K -v- K addendum, [2018] IEHC 657 (2018)

Docket Number:2013 7394 P
Party Name:K, K addendum
 
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THE HIGH COURT[2013 No. 7394 P.]IN THE MATTER OF THE ESTATE OF K, DECEASED,

AND IN THE MATTER OF SECTION 117 OF THE SUCESSION ACT 1965

BETWEEN

K PLAINTIFFAND

KDEFENDANT

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

  1. This is an addendum to the judgment given by me on 7th 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...

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