Darby v Shanley (t/a Oliver Shanley & Company Solicitors)

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Irvine
Judgment Date16 October 2009
Neutral Citation[2009] IEHC 459
Date16 October 2009

[2009] IEHC 459

THE HIGH COURT

[No. 19656 P/2004]
[No. 3061 P/2007]
Darby v Shanley (t/a Oliver Shanley & Company Solicitors)

BETWEEN

PATRICK DARBY
PLAINTIFF

AND

OLIVER SHANLEY AND MICHAEL SHANLEY PRACTISING UNDER THE STYLE AND TITLE OF OLIVER SHANLEY AND COMPANY SOLICITORS
DEFENDANTS
DECLAN DARBY
PLAINTIFF

AND

OLIVER SHANLEY AND MICHAEL SHANLEY PRACTISING UNDER THE STYLE AND TITLE OF OLIVER SHANLEY AND COMPANY SOLICITORS
DEFENDANTS

SUCCESSION ACT 1965 S115

FAMILY HOME PROTECTION ACT 1976

SUCCESSION ACT 1965 S111

STATUTE OF LIMITATIONS 1957 S11

SUCCESSION ACT 1965 S113

TUOHY v COURTNEY & ORS 1994 3 IR 1

STATUTE OF LIMITATIONS 1957 S11(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3

HEGARTY v O'LOUGHRAN & EDWARDS 1990 1 IR 148 1990 ILRM 403

WALL v HEGARTY & CALLNAN 1980 ILRM 124

WHITE v JONES 1995 2 AC 207 1995 2 WLR 187 1995 1 AER 691

ROCHE v PEILOW T/A WILLIAM J SHANNON & CO 1985 IR 232 1986 ILRM 189

ROSS v CAUNTERS (A FIRM) 1980 CH 297 1979 3 WLR 605 1979 3 AER 580

FINLAY v MURTAGH 1979 IR 249

CARROLL v CARROLL 1999 4 IR 241 2000 1 ILRM 210 1999/4/699

MCMULLEN v FARRELL & ORS 1993 1 IR 123 1992 ILRM 776 1992/3/765

O'CALLAGHAN THE LAW OF SOLICITORS IN IRELAND 2000

RSC O.36 r4

RSC O.36

NEGLIGENCE

Solicitors

Breach of duty - Duty of care - Scope of duty - Applicable standard of care - Deed of transfer - Validity- Whether defendants negligent in obligations to plaintiff in manner in which advice given in relation to transfer - Whether defendants owed to duty of care to beneficiaries under will - Nature and extent of duty - Whether duty breached - Nature of loss - Whether claim statute barred - When limitation period commenced - Time at which cause of action accrued - Scope of duty - Applicable standard of care - Whether wishes of testator frustrated - Whether legatee wrongfully deprived of expectancy - Whether losses claimed foreseeable - Undue influence - Duty to act prudently - Whether potential claim of undue influence foreseeable to prudent solicitor - Parties represented by one solicitor - Foreseeability - Wall v Hegarty [1980] ILRM 124 and Hegarty v O'Loughran [1990] 1 IR 148 applied; Roche v Peilow [1985] IR 252; Ross v Caunters [1980] Ch 297; Finlay v Murtagh [1979] IR 249; White v Jones [1995] 2 AC 207; Carroll v Carroll [1999] 4 IR 241 and McMullen v Farrell [1993] 1 IR 123 considered; Tuohy v Courtney [1994] 3 IR 1 not followed - Rules of the Superior Courts 1986 (SI 15/1986) O 35, r 4 - Statute of Limitations 1957 (No 6), s 11 - Succession Act 1965 (No 27), ss 111, 113 and 115 - Statute of Limitations (Amendment) Act 1991 (No 18), s 3 - Plaintiff successful on liabiality (2004/19656P & 2007/3061P -Irvine J - 16/10/2009) [2009] IEHC 459

Darby v Shanley (t/a Oliver Shanley & Company Solicitors)

Facts: The plaintiffs, brothers, initiated proceedings against the defendant solicitors for alleged negligence in advices and work carried out in respect of a will and a transfer of lands by a deceased testatrix. The two transactions the subject of the claims were carried out by the defendant firm of solicitors. It was alleged that the defendants had advised both the deceased testatrix and the intended beneficiaries of the will. The husband of the deceased was the beneficiary of her will, in respect of a house and lands, whereas she had transferred a parcel of land to the plaintiff. After her death, her husband had sought to obtain a half share of his late wife's estate in lieu of the life interest arising under the will and it was alleged that the transfer after the will was invalid and that the defendants had failed in their duty of care. The deceased testatrix died in 1999 and her husband died in 2000. The defendants had compromised probate proceedings in 2007. The defendants raised a defence pursuant to s. 11 Succession Act 1957 that the proceedings were time barred.

Held by Irvine J. that that the standard of care provided for the parties fell short of what the parties were entitled to expect from a prudent solicitor. The defendants failed in their obligations. The claim challenging the validity of the will would have occurred irrespective of whether the defendants were negligent. The loss occasioned was a direct and foreseeable consequence of the negligence of the defendant. It was clearly foreseeable that if the same solicitors acted for both parties in the case, that a stateable case could be made to invalidate the transfer even if there was a possibility that it could have been successfully defended.

Reporter: E.F.

1

Ms. Justice Irvine delivered on the 16th day of October, 2009

1. Factual Background
2

2 1.1 The proceedings named in the title hereto concern claims brought by each of the plaintiffs, who are brothers, arising from the alleged negligence on the part of the named defendants, a firm of solicitors, in relation to the professional advices and work carried out by them in respect of two particular transactions. The first of these related to the circumstances in which the last Will and Testament of the late Bridget Bird ("Bridie Bird") was prepared on 27 th February, 1997, and the second to the transfer by her of certain lands to the first named plaintiff, Patrick Darby, by deed of transfer dated 17 th December, 1998.

3

3 1.2 The first named plaintiff is a married man and is an upholsterer by profession. He resides with is wife and two children at Deanhill, Hayestown, Navan, Co. Meath. The second named plaintiff is the brother of the first named plaintiff. He is a farmer and also resides at Deanhill, Hayestown, Navan, Co. Meath.

4

4 1.3 The late Bridie Bird lived with her husband, the late William Bird, in a house on a substantial holding of land, estimated to have been approximately 36 acres, at Hayestown, Co. Meath. This house and the adjacent lands were formerly owned by Bridie Bird's family whose surname was Bowen. Bridie Bird and her husband had married late in life and had no children of their own. A close family relationship existed between the Bowen and Darby families and both of the plaintiffs had spent much of their young lives in the Bowen's household.

5

5 1.4 Bridie Bird died on 24 th October, 1999. She was survived by her husband. He, in turn, died on 31 st December, 2000.

6

6 1.5 The two transactions the subject matter of these claims, were both carried out by the late Bridie Bird with the assistance of the defendant firm of solicitors who, at all relevant times, practiced in that capacity at Academy Street in Navan, Co. Meath. Those transactions can be described as follows:-

7

(i) Last Will and Testament of Bridie Bird dated 27 th February, 1997.By her last Will and Testament, the late Bridie Bird appointed Theresa Darby, the mother of both plaintiffs, as the executrix of her Will. The relevant portion of her Will, as far as these proceedings are concerned, provided as follows:-

"I GIVE, DEVISE AND BEQUEATH my house and the contents of the house and land at Hayes, Navan, County Meath comprising approximately 35 acres to my Husband, William Bird for his day and after his death to PATRICK DARBY AND DECLAN DARBY, sons of Thomas Darby and Theresa Darby of Hayes, Navan, Co. Meath, as tenants in common in equal shares."

8

The plaintiffs were also named as residuary legatees of the estate.

9

(ii) Transfer dated 17 th December, 1998.By deed of transfer dated 17 th December, 1998, ("the transfer") the late Bridie Bird transferred to Patrick Darby, as a gift, a parcel of land described in the schedule thereto in the following terms namely:-

"ALL THAT AND THOSE part of the lands of Carnuff Little, Hayestown in the Barony of Skryne and County of Meath more particularly delineated on the map thereof attached hereto, being part of the property comprised in Folio 18111F of the Register, Co. Meath."

10

7 1.6 The land the subject matter of the transfer comprised approximately 3.5 acres. As can be seen from the map attached thereto the said land was approximately 1.5 acres away from Bridie Bird's family home.

11

8 1.7 Shortly after the death of Bridie Bird on 4 th October, 1999, her husband's solicitors, Messrs. Christie and Gargan, wrote to Oliver Shanley and Company by letter dated 16 th December, 1999, advising the executor that, pursuant to the provisions of s. 115 of the Succession Act 1965, William Bird was electing to take his one half share of his late wife's estate in lieu of the life interest devised to him under the terms of her Will. By further letter dated 8 th February, 2000, Messrs. Christie and Gargan wrote to the defendants raising concerns in relation to the validity of the transfer and the Will referred to above and indicating that it was their client's intention to challenge the validity of both.

12

9 1.8 Subsequently, William Bird instituted High Court proceedings ("the probate proceedings") under Record No. 2000 No. 4195 P on 6 th April, 2000. The defendants to those proceedings were Theresa Darby, the mother of the plaintiffs in these proceedings, who was the executrix of the estate of Bridie Bird and Patrick Darby to whom the lands contained in Folio 18111F of the Register of Co. Meath had been transferred.

13

10 1.9 In the probate proceedings, which were a hybrid type of action, William Bird sought to challenge both the validity of the last Will and Testament of Bridie Bird and also the transfer to Patrick Darby of the lands outlined in the deed of transfer dated 17 th December, 1998. The following challenge was made to each of the aforementioned transactions. In relation to the last Will and Testament of Bridie Bird, it was alleged in the Statement of Claim:-

14

(a) That the testatrix did not have the relevant testamentary capacity to know and approve of the contents of her Will.

15

(b) That the last Will and Testament was not...

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