Darragh v Darragh

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 18 July 2018
• Neutral Citation: [2018] IEHC 427
• Court: High Court
• Docket Number: 2017 No. 4429P
• Date: 18 July 2018

[2018] IEHC 427

THE HIGH COURT

McDonald J.

2017 No. 4429P

BETWEEN

ADRIENNE DARRAGH

and

DAVID DARRAGH

PLAINTIFFS

AND

ANNA DARRAGH

DEFENDANT

Locus standi – Cause of Action – Caveats, warnings and appearances – Defendant seeking an order dismissing the proceedings – Whether the plaintiffs had locus standi to maintain the proceedings

Facts: The plaintiffs, Ms Darragh and Mr D Darragh, in proceedings commenced by Plenary Summons issued on 17 May, 2017, claimed the following, as set out in the General Indorsement of Claim in the Plenary Summons: 1) The plaintiffs claimed as the son and daughter of Mr A Darragh deceased who died on the 4 October, 2015 that the defendant widow of the deceased, Mrs Darragh, who failed to prove a purported testamentary paper of the 22 July, 2011 (produced in copy by her son Mr McDonnell to the first plaintiff over 30 days beyond the death of the reputed testator), produce said original purported testamentary paper to the High Court and have same condemned or proved in solemn form of law; 2) The plaintiffs further claimed that the said defendant produce to the High Court the mutual Will of the defendant made in 2011, where the defendant as respondent to a specific probate motion in that behalf had failed to deny on oath her execution of such mutual Will in 2011; 3) The plaintiffs sought the appointment of an independent Administrator with or without Will or mutual Will annexed, as the case may be, pursuant to the inherent jurisdiction of the Court, or by special statutory grant under s. 27(4) of the Succession Act 1965; 4) Further or other reliefs including injunctive reliefs; 5) The reception of the plaintiffs' affidavit of the 10th March, 2017, if necessary into the proceedings. The defendant brought a motion seeking the following relief: (a) An order dismissing the proceedings on the basis that the plaintiffs had no locus standi to maintain the proceedings; (b) In the alternative, an order dismissing the proceedings on the basis that the plaintiffs have no reasonable cause of action; (c) An order setting aside all caveats, warnings and appearances entered in relation to the estate of the deceased; (d) An order preventing the plaintiffs from lodging any further caveats in respect of the estate of the deceased.

Held by McDonald J that there was no basis on which the plaintiffs would be entitled to succeed in the claims made by them in paragraphs 1-3 of the Indorsement of Claim on the Plenary Summons; in those circumstances, the consequential relief claimed at paragraphs 4 and 5 fell away. McDonald J therefore believed that it was appropriate to make an order under the inherent jurisdiction of the court dismissing the plaintiffs' claim in its entirety. Furthermore, as far as the relief claimed in paragraph 3 was concerned, it seemed to McDonald J that it was appropriate to dismiss the proceedings also on the basis that the plaintiffs had no locus standi to maintain a claim of that kind.

McDonald J held that there should also be an order setting aside all caveats, warnings and appearances entered in relation to the estate of the deceased. McDonald J noted that he had not been addressed as to the basis on which the court could make an order preventing the plaintiffs from lodging any further caveats in respect of the estate of the deceased.

Relief granted.

JUDGMENT of Mr. Justice Denis McDonald delivered on the 18th day of July 2018

The motion before the court

1 In these proceedings (which were commenced by Plenary Summons issued on 17 May, 2017), the Defendant has brought a motion seeking the following relief:-

(a) An Order dismissing the proceedings on the basis that the Plaintiffs have no locus standi to maintain the proceedings;

(b) In the alternative, the Defendant seeks an Order dismissing the proceedings on the basis that the Plaintiffs have no reasonable cause of action;

(c) An Order is also sought setting aside all caveats, warnings and appearances entered in relation to the estate of the late Mr. Austin Darragh deceased;

(d) The Defendant also seeks an Order preventing the Plaintiffs from lodging any further caveats in respect of the estate of the deceased.

Background

2 The Defendant is the widow of the late Austin Darragh ('the Deceased') who died, testate, on 4 October, 2015. The Defendant married the Deceased in 1998. The Deceased had previously been married to Marie Therese (Terry) Roddy on 11 April, 1950. His first wife died on 8 August, 1992 following a long illness. The Deceased and his first wife had four children including both of the Plaintiffs in these proceedings. Prior to her marriage to the Deceased, the Defendant had previously been married and had two sons of her own, namely Colm McDonnell and Richard McDonnell.

3 By his Will made on 22 July, 2011, the Deceased made the following provisions:-

(a) In the event that the Defendant survived him for a period of 30 days, he gave the entire of his estate to her and appointed her as his executrix;

(b) In the event that the Defendant did not survive him by 30 days, he appointed Colm McDonnell and Tom McGuinness as his Executors and Trustees, and directed them to convert his Estate into money and divide it equally between his four children and two stepchildren, Colm McDonnell and Richard McDonnell.

4 Prior to the commencement of these proceedings on 17 May, 2017, the Plaintiffs had issued a motion which was listed in the Probate (Non-Contentious) List on 3 April, 2017 in which they sought the following relief:-

(a) An Order directing the Defendant in these proceedings to produce all testamentary papers;

(b) An Order directing the Defendant and her solicitors to provide for inspection ' all or any mutual Wills from in about July 2011, or as the case may be ....to swear positively that there never were then nor are now any such mutual Wills';

(c) An Order directing the Defendant to provide an account to the court in relation to the proceeds of sale of certain property;

(d) The appointment of an independent administrator.

5 The motion in the Probate List was supported by a lengthy affidavit sworn by the Plaintiffs in these proceedings (containing 41 paragraphs). There is a dispute between the parties as to what occurred before the Probate Judge, Baker J. The Defendant maintains that Baker J. ' saw the matter for what it was' which I understand to be a suggestion that Baker J. considered that there was no foundation to the relief sought in the probate motion. In a later affidavit sworn by the Defendant, it is suggested that Baker J. considered that the application ' had no merit'. However, the Plaintiffs dispute this. They maintain that Baker J. ' saw herself lacking jurisdiction ...to deal with matters, which had become contentious ...'. There is also a dispute as to whether an affidavit was to be filed by the Defendant in the course of the proceedings before Baker J. The Plaintiffs maintain that there was a failure to file such an affidavit. The Defendant maintains that no such affidavit was ever required. I am in no position to determine which of these versions of events is correct. Neither side sought to place in evidence before me the Digital Audio Recording ('DAR') of the hearing before Baker J. In the circumstances, all I can do is to note that under the terms of the Order made by Baker J., the application made by the Plaintiffs at that time was dismissed reserving the costs of the application to be determined in these proceedings. At this point, it should be noted that the present proceedings were commenced prior to the conclusion of the matter before Baker J.

The claim made in the present proceedings

6 Given the nature of the application currently before the court, it is essential to analyse the nature of the relief which has been claimed by the Plaintiffs in these proceedings. To date, no Statement of Claim has been delivered. This is in circumstances where, as counsel for the Plaintiffs has explained, no affidavit of scripts has yet been filed by the Defendant. The Plaintiffs rely on the provisions of Order 20, Rule 5 which provides that in a probate action, the plaintiff ' shall not be bound to deliver a Statement of Claim until the expiration of eight days after the Defendant has filed his Affidavit as to scripts'. As described in more detail in paragraph 10 below, counsel for the Plaintiffs has maintained that it is crucial that the affidavit of scripts should be delivered before the Plaintiffs deliver their Statement of Claim.

7 The claim of the Plaintiffs, as set out in the General Indorsement of Claim in the Plenary Summons, is ( verbatim) as follows:-

'1. The Plaintiffs claim as the son and daughter of Austin Darragh deceased who died on the 4 October, 2015 that the Defendant widow of the deceased and who has failed to prove a purported testamentary paper of the 22 July, 2011 (produced in copy by her son Colm McDonnell to the first Plaintiff somewhat over 30 days beyond the death of the reputed testator) that she produce said original purported testamentary paper to the High Court and have same condemned or proved in solemn form of law.

2. The Plaintiffs further claim that the said Defendant produce at the same to the High Court the mutual Will of the Defendant made in 2011, where the Defendant as respondent to a specific probate motion in that behalf has failed to deny on oath her execution of such mutual Will in 2011.

3. The Plaintiffs in the premises seek the appointment of an independent Administrator with or without Will or mutual Will annexed, as the case may be, pursuant to the inherent jurisdiction of the Court, or by special statutory grant under Section 27(4) of the Succession Act, 1965.

4. Further or other Reliefs including injunctive Reliefs.

5. The reception of the Plaintiffs" Affidavit of the 10th March, 2017, if necessary into these proceedings'.

8 It will be noted that insofar as the first relief in the...