Teresa Minogue as Personal Representative of Denis Minogue (Deceased) v Clare County Council

JudgeHumphreys J.
Judgment Date29 March 2021
Neutral Citation[2021] IECA 98
Date29 March 2021
CourtCourt of Appeal (Ireland)
Docket Number[High Court Record No. 2017 No. 352 SP]

In the Matter of a Claim for Compensation by the Plaintiff/Applicant in Respect of the Compulsory Acquisition by the Defendant/Respondent of a Derelict Site at Bodyke in the County of Clare, More Commonly known as “Minogue's Pub”

The Acquisition of Land (Assessment of Compensation) Act 1919

And in the Matter of the Property Values (Arbitrations and Appeals) Act 1960

And in the Matter of the Arbitration Acts 1954 and 1980

And in the Matter of an Arbitration Under the Derelict Sites Act 1990

And in the Matter of a Vesting Order Dated 16th May, 2005

And in the Matter of an Award of the Property Arbitrator Dated 14th April, 2015

And in the Matter of an Application Pursuant to Section 78 of the Land Clauses Consolidation Act 1845

Teresa Minogue as Personal Representative of Denis Minogue (Deceased)
Clare County Council

[2021] IECA 98

Whelan J.

Pilkington J.

Humphreys J.

[High Court Record No. 2017 No. 352 SP]

[Court of Appeal Record No. 2018 492]



Adverse possession – Interest – Valuation – Appellant seeking an order for payment out of the entire sum lodged – Whether the deceased should be treated as the freeholder based on adverse possession

Facts: The deceased, Mr Minogue, issued special summons on 21st August, 2017, seeking the following reliefs: (i) an order under s. 78 of the Lands Clauses Consolidation Act 1845 for payment out of the entire sum lodged; (ii) an order consequent on that order or under s. 41 of the Arbitration Act 1954 or ss. 23 and 25 of the Arbitration Act 2010 (a) seeking interest from the date of the award to the date of payment into court and (b) seeking the costs and expenses of the arbitration in accordance with the award; (iii) interest at 8% pursuant to s. 26 of the Debtors (Ireland) Act 1840 as amended and at 2% pursuant to the Courts Act 1981 as varied by the Courts Act 1981 (Interest on Judgment Debts) Order 2016 (S.I. No. 624 of 2016); (iv) an order consequent on the order at relief 2(b) that the costs of the arbitration would include researching and locating title documents, preparation of submissions and opinions, obtaining a power of attorney from the deceased and dealings with the Office of the Accountant of the Courts of Justice; (v) further or other order; and (vi) costs of the proceedings. The High Court order was made on 3rd December, 2018, perfected on 17th December, 2018 and amended under the slip rule O.28, r.11 RSC on 19th December, 2018. It included an order by consent that the title be amended to substitute Ms Minogue as personal representative of the deceased as the plaintiff. As regards the relief sought in the special indorsement of claim ,the position was as follows: (i) instead of an order under s. 78 of the 1845 Act for the payment out of €165,000 she made an order for the payment out of €50,000 with a direction to produce an up to date certificate of funds; (ii) (a) the claim for interest from the date of the award to the date of payment into court was withdrawn by consent and (b) the claim for costs and expenses of the arbitration in accordance with the award was made by consent and para. 6(b) and 7 of the arbitrator’s award were affirmed; (iii) the claim for interest under the Debtors (Ireland) Act 1840 and the Courts Act 1981 was withdrawn by consent; (iv) the claim for an order consequent on the order at para. 2(b) was adjourned for further mention at a later date; (v) no specific order was made beyond what is stated above; and (vi) the claim for the costs of the proceedings was also adjourned for mention to a later date. The plaintiff/appellant appealed to the Court of Appeal contending that the judge erred as follows: (i) in failing to value the deceased’s interest at the amount claimed (grounds 1, 2(v) and (vi)); (ii) in regarding the basis of valuation advanced by the appellant as being precluded by the failure to actually buy out the freehold prior to the compulsory acquisition (ground 2(iv)); (iii) in failing to value the deceased’s interest as having been that of a person entitled to buy out the freehold (grounds 1, 2, 4 and 5); (iv) in valuing the deceased’s interest on the basis of having been a yearly tenancy without expert evidence as to its value on that basis (ground 3); and (v) in failing to adjourn the proceedings to allow such evidence (ground 3).

Held by Humphreys J that on the balance of probabilities the deceased met the criteria to establish animus possidendi and acquisition of the freehold reversionary title by adverse possession and, therefore, should be treated as having the title of the freeholder for the purposes of compensation. Accordingly, in Humphreys J’s view, the appellant was, on the basis of the totality of the evidence adduced and arguments advanced in the course of the appeal, entitled to an order for payment out of the entire sum lodged.

Humphreys J proposed: (i) that the appeal be allowed and the order under s. 78 of the 1845 Act made by the High Court be set aside; and (ii) that, in lieu of that order, there be an order under s. 78 for a payment out to the appellant of the monies representing the full sum of €165,000 lodged by the respondent under s. 76 of the 1845 Act, allowing for any interest and charges.

Appeal allowed.


JUDGMENT of Humphreys J. delivered on Monday the 29 th day of March, 2021


. The appeal concerns compensation for the compulsory acquisition of former licensed premises at Bodyke, a small village in East Clare best known for its role in resisting evictions by Colonel John O'Callaghan during the Irish Land War in June 1887. On a rather more modest scale, the present case also concerns the extent of the rights of a Bodyke tenant against the hypothetical rights of a freeholder whose title descends through the O'Callaghan estate itself and then through the Cullinans, another prominent Anglo-Irish landowner in the county.


. The lands in question are located in the Townland of Coolready (Cúil Uí Riada) in the Electoral Division of Boherglass, in the Civil Parish of Kilnoe (or Kilno), in the Barony of Tulla Upper. They amount to 0.3618 acres in extent. The main building is a two storey structure consisting of the former “Minogue's Pub” and associated dwelling, fronting on to the R352 on two sides at a prominent 90 degree bend in the village, together with outbuildings and grounds. The claim for compensation here was originally brought by Mr. Denis Minogue Jr. (who I will refer to as “the deceased”) and after his death was continued by Ms. Teresa Minogue, his personal representative (“the appellant”).


. A lease for lives renewable forever dated 16th February, 1784 is referred to as the basis of title for the property and several others in a footnote to the explanatory notes to the map of the Townland prepared in 1852 and discussed below. The lease is between Edmond O'Callaghan and John O'Callaghan and subject to a yearly rent of £400.


. John O'Callaghan by his will dated 1st July, 1814 devised the lands amongst his children, and by a codicil dated 4th May, 1816, Lot 4 was devised to his son Edward.


. The next document of title relied on was an indenture dated 23rd June, 1836 between Edward O'Callaghan, Esq. and Patrick Balton, Publican, which was contended to be the lease under which the deceased had held the property. It referred to a “house in the village of Beaudyke lately occupied by James Corbett” and another house of James Molony. The 1836 lease is an unusual document in that it is a lease for lives, but not one renewable forever. A memorial of this indenture was executed on 23rd June, 1836.


. The Cullinan landholding first appears in the documents of title provided to the court in the form of a reference to a lease dated 1844 from Richard Stackpoole to Patrick M. Cullinan which primarily relates to lands at the market in Ennis.


. As land reform in Ireland got underway in the mid-19th Century, an Incumbered Estates Court (recently referred to by Tim Murtagh as a “Victorian NAMA” (beyond2022.ie)) was established under the Incumbered Estates Act 1848 (11 & 12 Vic. c. 48), replaced by the Incumbered Estates Act 1849 (12 & 13 Vic. c. 77).


. An 1852 map of the townland of Coolready made by order of the Commissioners for the Sale of Incumbered Estates in Ireland, made by John Petty, shows the property at part of “Lot 4”. It also shows the property as containing 2 houses adjoining each other, pretty much the only property that matches the description of two adjoining houses in the 1836 lease. The particulars of tenure and observations note the tenant as “Patt Balton”, the yearly rent as £5 0s 0d and the quantity of land as 1 acre 1 rood and 11 perches. Gale days were 1st May and 1st November and the 1836 lease is referred to. The last renewal of the 1784 superior lease at the time of the 1852 Map was dated 19th April, 1845.


. A memorial of an indenture dated 6th April, 1853 between Patrick Balton Jr. and Patrick Balton Sr. of the one part and Edward Stewart, Farmer, of the other part, was relied on. Again, this is referable to the two houses in the 1836 indenture.


. A memorial of an indenture of conveyance dated 19th June, 1853 was produced between Mountifort Longfield LLD and Charles James Hargreave Esq., Commissioners for the Sale of Encumbered Estates in Ireland, of the one part, and Patrick Maxwell Cullinan M.D., who we met earlier in 1844, of the other part. There is an associated map and survey by Bartholomew Carrigg. The text is as follows:

“A MEMORIAL of an Indenture of Conveyance bearing date the 19TH day of June One Thousand Eight Hundred and Fifty Three and made between Mountifort Longfield LLD and Charles James Hargreave Esquire two of the Commissioners for the sale of Incumbered Estates in Ireland of the one part and Patrick Maxwell Cullinan of Ennis in the County of Clare Medical Doctor of the other...

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