McGlynn & McGlynn v Gallagher & Gallagher

JudgeMr. Justice John Edwards
Judgment Date08 October 2007
Neutral Citation[2007] IEHC 329
Docket Number134 CA/2006
CourtHigh Court
Date08 October 2007





[2007] IEHC 329

134 CA/2006



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

Mr. Justice John Edwards

delivered on the 8th day of October, 2007.


This is an appeal against an Order of His Honour Judge John O'Hagan made at Letterkenny on the 9th day of May, 2006 wherein the learned Circuit Court Judge struck out the defence of the first named defendant dated 16th 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.


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 31st 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 28th 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 8th of October, 2003. This has been exhibited before me as has the will and codicil.


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 4th 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.


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 22nd 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.


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 18th 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.


The Equity Civil Bill was issued on 3rd October, 2005 and by a letter dated 17th 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 16th 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 16th 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 22nd 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 7th May, 2004. And was also up for letting on 22nd 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 16th October, 2002.

9. Mr. Sean McGlynn's first letter to my mother Mrs. Kathleen Gallagher dated 30th 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 27th 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...

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3 cases
  • Gallagher v McGlynn
    • Ireland
    • Supreme Court
    • 10 May 2016
    ...There is a long history behind this appeal. The High Court (Edwards J) in the earlier related High Court judgment of McGlynn v Gallagher [2007] IEHC 329, summarised the background to these proceedings which I gratefully adopt. 6 Madge Friel died on the 31st March 2001, a widow without survi......
  • McHugh v McHugh and Another
    • Ireland
    • High Court
    • 10 February 2012
    ...ACT 1965 S117 SUCCESSION ACT 1965 S121 RSC O.28 r7 SUCCESSION ACT 1965 S10(1) MCGLYNN v GALLAGHER UNREP EDWARDS 8.10.2007 2007/36/7427 2007 IEHC 329 BARRY v BUCKLEY 1981 IR 306 1981/9/1485 MCMAHON & SHARMAN v WJ LAW & CO LLP & ORS UNREP MACMENAMIN 2.3.2007 2007/36/7525 2007 IEHC 51 RSC O.1......
  • McHugh v McHugh
    • Ireland
    • Supreme Court
    • 17 December 2015
    ...he also had a particular interest in the prosecution of these proceedings. 27 Mr. McHugh also referred to McGlynn v. Gallagher [2007] I.E.H.C. 329, a case which he said touched upon the locus standi of a beneficiary to bring an administration suit. In that case the plaintiffs had extracted ......

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