Kearns & Fallon v McCann Fitzgerald
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 02 April 2008 |
| Neutral Citation | [2008] IEHC 85 |
| Docket Number | Record Number No. 2404 P/2004 |
| Court | High Court |
| Date | 02 April 2008 |
[2008] IEHC 85
THE HIGH COURT
Between:
And
STATUTE OF LIMITATIONS 1957 S11(2)(a)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(2)
STATUTE OF LIMITATIONS 1957 S11(2)(c)
STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(1)
STATUTE OF LIMITATIONS 1957 S72
STATUTE OF LIMITATIONS 1957 S45
PHILLIPS-HIGGINS v HARPER 1954 1 AER 116
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL I ART 1
STATUTE OF LIMITATIONS 1957 S11
TUOHY v COURTNEY 1994 3 IR 1
IRISH EQUINE FOUNDATION LTD v ROBINSON 1999 2 IR 442 1999 2 ILRM 289
Tort law - Succession law - Probate - Negligence - Failure of solicitors to gather sums and distribute them to beneficiaries - Statute barred - Whether action of plaintiff was statute barred - Statute of Limitations, 1957
Facts: The plaintiffs claimed that they suffered financial loss as a result of the failure of the defendants upon the issue of the Grant of Probate to gather and distribute the relevant sums to the beneficiaries. The defendants alleged that the claim was statute barred. The plaintiffs claimed that the limitation period should have run from the date on which they first became aware that the monies existed and had not been paid, the more recent date.
Held by Peart J. that the right to litigate was not an absolute one. The cause of action was now statute barred and the proceedings had to be dismissed.
Reporter: E.F.
In these proceedings the plaintiffs sue as the three surviving beneficiaries of the last Will of Dr Daniel Kearns, their father, who died on the 12th December 1979, and as the beneficiaries of the estate of his widow, their mother, who in turn died on the 28th February 1990, and who was also a beneficiary under that Will. The plaintiffs are also the beneficiaries of their mother's estate. For the purpose of this judgment, I shall refer to the plaintiffs' late father as "the deceased".
The defendants are the firm of solicitors engaged by the executors of their late father's Will for the purpose of extracting a Grant of Probate, and distributing the estate in accordance with the terms thereof.
The plaintiffs claim that as a result of negligence on the part of the defendants they have suffered a financial loss, and they seek damages as a result.
The plaintiffs' claim arises from the fact that, while the defendants in the course of carrying out their instructions became aware that certain monies forming part of their late father's estate were held on deposit as Allied Irish Banks, and included this sum in the Inland Revenue Affidavit which was sworn for the purposes of extracting that grant of probate, they failed, following in the issue of that Grant of Probate, to gather in that sum and distribute same to the beneficiaries entitled to it, being these plaintiffs and their late mother.
The Defence delivered by the defendants on the 29th July 2004 contains the usual traverse, but in addition, contains a plea that the plaintiffs' claim is statute-barred by reason of the provisions of the Statute of Limitations in 1957 and/or the Statute of Limitations (Amendment) Act1991.
At the hearing of this action before me, it was agreed by the parties that the Court should decide the issue in relation to the Statute of Limitations as a preliminary issue.
The deceased, as I have stated already, died on the 12th December 1979, leaving a Will dated the 14th January 1977 in which he, in effect, left all the rest and residue of his property both the real and personal as to one half thereof to his wife, and the remaining half to his three children [the plaintiffs].
Within less than one month from the date of death of the deceased, the defendants set about the task of establishing the assets comprising the deceased's estate, and, in due course, ascertained that there were two sums on deposit with Allied Irish Banks at their branch at Lower O'Connell Street, Dublin, totalling at the sum of IR£3968 .99. Those sums are included, along with details of some other assets, in the Inland Revenue Affidavit sworn by the plaintiffs' late mother in her capacity as one of the Executors named in the deceased's Will, the second Executor having renounced his rights as executor.
Grant of Probate issued on the 16th July 1980. By letter dated 3rd February 1981 the defendants wrote to the third named plaintiff informing her that the administration of the deceased's estate was almost complete, apart from the sale of some Australian company shares, and enclosed a cheque for £720.46 being the share of the estate due to her, a copy of the Executor's cash account and, finally, their own bill of costs. The letter indicated that the bill of costs could be paid from the balance of money which they were holding in their client account. This letter concluded by stating that if she had any queries in relation to the matter, she should make contact with the author of that letter.
It can be inferred from this letter that the third named plaintiff was the point of contact with the defendants, otherwise one would have expected that letter to be addressed to the plaintiffs' mother, who was the acting Executrix. The Court understands from what was stated in court that for some years prior to her death in 1990, the plaintiff's mother was in poor health and was living with the first and third named plaintiffs.
The cash account referred to set out certain items of expenditure consisting of the solicitor's costs and legacies paid out, as well as sums received. The sums of money held at Allied Irish Banks are not included among the "receipts". It is accepted by the defendants that these monies were not gathered in from Allied Irish Banks following the issue of the Grant of Probate, and therefore were not distributed at that time during the course of the administration of the estate of the deceased by the defendants.
These sums remained on deposit at Allied Irish Banks. However, on the 24th June 2002 Allied Irish Banks wrote to the first named plaintiff informing her that they had received her name from the defendants, after they had written to them regarding the Dormant Accounts Act2001 which, they stated, required them to identify all accounts which had been dormant for 15 years or more, and if these accounts were still dormant as at the 31st March 2003, the balances would be transferred to the National Treasury Management Agency. They advised the first named...
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Ryan v KBC Bank Irl Plc
...books on limitation of actions as to whether this does or should represent the law in Ireland. However, in Kearns v. McCann Fitzgerald [2008] IEHC 85, Peart J. held that an action in negligence arising out of a mistake on the part of a defendant did not fall within s. 72 of the 64 64. In th......