Paes v O'Connor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 09 April 2024
• Neutral Citation: [2024] IEHC 199
• Docket Number: Record No. 2022/272CA

Between/

Brendan Paes

Respondent/Plaintiff

and

Eithne O'Connor

Appellant/Defendant

[2024] IEHC 199

Record No. 2022/272CA

THE HIGH COURT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 9 ^th day of April 2024

INTRODUCTION

Preliminary

1 This application relates to the compromise on 29 ^th November 2022 of an Equity Civil Bill (Record No. 2020/01672) Cork Circuit, Brendan Paes (Plaintiff) v Eithne O'Connor (Defendant) which had previously issued on 7 ^th December 2020.

2 The compromise was recorded in the Order of the Circuit Court (His Honour Judge O'Donohoe) dated 29 ^th November 2022.

3 Ms. Eithne O'Connor now purports to appeal that Order.

4 Ms. O'Connor was for a period prior to 29 ^th November 2022 represented by the Legal Aid Board, 1a South Mall, Cork and pursuant to a motion dated 6 ^th May 2022, grounded on an Affidavit of Deirdre Kissane Solicitor dated in or around May 2022, Ms. O'Connor had indicated in an email dated 4 ^th May 2022 (exhibited in Ms. Kissane's Affidavit) that she no longer wanted to be represented by the Legal Aid Board and an application was made for the Legal Aid Board to come off record. Therefore, Ms. O'Connor is a litigant in person and was so at the time of the compromise of the proceedings reflected in the Order of the Circuit Court on 29 ^th November 2022.

5 This application was adjourned from 11 ^th December 2023 to 22 ^nd January 2024, arising from Ms. O'Connor's inability to attend the hearing in Dublin on that occasion due to illness.

6 Ms. Alison McCarthy BL appeared for Mr. Paes.

THE PROCEEDINGS

Equity Civil Bill (Record No. 2020/01672): The compromised proceedings

7 As mentioned, the proceedings which were compromised on 29 ^th November 2022 (and incorporated in the Order of the Circuit Court of the same date) related to an Equity Civil Bill (Record No. 2020/01672) Cork Circuit, between Brendan Paes (Plaintiff) v Eithne O'Connor (Defendant) which was issued on 7 ^th December 2020.

8 As addressed later in this judgment, those proceedings were not in fact heard by the Circuit Court, as the Court was informed when the case was called on 29 ^th November 2022 that the parties had reached an agreement and settlement.

9 In summary, the Equity Civil Bill in Record No. 2020/01672 related to a property at 58 Glendower Court, Ballincollig, Cork Folio Number 31997F (“the property at 58 Glendower Court”), where the primary relief sought by the Plaintiff (Mr. Paes) was for the sale of the premises for the purpose of realising his share in the property pursuant to section 31(2)(c) of the Land and Conveyancing Law Reform Act 2009 or in the alternative, an order that the Defendant (Ms. O'Connor) transfer her interest in the property at 58 Glendower Court to Mr. Paes for such consideration as the Circuit Court considered appropriate.

10 By way of background, on or about 12 ^th August 1997, Mr. Paes and Ms. O'Connor, who were at that time in a relationship, purchased the property at 58 Glendower Court. Mr. Paes and Ms. O'Connor have a son together.

11 Both Mr. Paes and Ms. O'Connor lived at the property for one year and jointly discharged the mortgage.

12 In or around 1998, Mr. Paes and Ms. O'Connor agreed with Ms. O'Connor's father that they would occupy some of a garden which belonged, and was adjacent to, her father's house at Willowbrook, Spur Hill, County Cork and they began building a house on this ground. It appears that due to a construction dispute, building on the land ceased. It is alleged by Mr. Paes that it was agreed as between Mr. Paes and Ms. O'Connor that her father would occupy, take over and pay the mortgage on the property at 58 Glendower Court in exchange for the property at Willowbrook, Spur Hill, County Cork, though no documentation was formally executed in this regard. It is alleged by Mr. Paes that he and Ms. O'Connor remained at the property in Spur Hill for approximately 8 years, until in or around 2011, when he moved back into the property at 58 Glendower Court. Mr. Paes alleges that when he moved back into the property at 58 Glendower Court, there were mortgage arrears in the amount of €12,000 and that he had to pay the arrears and principal sum totalling approximately €71,726.26 and that he had reduced the mortgage sum to approximately €28,000.

13 Mr. Paes alleges that since moving back into the property he has continued to discharge the mortgage alone. In brief, he claims that the sale of the premises would be more beneficial to both him and Ms. O'Connor, rather than its physical partition.

THE SETTLEMENT & COURT ORDER

14 As mentioned earlier, in this case the Circuit Court was informed at the outset of the case being called on 29 ^th November 2022 that the parties had reached an agreement and settlement. The Court was informed that Ms. O'Connor was a litigant in person. The application on behalf of Mr. Paes was that the settlement agreement be made “ an order of the Court…as opposed to a consent”, and during the course of the hearing the agreement was handed into court so that it could “ be made an order.”

15 Given that Ms. O'Connor was a litigant in person, the transcript of the Digital Audio Recording of the hearing on 29 ^th November 2022 shows that each paragraph of the settlement (as set out below) was initially read out to His Honour Judge O'Donohoe. It appears that during this process, and in the context of the terms of the settlement, Ms. O'Connor queried, in the event that there was a default in the settlement, the question of costs that would be incurred from the involvement of Mr. Walsh (Mr. Paes' solicitor) in the conveyancing of the sale, and His Honour Judge O'Donohoe sought to address Ms. O'Connor's observation on that part of the settlement and in doing so recommended Mr. Walsh. Again, given that Ms. O'Connor was a litigant in person, His Honour Judge O'Donohoe explained to her that the agreement reached reflected that it was done in the absence of legal advice and that the Court had investigated properly and comprehensively and had approved the settlement. Ms. O'Connor agreed with that. Earlier, His Honour Judge O'Donohoe had also inquired of Ms. O'Connor in relation to whether she felt competent to have reached a settlement and she confirmed that she did, whether she had had the opportunity of getting her own independent legal advice and she confirmed that she had and did not wish to have independent legal advice. When asked, Ms. O'Connor confirmed that she understood and would not come back afterwards and say that she had not had proper legal advice.

16 The subsequent Order inter alia stated:

“ Record No. 2020/01672

AN CHUIRT CHUARDA

(THE CIRCUIT COURT)

CORK CIRCUIT CORK

BEFORE JUDGE O' DONOHOE

THE 29 ^th DAY OF NOVEMBER 2022

BETWEEN

BRENDAN PAES

PLAINTIFF

-AND-

EITHNE O'CONNOR

DEFENDANT

The Defendant having been duly served with the Equity Civil Bill herein and the same coming for hearing before the Court this day WHEREUPON and on reading the pleadings and documents filed herein and on hearing what was offered by Counsel for the Plaintiff and the Defendant In Person.

THE COURT DOTH ORDER

1. That the Defendant is to pay the Plaintiff the sum of €120,000.00 on or beofre [sic.] the 1st March 2023.

2. That this sum is to be paid into Norman Walsh Solicitor's client Account.

3. In Consideration for same, the Plaintiff will transfer his interest in the property at 58 Glendower Court, Ballincollig, Cork Folio number 31997F, being the subject matter of the within proceedings.

4. In the event of a default the property is to be put up for sale and the proceeds to be divided on a 60/40 basis.

5. Norman Walsh to have conveyancing of sale and Alan Browne to be appointed as Auctioneer.

6. The County Registrar to sign in default of Agreement on 10 days notice to either party.

7. Liberty to apply.

BY THE COURT

(SEAL)

NOMINATED SIGNATORY BY THE COMBINED OFFICE MANAGER”.

Ms. O'Connor's contentions

17 Thereafter, at approximately 19:09 on 29 ^th November 2022, the evening of the settlement agreement and order of the Court, Ms. O'Connor sent an e-mail to the County Registrar, His Honour Judge O'Donohoe and Mr. Walsh Solicitor, referring to the proceedings which had been listed earlier that day, and to the fact that the parties had reached “ an amicable agreement that both parties were eventually content to agree with”, but pointing out that there were two or three points that she had reluctantly consented to as she stated she felt pressurised and under duress because of her concern that there could be a court sale of her property that day.

18 Both of Ms. O'Connor's stated concerns arose in the context of a possible default scenario i.e., where monies had not been received and a transfer had not occurred and in those circumstances the settlement provided for the property at 58 Glendower Court to be put up for sale and the proceeds to be divided on a 60/40 basis i.e., 60% to Ms. O'Connor and 40% to Mr. Paes.

19 First, Ms. O'Connor stated that she did not agree, in the context of a default scenario, to either “ Norman Walsh Solicitor having the conveyancing of the sale” or that “… he would use his Auctioneer to sell” Ms. O'Connor's home, i.e., the property at 58 Glendower Court. Ms. O'Connor stated in this e-mail that she wished to use her own solicitor and her own auctioneer stating inter alia that “… its simply just a matter of my needing to look out for my own best interest and safety regarding my home and financial and legal interests and also as Mr. Walsh is looking out for his client my ex partner Mr. Paes I would need my own Auctioneer and Solicitor to do the same for me independently of Mr. Paes' team.”

20 Second, Ms. O'Connor stated that she could not consent, again in the circumstances of a default scenario, to the monies from the sale of the house being paid into Mr. Walsh's practice account and again stated her...