McGlynn & McGlynn v Gallagher & Gallagher

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 08 October 2007
• Neutral Citation: [2007] IEHC 329
• Docket Number: 134 CA/2006
• Court: High Court
• Date: 08 October 2007

MCGLYNN v GALLAGHER

NORTHERN CIRCUIT

COUNTY OF DONEGAL

BETWEEN

SEAN McGLYNN AND CATHERINE McGLYNN

PLAINTIFFS

AND

DANIEL GALLAGHER AND CHARLES GALLAGHER

DEFENDANTS

[2007] IEHC 329

134 CA/2006

[E88/2005]

THE HIGH COURT ON CIRCUIT

PRACTICE AND PROCEDURE

Strike out defence

Abuse of process - Title suit - Defence struck out by Circuit Court - Appeal to High Court - Whether proceedings scandalous, frivolous or vexatious - Appeal dismissed (2006/134CA - Edwards J - 8/10/2007) [2007] IEHC 329

McGlynn v Gallagher

This was an appeal from the decision of the Circuit Court striking out the defence of the first defendant on the basis that it failed to disclose any reasonable answer to the plaintiffs’ claim. The plaintiffs pleaded that following an extraction of a grant of probate they engaged auctioneers to sell land and the defendants wrote falsely and maliciously to the auctioneer claiming an interest in the property.

Held by Edwards J. in upholding the order of the Circuit Court that the first defendant had no legal answer to the claim. The defendants had produced no evidence that impugned the entitlement of the plaintiffs.

Reporter: RW

SUCCESSION ACT 1965 S74

CONSTITUTION ART 40.6.1

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S6

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S10

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S11

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S25

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S27

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S28

PREVENTION OF CORRUPTION (AMDT) ACT S2(3)

JUDGMENT of

Mr. Justice John Edwards

1 delivered on the 8th day of October, 2007.

2 This is an appeal against an Order of His Honour Judge John O'Hagan made at Letterkenny on the 9^th day of May, 2006 wherein the learned Circuit Court Judge struck out the defence of the first named defendant dated 16^th March, 2006 on the basis that it failed to disclose any reasonable answer to the plaintiffs' claim and was scandalous, frivolous and vexatious. Further, the learned Circuit Court Judge granted judgment to the plaintiffs in default of defence as against the first named defendant consisting of a declaration and certain injunctions as claimed in the plaintiffs' Equity Civil Bill. He further awarded the costs and expenses of the application to the plaintiffs. The first named defendant appeals against the whole of the said Order of His Honour Judge O'Hagan. He was not legally represented at the appeal before me and appeared in person. By my leave his wife Elva Gallagher was permitted to make representations on his behalf at the hearing of the appeal. However, Elva Gallagher is not a party to the proceedings.

3 The plaintiffs are the legal personal representatives of Margaret (otherwise Madge) Friel deceased late of Drumdeevin, Termon in the County of Donegal. The said Margaret (otherwise Madge) Friel died on 31^st day of March, 2001 at Lagan Valley Nursing Home, Ballindrait in the County of Donegal having made her last will and testament with codicil on the 28^th day of December, 1994 whereby she appointed the plaintiffs as executors of the said will. A Grant of Probate was extracted by the plaintiffs on 8^th of October, 2003. This has been exhibited before me as has the will and codicil.

4 By her said will and codicil the deceased devised,inter alia, her farm at Knocknabollan contained in folio number DL29754 of the Register of Freeholders in the County of Donegal to her cousin Anton Gallagher of Porthall, Lifford in the County of Donegal in fee simple. The deceased's said cousin Anton (otherwise Anthony) Gallagher died on 4^th March, 2001 thereby predeceasing the deceased and on the death of the deceased the devise to Anton (otherwise Anthony) Gallagher became adeemed, and the farm at Knocknabollan fell to be divided amongst the next of kin of the deceased pursuant to s. 74 of the Succession Act, 1965 and the Rules of Intestacy. The deceased's said cousin Anton Gallagher was the father of the defendants.

5 It is pleaded at para. 8 of the plaintiffs' Equity Civil Bill that following the extraction of the Grant of Probate the plaintiffs engaged auctioneers to sell the farm at Knocknabollan contained in folio DL29754 aforesaid. It is pleaded that on or about the 22^nd March, 2004 the defendants and/or each of them wrote to the plaintiffs' auctioneer and asserted an interest in the property established by occupation. The plaintiffs contend that this was done falsely and maliciously and in an attempt to interfere with the sale of the property. It is pleaded that the defendants have continued to falsely and maliciously deny that the deceased was the sole legal and beneficial owner of the property and that the plaintiffs are entitled to sell the said property as executors of the deceased's estate, despite repeated requests for the defendants to desist. It is further pleaded that the defendants and each of them have further claimed that the succession laws have no application and that the said bequest to Anton Gallagher should be transferred to his heirs, successors and/or assigns.

6 It is pleaded at para. 9 of the Equity Civil Bill that the plaintiffs subsequently agreed the sale of the property to Eunan Gallagher, Solicitor (in trust) for a purchase price or sum of €170, 000 subject to the special conditioninter alia that the plaintiffs would issue proceedings for declaratory relief that the deceased was the sole legal and beneficial owner of the property and that the plaintiffs are entitled to sell the property as executors of the deceased's estate. The present proceedings were issued to that end. It is further pleaded that the defendants and/or each of them are attempting to deny the plaintiffs' entitlement to the said lands as executors of the estate of the deceased, who was registered as full owner on or about the 18^th April, 1953. The plaintiffs allege that the defendants and/or each of them have interfered with the sale and threaten and intend unless restrained by court order to continue to wrongfully falsely and maliciously deny the plaintiffs' title to the said lands as executors of the estate of the deceased. It is pleaded that the defendants and/or each of them, their servants and/or agents have no rights whatsoever over the deceased's lands now or in the past. It is further pleaded that the defendants and/or each of them have not been in occupation of the said lands. Further, it is pleaded that the defendants by their actions have caused the estate to suffer loss, damage, inconvenience and expense which is continuing. The prayer to the Indorsement of Claim in the Equity Civil Bill claims diverse reliefs including the declaration and injunctions granted by His Honour Judge O'Hagan.

7 The Equity Civil Bill was issued on 3^rd October, 2005 and by a letter dated 17^th October, 2005 the second named defendant, Charles Gallagher, wrote to the plaintiffs confirming that he was not in any way occupying or claiming possession of the lands at Knocknabollan contained in folio 29754 aforesaid. As a consequence of this letter no further steps have been taken in the proceedings with respect to the second named defendant and no orders have been sought against However, the first named defendant wrote to the County Registrar for the County of Donegal on 16^th March, 2006 indicating that he wished to defend the proceedings and setting out in the said letter the grounds of his defence. Although it is not strictly in conformity with the Rules of the Circuit Court, this document has been treated (quite correctly) as a pleading in the nature of a "Defence" in answer to the plaintiffs' Equity Civil Bill. The letter of 16^th March, 2006 was in the following terms:-

"Dear Sir or Madam,

I wish to defend these proceedings on the grounds that Mr. Sean McGlynn has been informed by Probate that Corrective Affidavits are requested and should have been forwarded to Probate as serious discrepancies have been discovered on Revenue Commissioners Affidavits that he has duly sworn for Probate.

1. Nursing home charges have not been included in expenses amounting to €19, 513.33

2. The testator was unfairly treated by Mr. Sean McGlynn when he failed as directed to pay her fees to the Nursing Home and release to her her money where and when she needed it. The late Madge Friel was left penniless for the six years she spent in care. Despite owning eight farms of land and having €131, 000 in savings in bank accounts which were in the care of Mr. McGlynn.

3. No Residue Clause on Will or Codicil.

4. Will and Codicil are the same date.

5. Money for Letting of Lands not on Revenue Affidavits as advertised in local newspaper, The Derry People and Donegal News dated 22^nd November, 1996.

6. Willing to change the Will from Gallagher Sisters to Gallagher Daughters of his own accord.

7. Clonkillymore Farm folio DL30462 not on the Will at all, but squatted on and obtained through Squatters Rights on 7^th May, 2004. And was also up for letting on 22^nd November, 1996.

8. Letterfad Farm folio DL29759 mentioned on the will going to Anton Friel but not entered on Schedule of Lands and Buildings on Revenue Affidavits. This farm has also been successfully claimed by Squatters Rights on 16^th October, 2002.

9. Mr. Sean McGlynn's first letter to my mother Mrs. Kathleen Gallagher dated 30^th May, 2001 in it he said he was a beneficiary in the Will as well as being the Executor and Administrator, which he later remedied on 27^th June, 2001.

10. Valuation of Land Folio DL29754, valued at €38, 100 on Revenue Affidavits is now selling at €170, 000 Mr. McGlynn has a contract drawn up for sale of this land on Civil Bill E88/05 Paragraph 9.

11. Mr. McGlynn has sold land folio DL29754 by Private...