Gunning v Sherry

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date28 February 2012
Neutral Citation[2012] IEHC 88
CourtHigh Court
Date28 February 2012

[2012] IEHC 88

THE HIGH COURT

[No. 10220P/2010]
Gunning v Sherry
[2012] IEHC 88
BETWEEN/
EILEEN GUNNING
PLAINTIFF

AND

BRIAN SHERRY
DEFENDANT

SUCCESSION ACT 1965 S26(2)

SUCCESSION ACT 1965 S56(1)

SUCCESSION ACT 1965 S117

COURTS OF JUSTICE ACT 1936 S39

CONSTITUTION ART 34

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

EAMON ANDREWS PRODUCTIONS LTD v GAIETY THEATRES LTD 1973 IR 295

P v P 2002 1 IR 219

CHARALAMBOUS v NAGLE UNREP SUPREME 31.3.2011 2011 IESC 11

GABBETT v LAWDER 1883 11 LR IR 295

DELANY EQUITY & THE LAW OF TRUSTS IN IRELAND 5ED 2011 P225

STATUTE OF LIMITATIONS 1957 S45(1)

STATUTE OF LIMITATIONS 1957 S13

DROHAN v DROHAN 1981 ILRM 473

GLEESON v FEEHAN 1993 2 IR 113

RIORDAN v IRELAND (NO.4) 2001 3 IR 365

BURKE v JUDGE FULHAM UNREP IRVINE 23.11.2010 2010/5/1189 2010 IEHC 448

MOORE ISAAC WUNDER ORDERS 2001 JSIL 137

PRACTICE & PROCEDURE

Strike out

Abuse of process - Res judicata - Succession law - Decision of High Court on appeal from Circuit Court - Whether principle of res judicata applicable - Whether previous decision of High Court binding - Whether evidence of fraud - Whether unchallenged wills duly probated - Whether purchase by plaintiff of reversionary interest in property resulted in trust for beneficiaries of estate - Whether plaintiff had acquired property by adverse possession - Whether proceedings stature barred - Whether 6 or 12 year time limit applicable - Whether proceedings were abuse of process - Bias - Whether judge should accede to application to recuse - Isaac Wunder order - Jurisdiction - Whether making of Isaac Wunder order appropriate - Whether repeat litigation - Whether litigation resulted in frustration of orderly distribution of estate - Eamonn Andrews Productions Ltd v Gaiety Theatre Enterprises Ltd [1973] IR 295, LP v MP (Appeal) [2002] 1 IR 219, Charalambous v Nagle [2011] IESC 11 (Unrep, SC, 31/3/2011), Gabbett v Lawder (1881) 11 LR Ir 295, Gleeson v Feehan [1993] 2 IR 113, Riordan v Ireland (No 4) [2001] 3 IR 365 applied - Drohan v Drohan [1984] IR 311 and Burke v Judge Fulham [2010] IEHC 448 (Unrep, Irvine J, 23/11/2010) approved - Courts of Justice Act 1936 (No 48), s 39 - Statute of Limitations 1957 (No 6), ss 13 and 45 - Proceedings struck out, Isaac Wunder order granted (2012/10220P - Hogan J - 28/2/2012) [2012] IEHC 88

Gunning v Sherry

Facts: The defendant was the legal personal representative of the estate of the father of the plaintiff. Her father had devised one half of his estate to his wife and the other half between his two daughters. Circuit Court proceedings had been brought by his wife against the plaintiff, seeking possession, where it was held that the daughter had resided in the cottage the subject of the litigation as trustee and that the wife had not acquired title by adverse possession. In later High Court proceedings, his wife sought to remove the plaintiff as executrix of the estate and she had been accordingly removed from her role. In further Circuit Court proceedings, the defendant sought and obtained possession of the cottage from the plaintiff and the order was appealed but affirmed by the High Court. Further proceedings again were commenced in 2010 by the plaintiff. The defendant now sought to strike out proceedings as an abuse of process and an attempt to re-litigate matters which were res judicata. The Court had to consider whether an Isaac Wunder order was appropriate in the circumstances or whether the plaintiff had made out any valid claim.

Held by Hogan J. the High Court sitting in its appellate capacity had already determined the proceedings in 2009, which was final and conclusive and the validity of the wills in the proceedings had not been challenged. Absent fraud, the decision was absolutely binding on the Court. Since the proceedings involved an attempt to re-litigate the matters, the proceedings had to be struck out as an abuse of process. The Court would make an Isaac Wunder order.

Reporter: E.F.

1

1. The defendant in these proceedings is a solicitor who is the legal personal representative of James Gunning, deceased, late of Chrysanthemum Cottage, Blacklion, Greystones, Co. Wicklow. The late Mr. Gunning was the father of the plaintiff, Ms. Eileen Gunning. Mr.Sherry was appointed the personal representative of Mr. Gunning's estate by order of this Court dated 31 st July, 2003. The previous grant of probate dated 3 rd September, 1985, was revoked by court order on the same day.

2

2. Mr. Sherry now moves the court for an order striking out these proceedings as an abuse of process and as an attempt to re-litigate matters which are now res judicata. Mr. Sherry further entreats the Court to make an Isaac Wunder order, so that Ms. Gunning would be declared a vexatious litigant who would need the prior leave of this Court before she could issue any fresh proceedings.

3

3. The late Mr. Gunning died in 1984 and by his last will and testament dated 25 th June, 1982, he devised one half of his estate to his wife, Sarah Gunning. The remainder of the estate was to be divided between his two daughters, Mary and Eileen. The latter was appointed executrix of the estate on 3 rd September, 1985. Chrysanthemum Cottage represented the estate's principal asset. It was an old cottage situate on about one third of an acre which, according to the valuation evidence tendered in the Circuit Court in November, 2008, was worth about €800,000 (and possibly even more) at the height of the property boom.

4

4. Given that the role of the mother and her two sisters form a central part of this narrative, to avoid confusion I propose henceforth to describe them as Sarah, Eileen and Mary. Inasmuch as I do this, no discourtesy to either Ms. Eileen Gunning or Ms. Mary Gunning or the late Ms. Sarah Gunning is intended.

5

5. The property appears to have been occupied by the Gunning family for quite some time, perhaps upwards of 100 years. Yet the title to the property has proved to be troublesome. It would appear from Land Registry dealings in the late 1990s concerning an application for first registration exhibited in these proceedings that James Gunning's father, Patrick, took a lease of the property from Isabel Jane Orpin and Florinda Kingdon Ward on 9 th January, 1935, at a rent of £5 per annum, which lease expired on 1 st November, 1985. Patrick Gunning left the property to his wife Mary, with remainder to his son, James Gunning. By the time of his death, James was in exclusive possession under the terms of the lease, as Mary (i.e., the grandmother of Eileen and Mary) died in December, 1957. The terms of the lease would suggest that the Orpin family are (or were) entitled to the fee simple remainder. As I will later note, Eileen claims to have purchased the fee simple reversion from the successors in title of the lessors, but insofar as she did so, it was during the currency of her executorship, so that she held that interest on trust for the benefit of the estate of her late father.

6

6. To complete the picture, it should be noted that an extension to the cottage consisting of a bedroom and a bathroom was built by Eileen at some stage during the course of the 1990s following receipt of a grant from the (then) Eastern Health Board. I also observe that Mr. Sherry gave evidence to the Circuit Court in November 2008 whereby he expressed the opinion that the Orpin estate were entitled to the fee simple remainder.

7

7. What is clear is that the plaintiff's parents, James Gunning and Sarah Gunning, moved into the property in about 1948 and that Mr James Gunning resided there until his death in 1984. After that, Sarah Gunning remained in occupation until 1999 and, indeed, she had lived on her own in the cottage until about from the date of her husband's death from 1984 to 1990. During this period Eileen had moved to Saudi Arabia to work as a nurse and got married in Cyprus in April, 1986. Eileen returned to Ireland in December, 1987 and her husband joined her later. Eileen and her husband lived in Wexford until January 1991, when the marriage broke up. At that point, Eileen and her young daughter, Fatima, moved back to the cottage with her mother's permission.

8

8. There would appear to have been some acrimony between Eileen on the one hand and Sarah and Mary on the other. At all events, Sarah moved out of the cottage in 1999 and went to live with Mary in the latter's house in Dublin. These developments put in train a series of events which has led to bitter and acrimonious litigation which it is now necessary to chronicle.

The first set of Circuit Court proceedings
9

9. The first set of proceedings was an ejectment civil bill on the title in the Circuit Court bearing record number 154/01 brought by Sarah Gunning against Eileen Gunning whereby the former sought possession as against the latter. These proceedings were commenced on 5 th March 2001. In her endorsement of claim, Sarah alleged that she remained in sole and exclusive occupation of the property from her husband's death in 1984. She alleged that in 1990 she invited Eileen and her daughter, Fatima, to move into the cottage. She further alleged that Eileen and Fatima lived in the cottage pursuant to that licence and that the licence was determined by letter dated 15 th December, 2000. It was then pleaded that Sarah was entitled to possession by virtue of the determination of that licence, Eileen filed a defence which traversed all the particulars of that claim.

10

10. The proceedings were heard by His Honour Judge O'Hagan in July, 2002. In his judgment he determined that Sarah was not in adverse possession, but he also ruled that Eileen had taken no steps to administer the estate in her capacity of executor. He further held that Eileen resided in the cottage "as trustee for the rest of the family and she had not...

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3 cases
  • Daire v Wise Finance Company Ltd and Others
    • Ireland
    • High Court
    • 20 March 2014
    ...COURTS 3ED PARA 16 -36 CHARALAMBOUS v NAGLE UNREP SUPREME 31.3.2011 2011 IESC 11 GUNNING v SHERRY UNREP HOGAN 28.2.2012 2012/17/4816 2012 IEHC 88 RIORDAN v IRELAND (NO 4) 2001 3 IR 365 Ownership of land - Procedural Rules - Re-litigation - Frivolous or vexatious proceedings - Abuse of proce......
  • McMahon v Bank of Scotland Plc
    • Ireland
    • High Court
    • 4 July 2017
    ...Court will make an Isaac Wunder Order in this case against the plaintiffs in a form similar to that made by Hogan J. in Gunning v. Sherry [2012] IEHC 88. As is clear from that case, the inherent jurisdiction of this Court to make such an order is well established and as Irvine J. explained ......
  • Gunning v Brian Sherry Solicitors
    • Ireland
    • Supreme Court
    • 8 October 2015
    ...to that date. The judgment of the High Court 27 The judgment of the High Court was delivered on 28th February, 2012 (Neutral Citation [2012] IEHC 88). Having outlined the factual background, the first proceedings in the Circuit Court (Record No. 154/01), the first proceedings in the High C......

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