Gallagher v McGlynn

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 10 May 2016
• Neutral Citation: [2016] IESC 21
• Docket Number: Appeal No. 216/2010
• Court: Supreme Court
• Date: 10 May 2016

Denham C.J.

O'Donnell J.

McKechnie J.

Between/

Daniel Gallagher

and

Elva Gallagher

Plaintiffs/Appellants

And

Sean McGlynn

and

Catherine McGlynn

Defendants/ Respondents

[2016] IESC 21

Appeal No. 216/2010

THE SUPREME COURT

Wills and probate – Intestacy – Vacant possession – Appellants seeking to have the respondents investigated by the Garda Bureau of Fraud Investigation or the Criminal Assets Bureau – Whether the appellants? claim was vexatious

Facts: The respondents, Mr and Mrs McGlynn, were appointed by a Mrs Friel as executors of?a will executed on the 28th December, 1994. Mrs Friel died on the 31st March 2001, a widow without surviving issue, in Ballindrait, Co. Donegal. In her will she devised and bequeathed her farm at Knocknabollan to Mr A Gallagher, her cousin, in fee simple. Mr A Gallagher was the father of the first appellant, Mr D Gallagher. Mr A Gallagher died on the 4th March, 2001, thereby predeceasing Mrs Friel. Thus, as per s. 91 of the Succession Act 1965, the devise to Mr A Gallagher lapsed and became part of the residue of her estate. The residue legatees were the next of kin of Mrs Friel, her nephews and nieces, and the farm at Knocknabollan, as part of the residue, fell to be divided amongst them pursuant to s. 74 of the 1965 Act, and the rules of intestacy. The respondents engaged auctioneers to sell the property and a buyer was procured. However it was discovered that the first appellant was occupying the property by keeping cattle on the land and he refused to vacate the lands. The respondents brought Circuit Court proceedings to obtain vacant possession of the lands. On the 9th March, 2006, the Circuit Court struck out the defence of the first appellant on the basis that it failed to disclose any reasonable answer to the respondents? claim, gave judgment in favour of the respondents and declared that the first appellant be restrained from interfering with the sale of the property. The appellants appealed that order to the High Court, and on the 8th October, 2007, the High Court made an order dismissing the appeal and affirming the order of the Circuit Court. The first appellant attempted to appeal that judgment and order to the Supreme Court. However under s. 39 of the of the Courts of Justice Act 1936, a decision of the High Court on appeal from the Circuit Court ?shall be final and conclusive and not appealable?; thus the Supreme Court made an order on the 21st December, 2007, ordering that that the Court had no jurisdiction to deal with the matter. The first appellant and the second appellant, his wife, then issued a High Court special summons on the 30th January, 2008. The respondents issued a notice of motion on the 17th June, 2008, seeking that those proceedings be dismissed. The motion next came before the High Court on the 21st June, 2010. The High Court ordered that the appellants claim against the respondents be dismissed and that the appellants pay to the respondents the costs of the proceedings when taxed and ascertained. The appellants appealed to the Supreme Court against that order. They sought an order ?to have [the respondents] investigated by the Garda Bureau of Fraud Investigation or the Criminal Assets Bureau because of the extent of fraud and cover up in this case?.

Held by Denham CJ that this was an appeal in proceedings where the summons did not show any right of action of the appellants. Denham CJ held that the proposed action was vexatious, as it related to issues already determined in litigation. Denham CJ also held that it had no prospect of success; it appeared to have been brought for an improper purpose of harassment of the respondents.

Denham CJ held that the appeal should be dismissed.

Appeal dismissed.

Judgment delivered on the 10th May, 2016 by Denham C.J.

1 This is an appeal by Daniel and Elva Gallagher, the plaintiffs/appellants, referred to as ?the appellants?, from the order of the High Court (Charleton J.) dated the 21st June, 2010, and perfected on the 22nd June, 2010. In that said order it was ordered that the appellants claim against Sean McGlynn and Catherine McGlynn, the defendants/respondents, referred to as ?the respondents? be dismissed.

2 The appellants have brought this appeal against that order and state that they seek an order:

?To have [the respondents] investigated by the Garda Bureau of Fraud Investigation or the Criminal Assets Bureau because of the extent of fraud and cover up in this case?

3 The appeal was listed for hearing on the 17th December, 2015, and the Court heard submissions on behalf of the appellants and the respondents, both appearing on their own behalf.

4 This Court has considered the papers filed and heard the oral submissions made by the parties.

Background

5 There is a...