H537
Judgment Title: C -v- C & Ors Neutral Citation: 2012 IEHC 537 High Court Record Number: 2010 7253 P Date of Delivery: 02/07/2012 Court: High Court Composition of Court: Judgment by: Herbert J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 537 THE HIGH COURT [2010 No. 7253 P.] BETWEEN F. D.C. PLAINTIFF AND
A. C., J. O'D. AND P. O'R. DEFENDANTS JUDGMENT of Mr. Justice Herbert delivered the 7th day of February 2012 By a plenary summons dated the 27th July, 2010, the plaintiff claims the following relief: -
By a notice of motion dated the 1st January, 2011, the defendants seek an order striking out these proceedings on grounds, (a) that they constitute an abuse of process under the Rule in Henderson v. Henderson or alternatively, (b) that they are not maintainable having regard to the provisions of s. 9 of the Civil Liability Act 1961. This motion is grounded on the affidavit of the first defendant, sworn on the 23rd December, 2010. By his then solicitors, Whitney Moore, the plaintiff, on the 12th December, 2007, entered a Caveat in respect of the goods of the Testator as a lawful son having interest. A Warning to the Caveat was issued and served on the said then solicitors for the plaintiff on the 17th October, 2007. By letter dated the 22nd October, 2007, Whitney Moore Solicitors advised the solicitors for the defendants that they no longer acted for the plaintiff. The plaintiff entered an Appearance to the Warning on the 1st November, 2007. By letter dated the 15th November, 2007, the solicitors representing the defendants notified the plaintiff that unless he set out a credible basis for disputing the validity of the Will or otherwise justified the Caveat an application would be made this Court to set aside the Caveat. No response was received from the plaintiff. By motion dated the 6th February, 2008, heard on the 3rd March, 2008, there being no appearance by the plaintiff, the Caveat and Warning were struck out. By a Special Summons dated the 12th September, 2008, issued by the plaintiff in person, just within the permitted time limit, he claimed that:-
By a notice of appeal dated the 24th June, 2009, the plaintiff in person appealed to the Supreme Court from the whole of the Judgment and Order of the High Court. I consider that it is relevant to the present application to note the grounds of appeal, which were as follows:-
2. The Judge misapplied Case Law and Precedent in matters relating to s. 117. 3. The plaintiff was not afforded his constitutional right to a fair trial of the matter before the Court. 4. A refusal by the Judge to accept my evidence. 5. The Judge failed to take account of all relevant facts." I have been furnished by the defendants with a Transcript of the proceedings had before Laffoy J. on the 23rd April, 2009, including her judgment. This is not verified by the trial judge, but is certified by the stenographer as being a true and accurate transcript of her shorthand note of the evidence. As no objection was taken by the plaintiff to any part of it, I will accept the transcript as being an accurate and complete record of the proceedings. It is evident from several references in this transcript that before he issued the Special Summons on the 12th September, 2008, the plaintiff was in possession of a written legal opinion which addressed questions of possible claims by him based on the Doctrine of Promissory Estoppel, based on s. 117 of the Succession Act 1965, and based on s. 63 of the same Act. In his verifying affidavit sworn on the 4th December, 2008, the plaintiff averred as follows:-
3. I say and I believe that during the 1980's and early 1990's I was living in England and during this time my father represented to me that if I returned to Ireland and moved in with him and my mother I would be left the family home. It was represented to me that I would be the major beneficiary of my parents Wills and in reliance on this promise I returned to Ireland and both my mother and my father promised to leave me the family home in their Wills. I resided in the family home with my parents for a number of years acting on that promise and foregoing other activities contributed to the family home."
3. I say and believe that I am at present living on an amount of €700 per week which is being paid to me out of the executor's accounts, the Grant of Probate having been issued to the Defendants herein on the 13th day of March, 2008. 4. I say and believe that I have been denied access to the family home by the Defendants herein. 5. I say and believe that I have devoted my entire life to assisting my parents and working in the family business, remaining unmarried and living in the family homes whereas the Defendants herein, my three siblings, all married and are living elsewhere and have lives and careers of their own. 6. I say and believe that I acted to my detriment by so doing, having the expectation and belief that I would be left the family home and capital under my father's Will, this expectation and belief having been encouraged by my father during his lifetime. 7. I say and believe that my father failed in his legal and moral duty to me in this regard according to the terms of his Will and I say and believe and am advised that the last Will and Testament of M. P. C. should be declared void."
4. I understand that these difficulties are, in part, due the fact that the Plaintiff is representing himself and this is extremely frustrating for the Defendants...." "3. In reply, I say that my claim is grounded upon my affidavit sworn by me on the 4th day of December, 2008 and a supplemental affidavit sworn by me on the 22nd day of January, 2009. In both affidavits I assert that the Testator's Will should be declared void on the basis of false misrepresentations of the provisions of his Will for me during his lifetime." The plaintiff elected to base his claim solely on the provisions of s. 117 of the Succession Act 1965. However, it is clear that he wished to rely on alleged oral promises which he claimed were made to him that he would be left the family home and other assets in the Testator's Will. At the start of the hearing before Laffoy J. on the 23rd April, 2009, having stated that he supposed the question was what the basis of the case was under s. 117, general heading, he then asked, "Based on the contents of my affidavits as I say subject to your guidance Judge, I would like the situation with regard to promissory estoppel taken into consideration". Laffoy J. pointed out that the only matter before the Court was an application pursuant to the provisions of s. 117 of the Succession Act 1965. The plaintiff agreed with this, but added that when he was preparing the papers he was not sure if promissory estoppel came under the heading of s. 117 or it was an entirely separate matter. Laffoy J. again indicated that the only matter before the Court was a s. 117 application and, that the determination she would make was whether his late father had failed in his moral duty to make provision for the plaintiff in his Will and in so doing would take into account the provision which the Testator hade made for the plaintiff in his Will. The plaintiff responded that "adequate provision" under s. 117 may include, and he meant that the evidence would be the same as it would be for promissory estoppel, it was the same sort of evidence. The plaintiff stated that it was unclear to him from legal advises, which he had been able to obtain which made reference to all three headings: promissory estoppel, s. 117 of the Succession Act 1965 and s. 63 of the Succession Act 1965, whether promissory estoppel was a separate issue which you had to apply for separately or whether it could be taken into consideration. Laffoy J. again advised the plaintiff that he would have to satisfy the Court that the Testator had failed to make proper provision for him in accordance with his means and that is what a failure of moral duty meant. To this the plaintiff replied, "Well, morally obliged to honour a commitment that you make in my view". In reply to the trial judge, the plaintiff indicated that his major point was that he had been promised the house, which was the bulk of the Estate. Laffoy J. again outlined the function of the Court in an application made pursuant to the provisions of s. 117 of the Succession Act 1965. The plaintiff then gave oral evidence and was cross examined by senior counsel for the defendants. Each of the defendants also gave evidence. In the course of his closing submission, Laffoy J. again reminded the plaintiff that the only issue, with which the court was concerned, was whether the Testator had failed in his moral duty to make proper provision for the plaintiff in accordance with his means. The plaintiff responded:-
As far as I know there are references to changing things or to misrepresenting and so on in promissory estoppel. I'm not sure if there is anything about that ins. 117, I mean ifthe Testator at the time ofhis death owe [sic] moral obligation to the applicant and if so, whether he has failed in that obligation. Well, if you promises [sic] house to somebody, that's a moral obligation and he has failed in that obligation. If you promise somebody the bulk of your fortune, that's a moral obligation. He has failed in that obligation...." The plaintiff having withdrawn his appeal against the judgment of Laffoy J. now seeks, in these new proceedings, to rely upon the same evidence, - no new evidence, much less material new evidence alleged to have been withheld or concealed from him was pointed to, - as establishing his sole entitlement to the house and the remainder of the assets of the Testator, based upon the Doctrine of Promissory Estoppel. Section 8(1) of the Civil Liability Act 1961, provides that:-
(a) proceedings against him in respect of that cause of action were commenced within the relevant period [prescribed by the Statute of Limitations or any other limitation enactment] and were pending at the date of his death, or (b) proceedings are commenced in respect of that cause of action within the relevant period [prescribed by the Statute of Limitations or any other limitation enactment] or within the period of two years after his death, whichever period first expires." In Prendergast v. McLaughlin [2009] IEHC 250, O'Keeffe J. had occasion to consider a claim of promissory estoppel in the context of s. 9(2)(b) of the Civil Liability Act 1961, on foot of facts not materially dissimilar to those alleged by the plaintiff in the instant case. At paras. 28 to 35 inclusive of his judgment in that case, O'Keeffe J. held as follows:-
'That the plaintiff was repeatedly told by the late John Dempsey and the deceased that the farmlands at Ballinamona would be left to him after both had died. The plaintiff relied upon these repeated promises and assurances by both the late John Dempsey and the deceased, continued to provide assistance in the management and running of the farm at Ballinamona and thereby acted to his prejudice ...' 30. I accept the defendant's submission that the plaintiffs cause of action is founded in contract or quasi contract as the plaintiff is suing the defendant in his capacity as personal representative of the deceased, Patrick Dempsey for breach of the deceased's promise to bequeath the lands to the plaintiff. The breach could only have occurred during the lifetime of the deceased and the cause of action therefore accrued before the death of the deceased. I also conclude, based on the agreed facts that the plaintiffs claim can alternatively be based on promissory estoppel or equity. As such it is not a claim arising after the death of the deceased but a claim subsisting at death, namely, the failure of the deceased to execute a Will bequeathing the lands to the plaintiff during his lifetime. I do accept that the evidence relating to such cause of action emerged after death, the plaintiffs cause of action in contract, quasi contract or in equity subsisted during the lifetime of the deceased. I reject the plaintiffs submission to the contrary. 31. Furthermore, I prefer the reasoning of Fennelly J. in Corrigan v. Martin to that of Barron J. in Reidy's case. In the Corrigan case, Fennelly J. analysed in detail the interplay between ss. 8 and 9 of the Act. There is no such analysis or examination of the two sections in the Reidy case. In referring to s. 8(1) which applies to 'all causes of action (other than excepted causes of action) subsisting against him' Fennelly J. stated:-
32. In my opinion the facts in Bank of Ireland v. 0'Keeffe are distinguishable to the instant case, the cause of action only arose once the letter of demand had been sent on foot of the guarantee. 33. When a cause of action has survived the estate of the deceased while two alternative periods are provided under s. 9(2)(a) and (b), subparagraph (a) does not apply as no action was pending at the date of death of the deceased. 34. In Corrigan v. Martin, Fennelly J. had to consider an agreement whereby the deceased would 'transfer and/or devise the lands to' the Plaintiff. The factual position in that case is that it refers to a 'transfer' but is also based on an obligation to 'devise' the lands to the Plaintiff. In the instant case there is an obligation as set out on the agreed facts, that the deceased in turn bequeath the lands to the Plaintiff. The words of Fennelly J. are apt in the present case in:-
I adopt this decision of O'Keeffe J. and, I find the plaintiff's claim in the instant case based upon the plea of promissory estoppel to be statute barred. In these circumstances it is unnecessary to consider whether the instant proceedings are a misuse or an abuse of the process of the Court by reason of the well established rule of law, having its origin in the judgment of Wigram V.C. in Henderson v. Henderson (1843) 3 Hare 100 at 114/115, (See Carroll v. Ryan [2003] 1 IR 309 at 317, per. Hardiman J. for the Supreme Court), that a litigant, except under special circumstances which would render the imposition of the limitation unfair, excessive or disproportionate, (S.M v. Ireland [2007] 3 IR 283 at 296 per. Kearns J. for the Supreme Court), should not be permitted to bring a claim or to raise a defence in later proceedings if the Court is satisfied (the onus being on the party alleging misuse or abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. (Johnson v. Gore Wood and Company [2002] 2 AC 1 at p. 31 per. Lord Bingham of Cornhill).
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