Prendergast & Anor -v- Joyce & Ors, [2009] IEHC 199 (2009)

Docket Number:1999 941 P
Party Name:Prendergast & Anor, Joyce & Ors
Judge:Gilligan J.
 
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THE HIGH COURT1999 941 PBETWEENKEVIN PRENDERGAST AND MONICA JOYCE (SUING BY HER NIECE AND NEXT FRIEND EVELYN PRENDERGAST)PLAINTIFFSANDDERMOT JOYCE, THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND AND ALLIED IRISH BANKS PLCDEFENDANTSJUDGMENT of Mr. Justice Gilligan delivered on the 13th day of February, 20091. These proceedings centre around a series of banking transactions which occurred on the 21st January, 1998, in the Bank of Ireland and Allied Irish Bank branches in Claremorris, County Mayo, when the late Monica Joyce, transferred into joint accounts with the defendant Dermot Joyce, the sums of IR£94,974.22, IR£17,853.63 and IR£63.01 to a total of IR£112,890.86 being 143,341.82. That sum has since increased to approximately 157,000 through the accrual of interest.2. The persons involved are the late Jack and Monica Joyce, Evelyn Prendergast, who is Monica Joyce's niece and the plaintiff in the proceedings [pursuant to order of this Court dated 29th July, 2008, made pursuant to O. 15, r. 37 of the Rules of the Superior Courts], and Dermot Joyce, the defendant herein who is a nephew of the late Jack Joyce. The second and third defendants have been permitted to withdraw from these proceedings on their undertaking to abide by the ruling of this court.3. Jack Joyce (Jack) was born in 1919 and his wife Monica Joyce (Monica) in 1928. There was no issue of their marriage and in the 1950s Jack Joyce ran a small petrol station at Hollymount, which is located midway between Ballinrobe and Claremorris in the County of Mayo. The business was doing poorly and Jack and Monica emigrated to the United States of America where they remained until they returned to Ireland in 1973. Initially, they lived in a mobile home adjacent to the petrol station in Hollymount. In or about 1993, Jack and Monica constructed a house which was approximately eight miles from the garage premises, in Ballinastanford, Claremorris, County Mayo where previously they had had a second mobile home. It is clear that Jack and Monica Joyce were a very close couple and that Monica was effectively totally dependent on Jack.4. The petrol business was not very successful earning approximately IR£500 gross per week. It appears that in the mid 1990s Monica became forgetful and when the new house had to be furnished in 1993, it was necessary for Mrs. Patsy Dalton, a family friend who met the couple daily on an ongoing basis, to undertake the work. She recalls, in evidence, that Monica did not always remember her name. She noticed from 1993 onwards that Monica's situation got progressively worse. Around Christmas time 1997, there was an incident when Monica was alone in the mobile home at Hollymount adjacent to the garage and Mrs. Dalton found her in a completely exasperated and agitated state. She had two gas rings on without them being lit and when Mrs. Dalton arrived she could not remember who she was. Mrs. Dalton recalled that she was annoyed with Jack because she had a serious concern that the mobile could have gone on fire. She had a discussion with Jack and he intimated to Mrs. Dalton that Monica did not know what she was doing. Her overall view was that between 1993 and 1997, Monica had deteriorated rapidly.5. Jack was taken into hospital in early January, 1998, and suffered a heart attack after his admission. It was initially anticipated that he should go on to make a recovery but unfortunately, he died on 14th January, 1998. Mrs. Dalton described Monica at her husband's funeral as being in a state of complete shock. She appeared to be unaware that her husband had died and asked on a number of occasions as to where he was. At that time, Monica and Jack had moved to his niece Annie Walsh's house and Mrs. Dalton was very concerned that something should be done about looking after Monica.6. As regards Monica's mental capacity, Mrs. Dalton, who had worked in the retail business all her life, stated that she would not at that time have let Monica look after the till in any of her shops. Monica was in her opinion "doolally" or out of her mind. From about the end of January, 1998, Monica was receiving 24 hour care from members of her family. By February she had commenced attending Ballindine Respite Home for people suffering from Alzheimer's disease.7. To the best of Mrs. Dalton's knowledge, the only monies Monica had available to her were her social security pension which was approximately US$500 per month. Mrs. Dalton indicated that she never saw the defendant in the vicinity of Jack Joyce's petrol station.8. Evelyn Prendergast, the plaintiff in these proceedings, and the niece of Monica Joyce, gave evidence that she lived just outside Claremorris. Kevin Prendergast was her uncle. She visited Jack and Monica over the years on a very regular basis. By 1997/98 Monica had become very forgetful. She remembers calling over one Friday in 1994/95 and she found Monica generally in a bad way. She was panicking, and did not remember what day it was.9. The plaintiff attended at both the removal for Jack and his funeral, and said that Monica Joyce did not appear to realise what was going on. By the end of January or early February, 1998 Monica was receiving 24 hour care from her surrounding family. She had initially been staying with Annie Walsh and then went back to her own house for a few days, and then went to live for the rest of her life with her sister, Marian Prendergast, until she died on 5th January, 2005. It was necessary for the entire family to rally around her. Evelyn Prendergast confirms that within a short time of Jack's death Monica was attending at Ballindine Respite Home for people suffering from Alzheimer's disease.10. The plaintiff recalled that the only monies which Monica had access to was the sum of US$500 per month, which came to her by way of a United States social security pension. She never saw the defendant working in Jack's garage. She was of the view that Monica was always anxious when left on her own, but when she was with Jack she was alright.11. Seamus Hughes, an electrician by occupation, was a neighbour of Jack and Monica Joyce. From 1993 onwards, he was of the view that "Monica was not with it". She used to go to the shop and forget the articles which she wished to purchase. Kevin Prendergast used to work the pumps at the petrol station for Jack and while he did see the defendant in the vicinity of the petrol pumps from time to time, he appeared to be there to carry out repairs to his car and the like. Mr. Hughes never saw him dealing with customers. When the defendant came down from Dublin he stayed at the Rectory and Mr. Hughes was the caretaker and had the keys to the Rectory and his view was that the defendant used to come down every couple of months. He never saw him as such, working the petrol pumps. Mr. Hughes often had tea and sandwiches with Jack and Monica in the mobile home and on these occasions Jack used to do all of the preparation.12. Ms. Catherine Burke was a tax adviser to Jack Joyce and completed his VAT returns every two months. In essence, she says that she was friends with Monica and Jack and every time Jack came to her for the purpose of doing the VAT returns, Monica accompanied him. This would have been a continuing situation from 1989 onwards. However, in 1995/1996, Ms. Burke became aware that Monica used to stay out in the car, while Jack came in to her with the books. On occasions when Ms. Burke used to go out to the car, she became aware that Monica did not realise what was going on. She often did not call Ms. Burke by her name and Jack indicated to her that he could not leave Monica alone at home. She attended at Jack's funeral and was of the view that Monica was in a daze.13. The defendant gave evidence that he was a nephew of Jack Joyce's on the Joyce side. He enjoyed a close relationship with his uncle, his father having arranged an apprenticeship for Jack as a mechanic and having assisted him financially in the construction of the garage. The defendant lives in Sandymount, Dublin and is a retired stock controller by occupation. He describes Jack's business as being the sale of petrol, diesel, gas and agricultural diesel. He used to visit him very regularly and at weekends helped him with the pumps and he used to tidy up the showroom and he says that he also brought food for Jack and Monica. Since the early 1990s, he described how he could be down in Hollystown at the petrol pumps for twelve weekends during the summer. Some of the visits were simply to see how Jack and Monica were getting on and others were for the purpose of helping out with the petrol pumps. He says that he often took a week's holiday to let them get away and that on one occasion in 1994, he was on holidays in Morocco and he came back early to assist them. He describes how Jack and Monica used to come to Dublin to visit him and would often stay for a week to ten days.14. At a time in the mid 1990s, Jack and Monica had the idea of buying an apartment in Sandymount to be close to him and they came to Dublin and stayed for a week, but then changed their minds, indicating that they would not be interested in leaving home. The defendant described how Jack used to indicate to him that he was better than a son to them. He described how, in the mid 1990s, Monica was forgetful. In 1996, Jack had asked him for information in relation to Alzheimer's disease and to post it on to him without any markings on the envelope. There was a reference to St. John of God's in Stillorgan, Co. Dublin and that Jack was anxious to get Monica to a doctor, but subsequently the defendant understood that Jack had brought Monica to the doctor and that it had been indicated that everything was okay.15. He says that he never expected any payment for the work he did and that he did it because he wanted to help his uncle Jack. Around 1996/1997, Jack advised him that he had two accounts in the Bank of Ireland and Allied Irish Bank (AIB) in Claremorris, which contained...

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