court judge both erred in fact and in law in: (1) adjudicating on the issue of costs in circumstances in which there were fundamental issues in dispute between the parties which would be revisited at trial; (2) making an order for costs against the plaintiff, the administrator of the estate of the late Mrs Kinsella, personally; (3) deciding that the proceedings were hostile lis inter partes proceedings; (4) failing to apply the law as set out in In Bonis Morelli: Vella v Morelli [1968] I.R. 11 and the expansion of the principles therein as identified in Muckian v Hoey [2017] IEHC 47 to the facts of the case; and (5) in failing to engage with the plaintiff’s submission that the enforcement of an undertaking as to damages must be considered prior to directing an inquiry as to damages.

Held by Allen J that the High Court judge was correct in his conclusion that the case was one in which he could justly adjudicate upon liability for costs on the basis of the interlocutory application and that he was correct in the allocation of those costs. Allen J was also satisfied that the judge was correct in making the order for costs against the plaintiff, personally, without qualification or restriction. Allen J dismissed the appeal on those grounds. He was satisfied that the decision of the High Court judge to enforce the plaintiff’s undertaking as to damages was correct. Allen J dismissed the appeal on all grounds.

Allen J held that, provisionally, it seemed to him that the first defendant had been entirely successful on the appeal and was entitled to his costs. Provisionally, it seemed to Allen J that the issues on the appeal –no less than the issues in relation to the order the subject of the appeal – could not be said to have arisen in the course of the administration of the estate but were attributable to an unsuccessful appeal against orders made following the determination by the High Court of a hostile inter partes interlocutory motion and, like the costs below, should follow the event.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 25 ^th day of July, 2022

Introduction

1 . This is an appeal by the plaintiff against so much of the order of the High Court (Sanfey J.) made on 15 ^th December, 2021 as ordered that the plaintiff should pay the first defendant's costs of a failed application for an interlocutory injunction and directed an inquiry as to the damages suffered by the first defendant by reason of the making of an interim injunction which was later discharged.

2 . The elements of the order against which the plaintiff has appealed were the subject of a written judgment delivered on 15 ^th December, 2021 [2021] IEHC 791. Previously, on 8 ^th November, 2021 [2021] IEHC 696 Sanfey J. had delivered a written judgment on the substantive application, against which there is no appeal. In the judgment under appeal the judge emphasised that it was to be read in conjunction with his judgment on the substantive application.

Prologue

3 . This is the latest battle in a long running and bitter family dispute. The plaintiff is a solicitor who acts for herself. The first defendant is one of her brothers. The second and third defendants were not party to application for interlocutory relief. The dispute relates to the inter vivos transfer by the plaintiff's and the first defendant's mother to the first defendant of her home, which was her only asset, and the role played by the second and third defendants, a firm of solicitors, in the transaction.

4 . The litigation has been in and out of the High Court for upwards seven years but the action has not been brought to the point that it can be set down for trial and certified ready for hearing. When the plaintiff's motion for interlocutory relief came before the High Court on 29 ^th October, 2021, Sanfey J. was told that the plaintiff had intimated to the first defendant that she might wish to apply for non-party discovery by a firm of solicitors who the first defendant maintained had given independent legal advice in relation to the property transfer the subject of the proceedings.

5 . The involvement of that firm of solicitors – Meagher Solicitors – was evident on the face of the impugned transfer and their alleged role in the transaction was pleaded in the first defendant's defence which was delivered as long ago as 11 ^th July, 2016. As far as the judgment of the High Court shows, there was no indication that anything had been done between then and 29 ^th October, 2021 to obtain the file and the answer to the question put by the court rather suggests that the plaintiff had not yet finally made up her mind whether she would apply for non-party discovery. In fact, the correspondence shows that the plaintiff had been in correspondence with Meagher Solicitors from 17 ^th October, 2014; had tried, unsuccessfully, to force the disclosure by Meagher Solicitors of their file note by way of a complaint to the Law Society in 2015; and eventually, on 28 ^th May, 2021, had secured the agreement of Meagher Solicitors to make voluntary non-party discovery.

6 . If the plaintiff had – as she had – the agreement of the solicitors who had advised Mrs. Kinsella to make voluntary non-party discovery, it is difficult to understand the answer which was given to Sanfey J. when he asked whether the action was ready for hearing.

The action

7 . Frances Kinsella, late of 10 Casement Park, Bray, County Wicklow, died on 2 ^nd January, 2014, intestate. Mrs. Kinsella had been predeceased by her husband, Mr. Daniel Kinsella, and was survived by six children: Helen – the plaintiff, Jean, Daniel – the first defendant, Sandra, Alan and David.

8 . On 16 ^th September, 2014 the plaintiff took out a grant of letters of administration intestate to the estate of her late mother and by plenary summons issued on 23 ^rd December, 2014 commenced these proceedings claiming, as administrator of the estate of Mrs. Kinsella, an order setting aside a voluntary conveyance of the house at Casement Park which had been made by Mrs. Kinsella to the first defendant on 7 ^th August, 2013 and which was said to have been procured by the undue influence and/or duress of the first defendant and the negligence of the second defendant who was said to have acted for both parties to the conveyance.

9 . The house at Casement Park was the family home of Mr. and Mrs. Kinsella and their six children. It was originally occupied by Mr. and Mrs. Kinsella as tenants of Bray Town Council. In 1995 Mr. and Mrs. Kinsella had the opportunity to purchase the house under a tenant purchase scheme at a price significantly below the open market value. The first defendant put up the purchase money and the house was transferred by the local authority to Mr. and Mrs. Kinsella.

10 . On 26 ^th March, 1996 the first defendant drew up a form of “Agreement for 10 Casement Park” which was intended to set out the basis on which the purchase was to proceed. This was in form an agreement between the first defendant and his parents but was signed by three of the first defendant's siblings as well as by the first defendant and his parents. The agreement suggested, variously, that the house was being purchased by the first defendant on behalf of his parents, and for himself, but in his parents' names, who had – or were to have – a lifetime tenancy.

11 . Following the death of Mr. Daniel Kinsella on 19 ^th August, 2012 the property was registered in the sole name of Mrs. Kinsella and on 7 ^th August, 2013 Mrs. Kinsella executed a transfer of the property to the first defendant, reserving a sole and exclusive right of residence for her lifetime. The execution of the transfer by Mrs. Kinsella was witnessed by Ms. Anne Marie Glynn, a solicitor in Meagher Solicitors. The second and third defendants acted for the first defendant. The plaintiff's case is that the second and third defendants acted for both transferor and transferee. This is disputed by the first defendant whose case is that Mrs. Kinsella was independently advised by Ms. Glynn.

12 . While it is not at all relevant to the issue now before the court, I find the case pleaded against the second and third defendants enormously difficult to reconcile with a letter of 25 ^th March, 2015 from Meagher Solicitors to the plaintiff acknowledging that they were asked by Tarrant & Tarrant to provide independent legal advice to Mrs. Kinsella, and that they did so.

13 . Mrs. Kinsella, as I have said, died on 2 ^nd January, 2014 and the action to set aside the transfer was commenced on 23 ^rd December, 2014.

14 . For some reason which has not been explained, the statement of claim was not delivered until 8 ^th February,...