O'Hagan (Personal Representative of the Estate of Dolan, Deceased) v Grogan

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan,Macken J.
• Judgment Date: 16 February 2012
• Neutral Citation: [2012] IESC 8
• Court: Supreme Court
• Docket Number: [S.C. No. 7 of 2008]
• Date: 16 February 2012

O'Hagan (Personal Representative of the Estate of Dolan, Deceased) v Grogan

BETWEEN

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

AND IN THE MATTER OF A CASE STATED FROM THE DUBLIN CIRCUIT, COUNTY OF THE CITY OF DUBLIN (2002/5784)

DAVID J. O'HAGAN AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ALICE DOLAN, DECEASED

Plaintiff

AND

DESMOND GROGAN

Defendant

[2012] IESC 8

Fennelly, J.

Macken, J.

Finnegan, J.

[S.C. No. 07/08]

THE SUPREME COURT

SUCCESSION

Limitation of actions

Consultative case stated by Circuit Court - Questions concerning applicable limitation period - Intestacy - State as ultimate intestate successor - Land - Recovery of possession - Action for possession - Adverse possession - Period of limitation applicable - Chief State Solicitor - State authority - Administration of estates -"Rules of law" - Whether Chief State Solicitor "State Authority" - Whether 12 or 30 year limitation period applicable - Whether plaintiff entitled to possession of premises - Whether action for possession statute barred -Whether defendant acquiring title by adverse possession - Succession - Intestacy - Vesting of estate in President of High Court pro tem on intestacy - Beneficial interest - Whether beneficial interest vested in President of High Court - Whether sufficient interest vested in President of High Court for purposes of adverse possession - Whether possession adverse to President of High Court - Administration of estates - Personal representative - State authority - Doctrine of relation back - Wrongs done to estate - Adverse possession - Whether âÇÿwrongs done to estate' limited to tortious acts - Whether adverse possession claim constituted âÇÿwrong done to estate' - Words and phrases - "State Authority" - Whether Chief State Solicitor State authority - T v L (Unrep, Morris J., 23/11/2001) approved - In Re Blake [1932] 1 Ch 54; In re Deans [1954] 1 WLR 332; Earnshaw v Hartley [1999] EWCA Civ 1141 (31/3/1999), [2000] Ch 155; Flack v President of the High Court (Unrep, Costello J., 29/11/1983); Gleeson v Feehan [1993] 2 IR113;; In Re Mason [1929] 1 Ch 1; Perry v Woodfarm Homes Limited [1975] IR 104 and Re Pryse [1904] P 301 considered - Gleeson v Feehan (No 2) [1997] 1 ILRM 522 doubted - Ministers and Secretaries Act 1924 (No 16) s 6 - Statute of Limitations 1957 (No 6), ss 2, 3, 7, 13, 14, 18, 23 and 24 - Administration of Estates Act 1959 (No 8), s 13 - Succession Act 1965 (No 27), ss 13, 65 and 73 - Case stated answered to effect that plaintiff not State Authority and longer limitation period not applicable (7/2008 - SC - 16/2/2012) [2013] IESC 8

O'Hagan v Grogan

Facts This case came before the court by way of a Case Stated from the circuit Court pursuant to s. 16 of the Courts of Justice Act, 1947 and the questions raised concerned the appropriate limitation period within which an action must be brought by a personal representative to recover lands forming part of the estate of a deceased in respect of whom the State was the ultimate intestate successor. Mrs Alice Dolan died intestate and with no known next-of-kin on 22 October 1981. Mrs Dolan had become entitled to the leasehold interest in a certain premises for a term of two hundred and forty five years. On 26 September 1997, the Attorney General consented to Letters of Administration in the estate of the aforementioned deceased being granted to the Chief State Solicitor as nominee and on behalf of the State. On 21 July 2000 Letters of Administration Intestate were granted to the plaintiff's predecessor. The within proceedings were issued on 14 May 2002 by the plaintiff in his capacity as Chief State Solicitor and as successor to the personal representative of the deceased's estate. The plaintiff sought an injunction directing the defendant, who had broken into the deceased's premises in February 1982, to vacate the premises and to forthwith deliver up possession of the same to the plaintiff. However, three questions of law arose for determination, namely: (a) Is the plaintiff a State Authority for the purposes of the Statute of Limitations 1957? (b) Having regard to sections 23 and 24 of the Statute of Limitations Act, 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof. (c) Is the answer (b) affected by section 65 of the Succession Act, 1965.

Held by Supreme Court; Finnegan J. (Fennelly, Macken JJ): (1) That the definition of 'State Authority' in section 2 of the Statue of Limitations Act, 1957 was clear and there was nothing within that section or within the Act as a whole to suggest that the Attorney General for the purposes of the Act included the Chief State Solicitor. The vesting in the Attorney General of the administration and control of the Chief State Solicitor's Department by s. 6(1) of the Ministers and Secretaries Act, 1924 did not have the effect, as submitted by the plaintiff of expanding the definition of 'State Authority' contained in s. 2 of the Act of 1957 to include the Chief State Solicitor. The grant of letters of administration in this case was made to the Chief State Solicitor as nominee for and on behalf of the State. The Chief State Solicitor can be called on at any time to execute an assent in favour of a State Authority and consequently it does not appear to be necessary to construe Attorney General widely to enable the State's interest to be protected.

(2) That the relevant limitation period for the within proceedings was 12 years as provided for by section 13(2)(a) of the Statute of Limitations Act, 1957.

(3) That the third question was a moot question. However, having regard to the legislative history, it appeared that when enacting s. 65 of the Succession Act, 1965 the legislature intended to repeal and re-enact in an amended form sections 2 and 3 of the Intestates Estates Act, 1884 by no longer applying a limitation period. The effect of this was that the limitation periods provided for in sections 13(1) and 13(2) of the Statute of Limitations Act, 1957 were unaffected by s. 65 of the Act of 1965.

Reporter: L.O'S.

COURTS OF JUSTICE ACT 1947 S16

STATUTE OF LIMITATIONS 1957 S23

STATUTE OF LIMITATIONS 1957 S24

STATUTE OF LIMITATIONS 1957 S13(1)

STATUTE OF LIMITATIONS 1957 S13(2)

SUCCESSION ACT 1965 S65

SUCCESSION ACT 1965 S13

SUCCESSION ACT 1965 S73

STATUTE OF LIMITATIONS 1957 S2(1)

STATUTE OF LIMITATIONS 1957 S13(1)(A)

MINISTERS & SECRETARIES ACT 1924 S6(1)

MINISTERS & SECRETARIES ACT 1924 SCHED PART IX

STATUTE OF LIMITATIONS 1957 S3(1)

STATUTE OF LIMITATIONS 1957 S7

STATUTE OF LIMITATIONS 1957 S14(2)

STATUTE OF LIMITATIONS 1957 S18(1)

ADMINISTRATION OF ESTATES ACT 1959 S13

SUCCESSION ACT 1965 S65(1)

SUCCESSION ACT 1965 S65(2)

SUCCESSION ACT 1965 S65(3)

SUCCESSION ACT 1965 S73(1)

INTESTATES ESTATES ACT 1884 S2

INTESTATES ESTATES ACT 1884 S3

ADMINISTRATION OF ESTATES ACT 1925 S30 (UK)

ADMINISTRATION OF ESTATES ACT 1925 S30(1) (UK)

ADMINISTRATION OF ESTATES ACT 1925 S30(2) (UK)

LIMITATION ACT 1939 S34 (UK)

GLEESON v FEEHAN & PURCELL 1997 1 ILRM 522 1997/3/1056

SPIERIN THE SUCCESSION ACT 1965 & RELATED LEGISLATION: A COMMENTARY 4ED 2011 PARA 82

PERRY v WOODFARM HOMES LTD 1975 IR 104

STATUTE OF LIMITATIONS 1957 S14(1)

T (D) v L (F) 2002 2 ILRM 152 2001/23/6332

SUCCESSION ACT 1965 S12(1)

COURTS & COURT OFFICERS ACT 1995 S45(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

SUCCESSION ACT 1965 S10

SUCCESSION ACT 1965 S10(3)

SUCCESSION ACT 1965 PART V

RSC O.15 r8

GLEESON v FEEHAN & O'MEARA 1993 2 IR 113 1991 ILRM 783 1991/9/2010

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

EARNSHAW & ORS v HARTLEY 2000 CH 155 1999 3 WLR 709 1999 2 EGLR 100

LIMITATION ACT 1980 S26 (UK)

PRYSE, IN RE 1904 P 301

JOURDAN ADVERSE POSSESSION 1ED 2003

STATUTE OF LIMITATIONS 1957 S13

MINISTERS & SECRETARIES ACT 1924 S6

STATUTE OF LIMITATIONS 1957 S2

STATUTE OF LIMITATIONS 1957 S13(2)(A)

TREASURY SOLICITOR ACT 1876

MASON, IN RE 1929 1 CH 1

BLAKE, IN RE 1932 1 CH 54

1 Judgment of Macken J. delivered on the 16th February, 2012

2 Judgments delivered by Macken J. & Finnegan J. with Fennelly J. Concurring.

3 This is an application arising on a consultative Case Stated to this Court from the Circuit Court (Judge Linnane) dated the 16 ^th January, 2007, pursuant to the provisions of s.16 of the Courts of Justice Act, 1947. The questions posed in the Case Stated are the following:

4 (a) Is the plaintiff a "State authority" for the purposes of the Statute of Limitations, 1957?

5 (b) Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by S.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?

6 (c) Is the answer to (b) affected by s.65 of the Succession Act, 1965?

7 The Case Stated has arisen as a result of the pleadings, including the defence and counterclaim of the defendant, in proceedings commenced by the plaintiff, seeking possession of a house which the defendant occupies, and has occupied since 1982, and an injunction restraining trespass. The defendant claims that, on the basis of what are frequently called squatters' rights, he acquired title to the premises "adverse to the President of the High Court" more than 12 years prior to the time when Letters of Administration were granted to the plaintiff in 2000, and therefore the plaintiff has no legal right to have either possession of the house, or an injunction to restrain the alleged trespass.

Background Facts as Agreed or Proven

8 According to the Case Stated, on facts agreed or proven, the late Mrs. Alice Dolan died intestate on the October 22, 1981 in possession and in occupation of a house at 6 Enniskerry Road...