Jean Connors v Daniel Kinsella

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 08 November 2021
• Neutral Citation: [2021] IEHC 696
• Docket Number: [Record No. 2014/10908 P]
• Year: 2021
• Court: High Court

Between

Jean Connors

Plaintiff

and

Daniel Kinsella

First Named Defendant

and

David Tarrant (Practising under the Style and Title of Tarrant and Tarrant Solicitors)

Second Named Defendant

and

Andrew Tarrant (Practising under the Style and Title of Tarrant and Tarrant Solicitors)

Third Named Defendant

[2021] IEHC 696

[Record No. 2014/10908 P]

THE HIGH COURT

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 8th day of November, 2021.

Introduction

1 In this application, the plaintiff seeks an interlocutory injunction against the first named defendant in respect of certain works carried out by him at a property known as 10 Casement Park, Bray, Co. Wicklow (‘the property’). The plaintiff and the first named defendant are sister and brother, and the property is the former family home of their parents, the late Daniel and Frances Kinsella. No relief is sought in this application against the second and third named defendants, members of a firm of solicitors who at one point represented the first named defendant.

2 The proceedings are of some antiquity, and it will be necessary to consider the way in which the proceedings have developed, and to examine the background to the matter, before dealing with the present application.

The proceedings

3 Frances Kinsella (“the deceased”) died on 2nd January, 2014, having been predeceased by her husband Daniel. The deceased died intestate leaving six surviving children: Helen Kinsella, Jean Connors, Daniel Kinsella, Sandra McGrath, Alan Kinsella and David Kinsella. On 16th September, 2014, the plaintiff, who is a practising solicitor, extracted a grant of letters of administration intestate to the estate of the deceased. The plaintiff maintains the current proceedings in that capacity.

4 The plaintiff issued the present proceedings on 23rd December, 2014. The general endorsement of claim was as follows:-

“The Plaintiff's claim as the Administrator of the Estate of the late Frances Kinsella of 10 Casement Park, Bray, Co. Wicklow is to set aside the voluntary conveyance of a property owned by the said Frances Kinsella and located at 10 Casement Park, Bray, Co. Wicklow Folio No. 16566F of the Register of Freeholders, Co. Wicklow and transferred during her lifetime to Daniel Kinsella, and made on the 7th day of August 2013 due to the undue influence and/or duress of the First Named Defendant and the professional negligence of the Second Named Defendant who acted on behalf of both parties to the said voluntary conveyance.”

5 The statement of claim was delivered on 8th February, 2016. After appearances, the first named defendant delivered a defence on 11th July, 2016, and the second and third named defendants delivered their defence on 4th August, 2016. Particulars were subsequently exchanged between the parties, and on 30th April, 2018, an order was made for discovery against the first named defendant of certain named categories of documents.

6 The first named defendant then brought an application to strike out the proceedings against him as frivolous and vexatious and/or as an abuse of process. That application was refused by Simons J in a judgment reported at [2019] IEHC 451. However, in view of certain comments by the court on that occasion to the effect that the statement of claim did not provide proper particulars of the claim against the first named defendant, an application was made to this Court for liberty to amend the statement of claim. This application was granted on 11th November, 2019 (Cross J), and an amended statement of claim with greatly expanded particulars as against the first named defendant was subsequently delivered.

7 It was pointed out by me to counsel for the first named defendant that no amended defence had been delivered in response to the amended statement of claim. Counsel accepted that an amended defence should be delivered in view of the greatly expanded particulars of the claim against the first named defendant. However, it is clear from the existing defence, and indeed the affidavits in the present application, that the first named defendant vehemently denies and rejects all the allegations made against him.

8 I inquired during the hearing whether, given that the pleadings appeared to be closed, the matter could be set down for hearing without further delay. It appears that the plaintiff has intimated to the first named defendant that she may wish to apply for non-party discovery against a firm of solicitors who the first named defendant maintains gave independent legal advice to the deceased at the time of the transfer of the property to him. If that occurs, the proceedings will be subject to further delay.

The present application

9 By notice of motion issued on 4th October, 2019, the plaintiff sought the following reliefs against the first named defendant:-

• “(1) An injunction, including an interim and/or interlocutory injunction, directing the First Named Defendant, his servants and/or agents, to immediately cease and desist from any and all demolition, construction and/or building and/or development works on the property situate at 10 Casement Park, Bray, Co. Wicklow more particularly comprised in folio no. WW16566F;

• (2) An injunction, including an interim and/or interlocutory injunction, restraining the First Named Defendant his servants and/or agents, your servants shall 7 days reinstate the property [sic] to the position prior to the commence of the said works situate at 10 Casement Park, Bray, Co. Wicklow more particularly comprised in folio number WW16566F;

• (3) An injunction, including an interim and/or interlocutory injunction, restraining the First Named Defendant, his servants and/or agents, to immediately remove all construction and/or building and/or re-development machines, equipment, tools and materials from the property situate at 10 Casement Park, Bray, Co. Wicklow more particularly comprised in folio number WW16566F;”

10 On 4th October, 2019, the High Court (O'Hanlon J) granted interim relief in terms of paras. 1 and 3 of the foregoing notice of motion, and also granted the relief which clearly had been intended at para. 2 of the notice of motion in the following terms:-

“…within seven days of the date hereof reinstate the Property to the position prior to the commencement of the said works on the property situate at 10 Casement Park, Bray, County Wicklow more particularly comprised in Folio No. WW16566F…”.

11 It can be seen therefore that interim relief was granted on both a prohibitory and a mandatory basis by the court. On 10th October, 2019, application was made to this Court (Reynolds J) for an order that the plaintiff be at liberty to serve a notice of motion for attachment and committal of the first named defendant for non-compliance with the order of O'Hanlon J. On 11th October, 2019, the High Court (Jordan J) adjourned the matter to the Chancery List having received a sworn undertaking of the first named defendant “…that he will comply with the said order made on the 4th day of October, 2019 and that the rear wall of the property situate at 10 Casement Park Bray Co. Wicklow…will be reinstated by the First Named Defendant within seven days of the date hereof…”. The order of the court also notes that the parties had agreed that they would endeavour to reach agreement in writing in relation to the reinstatement and specification of the boundary at the side and front of the property. Such an agreement was concluded and reduced to writing, signed by the parties.

12 An application was subsequently made to this Court by the plaintiff for an order pursuant to O.40, r.1 of the Rules of the Superior Courts for the attendance in person of the first named defendant for cross-examination upon his affidavits. This application was refused, and the application for interlocutory injunctive relief was adjourned for hearing to 29th October, 2021. The application for attachment and committal of the first named defendant was adjourned to the trial of the action.

Background to the matter

13 The Casement Park property was the family home of the late Frances and Daniel Kinsella, the parents of the plaintiff and the first named defendant, and their six children. They occupied the property as tenants of Bray Urban District Council. The parents became entitled to purchase the property from the Council pursuant to a tenant purchase scheme in 1995 for local authority dwellings for a sum of IR£23,600, which was significantly below the property's open market value. The first named defendant expressed interest in acquiring the property at this time, and wrote a letter to the Council in which he stated “…I am thinking of buying 10 Roger Casement Park as a gift for my parents who have lived there since 1968, but I am disagreeing with the Council on price…”. Ultimately, a written agreement of 26th March, 1996 set out the basis upon which the purchase was to proceed. The terms of this agreement were as follows:-

“AGREEMENT FOR 10 CASEMENT PARK, BRAY

CO. WICKLOW, IRELAND.

We, the undersigned, Frances Kinsella, Daniel Kinsella Senior and Daniel Kinsella, being of sound mind and body, are in complete understanding of this agreement on this day of 26 March, 1996.

I, Daniel Kinsella, born the 26 day of October, 1965, am buying the house and property at 10 Casement Park, Bray, Co. Wicklow, Ireland, on behalf of my parents. The reason being is this is a tenant scheme purchase program and since the house is in my father's name it doesn't legally give me the right to purchase the property in my name. This is considered a present to my parents. I am buying the property for myself, but in my parents' name who have lifetime tenancy. This agreement cannot be overwritten by anyones will.

TERMS

A: My parents have lifetime tenancy until they are deceased, if I predecease my parents, this will not change.

B: Alan Kinsella and David Kinsella shall have the option to live in the house...