Michelle Doyle v Gabriel Haughton, Cliona Weafer and Michael O'Dowd
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE SMYTH |
| Judgment Date | 01 November 2005 |
| Neutral Citation | [2005] IEHC 378 |
| Docket Number | Case No.15639p/2001 |
| Court | High Court |
| Date | 01 November 2005 |
[2005] IEHC 378
THE HIGH COURT
AND
DORAN v DELANEY 1998 2 IR 61 1998 2 ILRM 1
REGISTRATION OF DEEDS ACT 1707
RENNICK v ARMSTRONG 1819 H & B 727
ROCHE v PEILOW 1985 IR 246 1986 ILRM 189
DONOGHUE v STEPHENSON 1932 AC 562
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.
FOR THE PLAINTIFF:
MR. E. KEANE SC
MR. P. KEANE SC
MR. D. DOCKERY BL
Instructed by:
Mr. D. McDermott,
1, Union Street,
Sligo.
FOR THE 1st DEFENDANT:
MR. G. RALSTON SC
MR. R. de BRUIR BL
Instructed by:
John J. McDonald &
Co.Solicitors,
3 Priory Hall,
Stillorgan,
Co. Dublin.
FOR THE 2nd DEFENDANT:
MS. S. BOYLAN BL
Instructed by:
James Maher & Co.,
1 The Bookend,
Essex Quay,
Dublin 8.
FOR THE 3rd DEFENDANT:
Lyster & Co.,
Solicitors,
Main street,
Elphin,
Co. Roscommon.
COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography services
MR. JUSTICE SMYTH: The Plaintiff was 11 years old when she first visited a solicitor's office, and now 34 years of age, married with four children, she is still dealing with the consequences of that first visit. Born in Salisbury in England, the outcome, it appears, of some form of liaison between her mother and one Peadar, otherwise Pado O'Toole (to whom I shall hereinafter refer to as “O'Toole”). She lived in England until about five years old. She then came to live in Wicklow with her mother and O'Toole. Approximately two years thereafter, O'Toole was involved in a shooting incident and the mother returned to England with the Plaintiff. O'Toole followed them to London and returned to Ireland with the Plaintiff to live with him until she was about 20 years of age.
In late 1980, Mary Margaret O'Toole, an aunt by marriage of the Plaintiff, for she was married to one John O'Toole (a brother of O'Toole) who was living in England clearly intended that the premises 3 Kilmantain Hill, Wicklow, should belong to the Plaintiff when she attained the age of 21 years and that during her minority the premises should be held by O'Toole in trust for the Plaintiff. This in the events was effected by a Deed of conveyance and the separate making by O'Toole of a Declaration of Trust in favour of the Plaintiff. The Deed of conveyance was silent as to the Trust. Both documents were prepared by Messrs. Cullen & Sons, whose client was Mary Margaret O'Toole. The documents were dispatched to her in England. She executed the Conveyance and sent both Conveyance and, it would appear, the Declaration of Trust directly to O'Toole.
He executed both before one Joseph Kelly, a local Commissioner for Oaths on 6th February 1981 and the documents were then returned to Cullen & Sons, where a second witness subscribed his name to the signature of the vendor or donor in the Conveyance and the date 16th February 1981 was inserted in the Conveyance and in the Declaration of Trust. When both documents were duly stamped, the Conveyance was registered but the Declaration of Trust was not. Whether it was a registrable instrument in the Registry of Deeds was a matter of much debate during the course of the hearing.
In July 1981, the original Conveyance and other copy documents of title were sent by registered post to O'Toole. In the following month, O'Toole called to the offices of Messrs. Cullen & Sons and collected the original Declaration of Trust, Cullens first having taken a photocopy of it.
In 1987, the Plaintiff was 18 years old and required a passport. A Birth Certificate was required to secure a passport. When the Plaintiff did receive her Birth Certificate, it stated her name was Stevens, notwithstanding that she had seen a Baptismal Certificate on which her name was O'Toole. The confusion of identity was ultimately resolved by the Plaintiff changing her name by deed poll to O'Toole. O'Toole acknowledged that he was the father of the Plaintiff. For present purposes, it matters not whether O'Toole was the Plaintiff's father or step father. He was at all material times in loco parentis to the Plaintiff and they regarded each other as of the one family, and throughout her time living with him was known as his daughter.
The relationship between the Plaintiff and O'Toole was quite difficult. He was a very aggressive man the whole time the Plaintiff lived with him in Wicklow. He was not a man you could have had a civil conversation with, which was the undisputed evidence of the Plaintiff. The Plaintiff was scared of O'Toole, so much so that on reaching the age of 21 she did not feel she was in any position to do anything about the house and did not want anything to do with O'Toole.
Matters arrived at a stage where as she got older the relationship deteriorated. By the time she reached the age of 20/21, it got particularly bad and he had become extremely violent and she was scared of him and left the house in August 1990. Over the next two years the Plaintiff visited O'Toole at his invitation from time to time, but never stayed with him.
In November 1992 on a visit to wicklow with her then boyfriend, now her husband, she met O'Toole who inquired; “How about we sell the house?” She made it clear that she did not wish to sell the house. On the same occasion she met quite casually on the street a former school friend who indicated that she had heard that O'Toole was trying to sell the house. The Plaintiff's undisputed evidence was that with her experience of O'Toole and knowing what his past was (he had been convicted and imprisoned in England for grievous bodily harm), alarm bells rang.
She still had a key of the house, she knew where the deeds were, so she went to the house and took the deeds without any inspection of the envelope in which they were. She met O'Toole a short time later in the day on the street and told him straight out that she had taken the deeds and that there was no way she was going to sell the house. O'Toole's violent response towards the Plaintiff and her boyfriend was such that she had to call the Guards and they were escorted from Wicklow on that Saturday. The following Monday, O'Toole telephoned the Plaintiff at her place of work and in the course of an extremely threatening call said that he would kill her. She was then aged 23 years of age. That was the last communication she had with him.
Aged 21 in 1990, she had moved to Dublin to work, initially in an accountant's office and thereafter with a building society, but not in any area of that institution that dealt in any detail with legal or conveyancing matters. Her understanding was that when she reached 21 years of age that the house was to be hers; she knew if she fought O'Toole she would be putting herself at risk. Her understanding at all times was that the house was hers. After the incident in 1992, even though she checked the envelope of “deeds” taken from the house sometime later and the Declaration of Trust was missing, she had no doubt she was entitled to the house and she had the original Conveyance duly stamped and registered.
She confirmed this point of view by reading the letters written to O'Toole by Mary Margaret O'Toole of 30th October 1980 and 18th November 1980. The Plaintiff did not consider that she needed in any way to secure her position by going to solicitors or taking any other step. She felt she had secured her position when she held the original title deeds. In response to cross-examination, the Plaintiff said she did not need to go to a solicitor and just assumed that by having the original title deeds that the house could not be sold or dealt with.
I am satisfied that this was a perfectly reasonable thing in all of the circumstances for the Plaintiff to do and completely understandable by a lay person. After all, this was a family arrangement in effect and accordingly the doctrine of uberrimae fidei is applicable. The Plaintiff's evidence was that after the incident in 1992, she effectively decided to leave sleeping dogs lie and to leave O'Toole in the house more or less for his day, and when the time was appropriate to activate her position, she would do so.
Towards the end of the 1990's, in an exchange of Christmas greetings with an old school friend in Wicklow, the Plaintiff became aware that the house might have been sold. She set in train some informal inquiries through whatever contacts she had in the building society and ascertained that this appeared to be the case. She immediately after Christmas wrote on 30th December 1999 to Messrs. Cullen & Sons to whose offices she had been brought as a young girl many years earlier.
She received a response of 7th January 2002 from Messrs. Cullen sending not only the copy of the Conveyance but a copy of the Declaration of Trust and a copy of the memo of 17th August 1981 from which it was noted that a Mr. McCarroll, Solicitor, was acting for O'Toole in 1981. She then consulted her present solicitors, who carried out such preliminary investigation as they required on receipt of the documentation from Messrs. Cullen & Sons and proceeded to contact the First Named Defendant seeking an explanation as to how the sale had taken place.
This in due course led to the disclosure that the Second Named Defendant had acquired the property, apparently, and correspondence was...
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