Nevin v Nevin

• Jurisdiction: Ireland
• Judge: Clarke C. J.,MacMenamin J.,O'Malley J.
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] IESCDET 95
• Court: Supreme Court
• Date: 31 July 2017

[2017] IESCDET 95

THE SUPREME COURT

DETERMINATION

Clarke C. J.

MacMenamin J.

O'Malley J.

BETWEEN

PATRICK NEVIN

AND

MARGARET LAVELLE

PLAINTIFFS

AND

CATHERINE NEVIN

DEFENDANT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the applicant to appeal to the Supreme Court.

REASONS GIVEN:

Jurisdiction

1 This is an application by the defendant, Catherine Nevin, for leave to appeal against a decision of the Court of Appeal (Finlay Geoghegan J., Irvine J., Hedigan J.), delivered on the 7th March, 2017, and an order perfected there under of the same date. ( Nevin v. Nevin [2017] IECA 63, [2017] 1 I.L.R.M. 441). In that order the Court of Appeal dismissed an appeal brought by the defendant/applicant, Catherine Nevin, against a judgment and order of the President of the High Court, (Kearns P.), delivered on the 1st March, 2013. ([2013] I.E.H.C. 80. [2013] 2 I.L.R.M. 427)

2 As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for the Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there should be an appeal to this Court.

3 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background

4 Thomas Nevin was murdered on the 19th March, 1996 in his licensed premises, Jack White's in Brittas Bay, County Wicklow. Thomas Nevin was married to Catherine Nevin, the defendant/applicant herein. There were no children of the marriage, and he died intestate. Thomas Nevin and Catherine Nevin were jointly registered as full owners of Jack White's Inn, and jointly owned and operated the premises. Following her husband's death, the defendant/applicant re-opened Jack White's and operated same for a period of time before the premises were sold in 1997 for Ir.£620,000.

5 The instant proceedings were commenced by plenary summons on the 4th November, 1997. In them, Nora Nevin, the mother of the late Thomas Nevin claimed against the defendant/applicant, Catherine Nevin:

(a) A declaration that the defendant be disinherited by common law from taking any share in the estate of the deceased;

(b) A declaration that by virtue of s.120 of the Succession Act, 1965, the defendant be precluded from taking any share, either as legal right or otherwise, in the estate of the deceased;

(c) A declaration that the defendant be not entitled to any share in the public house premises known as Jack White's Inn, or any other assets of the deceased;

(d) Damages pursuant to the Civil Liability Act against the defendant for the wrongful death of the deceased;

(e) A declaration that the said licensed premises and other assets form part of the estate of the deceased;

(f) A declaration that the plaintiff was the sole person entitled to share in the deceased's estate;

(g) An order pursuant to s.27(4) of the Succession Act, 1965, appointing the plaintiff personal representative of the estate of Thomas Nevin, deceased.

6 Nora Nevin died on the 10th September, 1999 intestate. Following this, Patrick Nevin and Margaret Lavelle, being the brother and sister of Thomas Nevin, extracted letters of administration intestate to her estate on the 18th July, 2000. By order of the High Court, dated the 4th March, 2001, they were joined as plaintiffs in these proceedings.

7 The applicant, Catherine Nevin, was charged with a series of offences, including murder contrary to common law under s.4 of the Criminal Justice Act, 1964, and s.2 of the Criminal Justice Act, 1990, of Thomas Nevin at Jack White's Inn. She was convicted of murder and a number of other charges, including that of soliciting the murder of Thomas Nevin. She was sentenced by the Central Criminal Court to imprisonment for life on the charge of murder, and 7 years on the remaining counts, to run concurrently. Catherine Nevin has, at all times, denied any involvement in the death of Thomas Nevin.

8 These proceedings lay in abeyance for the many years during the processing of the criminal case involving Catherine Nevin, and the appeals there from.

9 There follows a description of what occurred in the High Court and Court of Appeal. For simplicity, Patrick Nevin and Margaret Lavelle will hereinafter be referred to simply as ‘the plaintiffs’; Catherine Nevin as ‘the defendant’, although she is the applicant to this Court.

10 In advance of the full hearing of the plaintiffs' claim, to which the defendant has delivered a full defence, the plaintiffs, by Notice of Motion dated the 11th April, 2012, sought the trial of a preliminary issue as to the ‘admissibility of the evidence of the defendant's trial and subsequent conviction for the murder of her husband, Thomas Nevin’. The application was based on the premise that the criminal proceedings were complete, and that the plaintiffs, being brother and sister of the late Thomas Nevin, were entitled to a hearing and determination of the claims advanced by them in the plenary summons. This application was heard as a preliminary issue, although other legal issues regarding admissibility of evidence could also foreseeably...