McHugh v McHugh

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 17 December 2015
• Neutral Citation: [2015] IESC 101
• Docket Number: [214/2012]
• Court: Supreme Court
• Date: 17 December 2015

[2015] IESC 101

THE SUPREME COURT

McKechnie J.

[214/2012]

McKechnie J.

MacMenamin J.

Laffoy J.

BETWEEN

GERARD MCHUGH

PLAINTIFF/APPELLANT

AND

MYLES MCHUGH AND ANTHONY MCHUGH

DEFENDANTS/RESPONDENTS

Land — Deed of Transfer — Statute barred — Appellant seeking to challenge the dismissal of proceedings — Whether proceedings should be statute barred

Facts: The plaintiff/appellant, Mr G McHugh, is a brother of the defendants/respondents, Mr M McHugh and Mr A McHugh. On the death of their father, the plaintiff inherited the lands comprised in Folio 53169F of the Register of Freeholders of the County of Galway. Prior to her death, their mother was entitled to be registered as full owner of the lands and hereditaments comprised in and described on Folio 43217F of the Register of Freeholders of the County of Galway (the subject lands), such entitlement arising from the provisions of a Marriage Settlement executed in 1943. Prior to her death, their grandmother was registered as limited owner of the aforesaid lands on Folio 43217F. These proceedings essentially involved a dispute between the three brothers in relation to the subject lands. The plaintiff challenged the validity of a Deed of Transfer of such lands made by his late mother to the defendants in 1990. He claimed that he, and not his brothers, should be regarded as the rightful owner of these lands. The defendants issued a motion to have the proceedings dismissed on the basis that the same were not maintainable against them and were bound to fail. The High Court (Murphy J) acceded to such application in a judgment delivered on the 10th February, 2012. The plaintiff appealed to the Supreme Court from the entirety of such judgment and the resulting order, dated the 28th February, 2012, and perfected on the 3rd May, 2012. The plaintiff contended: 1) that he is entitled to be considered the legal personal representative of his mother and to bring proceedings in this case; 2) that the Deed of Transfer dated 5th February, 1990, was a wholly improvident Deed and would likely be declared null and void and struck out by a court on a number of grounds; 3) that his case should not have been dismissed by Murphy J on the grounds that it is barred under the Statute of Limitations; 4) that he is not guilty of causing inordinate delay either in bringing his case against the defendants or in bringing said case to trial and that any such delay should not be deemed to be inexcusable; and 5) that the Supreme Court is empowered under O. 58(8) of the Rules of the Superior Courts 1986 to allow the plaintiff to adduce evidence as contained in the plaintiff’s documents index and not least in circumstances where there is such a clear dispute on facts. The defendants identified the issues arising on this appeal as being (a) whether the plaintiff should be permitted to maintain a claim to set aside the Transfer; (b) whether the plaintiff should be entitled to amend his Statement of Claim to include a plea of estoppel against the defendants; and (c) whether the default judgment in respect of the defendants’ counterclaim ought to be set aside.

Held by McKechnie J that it could not be said that the instant cause of action was one which fell within the provisions of s. 9 of the Civil Liability Act 1961; consequently, it followed that the proceedings could not be statute barred by virtue of those provisions. McKechnie J held that the correct way of assessing and thus of approaching this case was to consider that the proceedings had been instituted in the plaintiff’s personal capacity, with the intention of recovering the lands in question for his sole use and benefit; therefore, the most pertinent statutory provision was s. 13 of the Statute of Limitations 1957. Given that the Plenary Summons did not issue until the 4th March, 2004, McKechnie J held that it followed that such proceedings were out of time in respect of the cause of action so construed; as there was no applicable provision by which the period could be extended, that statutory barrier of itself had the effect of preventing the appellant from continuing with the claim as so framed.

McKechnie J held that as a matter of a statutory limitation, which could not be extended, these proceedings were bound to fail. Accordingly, McKechnie J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 17th day of December, 2015

Introduction:

1 The plaintiff is a security officer and part-time farmer and resides at 4 Palace Fields, Tuam, in the County of Galway. In addition he, the plaintiff:-

(a) is a brother of the first and second named defendants herein. They also had two sisters, one now deceased, making a total of five siblings;

(b) is a lawful son of the late Michael McHugh, who died on the 9th May, 1976, and the late Rita McHugh, who died on the 12th January, 1998; and

(i) on the death of his father, Gerard inherited the lands comprised in Folio 53169F of the Register of Freeholders of the County of Galway;

(ii) prior to her death, Mrs. McHugh was entitled to be registered as full owner of the property the subject matter of the within proceedings, namely the lands and hereditaments comprised in and described on Folio 43217F of the Register of Freeholders of the County of Galway (sometimes referred to as ‘the subject lands’), such entitlement arising from the provisions of a Marriage Settlement executed in 1943, evidently on the marriage of the parents to the parties herein;

(c) is a grandson of the late Mary Ellen Dunne, mother of Rita McHugh, who died on the 23rd June, 1985, and who prior to her death was registered as limited owner of the aforesaid lands on Folio 43217F of the Register of Freeholders of the County of Galway.

2 These proceedings, howsoever formulated and howsoever worded, essentially involve a dispute between the three brothers in relation to the subject lands. The plaintiff challenges the validity of a Deed of Transfer of such lands made by his late mother to the defendants in 1990. In the circumstances occurring, which are more fully described later in this judgment, he claims that for the several reasons as pleaded, he – and not his brothers – should be regarded as the rightful owner of these lands. The defendants issued a motion to have the proceedings dismissed on the basis that the same were not maintainable against them and were bound to fail; Murphy J. acceded to such application in a judgment delivered on the 10th February, 2012. Mr. Gerard McHugh (‘the plaintiff’ or ‘the appellant’) has appealed to this Court from the entirety of such judgment and the resulting order, dated the 28th February, 2012, and perfected on the 3rd May, 2012.

3 In addition to the headline details set out at para. 1 above, the following events which took place on the dates specified are important factors in an understanding of this case:-

• 9th July, 1987: Mrs Rita McHugh (‘the deceased’) made her last Will and Testament in which, having nominated the plaintiff as her sole executor, she devised and bequeathed all of her property, both real and personal, of every kind and nature and wheresoever situate, to her son Gerard, absolutely.

• 5th February, 1990: the deceased executed a Deed of Transfer of the subject lands in favour of the defendants, who duly lodged the executed Transfer with the Land Registry for registration.

• 19th February, 1991: the defendants became registered as full owners in fee simple of the subject lands.

• 12th January, 1998: the deceased, as above stated, died.

• 26th October, 2011: Probate of the last Will and Testament of the deceased was granted to the plaintiff.

4 Whatever may be the legal outcome of this appeal, it can with both certainty and conviction be said that this is a most tragic case which has created deep and suffering divisions within the McHugh family. Not for the first time this Court has witnessed first-hand how families can be irreparably divided on issues such as due entitlements, property inheritance and the cruelty of real or perceived ingratitude. In fact, such disputes can be everlasting in memory and affect not simply the immediate members who are personally embattled in conflict, but also many members of their extended families. It is of enormous regret that some less confrontational forum could not have been settled upon which might have helped to resolve this conflict in a less attritional and harrying manner, and at least to have achieved some degree of acceptance for those involved, even if that should have fallen short of the harmonious relationship which we all strive for in a family context. Alas, even that bit of good fortune was beyond the McHughs.

5 The best which this Court can hope for now is that, irrespective of the decision which I am about to give, some measure of finality will be brought to these proceedings so that the parties involved can, at least in some respect, reposition this dispute and concentrate more fully on their lives and the lives of their loved ones, without the ever constant reminder of the underlying hurt which the further continuation of this case would inevitably perpetuate. Even though earnestly stated, I have no doubt but that the aggrieved party will still feel wronged and will find little comfort in what I have said. However, having accessed the legal process and having ended up before this particular Court, I hope that the expressed sentiments will not be entirely discarded. They apply with equal authority to the parties who will feel more satisfied with the outcome, but both Myles and Anthony McHugh should not forget that they too have played a significant role in this saga. There are, to use the awful phrase, no ultimate winners in this conflict.

A Bit More Detail:

6 In order to understand more fully the issues raised in this appeal, it is necessary to refer to the pleadings,...