K. v K

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 23 November 2018
• Neutral Citation: [2018] IEHC 658
• Docket Number: [2013 No. 7394 P.]
• Court: High Court
• Date: 23 November 2018

IN THE MATTER OF THE ESTATE OF K, DECEASED, AND IN THE MATTER OF SECTION 117 OF THE SUCESSION ACT 1965

BETWEEN

K.

PLAINTIFF

AND

K.

DEFENDANT

[2018] IEHC 658

[2013 No. 7394 P.]

THE HIGH COURT

Specific performance – Testamentary contract – Equity – Plaintiff seeking specific performance of a testamentary contract – Whether the plaintiff was entitled to a parcel of land

Facts: An addendum to the judgment given by the High Court (McDonald J) on 7th November 2018 dealt solely with an issue which was mentioned briefly in para. 50 of the first judgment. In that paragraph McDonald J dealt with certain material which was put to the plaintiff of cross-examination in relation to occasions when (so it was alleged) he sought to intimidate the deceased. In McDonald J’s view, the circumstances of the case demonstrated that there were strong reasons for him to revisit his first judgment to the extent that he excluded an element of the evidence of a sister of the deceased from his consideration of the issue.

Held by McDonald J that, in light of the fact that the evidence of the sister in relation to the incident was essentially hearsay, he could not make a finding that the incident as described by her actually occurred. McDonald J concluded that even if it could be said that the incident occurred, it would not affect the decision arrived at by him in his first judgment

McDonald J held that he would not interfere with any of the orders proposed to be made by him in that judgment.

Judgment approved.

JUDGMENT of Mr. Justice Denis McDonald delivered on the 23 ^nd day of November, 2018 by way of addendum to the judgment previously given on 7 ^th November 2018

1 This is an addendum to the judgment given by me on 7 ^th November 2018 (“my first judgment”). This judgment deals solely with an issue which is mentioned briefly in para. 50 of my first judgment. In that paragraph I dealt with certain material which was put to the plaintiff on cross-examination in relation to occasions when (so it was alleged) he sought to intimidate the deceased.

2 In para. 50, I mentioned that certain evidence had been heard by me on a de bene esse basis from P (a sister of the deceased) in relation to an incident which she recounted between her mother and herself relating to the conduct of the plaintiff. P gave evidence as to what the deceased had said to her about a particular incident involving the plaintiff and the deceased. In para. 50 of my judgment I noted that this was heard by me on a de bene esse basis in circumstances where counsel for the defendant (at the time the evidence was given) said that submissions would subsequently be made to me as to the admissibility of this evidence. I did not, however, recount that evidence in my judgment. I said that I could not have any regard to it in circumstances where I said that, when it came to the closing submissions, I was informed that I would not be addressed on the issue.

3 However, following the delivery of my first judgment on 7 November 2018, it was brought to my attention by counsel for the defendant on 9 November that I was mistaken in what I had said in para. 50 of the judgment. Counsel explained that the defendant had in fact prepared submissions that the evidence should be admitted under the res gestae exception to the hearsay rule but that it was ultimately not necessary to make those submissions in circumstances where counsel for the plaintiff had accepted that the evidence could be admitted, for what it was worth.

4 Counsel for the plaintiff also attended before me on 9 November 2018 and confirmed that he agreed with counsel for the defendant that I had been informed of the matter set out in para. 3 above in the course of the closing submissions made by the defendant. I regret to say that I have no recollection of that having occurred and I have no note to that effect in my court book but I entirely accept what has been said to me by counsel and I am sorry that I did not make a note to that effect during the course of the submissions.

5 In the circumstances, it is clear that I ought to have considered the evidence given by P in relation to what was said to her by her mother. In my view, it is appropriate in these circumstances to revisit my first judgment. As Delany & McGrath On Civil Procedure (4 ^th Ed., 2018 at para 25 – 53 makes clear, it has long been accepted that a judge has jurisdiction to revise or alter a decision at any time after judgment has been given up to the moment the order giving effect to the decision is perfected. The order in the present case has not yet been perfected. The matter has been adjourned to enable the parties to consider the judgment.

6 While it was indicated by Clarke J. (as he then was) in Re: McInerney Homes Ltd [2011] IEHC 25 that it is necessary that there be “strong reasons” before a court...