Gregory Finnegan v Graham Richards and Padraic Madigan as attorneys of Barbara Allen

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 20 April 2007
• Neutral Citation: [2007] IEHC 134
• Court: High Court
• Docket Number: [2006 No. 1995 P
• Date: 20 April 2007

Finnegan v Richards & Madigan (Attorneys of Allen)

BETWEEN

GREGORY FINNEGAN

PLAINTIFF

AND

GRAHAM RICHARDS AND PARAIC MADIGAN AS ATTORNEYS OF BARBARA ALLEN

DEFENDANTS

[2007] IEHC 134

[No. 1995P/2006]

THE HIGH COURT

- 2007 2 ILRM 487

The Plaintiff claimed that he was entitled to the beneficial ownership of a dwelling. The defendants sought an order striking out the proceedings on the grounds that they disclosed no cause of action. They relied on two grounds, the first being that at the date of the institution of the proceedings no grant of administration had yet been issued and accordingly the defendants lacked competence and capacity to be sued in a representative capacity. The second ground was that the facts as pleaded failed to disclose any sustainable cause of action.

Held McKechnie J. in dismissing the application that whilst the Statement of Claim could be more thorough the same nevertheless adequately contained all essential ingredients and disclosed a prima facie cause of action.

Reporter: R.W.

RSC O.19 r28

CIVIL LIABILITY ACT 1961 S9

CIVIL LIABILITY ACT 1961 S9(2)

SUCCESSION ACT 1965 S13

COURT OF PROBATE (IRELAND) ACT 1859 S15

WOOLLEY v CLARKE 1822 5 B & ALD 744

CHETTY v CHETTY 1916 1 AC 603

CROWHURST PARK SIMS-HILDITCH v SIMMONS, RE 1974 1 WLR 583

FLACK v PRESIDENT OF HIGH COURT & FLACK UNREP HIGH COURT COSTELLO 29.11.1983 1984/2/402

INGALL v MORAN 1944 KB 160

GAFFNEY v FAUGHNAN 2006 1 ILRM 481 2005 27 5571 2005 IEHC 367

AUSTIN v HART 1983 2 WLR 866

ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS LTD 1998 2 IR 519 1997 1 ILRM 306

LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934

CREED v CREED 1913 IR 48

HILTON v SUTTON STEAM LAUNDRY 1946 KB 65

FINNEGAN v CEMENTATION COMPANY LTD 1953 1 QB 688

FOSTER v BATES 1843 12 M & W 226

LONG & SON LTD v BURGESS 1950 1 KB 115

HALSBURY'S LAWS OF ENGLAND 4ED REISSUE 2003 16(2) 1052

DORAN v THOMPSON LTD 1978 IR 223

BARRY v BUCKLEY 1981 IR 306

JODIFERN LTD v FITZGERALD 2000 3 IR 321

F (C) v F (JD) 2005 4 IR 154 2006 1 ILRM 37 2005 24 4885 2005 IESC 45

SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 PARA 12.002

1 JUDGMENT of Mr. Justice William M. McKechnie delivered on 20th day of April, 2007 .

1. The Parties

2 The plaintiff by trade is an electrician and he resides at Ivy Hill, Emyvale in the County of Monaghan. The defendants, Graham Richards and Paraic Madigan who are solicitors in the firm of Messrs Matheson Ormsby and Prentice of 30 Herbert St, Dublin 2, are sued as attorneys of one Barbara Allen and as the persons who, on her behalf, obtained Letters of Administration with will annexed to the estate of the late Emma Teresa Clancy who died on 13th May, 2004.

2. Reliefs Claimed

3 In the substantive action Mr. Finnegan claims, that in the circumstances pleaded, he became entitled to the beneficial ownership of the dwelling house and premises known as "Retreat Heights", Glaslough, Co. Monaghan which was owned by the deceased at the time of her death. The defendants, after the delivery of the statement of claim issued a notice of motion dated 17th November, 2006 in which they seek from this court an order striking out the proceedings on the grounds that the same disclose no cause of action, are bound to fail, and otherwise constitute an abuse of process. They rely upon the courts inherent jurisdiction for this relief as well as calling in aid O. 19 r. 28 of the Rules of the Superior Courts. They make the application on two distinct grounds, the first being that at the date of the institution of the proceedings, no grant of administration had yet issued and accordingly the defendants lacked both the competence and capacity to be sued in a representative capacity. The second is the more conventional argument that the facts as pleaded fail to disclose any sustainable cause of action. This judgment deals solely with the matters raised by aforesaid notice of motion.

3. Background

4 On 22nd day of November, 1965, Emma Teresa Clancy made her last Will and Testament whereunder she appointed her husband, Padraic Clancy, as the sole beneficiary of her estate and also appointed him as the sole executor thereof. There was no issue of this marriage and her husband pre-deceased her. Accordingly, after her death on 13th May, 2004, one Barbara Allen, as her lawful niece became the person next entitled to obtain the right to administer her estate. This said lady duly appointed Graham Richards and Paraic Madigan to act as her attorneys in respect of all matters concerning the estate of the deceased person. Hence the naming of these individuals in the title of this action.

5 4. By letter, undated, but received on 22nd September, 2005, Messrs Daniel Gormley and Company, Solicitors, wrote on behalf of the plaintiff to Messrs Matheson Ormsby and Prentice, where the defendants are practicing solicitors. They alleged on behalf of Mr. Finnegan that by reason of "inter vivos" promises, made by the late Emma Clancy during the course of her life, the dwelling house and premises known as "Retreat Heights", became, after her death, his property and accordingly did not form part of the estate of the deceased person. Having called for an acknowledgment of this situation the letter concluded by stating "if such confirmation is not forthcoming from your office we have instructions to issue proceedings against the estate without further notice and would be obliged if you would indicate whether you have instructions to accept same".

6 5. On 2nd December, 2005, the plaintiff's solicitors wrote once again complaining about what they described as a "further trespass" by servants or agents of the defendants to "Retreat Heights". On 6th December, Matheson Ormsby and Prentice replied to that allegation, the details of which have no material bearing on the current application. In the said letter however they also stated "... notwithstanding that, you appear to be attempting to maintain that the matter has suddenly become urgent and requires injunctive relief, this is something which we simply do not accept. We confirm that we have authority to accept service of proceedings on behalf of our client. We also confirm that we will vigorously defend any proceedings that issue in this regard...". (emphasis added)

7 6. Sometime in April or early May 2006, Daniel Gormley & Co. checked with the Probate Office and ascertained that Letters of Administration had still not by that date, been taken out to the estate of the late Emma Teresa Clancy. They also found out that the grant would not issue "prior to the 13th May, 2006". The significance of this date and the potential problem of not having proceedings issued before then, were dealt with in their letter of the 5th May in the following matter:-

"The late Emma Teresa Clancy died on 13th May, 2004 and it is essential that we issue legal proceedings on behalf of our client within the period of two years from the date of her death.

Failing confirmation by return that you will accept service of proceedings on behalf of Graham Richards and Paraic Madigan as attorneys of your client Barbara Allen and also confirm by open letter that no point will be taken by your client on the statute of limitations having run before the grant of administration issues to your clients (sic)we are instructed to apply at the earliest possible date to the court to appoint an administrator ad litem without any further notice to you".

8 7. On 8th May Messrs Matheson Ormsby and Prentice replied by confirming

"that we do have authority to accept service of proceedings on behalf of Graham Richards and Paraic Madigan. In relation to the issuing of the grant, we confirm that our client has responded to the queries raised with the Probate Office and that we are confident that the grant will issue in the near future".

9 On the 9th May, the Plenary Summons was issued and on the 15th an unconditional appearance was entered to it.

10 On 26th June, Letters of Administration issued from the Probate Office and by letter of the same date Messrs. Matheson Ormsby and Prentice called for the delivery of the Statement of Claim. On 13th July, a copy of the will of the deceased was furnished to the plaintiff's solicitors and again delivery of the Statement of Claim was requested. Further reminders in this regard were issued on 27th July, 2006 and on 20th September, 2006, of that year. Eventually on 27th September, the Statement of Claim was delivered. It was only some six weeks after this date that the relevant notice of motion was served.

8. The Statement of Claim

11 The following is pleaded in the Statement of Claim:-

12 (a) That since 1987 the plaintiff rendered various services to and expended various moneys for and on behalf of Emma Teresa Clancy as well as entertaining her for dinner every Christmas. Most of the expenses actually incurred were recouped to him by the deceased. In 1987 and 1988 she gave the plaintiff £100 each Christmas.

13 (b) At some unspecified date in 1989, Mr. Finnegan alleges that the plaintiff asked if he was wondering why she had not given him a Christmas gift that year as she had previously done. He answered that he was not and he then claims that the deceased said "The reason is I am going to give you this house, but that is between the two of us", or words to that effect. As and from that date it is alleged that Mrs. Clancy frequently referred to the house "Retreat Heights" as "our house", meaning of course to include Mr. Finnegan in the ownership thereof.

14 (c) A further conversation took place in April, 2004 when in the presence of Mrs. Finnegan it is alleged on behalf of the plaintiff that the deceased said "The house is yours. I am leaving it to you. It does...