McHugh v McHugh and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 10 February 2012 |
| Neutral Citation | [2012] IEHC 75 |
| Court | High Court |
| Date | 10 February 2012 |
[2012] IEHC 75
THE HIGH COURT
BETWEEN
AND
SUCCESSION 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.19 r28
FAY v TEGRAL PIPES LTD & ORS 2005 2 IR 261 2005/25/5119 2005 IESC 34
CARROLL v CARROLL 1999 4 IR 241 2000 1 ILRM 210 1999/4/699
RSC O.19 r27
SUPREME COURT OF JUDICATURE ACT (IRL) 1877 S27(5)
RSC O.122 r7
SUCCESSION ACT 1965 S45
SUCCESSION ACT 1965 S48
SPIERIN THE SUCCESSION ACT 1965 & RELATED LEGISLATION: A COMMENTARY 4ED 2011 56
FLOOD v FLOOD 1999 2 IR 234 1999/11/2883
SUCCESSION ACT 1965 S117(6)
PRENDERGAST v MCLAUGHLIN 2011 1 IR 102 2009/46/11638 2009 IEHC 250
CIVIL LIABILITY ACT 1961 S9(2)
CIVIL LIABILITY ACT 1961 S9(2)(B)
SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425 1991/10/2412
CIVIL LIABILITY ACT 1961 S9
MOYNIHAN v GREENSMYTH 1977 IR 55
PRACTICE AND PROCEDURE
Dismissal of action
Action to set aside transfer of land - Validity of deed of transfer - Undue influence - Limitation of action - Locus standi - Inordinate and inexcusable delay in instituting, prosecuting and maintaining claim - Inherent jurisdiction to dismiss - Motion to amend statement of claim - Whether claim bound to fail - Whether pleadings failed to disclose reasonable cause of action - Whether abuse of process - Whether locus standi - Whether inordinate and inexcusable delay - McGlynn v Gallagher [2007] IEHC 329, (Unrep, Edwards J, 8/10/2007); Barry v Buckley [1981] IR 306; McMahon v WJ Law & Co Ltd [2007] IEHC 51, (Unrep, MacMenamin J, 2/3/2007); Fay v Tegral Pipes Ltd [2005] IESC 34, [2005] 2 IR 261; Carroll v Carroll [1999] 4 IR 241; Prendergast v McLaughlin [2009] IEHC 250, [2011] 1 IR 102; Sun Fat Chan v Osseous [1992] 1 IR 425 and Monaghan v Greensmyth [1977] IR 55 considered - Succession Act 1965 (No 27), ss 10, 45, 48, 117 and 121 - Supreme Court of Judicature (Ireland) Act 1877 (40 & 41 Vict, c 57) - Civil Liability Act 1961 (No 41), s 9(2) - Rules of the Superior Courts 1986 (SI 15/1986), O 19, rr 27 and 28 and O 122, r 7 - Action dismissed (2004/2719P - Murphy J - 10/2/2012) [2012] IEHC 75
McHugh v McHugh
Facts: The plaintiff sought to set aside a transfer of lands made pursuant to a will. The defendant sought to dismiss the claim of the plaintiff as an abuse of process, bound to fail and having been instituted with inordinate delay. The defendant contended inter alia that a third party did not have locus standi to seek to set aside a transaction on equitable grounds nor was a claim possible under s. 117 Succession Act 1965 except by the personal representative. The plaintiff claimed as sole beneficiary that he had standing in the proceedings. The Court considered the application of the two-year time limit in S. 9(2) of the Civil Liability Act 1961 to the institution of the proceedings.
Held by Murphy J. in dismissing the claim of the plaintiff, that the plaintiff did not have locus standi and the claims were not maintainable by reason of the inordinate and inexcusable delay. S. 9(2) of the Civil Liability Act 1961 also precluded the plaintiff from making the claim.
JUDGMENT of Mr. Justice Roderick Murphy dated the 10th day of February 2012
The first application is that of the defendants to dismiss the plaintiff's action. The motion was filed on the 9 th June, 2011, and heard by the court on Monday the 21 st November, 2011. The plaintiff's claim, inter alia is for an order setting aside a transfer of certain lands on the 5 th February 1990 between the deceased and the defendants. The deceased made a Will on 9 th July 1987 leaving those lands to the plaintiff and appointing him as executor thereof. On 19 th February 1991 the defendants became the registered owners of the subject lands. The deceased died on 12 th January 1998.
The defendants applied to the court for an order dismissing the plaintiff action save to the extent that the same comprised a claim to prove the purported last Will and Testament of the late Margaret (otherwise Rita) McHugh dated the 9 th July, 1987. The grounds for the application were that the several claims made by the plaintiff were not maintainable against the defendants. They were unsustainable and bound to fail. The plaintiff's inordinate and inexcusable delay in instituting, prosecuting, and maintaining the claims constituted an abuse of process.
The defendants also applied for a declaration that the Will constituted the valid and duly executed last Will and Testament of the deceased and sought an order granting the plaintiff liberty to prove same in common form.
The defendants also sought judgment in default of defence to the counterclaim together with an order directing that the damages to which the defendants would be entitled on foot thereof be assessed by a judge with a jury.
The notice of motion dated the 9 th June, 2011, seeking to dismiss the plaintiff's action, was grounded on the affidavit of John Murphy, solicitor for the defendants and filed on the 9 th June, 2011.
Mr. Murphy outlined the proceedings brought by the plaintiff on the grounds of capacity and the undue influence or duress of the deceased and alternatively, the plaintiff sought directions pursuant to s. 117 and 121 of the Succession Act 1965.
Following a change of solicitors, Mr. Murphy took instructions and consulted with counsel and formed the view that certain matters ought to have been pleaded. By order of this court on the 17 th January, 2001, an amended defence and counterclaim were served on the plaintiff on the 23 rd March, 2001.
Mr. Murphy could not understand why it was considered necessary for the plaintiff to seek an order proving the last Will and Testament of the deceased. No caveat had been lodged. There had been no question or issue in relation to the validity of the Will. The claim originally in the defence and counterclaim that the plaintiff had brought the deceased into a firm of solicitors and that the deceased was under duress in making the Will was deleted from the defence and counterclaim on the basis that there would be no evidence to support that assertion. Accordingly, there was no impediment to the Will being proved.
Mr. Murphy averred that at the time of swearing of his affidavit on the 8 th June, 2011, that the plaintiff was not the personal representative of the deceased and not entitled to maintain his claim.
The plaintiff was granted representation as executor by probate dated the 26 th October 2011.
Mr Murphy averred that he was advised and believed that the lands with which the proceedings were concerned had a value of not more than €90,000. Proceedings commenced on the 4 th March, 2004, with a view to setting aside a transfer which had been executed on the 5 th February, 1990, some fourteen years earlier, it was then seven years after proceedings commenced, the court was being asked to set aside a transfer executed 21 years earlier.
In the circumstances, Mr. Murphy believed that the plaintiff had been guilty of inordinate and inexcusable delay both in instituting the proceedings and in prosecuting same. The proceedings in their present form were oppressive and constituted an abuse of process.
He asked that the defendants' counterclaim for damages and trespass be assessed by a judge sitting without a jury.
By supplemental affidavit sworn on the 4 th July, 2011, Mr. Murphy said that given that the plaintiff has indicated that he wished to make a claim against the Estate of the deceased. It was not appropriate that he be allowed to prove the Will.
He was not entitled to maintain his claim for any of the reliefs sought. Such reliefs could only be sought as against the personal representative.
A notice of appointment of new solicitors for the defendants was delivered on the 9 th February, 2010. The plaintiff's solicitors came off record on the 13 th December, 2010. His new solicitors, Scarry O'Connor, came on record on the 1 st July, 2010.
By replying affidavit of 3 rd October 2011, Michelle Scarry of Scarry O'Connor, solicitors for the plaintiff, said that she had recently come on record and that the plaintiff had instructed her that he had every intention of prosecuting the proceedings.
In relation to the defendants' accusation of inordinate and/or inexcusable delay, she outlined the chronology of pleadings from the plenary summons in a statement of claim in March 2004, and appearance by the second named defendant on the 23 rd March, 2004, and by the first named defendant on the 5 th August, 2004.
Following notice and replies to particulars of each defendant, the joint defence of the first and second named defendants was filed on the 24 th March. 2007. The particulars on the defence was raised on the 22 nd July, 2008, and replied to on the 26 th January, 2009. Further particulars were raised by the plaintiff on the 7 th April, 2009, and replied on the 25 th May, 2009. On the 23 rd November, the plaintiff applied for an order directing the defendants to reply to certain particulars.
The Court made an order on the 17 th January, 2011, allowing the defendants to amend their defence and counterclaim and which was delivered on the 23 rd March, 2011, outside the period of fourteen days provided for by O. 28, rule 7.
Ms. Scarry said that the amended defence and counterclaim was, ipso facto, void and in default of the rules, unless the time is extended by the court.
She believed that a...
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