Muckian v Hoey

• Jurisdiction: Ireland
• Judge: Mr. Justice David Keane
• Judgment Date: 03 February 2017
• Neutral Citation: [2017] IEHC 47
• Docket Number: [2015 No. 214SP]
• Court: High Court
• Date: 03 February 2017

BETWEEN

DEIRDRE MUCKIAN

AND

MARY McCANN

APPLICANTS

AND

ALBINA HOEY, JOHN HOEY, MICHAEL HOEY, PAUL HOEY

AND

ALBINA McCARDLE (NÉE HOEY)

RESPONDENTS

[2017] IEHC 47

Keane J.

[2015 No. 214SP]

THE HIGH COURT

Estate – Practice & Procedures – O. 3 of the Superior Courts – Administration suit – Charges of wilful misconduct – Costs of unsuccessful administrator.

Facts: Following the grant of relief to the applicants for removing the first respondent as an administratrix of the estate of the deceased, the first respondent now sought an order for her costs. The first respondent argued that she was entitled for the payment of costs as the relief to the applicants were granted in an administration suit wherein no charges of wilful misconduct were brought against her. The applicants, being the children of the first respondent and the deceased, argued that since the first respondent was guilty of misconduct, she was not entitled for the costs of defending the unsuccessful application.

Mr. Justice David Keane refused to grant relief to the first respondent. The Court found that an administrator/executor of an estate was entitled for the costs of litigation in cases where that litigation was instituted bona fide and for the benefit of the beneficiaries. The Court found that the substantive proceedings were brought by the beneficiaries for causing delay by the first respondent in the distribution and management of the estate. The Court noted that the first respondent had clearly demonstrated want of capacity to act as an administratrix and thus, justifying her removal.

JUDGMENT of Mr. Justice David Keane delivered on the 3rd February 2017

Introduction

1 The first respondent seeks an order directing that her costs of the present action be paid out of the estate of her late husband. The applicants oppose the making of any such order.

2 The action was brought to remove the first respondent as administratrix of her late husband's estate. In a judgment delivered on the 25th November 2016, the Court granted that relief; see Muckian v Hoey [2016] IEHC 688.

3 The applicants and the other respondents in the action are the children of the marriage between the first respondent and the deceased. The other respondents did not participate in the proceedings.

4 The applicants seek an order directing that the costs of their successful action be paid out of the estate. The first respondent does not oppose that application. In truth, it is difficult to see how she could. The only plausible alternative to that order would be one granting the applicants their costs against the first respondent.

The first respondent's arguments

5 In seeking her costs of the action out of the estate, the first respondent submits that the successful application to remove her as adminstratrix is one properly characterised as an administration suit. The proceedings were brought by special summons and the first respondent points to Order 3 of the Rules of the Superior Courts ("RSC", as amended, whereby the classes of claims in which that procedure may be adopted include "(1) The administration of the real or personal estate of a deceased person,... save where there is a charge of wilful default...."

6 The respondent ultimately relies on the following passage from Scanlon, Administration and Mortgage Suits (Dublin, 1963) at p. 65:

"Executors, administrators and trustees are entitled to their costs out of the estate as a matter of course unless a charge of misconduct is established and then, and only then, do such costs become discretionary and the solicitor for a party in default is in no better position as regards costs than his client."

7 Two authorities are relied upon by Scanlon for the proposition that an administratrix is entitled to her costs out of the estate as a matter of course unless a charge of misconduct is established against her. The first is O. LXV ( 65), r. 1(1) of the Rules of the Supreme Court (Ireland) 1905 ("the 1905 Rules"). That Order of the 1905 Rules deals with the issue of costs. It is cast in substantially different terms to those of Order 99 of the RSC, the rule that now addresses that issue. The second is the following passage from Daniell's Chancery Practice, 8th edn. (London, 1914) (Vol. II, p. 1055): "Trustees, agents and receivers, accounting fairly, are entitled to their costs out of the estate, as a matter of course; and the same rule extends to personal representatives, to whom, as they can only obtain complete exoneration by having their accounts passed in the Court, the Court will give every opportunity of exonerating themselves by passing their accounts at the expense of the estate."

8 In an accompanying footnote, Daniell cites, as authority for that proposition, O. LXV. 1 of the Rules of the Supreme Court, 1883 (for England and Wales), which the Chancery Division of the High Court in that jurisdiction then acted upon in dealing with the costs of executors, administrators, trustees or mortgagees "who had not acted unreasonably or carried on or resisted any proceedings." That rule is significantly different in material part than O. LXV, r. 1(1) of the 1905 Rules. It need hardly be said that the former rule was never in force in this jurisdiction and the latter rule was long ago supplanted by a quite different one made under s. 22 of the Courts of Justice Act 1924, itself long since repealed and replaced by s. 14 of the Courts (Supplemental Provisions) Act 1961. I do...