Pádraig Gaffney v James Faughnan

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 09 November 2005
• Neutral Citation: [2005] IEHC 367
• Docket Number: No. 4634 P/2004
• Court: High Court
• Date: 09 November 2005

GAFFNEY v FAUGHNAN

BETWEEN/

PADRAIG GAFFNEY

PLAINTIFF

AND

JAMES FAUGHNAN

DEFENDANT

[2005] IEHC 367

No. 4634 P/2004

THE HIGH COURT

SUCCESSION

administration of estates

Practice and procedure - Proceedings issued before grant of letters of administration - Inherent jurisdiction of High Court - Lis pendens - Flack v President of the High Court (Unre, Costello J, 29/11/1983), Creed v Creed [1913] 1 IR 48 and Barry v Buckley [1981] IR 306 followed - Proceedings struck out and lis pendens vacated -

Facts: the plaintiff claimed that he had rendered services to the deceased during his lifetime on foot of an express or implied promise that the deceased would bequeath his farm to him. The plaintiff alleged that by dying in testate, the deceased was in breach of this agreement and that the defendant, as administrator of the estate, had failed to perform the promise. The defendant brought a motion seeking to have the proceedings struck out on the basis, inter alia, that at the time of the issuing of the summons instituting the proceedings, he had not obtained a grant of letters of administration.

Held by Laffoy J in striking out the proceedings that the authority of an administrator derived from the grant of letters of administration and until he obtained the grant, the estate did not vest in him. When a summons was issued, the person named as defendant had to be competent at that time to answer the alleged wrongdoing and meet the remedy sought. If he was not, the action was not maintainable. If he subsequently obtained a grant of letters of administration, that would not cure the defect and render the action maintainable. If the proceedings were not maintainable, the court had no jurisdiction to entertain any issue raised other than the issue as to whether they were maintainable.

Reporter: P.C.

CIVIL LIABILITY ACT 1961 S9(2)

RSC O.19 r.28SUCCESSION ACT 1965 S13

FLACK v PRESIDENT OF HIGH COURT & FLACK UNREP HIGH COURT COSTELLO 29.11.1983 1984/2/402

CREED v CREED 1913 IR 48

INGALL v MORAN 1944 1 KB 160

DANIEL CHANCERY PRACTICE 8ED 352

BARRY v BUCKLEY 1981 IR 306

Miss Justice Laffoy

1 The plaintiff's uncle, Michael Gaffney (the Deceased) died on 15th April, 2002, intestate. The defendant is his personal representative under a Grant of Administration dated 16th November, 2004 which issued to him as the attorney lawfully appointed of Patrick Gaffney, the brother of the Deceased, who resides out of the jurisdiction, the grant being limited for the use and benefit of Patrick Gaffney until he shall apply and obtain a grant himself.

2 On 15th April, 2004, before the Grant of Administration issued to the defendant, the plaintiff instituted these proceedings against the defendant by plenary summons. The summons does not disclose on its face that the defendant is being sued in a representative capacity. The defendant did not accept service of the plenary summons until 25th January, 2005, after the Grant of Administration had issued to him. He entered an unqualified appearance on 1st February, 2005. The plaintiff's statement of claim was delivered on 28th January, 2005. In it, it was pleaded that the defendant was the administrator of the estate of the Deceased. The basis of the plaintiff's claim is that he rendered services to the Deceased during his lifetime on foot of an express or implied promise that the Deceased would bequeath his farm to the plaintiff. The plaintiff alleges that, by dying intestate, the Deceased was in breach of his agreement and the defendant, as administrator of the estate of the Deceased, has failed to perform the promise, resulting in loss, damage and expense to the plaintiff. The reliefs sought in the statement of claim are an order for specific performance of the promise, an order compelling the defendant to transfer the lands in question to the plaintiff, damages for breach of contract and payment of the sum of €90,000 inquantum meruit and/or quantum valebant.

3 Without taking any further action in the matter the defendant issued the motion which is now before the court on 22nd March, 2005. In it he sought,inter alia, the following reliefs:

4 (a) an order striking out the proceedings and/or a declaration that the proceedings are void and have no effect on the basis that the defendant, who was sued solely in his alleged capacity as administrator of the estate of the Deceased, did not have that capacity at the time the proceedings were issued on 15th April, 2004 and that the proceedings are accordingly void;

5 (b) an order striking out the proceedings and/or a declaration that the proceedings are void and have no effect on the basis that the proceedings could not be maintained against the estate of the Deceased pursuant to the provisions of s. 9(2) of the Civil Liability Act,1961, by reason of not having been commenced within the period of two years after the Deceased's death.

6 In the notice of motion the defendant also invoked O. 19, r. 28 of the Rules of the Superior Courts, 1986 and the inherent jurisdiction of the court to strike out the plaintiff's claim. He also sought the vacation of alis pendens which has been registered by the plaintiff.

7 It is a fundamental principle of law that the authority of an administrator of the estate of a...