Nevin v Nevin

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 07 February 2019
• Neutral Citation: [2019] IESC 6
• Court: Supreme Court
• Docket Number: [Supreme Court Appeal No: 60/2017],[S.C. No. 60 of 2017]
• Date: 07 February 2019

BETWEEN:

PATRICK NEVIN

AND

MARGARET LAVELLE (FORMERLY NORA NEVIN)

PLAINTIFFS/RESPONDENTS

AND

CATHERINE NEVIN

DEFENDANT/APPELLANT

[2019] IESC 6

[Supreme Court Appeal No: 60/2017]

THE SUPREME COURT

Admissibility – Conviction – Common law – Respondents seeking to establish that the appellant was debarred from inheriting any part of her husband’s estate – Whether the evidence of the appellant’s criminal conviction was admissible

Facts: This appeal to the Supreme Court concerned the admissibility of a criminal conviction for murder in civil proceedings subsequently brought against the person convicted of that murder. The proceedings related to the succession rights of the defendant/appellant, Mrs Nevin, who was convicted in April 2000 of murdering her husband, Mr Nevin. She was also convicted of soliciting three men to murder him. The plaintiffs/respondents, the family members of the late Mr Nevin, sought, in effect, to establish that she (and following her own death, her estate) was debarred from inheriting any part of Mr Nevin’s estate. The issue of admissibility arose in the context of a motion seeking a ruling brought by the plaintiffs in advance of the substantive hearing. While the claim against the defendant was framed in terms of both common law principles and the provisions of s. 120 of the Succession Act 1965, the issue before the Supreme Court related only to the question of the applicable common law rules. Both the High Court and the Court of Appeal held that the conviction was admissible evidence in the proceedings. In its determination dated 31st July, 2017 the Supreme Court granted leave to appeal in relation to issues identified by it as being of concern, specifically: whether a motion of this type was appropriate in the circumstances; whether the effect of the Court of Appeal judgment was to compel the plaintiffs to prove a matter of public record, or to compel the defendant to seek to impugn her conviction; whether it would be an abuse of process for the defendant to mount what could be seen as a collateral attack on her conviction; and whether the decision in Hollington v F. Hewthorn & Co. [1943] KB 587 represents the law in Ireland.

Held by O’Malley J that, having considered the question of admissibility in the light of the common law authorities, she was satisfied that evidence of the conviction was in principle admissible.

O’Malley J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Iseult O'Malley delivered the 7th day of February 2019

Introduction

1 This appeal concerns the admissibility of a criminal conviction for murder in civil proceedings subsequently brought against the person convicted of that murder. The proceedings here relate to the succession rights of Mrs. Catherine Nevin, who was convicted in April 2000 of murdering her husband Mr. Thomas Nevin. She was also convicted of soliciting three men to murder him. The family members of the late Mr. Nevin (‘the plaintiffs’) seek, in effect, to establish that she (and now, following her own death, her estate) is debarred from inheriting any part of Mr. Nevin's estate. The issue of admissibility arises in the context of a motion seeking a ruling brought by the plaintiffs in advance of the substantive hearing. While the claim against the defendant is framed in terms of both common law principles and the provisions of s.120 of the Succession Act 1965, the issue before the Court relates only to the question of the applicable common law rules.

2 The proceedings were initiated by Mr. Nevin's mother, the late Mrs. Nora Nevin, in 1998. After her death in September 1999, the two siblings of Mr. Nevin now named in the title were joined as plaintiffs. Mrs. Catherine Nevin died while the appeal was awaiting a hearing before this court, and the persons named in the title are her personal representatives. For the avoidance of confusion, I will continue to refer to her as the defendant.

3 Both the High Court and the Court of Appeal held that the conviction was admissible evidence in the proceedings. In its determination dated 31st July, 2017 this Court granted leave to appeal in relation to issues identified by it as being of concern – specifically: whether a motion of this type was appropriate in the circumstances; whether the effect of the Court of Appeal judgment was to compel the plaintiffs to prove a matter of public record, or to compel the defendant to seek to impugn her conviction; whether it would be an abuse of process for the defendant to mount what could be seen as a collateral attack on her conviction; and whether the decision in Hollington v. F. Hewthorn & Co. [1943] KB 587 represents the law in Ireland.

4 The plaintiffs” position is: that they were entitled to bring the application in order to seek the guidance of the Court and that the defendant did not raise any issue on the substantive appropriateness of the motion; that the decision in Hollington v. Hewthorn. to the effect that a criminal conviction is inadmissible in subsequent civil proceedings is wrong and is not the law in this jurisdiction; that the conviction is prima facie (rather than conclusive) evidence that the defendant committed murder; and that, therefore, it would not be an abuse of process for her to challenge that evidence in the civil proceedings.

5 No criticism was made of the motion by the defendant in the High Court or the Court of Appeal (although there was an unsuccessful attempt to prevent the High Court hearing from going ahead on the date fixed). However, in response to the terms of the determination, a submission has been made that it was not appropriate. This is made mainly on the basis of the defence lodged, which denies guilt of the murder. It is argued that, should the Court rule that the conviction amounts to prima facie evidence, the application will not result in any saving of court time or costs because the plaintiffs will still be obliged to prove the case in full. The plaintiffs have not particularised any evidential difficulties that would be resolved by proof of the conviction. It is also argued that the case is likely to turn on the provisions of the statute rather than on common law principles, but the question of the proper construction of s.120 of the Succession Act 1965 is not encompassed in the motion.

6 The defendant submits that, no matter what criticism may be made of it, Hollington v Hewthorn represents the law in this jurisdiction. Although it is of persuasive authority only in this jurisdiction, the Oireachtas would have been aware of it when enacting the Succession Act in 1965.

Background facts

7 Mr. Thomas Nevin was murdered on the 19th March, 1996. At the time of his death he was married to the defendant. There were no children in the marriage and he died intestate. The defendant was arrested and charged with the murder, and solicitation of the murder, in April 1997. The plenary proceedings were commenced by the mother of Mr. Nevin in November 1997 but did not progress, pending the final determination of the criminal trial process. The reliefs sought in the proceedings are as follows:-

(a) a declaration that the defendant is disinherited at 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 is precluded from taking any share either as a legal right or otherwise in the estate of the deceased;

(c) a declaration that the defendant is not entitled to any share in the public house premises known as Jack White's Inn, Brittas Bay, Co. Wicklow or to any other assets of the deceased;

(d) damages pursuant to the Civil Liability Act 1961 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 is 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;

(h) an injunction restraining the defendant from disposing of any assets of the deceased or any part of the said licensed premises or other assets.

8 It is important to stress that the plaintiffs” claim is, accordingly, based both on common law and on statute. The statutory basis for the claim that the defendant was precluded from inheriting is set out in s.120(1) of the Succession Act 1965. That section provides as follows:-

‘A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except a share arising under a will made after the act constituting the offence, and shall not be entitled to make an application under section 117.’

9 It is also important to note s.120(4), as amended, which provides:-

‘A person who has been found guilty of an offence against the deceased, or against the spouse or civil partner or any child of the deceased (including a child adopted under the Adoption Acts, 1952 and 1964, and a person to whom the deceased was in loco parentis at the time of the offence), punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, shall be precluded from taking any share in the estate as a legal right or from making an application under section 117.’

10 The defendant was ultimately convicted of murder, and of the three counts of soliciting to murder, in April 2000. She continued at all times to maintain her innocence. Her conviction was affirmed by the Court of Criminal Appeal in March 2003, and that Court refused to grant a certificate of leave to appeal to the Supreme Court. An application brought to the European Court of Human Rights was rejected in 2003. An application to have her conviction declared a miscarriage of justice (on the basis...