Shannon v Shannon

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael MacGrath
• Judgment Date: 19 July 2019
• Neutral Citation: [2019] IEHC 604
• Docket Number: [2018 No. 12 SP]
• Court: High Court
• Date: 19 July 2019

[2019] IEHC 604

THE HIGH COURT

MacGrath J.

[2018 No. 12 SP]

BETWEEN

ANDREW SHANNON

PLAINTIFF

AND

HENRY SHANNON

DEFENDANT

Costs – Construction suit – Wills and probate – Defendants seeking his costs against the plaintiff – Whether there was reasonable ground for litigation

Facts: The High Court, on the 12th April, 2019, delivered judgment in a construction suit brought by the plaintiff, Mr A Shannon, as the executor of the estate of his uncle, Mr J Shannon, deceased. The defendant, Mr H Shannon, was a beneficiary under the will. The court determined that the specific devise to the defendant comprised the lands in Folios 22769 County Cork, and Folio 60662 County Cork, and that the will was not void for uncertainty. This was a finding in favour of the construction advanced by the defendant. The defendant sought his costs against the plaintiff pursuant to O. 99 of the Rules of the Superior Courts, which contains the general rule that costs should follow the event. It was also submitted that while the general principles of O. 99, as amended, apply to all actions, nevertheless the court when considering to award costs out of the testators estate in a probate action should be guided by the principles enunciated by Budd J in Vella v Morelli [1968] IR 11, as endorsed by the Supreme Court in Elliott v Stamp [2008] 3 IR 387, where the questions to be considered were described as being “(a) Was there reasonable ground for litigation? And (b) Was it conducted bona fide?”

Held by MacGrath J that, having considered the principles in O’Connor v Markey [2007] 2 IR 194, the overall value of the estate as divided between the specific devise and the residue, the overriding requirement of the court to do justice between the parties in the manner in which it exercised its discretion, albeit a discretion which was heavily influenced by the above principles, the fairest and most just result was that he make no order as to costs.

MacGrath J held that each party would therefore be responsible for its own costs.

Order refused.

JUDGMENT of Mr. Justice Michael MacGrath delivered on the 19th July, 2019.

1 On the 12th April, 2019, this Court delivered judgment in the above proceedings, a construction suit brought by the plaintiff, as the executor of the estate of John Shannon, deceased. The plaintiff is also a nephew of the deceased. The defendant is a beneficiary under the Will. The court determined that the specific devise to the defendant comprised the lands in Folios 22769 County Cork, and Folio 60662 County Cork, and that the will was not void for uncertainty. This was a finding in favour of the construction advanced by the defendant.

2 This aspect of the judgement deals with the question of costs. The defendant seeks his costs against the plaintiff pursuant to O. 99 of the Rules of the Superior Courts, which contains the general rule that costs should follow the event. It is also submitted that while the general principles of O. 99, as amended, apply to all actions, nevertheless the court when considering to award costs out of the testators estate in a probate action should be guided by the principles enunciated by Budd J. in Vella v. Morelli [1968] I.R. 11, as endorsed by the Supreme Court in Elliott v. Stamp [2008] 3 I.R. 387, where the questions to be considered were described as being ‘(a) Was there reasonable ground for litigation? And (b) Was it conducted bona fide?’.

Submissions

3 The defendant submits that the plaintiff does not satisfy this test because there was no reasonable ground for the litigation and it was not conducted in a bona fide manner. He points to the delay in the bringing of the proceedings; only after he had instituted proceedings in the Circuit Court seeking to have the estate administered. It is also submitted that in truth the only beneficiary of a successful outcome of the proceedings was the plaintiff himself and therefore he had a conflict of interest. The defendant points to the expense which he has incurred in defending the proceedings. He further submits that the plaintiff made no effort to inform him of his entitlements under the will. The deceased died on the 25th March, 2013. Not only was he not informed of the contents of the will, the plaintiff failed to take any appropriate steps to extract the grant of probate in the estate. The defendant was required to instruct a solicitor to seek a copy of the will and correspondence was entered into over a period of three months. On 18th August, 2014 the plaintiff agreed to produce a copy of the will. Over the course of the next two years the solicitor acting for the defendant failed to persuade the executor to extract the grant and to administer the estate.

4 The plaintiff had instructed a solicitor to act on his behalf in March, 2015 but matters did not progress and that solicitor ceased to act for him in August, 2016. The grant of probate did not issue until the 22nd August, 2017. The defendant submits that if the plaintiff was of the view that there was a legitimate question to be determined and that if he was acting bona fide, he would have instituted these proceedings soon after the death of the deceased and that the institution of these proceedings was as a countermeasure to his Circuit Court action.

5 Further, it is submitted that the costs, if they are to be paid out of the estate, should be paid from the residue pursuant to s. 46 (3) and the First Schedule, Part (ii) of the Succession Act 1965. It is accepted that this will deprive the plaintiff of a portion of the residue but the defendant states that this is solely as a consequence of his own actions.

6 Insofar as the conduct of the defendant is concerned, it is submitted that any act or actions taken by him regarding the construction of a roadway on the lands was not unlawful and ought not be taken into account in the determination of the issue of costs.

7 The plaintiff submits that he acted in the proper exercise of his duties as executor, that he was required to bring the proceedings and that he acted in a bona fide manner. He contends that the costs should be paid out of the testator's estate, but that the costs should not be ordered from the residue, as that would substantially deprive him as a residual legatee of any benefit under the testator's will. He relies particularly on the...