Judgment of Macken J. delivered on the 16th February, 2012
This is an application arising on a consultative Case Stated to this Court from the Circuit Court (Judge Linnane) dated the 16th January, 2007, pursuant to the provisions of s.16 of the Courts of Justice Act, 1947. The questions posed in the Case Stated are the following:
(a) Is the plaintiff a “State authority” for the purposes of the Statute of Limitations, 1957?
(b) Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?
(c) Is the answer to (b) affected by s.65 of the Succession Act, 1965?
The Case Stated has arisen as a result of the pleadings, including the defence and counterclaim of the defendant, in proceedings commenced by the plaintiff, seeking possession of a house which the defendant occupies, and has occupied since 1982, and an injunction restraining trespass. The defendant claims that, on the basis of what are frequently called squatters’ rights, he acquired title to the premises “adverse to the President of the High Court” more than 12 years prior to the time when Letters of Administration were granted to the plaintiff in 2000, and therefore the plaintiff has no legal right to have either possession of the house, or an injunction to restrain the alleged trespass.
Background Facts as Agreed or Proven
According to the Case Stated, on facts agreed or proven, the late Mrs. Alice Dolan died intestate on the October 22, 1981 in possession and in occupation of a house at 6 Enniskerry Road in Dublin. Well before she died, and on her death, Mrs. Dolan was entitled to the beneficial ownership of that property which had been agreed by Dublin Corporation (as it then was) to be conveyed directly to her by the then vendors of the property, in exchange or in part exchange for her previous home in Dublin, which the Corporation required for road widening. The deed of assignment (dated in December, 1978) to Mrs. Dolan had been executed both by the then vendor and by Dublin Corporation (who were paying the vendor for the property) and the deed had also been stamped. At the time she died, Mrs. Dolan had not executed the deed of assignment, but she had been allowed into occupation of the property well prior to that time (in 1978). No issue arises as to Mrs. Dolan’s entitlement to the property. In the course of his employment in the auctioneering business, the plaintiff learned of Mrs. Dolan’s death and of the apparent absence of any next of kin. He, it seems, broke into her home (“the premises”) through the back door, in February, 1982, and has remained in possession of the premises, along with a Mary Grogan, since that date.
A citation to next of kin, if any, was issued on 21st January, 1998, and was deemed as a renunciation of any interest in the estate. Letters of Administration were extracted in July, 2000 and granted to Laurence A. Farrell, as then Chief State Solicitor, the then Attorney General having consented to his doing so. He thereupon became the personal representative of the estate of Mrs. Dolan. Mr. O’Hagan (“the plaintiff”) is the successor to Mr. Farrell. Although his entitlement to bring proceedings, both as Chief State Solicitor and as personal representative was raised in the defence, as filed, which challenged devolution to the plaintiff from Mr. Farrell in either such capacity, these pleas are not mentioned in the Case Stated or in the submissions on behalf of the defendant. For the purposes of this judgment, I take the view that no issue arises on that devolution.
By a Circuit Court Equity Civil Bill issued on the 14th May, 2002 and served on the defendant on the 24th May, 2002, the plaintiff sought, inter alia: injunctions directing the defendant to vacate the premises, delivery up of possession of them to the plaintiff, and an order restraining the defendant from all further trespass on the premises, as well as damages for trespass and a declaration that the defendant has no equitable or legal title to the premises. The defendant by his defence, denied trespass and all entitlement in the plaintiff to the reliefs sought. He then followed these denials with the following positive pleas: (a) that as of the 21 July 2000, the date when Letters of Administration issued, the real and personal estate of the late Alice Dolan on the date of her death on the 22nd October, 1981 had vested in the President of the High Court until administration of her estate was granted, pursuant to the provisions of s.13 of the Succession Act, 1965; (b) that in or about the month of February, 1982 the defendant, together with a Mary Grogan, went into occupation and possession of the premises, and remained there for upwards of 12 years, “adversely to the President of the High Court”; (c) that as of the 21st July, 2000, all right, title and interest in the estate of Alice Dolan, of the then personal representative, and of all other persons claiming any interest in her estate, including the State as ultimate successor pursuant to the provisions of s.73 of the Succession Act, 1965, were already statute barred under the provisions of the Statute of Limitations 1957 and the Succession Act 1995; (d) that no estate or interest in the premises vested in the personal representative, Laurence A. Farrell, on the extraction of the grant of Letters of Administration; (e) that neither Laurence A. Farrell, as former Chief State Solicitor, nor the plaintiff, either in the same capacity or as personal representative of the late Alice Dolan, is, or were, at any relevant time, a “State authority” within the meaning of the Statute of Limitations, 1957, contrary to the plaintiff’s plea that he was; and (f) that the title of the said Laurence A. Farrell, and/or of the State, to the premises had been extinguished by virtue of the provisions of s.24 of the said Statute of 1957.
The defendant did not, by his defence, although it is entitled “Defence and Counterclaim”, in fact, counterclaim either as against the President of the High Court, any State authority, or the State, which latter was otherwise entitled to the premises, as ultimate intestate successor to the estate of Alice Dolan, and no relief was sought against any of them. Neither the President of the High Court, nor the State, nor any State authority was joined as a party to any plea by the defendant in his defence, or the adverse possession plea. I will return to this in the course of my judgment.
Issues Presented
It will be seen from the foregoing exposé of the basic facts and of the pleadings, that the essential issues to be resolved in the Circuit Court proceedings are whether the plaintiff, either as a State authority, or as personal representative, is entitled as against the defendant to possession of the premises, and whether the defendant has established that he is the owner, by adverse possession of the premises, as against the true owner. In turn, the outcome of these depends on (a) whether the plaintiff is a State authority, as he claims; (b) whether, if not a State authority, he is entitled as personal representative pursuant to the Grant of Letters of Administration to have possession of the premises as against the defendant, and (c) what limitation periods operate in relation to these and allied issued arising, in particular in the case of a person dying intestate with no next of kin. The significance of determining the relevant limitation period is as follows. The defendant began his occupation of the premises in February 1982. Letters of Administration issued in July 2000. The defendant was, therefore, in possession of the premises for over 17 years before that date. If the defendant is correct in his contention that the applicable limitation period is 12 years from the date of death of the late Mrs. Dolan, and he had, in law, adversely possessed the premises against the appropriate party(ies) for the appropriate period, this would have the effect of barring any title to it vesting in the personal representative in July, 2000, following upon the purported grant of Letters of Administration to the plaintiff’s predecessor at that date. If the plaintiff is, on the contrary, a “State authority” within s.2(1) of the Statute of Limitations for and on behalf of the State - at least according to one of his pleas in the Equity Civil Bill – and as argued in this appeal, or is entitled to possession on any alternative legal basis pleaded, then the defendant’s claim cannot succeed, since possession does not become adverse to the State or any State authority until the expiration of 30 years from the date on which the right of action accrued, according to s. 13(1)(a) of the Statute of Limitations, 1957. If a 30 year limitation period properly applies, this effectively bars the defendant’s claim to have adversely possessed the property on or before July, 2000 In the above context, and having heard legal argument, the learned Circuit Court judge posed the three questions set out at the commencement of this judgment, for the opinion of this Court. Helpful written submissions were filed by both parties and were supplemented by oral argument on the part of counsel for each party.
Since the answers to the questions raised, and to important allied issues, concern the correct interpretation and application of several legislative provisions, it is appropriate to commence by setting out the relevant legislation, which is fairly lengthy, interrelated and also quite complex.
Ministers and Secretaries Act, 1924
S.6(1) of this Act is relied on by the plaintiff. It states:
“There shall be vested in the Attorney-General … the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney-General for Ireland, the Solicitor-General for Ireland, … and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act …” (emphasis added)
The “Ninth Part of the Schedule to this Act” includes, inter alia, the “Chief State Solicitor’s department and all local State Solicitors.”
Statute of Limitations 1957
There are several provisions of this Act (“the Statute of Limitations”) which play a pivotal role in a proper consideration of the issues arising on the Case Stated. They are the following:
s.2(1) “State authority” means any authority, being:
(a) a Minister of State, or
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission, or
(d) the Revenue Commissioners, or
(e) the Attorney General.”
s.3(1) “Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.”
S.7 “This Act shall not apply to—
s.13(1)(a) “Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to recover any land after the expiration of thirty years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.”
s.13(2) “The following provision shall apply to an action by a person (other than a State authority) to recover land –
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority whichever period first expires.”
s.14(2) “Where –
s.18(1) “No right of action to recover land shall be deemed to accrue unless the land is in possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”
s.23 “For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the date of the death of the deceased and the grant of letters of administration.”
s.24 “Subject to section 25 of this Act and to section 52 of the Act of 1891, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.” (emphasis added)
The Administration of Estates Act 1959
Section 13 of this Act (“the Act of 1959”) is also invoked, and is in the following terms:
s.13 “Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary.”
The Succession Act 1965
Again, several provisions of the Act (“the Act of 1965”) are also important, and include:
s.13(1) “Where a person dies intestate, or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court who, for this purpose, shall be a corporation sole.”
s.65(1) “Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate.”
s.65(2) “Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.”
s.65(3) “Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant.”
s.73(1) “In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.”
(emphasis added)
Intestates Estates Act 1884 (U.K.)
Some English legislation, including of the late 19th century, were also invoked. The provisions of this Act, and of the later Administration of Estates Act 1925, were both cited in argument by the parties. The relevant provisions are the following:
s.2 “Where the administration of the personal estate of any deceased person is granted to a nominee of Her Majesty (whether the Treasury Solicitor, or a person nominated by the Treasury Solicitor, or any other person), any action or other proceeding by or against such nominee for the recovery of the personal estate of such deceased person, or any share thereof, shall be of the same character, and be brought, instituted and carried on in the same manner, and be subject to the same rules of law and equity (including the rules of limitation under the Statutes of Limitation or otherwise), in all respects as if the administration had been granted to such nominee as one of the next-of-kin of such deceased person.”
s.3 “After the passing of this Act, information or other proceeding on the part of Her Majesty shall not be filed or instituted, and a petition of rights shall not be presented, in respect of the personal estate of any deceased person or any part or share thereof, or any claim thereon, except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject.” (emphasis added)
It will be seen that s.2 covers the position as to personal estate, where administration is granted to a nominee of the Crown, in which event proceedings by or against the nominee are subject to the same rules (including expressly those concerning limitation periods under the “Statute of Limitations or otherwise”). Section 3 concerns proceedings taken on the part of the Crown.
Administration of Estates Act 1925 (U.K.)
Section 30 of this Act repealed and restated the above two sections of the Act of 1884, and extended the provisions of those sections to real property, but did not otherwise change them. S.30(1) amended s.2 of the Act of 1884, and s.30(2) amended s.3 of the same Act. S.30(2) covering proceedings by the Crown was, however, later amended by s.34 of the next mentioned Act.
Limitation Act 1939 (UK)
Section 34 of this Act which is the section concerned with the repeal of earlier legislation, repealed in a small, but important, manner, the provisions of s.30(2) of the Act of the 1925 Act, by deleting the words “within the same time and” from that section. This had the effect of removing any suggestion of time limits applying to an action commenced by the Crown in respect of the personal estate of a deceased, such as had been the position under s.30 of the Act of 1884, as amended in 1930. Different rules have always applied to proceedings by the Crown relating to real property. Such proceedings by the Crown are commenced by the Solicitor General or the Treasury Solicitor, depending on the nature of the proceedings.
The Arguments of the Parties
The First Question
Is the plaintiff a state authority for the purposes of the Statute of Limitations 1957?
There is disagreement between the parties as to the meaning, scope and ambit of the language used in s.2(1) of the Statute of Limitations, 1957. The plaintiff’s argument is that s.2(1) does not simply limit “State authority” to those parties expressly set out in paragraphs (a) - (e). Rather, the definition is said to encompass other relevant persons, at least as concerns the Attorney General. For the purposes of this argument, the plaintiff invokes s.6(1) of the Ministers’ and Secretaries’ Act, 1924 set out above. On the basis of the wording of that section, and the 9th Schedule to that Act, which specifically refers to the branches and officers of the Chief State Solicitor’s department, including the Chief State Solicitor, since it is under the direct control and administration of the Attorney General, is, by virtue of the above provision, and for the purposes of s.2(1) of the Statute, an authority ‘being’ the Attorney General, and thus “a State authority” within s.2(1).
The defendant, on the other hand, argues that those included within the definition of a “State authority” in s.2(1) are only those expressly listed parties there mentioned. Since neither the plaintiff nor his predecessor, as Chief State Solicitor, is within the definition, neither can be a “State authority” for the purposes of s.2(1). On the argument arising under s.6(1) of the Act of 1924, while the defendant accepts that the administration and control of, inter alia, the powers, duties and functions of branches and officers of, inter alia, the Chief State Solicitor’s department, vested in the Attorney General, this did not, however, make the Chief State Solicitor’s department a “State authority”, but merely vested those functions and control in the Attorney General. Further, the defendant argues that on the documents before the Circuit Court, it was clear that the Attorney General at the time, had renounced his right to raise representation, and consented to the then Chief State Solicitor taking out the grant.
The defendant argues further, however, that the issue of his title to the premises by adverse possession has, in any event, been put beyond dispute by the decision of this Court in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522, which I deal with in greater detail below, but in the course of which it was stated that the title of the defendant in that case, was “adverse to the President of the High Court”, in circumstances where the defendant had occupied the premises for more than 12 years from the relevant date had passed. It follows, the defendant here submits, that on the facts of this Case Stated, the time to be calculated to establish his adverse possession of the premises is 12 years, in accordance with s.13(2) of the Statute of Limitations, and not the 30 year period provided for under s.13(1), in favour of a State authority. Therefore, since he took possession of the premises in 1982, 17 years before the Grant of Letters of Administration, no title then vested in the plaintiff’s predecessor in July, 2000, as that title to the premises had been extinguished by reason of the defendant’s adverse possession of them. Whereas the defendant does not base his claim to the application of a 12 year limitation period as against the President of the High Court on any express provisions of legislation, implicit in his argument in reliance on the Gleeson, supra. case, is that 12 years is the correct period in law to be applied.
The Second Question
Having regard to sections 23 and 24 of the Statute of Limitations 1957, is the relevant limitation period in this case prescribed by s. 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
Under this heading, the plaintiff also submits that, since these proceedings are “an action for the recovery of land”, as expressly referred to in s.13(1) of the Statute of Limitations, brought by the administrator of the estate of a deceased person, s.23 of the Act also applies to it. It follows, therefore, that even if Chief State Solicitor is not, himself, a “State authority” within the meaning, or for the purposes, of s.2(1) of the Statute, the plaintiff, as administrator of the estate, is nevertheless entitled to succeed against the defendant. The time that had elapsed between the death of Mrs. Dolan in 1981 and the date of the grant of Letters of Administration in July, 2000 is irrelevant, counsel for the plaintiff argues, as his action for the recovery of land must be treated “as if there had been no interval of time” between the two events. On this argument, the effect of s.23 is to permit the plaintiff to sue for and recover the premises from the defendant, once Letter of Administration were extracted, as occurred here.
The defendant, on the other hand, while accepting that s.23 permits relation back, contends that this provision applies solely to actions brought by an administrator in respect of tortious claims, which, the defendant contends, cannot be applicable to the facts as found in the Case Stated. To support this argument, the defendant relies on an extract from Spierin in A Commentary on The Succession Act 1965 and Related Legislation, paragraph [82], which will be considered below.
As to the provisions of s.24 of the Statute, while this also appears to be fairly straightforward on its face, each party again cites different case law to discern its meaning. The plaintiff invokes the interpretation found in Perry v. Woodfarm Limited [1975] IR 104 at p. 119, in which it was stated:
“In the case of land, the effect of the Statute is to destroy the title of the person dispossessed to the estate from which he has been dispossessed, but it does not destroy the estate itself.”
The plaintiff argues that the meaning of this statement is simply to clarify that no estate in the land is extinguished, and that what is affected is only the title of the party who, but for the dispossession, would be entitled to the premises. The plaintiff also submits that, in any event, in view of the combination of s.23 and s.13(1) of the Statute, a thirty year period exists during which the plaintiff can bring a claim, which taken alone, is sufficient in the context of the facts in the present Case Stated, to defeat the defendant’s claim to be in possession “adverse to the President of the High Court”. As a result, s.24 can have no limiting effect on the plaintiff’s claim against the defendant.
The defendant, on the other hand, contends that Perry v. Woodfarm Homes Limited, supra., as followed in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522 supports his argument that he acquired title by adverse possession as against the President of the High Court and, as a result, the plaintiff’s title was extinguished 12 years after the date of death of Mrs. Dolan, and nothing, including a later purported grant of Letters of Administration, could revive it. The defendant invokes the following extract from the judgment of Keane, J. in Gleeson v. Feehan (No. 2), supra:
“As s.24 of the Statute of Limitation 1957 extinguished the title of the President of the High Court to the land and his right to bring an action to recover the land, no estate or interest could thereafter be vested by anyone in the next-of-kin, regardless of whether the next-of-kin were in or out of possession. The grant of letters of administration to the estate of James Dwyer could not revive the title to the land which had been extinguished by s.24.”
The Third Question
Is the answer to (b) affected by s.65 of the Succession Act, 1965?
For purposes of clarity, the defendant’s position is set out first. He relies on this provision, together with s.3(1) of the Statute of Limitations 1957, to support his argument as to the appropriate limitation period. He submits that these two provisions, taken together, dictate that any proceedings instituted by the State in respect of the intestate estate of a deceased person, must be dealt with as if the grant of Letters of Administration had been made to a “person”, in which case a 12 year - rather than a 30 year - limitation period applies. The defendant also submits that since there is no express provision to the contrary in the Act of 1965, the plaintiff must be treated as a private individual for the purposes of that Act, and all limitation periods contained in it. To support this argument, counsel looks to earlier English legislation, commencing with s.30 of the Administration of Estates Act 1925 itself, which will be discussed further below, as well as to the commentary on that section found in Williams, Mortimer and Sunnucks on “Executors, Administrators and Probate” which is in the following terms:
“Where the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the nominee of the Crown, who had obtained a grant of letters of administration, to recover land forming part of an intestate’s estate is 12 years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same position as the subject for limitation purposes.”
The defendant also relies on s.14(1) of the Statute of Limitations, 1957 contending that, under that provision, since Mrs. Dolan was the last person in occupation of the premises, the right of action against a person dispossessing her by adverse possession, accrued on her date of death.
The plaintiff presents two arguments on s.65 of the Act of 1965 and its application to this case. First, counsel submits that, in adopting the Act of 1965, the Oireachtas made a deliberate decision to exclude the issue of limitation periods from the reach of s.65. In support of this point, the plaintiff cites the equivalent of s.65 in the earlier English Act of 1884, above cited. The Act of 1884 only governed personal estate. It was only subsequently amended by the s. 30 of the Administration of Estates Act of 1925 to include real estate, and, at that time, the limitations invoked by the defendant. Secondly, it is said, that the Oireachtas had all of the prior language available to it from corresponding English legislation, in order to decide whether or not it wished to displace the provisions of the Statute of Limitations when enacting s.65 of the Act of 1965, but it chose not to do so. Thirdly, counsel submits that the term “the same rules of law” in s.65 of the Act of 1965 does not, in any event, include a statutory provision or enactment such as the Statute of Limitations, but is instead limited to judge-made rules or case law only. The plaintiff cites T v. L (Unreported, High Court, 23rd November 2001) [at p.15] in support of this argument, and also invokes the distinction made between a “rule of law” and an “enactment” or “statutory provision” in the following statutory provisions in contending that his interpretation is to be preferred, because it is correct in law. The examples include s.12(1) of the Succession Act, 1965 itself which states: “All enactments…and rules of law ...”; s.45(1) of Courts and Courts Officers Act, 1995 which states: “any enactment or rule of law…”; s.2 of European Convention on Human Rights Act 2003, which speaks of “statutory provision or rule of law”. As to s.3(1) of the Statute of Limitations, invoked by the defendant, the plaintiff submits that this is of no application, as there is an express provision, namely in s.13(1) of the same Statute, which applies to proceedings by a State authority, including the plaintiff.
Conclusion: Preliminary
Although a significant amount of legislation and some case law was opened to the Court on the hearing of this appeal, and the interaction of some of that legislation is complex, I am of the view that it is necessary first, to clarify in simple terms, or as simply as possible, the legal position obtaining in the administration of an intestate estate, in particular of the type in issue here, and the status of several of the players, including that of the Attorney General, the Chief State Solicitor, and the President of the High Court, as well as an Administrator of an intestate estate. It is also necessary to say something about the rules of court applicable to proceedings of this nature.
The Role of an Administrator
I start with an administrator, and the general position in the case of administration of an intestate estate with no time limit issues arising. In such circumstances, there may be next of kin or none, and the deceased may have died wholly or only partly intestate. In either event, the grant of Letters of Administration is made with a view to the proper administration of the intestate estate. Under the provisions of s.10() of the Act of 1965 the whole of the intestate estate vests in the personal representative, who nevertheless does not hold the estate on his own behalf, but (under s.10(3)) as a trustee for the persons in law who are entitled to it, and he must act accordingly. Those persons have an immediate beneficial equitable interest in the estate by way of trust, which is, nevertheless, subject to rights of the administrator, who has certain powers, including, for example, those for the purposes of disposition. The power to deal with the property of an intestate dates only from the date of grant, however, (as opposed to the position of an executor of a person who dies testate where the property vests on death).
An administrator, acting in accordance with the provisions of the Act of 1965, is charged with collecting in all assets, paying all relevant debts, and on completion of the administration, vesting the assets in the beneficiaries entitled on intestacy. This is not to say, however, that although the administrator must act as aforesaid, he cannot himself take property by adverse possession. He can, as is provided for in Part V of the Act of 1965. That is not, however, an issue in the present case. Such an event is most likely to arise where a next of kin within a family raises representation, and either takes possession, or is already in possession, of property within the estate, and retains it for a limitation period of, say, 12 years, as against other next of kin, even siblings, not in possession, who would otherwise have been entitled, on final administration, to that part of the estate, a situation which arose in Gleeson v. Feehan (No. 2), supra., although in that case there was also a non-next of kin (“a stranger”) in possession, adverse to the parties otherwise entitled. During the course of administration, if a party, such as a next of kin or a stranger (but most often a next of kin) in possession, seeks to assert adverse possession in land the subject of administration, the administrator may sue for possession, or defend a claim to title by adverse possession, acting at all times in the interest of the eventual beneficiaries.
Rules of Court Relating to Administration Proceedings
In the normal course of events, and absent administration, where parties are in dispute in relation to the ownership of land, a defendant who raises a defence of adverse possession, may do so against a plaintiff claiming title to the land – the most usual situation – or against a third party. If a defendant contends he has acquired adverse possession as against a third party not already a party to the proceedings, he must also counterclaim naming the third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. In the case of an administration, of course, several other non-possession next of kin (as ultimate beneficiaries) may well be parties against whom a defendant sets up a claim to adverse possession. In the case of an intestate estate, as here, the administrator when bringing proceedings or defending an adverse possession claim, is deemed to act in the interest of all those ultimate beneficiaries otherwise entitled to the property but for the adverse possession claimed. Because of this, and to avoid unnecessary depletion of the estate, those parties do not have a right to be joined as parties separate to the administrator. This is both straightforward and sensible and should not create complexity, whatever the eventual outcome of any such proceedings, since it is undesirable that a myriad of persons having the same interests being protected by the administrator should be joined separately in proceedings. It is only where, in special circumstances, on an application to court, a separate party might be joined in such proceedings. Order 15, Rule 8 of the Rules of the Superior Courts provides accordingly. Analogous provisions exist in the Rules of the Circuit Court.
As is clear from Gleeson v. Feehan (No. 2), supra., and other cases, when an administrator sues or defends proceedings concerning adverse possession of land, the limitation period affecting the administrator depends entirely on whose interest he represents, that is, on the identity of those who, but for such a claim, would be entitled to the land or premises. In that case all of the parties involved were persons who were next of kin, and a stranger – all subject to a 12 year limitation period under the Statute of Limitations. As will be seen later, no other limitation period was considered in that case.
Once administration is completed, the administrator must ensure the property vests in the ultimate beneficiary, that is, in the present case and absent the defendant’s claim, in the State, or its nominee, likely to be the Minister for Finance, pursuant to legislation in that regard.
The Position of The President of the High Court
The position of the President of the High Court was also part of the argument before this Court, once the defendant pleads in his defence adverse possession “against the President of the High Court”, after a period of 12 years from 1982. That reflects an extract from the decision of this Court in Gleeson v. Feehan, supra. Before considering that case, it is however important to consider the President’s role and status. As mentioned, under the provisions of s.13(1) of the Act of 1965 the estate of, inter alia, a person such as Mrs. Dolan dying intestate, vests in the President of the High Court as a corporation sole, between the date of death and until Letters of Administration are granted. The President, however, is not entitled, nor would his estate be entitled, to deal with or dispose of the estate, in his own right, or at all. He has no beneficial interest in the estate, and s.13(1) imposes on him no powers, no duties and no obligations. It is precisely to avoid such an estate being left, in effect, in limbo, that s.13(1) vests the estate in him, pro tem. It, in a sense, “hovers” in the person of the President of the High Court for the time being, by means of a legal fiction, until something else happens. In the case of intestacy, the first necessary condition, the estate vests in him automatically on death. It remains so until the second condition occurs, that is, the grant of administration and the appointment of the personal representative, on which event he is divested of the estate, also automatically. The mechanism adopted in the Act of 1965, which mirrors previous legislation, is a mere “mechanism of convenience”, as it is described in the case law, and to ensure that an estate has a temporary home pending the grant of administration. It becomes clear, however, on a consideration of the case law, not considered in Gleeson v. Feehan, supra., and discussed below, that there is no beneficial or other estate vested in the President, against which a claim to adverse possession can be made. At most he has, on a temporary basis, a bare estate in the property in question. In these proceedings, not surprisingly, he was not joined as a party, was not represented, and no order was sought against him.
I am fortified in my view that the President of the High Court does not hold any interest in the property which vests in him temporarily, sufficient to permit a third party to secure rights by means of adverse possession, by a consideration of his role in the devolution of the property upon administration Apart from the fact that, as mentioned below, Letters of Administration are not granted to the Attorney General (or the Chief State Solicitor) by or on behalf of the President of the High Court, which would be the logical position, if the intestate estate vests in him in any real sense, when such property is eventually to vest in the beneficiary at the end of the administration, the President of the High Court plays no role in that either. He does not even assent to the vesting of such bare estate as is vested in him temporarily under the Act of 1965. His interest is not mentioned as a party to any devolution of the property in any of the learned academic writings, such as in Wylie on Conveyancing, nor is his English equivalent mentioned in Halsbury, nor in any other writing I have been able to research. Nor have I been able to trace any case law in which the President of the High Court, nor indeed the Ordinary in whom such estates temporarily vested prior to the modern legislation, in which any court has held that those parties had such an interest in an estate, which could support an adverse possession claim. In the case of the Ordinary, at least, he held the estate as Trustee, whereas, according to the case law to which I refer below, the President of the High Court does not hold it even in that capacity.
The Position of the Attorney General and the Chief State Solicitor
The Attorney General is the legal representative of the State in all legal proceedings. The State does not, in general, act in its own name, independently of its Ministers or others officers, although it may, of course, do so. It acts through Ministers, including the Minister for Finance. The Attorney General falls into a different category to Ministers of state and those other parties mentioned expressly in s.2(1) of the Statute of Limitations. The Attorney General may hold property, qua Attorney General, although I do not know in what circumstances this occurs, but undoubtedly is also entitled to deal with the State’s own property and in property to which it may become entitled, such as on an intestacy, by virtue of the unique position of the Attorney General as such legal representative. No limitation is placed on the scope of the Attorney General’s role as a “State authority” in s.2(1), and he/she may act in more than one capacity, although always for an on behalf of the State, or on behalf of a Minister of State. The State itself is not separately represented in the list, although it must be accepted as a given, and, in the course of argument was accepted by counsel for the defendant, that it would be entitled to raise representation to the estate of Mrs. Dolan. But if it did so decide, it would act through the Attorney General, or the Chief State Solicitor. In circumstances where the State is the ultimate intestate successor to an intestate estate, as here, the Attorney General may act as a “State authority”, and, as such, clearly is within the ambit of s.2(1) of the Statute.
For the purposes of extracting a grant of Letters of Administration of an intestate estate, the application is not made by or on behalf of the President of the High Court, in whom the estate formally vests. According to the terms of the Grant of Letters of Administration in the present case, which appears to be in a standard format, the grant was made to the named party, Laurence A. Farrell “for and on behalf of the State”, and correctly I believe, was not made on behalf of the President of the High Court. When an Attorney General secures Letters of Administration, he does not – any more than any other administrator - do so, qua beneficial owner, but as personal representative of the estate, acting in the interests of the party entitled as beneficial owner, that is in the present case, the State, as ultimate beneficial owner.
There does not, however, appear to me to be any reason why Letters of Administration cannot, with the consent of the party otherwise entitled, issue to another appropriate party, such as the Chief State Solicitor, as indeed occurred in the cast of Gleeson v. Feehan (No. 2), supra. In this application, apart from querying the devolution of the grant from the originally nominated Chief State Solicitor to the present plaintiff, in truth no objection was raised to a Chief State Solicitor being granted Letters of Administration. S.65(1) and s.65(3) of the Act of 1965 expressly recognises that the Chief State Solicitor is an appropriate person to be granted Letters of Administration, on behalf of the State. The objection which is raised is that he could not have done so, qua “State authority”.
Decision on The Three Questions
The First Question
S.2(1) of the Statute of Limitations, 1957 is clearly intended by its terms to protect what might be called “state property”, that is, the type of property that formerly vested in the Crown. In providing that, as concerns the parties included in s.2(1), the limitation period is, at 30 years, significantly longer that in the case of a private person, the Oireachtas clearly intended that in respect of such property – of whatever nature, and from wheresoever emanating, once the State owns or is beneficially, or otherwise entitled in law to the same - a longer limitation period is to have effect.
Under the provisions of s.2(1) of the Statute of Limitations, it is submitted by the defendant that since the Chief State Solicitor is not a party mentioned in that section, he cannot be a “State authority”. I am satisfied that the defendant’s argument on this point is the correct one, and that the plaintiff is not, himself, a “State authority” within the section. Other parties listed, including the Attorney General, may also hold State assets, including lands, or represent the State in relation to them, and the State will protect such property, inter alia, from being adversely acquired. In the case of s.2(1), several of the Ministers included in the first group there cited, may, or do, have land vested in them, as opposed to it being vested in the State, simpliciter. Simple examples include military barracks, airports and the foreshore which may be vested in the Minister for Defence: roadways in the Minister for Local Government: harbours and ancient monuments in the Commissioners for Public Works. Lands were, and may still have been until recently, vested in the Land Commission, and as concerns the Revenue Commissioners, real property may also vest in them, for example, on the recovery of assets procured through the proceeds of crime or on execution of revenue debts. It is readily understandable why all of the parties listed in s.2(1) fall within the category of “State authority” for the purposes of real property, of whatsoever kind or type.
I also accept the defendant’s argument that, even if the plaintiff, or any predecessor to him, is – pursuant to the provisions of the Act of 1924 – under the control of the Attorney General, he is not himself, a “State authority” within s.2(1). I am satisfied that, notwithstanding the close relationship between the Attorney General, as a State authority, and the Chief State Solicitor, there is no basis for concluding that the latter is a “State authority” for the purposes of s.2(1) of the Statute of Limitations. The terms of s.6(1) of the Ministers and Secretaries Act 1924 are not sufficiently broad or inclusive to support the plaintiff’s claim in that regard. That subsection deals with two situations: (a) the “vesting in” the Attorney General of, inter alia, the “powers … duties … and functions…” formerly vested in the Attorney General for Ireland, and (b) the “administration and control” of the “powers, duties and functions …” of the branches and officers of the public service (including the Chief State Solicitor as per the Ninth Schedule). But the powers, duties and functions remain those of the Chief State Solicitor. That phraseology does not support the plaintiff’s contention that a Chief State Solicitor is a “State authority” for the purposes of s.2(1) of the Statute of Limitations, or as “being” the Attorney General for the purposes of s.2(1). This is clear from the wording of the section itself which is expressly limited to those parties who fall within it. Moreover, since the list of parties in that subsection very clearly represents parties likely to hold property, and include the legal representative of the State in the persona of the Attorney General, there seems no need to have any other party included in the category, since this would simply add a layer of legal persons acting in the same cause and for the same end, and in respect of the same beneficiary. I am satisfied, therefore, that the plaintiff is incorrect in his assertion that he is a “State authority”, such as to enable him, in that capacity, to claim a 30-year limitation period in respect of the premises.
The purpose of the argument as to whether of not the plaintiff is a “State authority” is in order to apply the appropriate limitation period. I am not satisfied that merely because he is not a State authority, within s.2(1) of the Statute of Limitations that, nevertheless, determines the limitation period. The answer to question one, therefore, is that the plaintiff is not a “State authority” within s.2(1) of the State of Limitations. However, that response does not determine whether, in the circumstances of this case, a 30 year limitation period applies. It is therefore necessary to examine that issue in greater detail.
I deal first with the question of the defendant’s claim to be a person in “adverse possession” of the premises since 1982, as against the President of the High Court, and his contention that title to the estate was extinguished, pursuant to s.24 of the Statute, at the very least well prior to the date of the grant of Letters of Administration in July, 2000. He argues that such a result is clear from the judgment of this Court in Gleeson v. Feehan (No. 2), supra. This argument, however, does not seem to me to flow logically from the facts leading to the decision in that judgment, notwithstanding the language used. All the parties in that case were individuals and therefore the limitation period in issue was 12 years. Indeed, there had been an earlier decision on the same estate, Gleeson v. Feehan (No. 1) [1993] 2 I.R. 113, in which a dispute arose as to whether a limitation period of 6 years as opposed to 12 years applied. It is clear, therefore, that many different limitation periods exist. The primary issue in the second case, concerned, first, whether or not, as against other family members (otherwise next of kin) not in possession of the land, but claiming to be entitled to a share in it, a next of kin in possession was entitled to succeed against them. A second important issue concerned possession by a next of kin together with a stranger in possession, and their rights as against other next of kin. These issues are clear from the questions posed in the Case Stated itself, which were in the following terms:
“1(a) Where, prior to the Succession Act, 1965, several next-of-kin in actual occupation of lands of a deceased person acquired title to those lands by adverse possession against the personal representative, was the title so acquired the title to which they would have been beneficially entitled on due administration?
(b) Where such next-of-kin acquired title by adverse possession against other next-of-kin not in occupation, was such title acquired as joint tenants?
2. Where such next-of-kin in actual occupation shared such occupation with persons other than next-of-kin, was the possession of such other persons adverse possession against (a) the personal representative or (b) next-of-kin not in occupation?
3. If the answer to 1 (a) or 1 (b) is yes, was such title acquired jointly with the next-of-kin in occupation as (a) joint tenants or (b) tenants in common?”
(emphasis added)
It is true, as counsel for the defendant notes, that Keane, J. (as he then was) in a unanimous decision of this Court, and in the course of a lengthy judgment, mentioned the President of the High Court. What he actually stated was as follows:
“As s.24 of the Statute of Limitations 1957 extinguished the title of the President of the High Court to the lands and his right to bring an action to recover the land …”
(emphasis added)
However, although that statement was made, it was not, it seems to me, the ratio of the decision, and nor was it, strictly speaking, necessary for the determination of the questions raised. The questions did not even mention the President of the High Court. Nor, according to the judgment, was any issue argued as to the status or role of the President of the High Court under the Succession Act, 1965, or under earlier legislation. No order was sought against the President of the High Court. Nor was any issue raised as to whether, as against the President of the High Court - in a claim based on the State’s ultimate entitlement to an estate - as here - a different period of limitation might apply. The judgment gives no reasons for the implicit assumption that a 12 year limitation period applies to property vesting in the President of the High Court under s.13(1) of the Act of 1965. Moreover, the plaintiff in Gleeson, supra., was the personal representative of the next of kin, and, as such, argued, not on his own behalf, but as representing the interests of those next of kin who would otherwise have been entitled to the estate on intestacy (analogous to the position of the State in this Case Stated), and against whom adverse possession was claimed. It seems clear reading the judgment that there was no argument at all leading to the statement made, and now relied on in this Case Stated, and the very detailed arguments made in the case on the actual issues arising from the questions, take up almost the entire of the judgment. If it was intended to determine that adverse possession was procured as against the President of the High Court, then, with respect, I consider this not to be a correct statement of the law, as contended for by the defendant. For the reasons explained above, as to his status, and having regard to the case next mentioned, I consider that the mention of adverse possession as against the President of the High Court in Gleeson v. Feehan (No. 2), supra. can only properly be understood in the shorthand sense that, once title adverse to the interest of the relevant next of kin who would have been entitled to the property upon administration, absent rights acquired by the non next of kin stranger, in that case, the role of the President of the High Court, and his interest in the property, ended at that date.
The role of the President of the High Court under s.13(1) of the Act of 1965 was, however, directly in issue in the decision of the High Court in Gladys Flack and another v The President of the High Court (Unreported, The High Court, 29th November 1983) in which Costello, J (as he then was), dealt with an application to strike him out of proceedings commenced by the plaintiffs, on the basis that he had been wrongly joined. The circumstances were as follows. There had been in existence a partnership, never formalised, created by five brothers, and all of whom had died, some testate and others intestate. The last of the two brothers died intestate in 1982, and a row broke out between the members of the several families of the deceased brother partners, in respect of which two sets of High Court proceedings had been commenced. These were commenced by the executors of one of the 1982 deceased for the taking of an account and for an order for sale of the partnership assets. No representation had, however, been raised to the estate of the other brother to die (intestate) and the executors joined the President of the High Court as a party on the basis of s.13(1) of the Succession Act, 1965, on the basis that the property vested in him, in the absence of an administrator. As was pointed out in that case, the plaintiff, as in the case of the defendant in this Case Stated, had sought no order against the President.
The learned High Court judge granted the order striking out the proceedings as against the President of the High Court. Before doing so, however, he analysed the legal position of such an administration pre-1965, and of the status of the President, tracing the matter back to the Probate Act (Ireland) 1857 which abolished the jurisdiction of the then diocesan courts in Ireland in testamentary and intestate business and established a new court “the Court of Probate”. He explained the rationale of his judgment as follows:
“I do not think that it was proper so to join the President. To explain this conclusion I think I can best begin by referring to the pre-1965 position. The Probate Act (Ireland) 1857 abolished the jurisdiction in testamentary and intestate business of the diocesan courts in Ireland and established a new court, ‘the Court of Probate’. By section 15 of the Court of Probate (Ireland) Act 1859 it was provided that:-
‘From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall vest in the judge of the Court of Probate for the time being, in the same manner and to the same extent as heretofore they vested in the Ordinary.’
By virtue of the provisions of the Judicature Acts and later the Courts of Justice Acts, the personal estate of persons dying intestate until letters of administration were granted vested firstly in the Judge of the Probate and Matrimonial Division, and later in the President of the High Court.
Section 15 of the 1859 Act was repealed by the Administration of Estates Act 1959 but the vesting of the personal estates of persons dying intestate in the President remained the same for section 13 of that Act provided:
‘Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof shall vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary.’
Section 13 of the 1959 Act was repealed by the Succession Act 1965 but was re-enacted with only slight modification by section 13 to which I have already referred.
I think it is worthy of note that neither under the 1859 Act nor under the 1959 Act was the President of the High Court ever joined as a defendant in proceedings arising from the vesting provision to which I have referred. The reason was perfectly clear. In vesting personalty and later both realty and personalty in the President, the legislature did not make him a trustee of the estate which vested in him and he had no duty to perform and no obligation in respect of the estate. As was pointed out in relation to the vesting provisions of section 9 of the Administration of Estates Act 1925 in England (which are similar to those I am considering) these vesting provisions are ‘a mere matter of necessary convenience and protection’ (see re Deans 1954 1 A.E.R. 496 at 498). The President's position under the 1965 Act is exactly the same.” (emphasis added)
This judgment, although unreported, has been cited in two other decisions of the High Court, although in related contexts. Moreover, the decision in re: Deans, supra. has been adopted as correct in recent decisions of the English Court of Appeal, in Earnshaw v Hartley [1999] EWCA Civ 1141.
I consider that had the above case law been brought to the attention of and considered by the Supreme Court in Gleeson v. Feehan (No. 2), supra., it is unlikely the learned Supreme Court judge would have made the statement found in the judgment as to the role of the President. The defendant’s defence, and the limitation period applicable to his claim to adverse possession as against the President of the High Court must be considered in light of the above case law, and of the true legal position arising in an administration of the type at issue here, which gave rise to the questions posed in the present Case Stated.
In the present case, the only parties whose interest are in issue are the defendant, who claims squatters’ rights, and the State, represented by the plaintiff. This is clear from the grant. Looking at the Grant of Letters of Administration, it provides as follows:
“Be it known, that on the 21st day of July 2000 Letters of Administration of all the estate which devolves to and vests in the personal representative of Alice Dolan late of 6 Enniskerry Road Phibsboro Dublin deceased… were granted by the Court to Laurence A. Farrell of Osmond House Little Ship Street Dublin Chief State Solicitor for and on behalf of the State the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said Laurence A. Farrell.” (emphasis added)
From the language of this document it is clear that the Attorney General was the person entitled, on behalf of the State, to raise representation to the estate. He in turn delegated a task assigned to him to another person who acts on behalf of the State. From the numerous tasks assigned to the Attorney General in the Ministers’ and Secretaries’ Act 1924, such as the right to raise representation, delegation would appear necessary and unexceptional for such duties to be executed effectively and efficiently. Secondly, and perhaps of more importance, it seems to me that the Attorney General’s role, in so far as the Letters of Administration are concerned, is an administrative one, although one having legal consequences. He is the legal officer who acts for and on behalf of the State in a myriad of events and circumstances. He is therefore the person entitled to make application for letters of administration for and on behalf of the State. As such, he may delegate that role to any other authorised person. In Gleeson v. Feehan (No. 2), supra., the personal representative had been granted Letters of Administration pursuant to a power of attorney. In this case, the Attorney General consented in writing to Lawrence A. Farrell being appointed, as nominee of the State. The Chief State Solicitor, pro tem, appears clearly to be a person who may act for and on behalf of the State, on the instructions of the Attorney General, in applying for Letters of Administration, and has done so in the present case. The Act of 1965 recognises this possibility in s.65(1) and s.65(3). The application for the grant of Letters of Administration to the Chief State Solicitor, pro tem, thereafter, and devolving to his successor, the plaintiff, is also in accordance with the Act of 1965, is perfectly proper.
It would, in my view, be wholly inconsistent to have a procedure whereby the Attorney General renounces his right to raise representation on behalf of the State, and appoints another individual under his control to act on behalf of the State, as administrator, if by doing so the State’s rights under s.2(1) were eliminated. I can find nothing in the legislation, or in any case law, that suggests this as a result only of such a renunciation and appointment of the Chief State Solicitor, as administrator. That does not alter my earlier view that the Chief State Solicitor is not a “State authority”. The Attorney General’s “renouncement” in the grant is not a renouncement by him of the State’s entitlement in the estate under s.73 of the Act of 1995, or of any rights under s.2(1) of the Statute, but merely of the right to extract Letters of Administration.
The Second Question
Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?
An issue also arose under what is known in some jurisdictions, and in some authorities, as the doctrine of “relation back”. By this is meant that once letters of administration issue, the right of the administrator to protect the interests of the estate, relates back to the date of death of the deceased owner, as if no time had elapsed in the period between death and administration. Section 23 of the Statute, which provides for this, is set out earlier in the judgment. The doctrine was available at common law, but has now been incorporated into s.23.
The plaintiff’s interpretation of s.23 appears to me to be extremely and unjustifiably extensive, and is so broad as to render the limitations period moot. If s.23 was read so as to be applicable in the manner contended for by the plaintiff, then any period of time, be it eighteen years (at issue in this case) or one hundred years (which could be at issue in the future), could pass, without this intervening period affecting the administrator’s claim to land, once Letters of Administration eventually issue.
The defendant, on the other hand, relies on an extract from Spierin, referred to earlier in the exposé of his argument earlier in this judgment. On that basis, it is contended that the doctrine is only to be invoked in respect of claims of a tortuous nature for damage to the estate. I do not agree that this is so. The extract relied on in the written submissions is not quite complete, and the full extract is in the following terms:
“To overcome the inconvenience of the postponement of vesting in an administrator, the doctrine became established that the grant of administration when made would, for certain purposes, relate back to the time of the death of the deceased. The reason for this was to provide a remedy for wrongs done against the estate. Thus an administrator may, after the grant of administration, bring an action in respect of tortious injuries to the estate in the interval between death and grant, or bring an action for breaches of covenant during the interval by a lessee of the deceased’s land. See also the Statute of Limitations 1957, s.23, in relation to actions by an administrator to recover the land.” (emphasis added)
While the defendant’s argument as to the limitation on the meaning of s.23 is based on the above extract, I am not satisfied that this proposition can be correct. There is no limiting language within the provision which supports the defendant’s contention that the author suggests, in turn, that s.23 applies only to tortious claims arising in the intervening period. On a reading of the extract, it is not what the author suggests is the scope of the section.
From the above exchanges, two things emerge. First there is no suggestion in the text relied upon that the relation back can only occur in the limited manner which the defendant contends for. Use of the phrase “wrongs done against the estate” cannot, in law, mean only claims of a tortious nature. I can see no basis for suggesting that a claim of adverse possession is not a wrong done against the estate. The use of the doctrine of relation back in the case of tortious claims is but an example of the circumstances in which it may apply. Secondly, it is of note that the author, while making specific reference to s.23 of the Statute does not suggest that it provides any limitation of the type the defendant invokes, on the application of the rule. The text of the section itself permits, on the application of the rule in actions for the recovery of land, itself broader than the defendant’s contention., when the relation back may apply to such “a claim”, and is no narrower.
The question arises therefore, as to the scope of the section, and if any limits are imposed on the relation back. No express limitation is found in Spierin, and indeed no limit is suggested either in Halsbury, where, dealing with the equivalent section (s.26 Limitation Act 1980), the doctrine is explained in the following terms:
“In order to prevent injury being done to a deceased person’s estate without remedy, the courts have adopted the doctrine thqt on the grant being made the administrator’s title relates back to the time of death. This doctrine has been consistently applied in aid of the administrator seeking to recover against a person who has dealt wrongfully with the deceased’s … real estate. It cannot be applied however to disturb the interests of the other persons validly acquired in the interval, or to give the administrator title to something which has ceased to exist in the interval, or to bind the administrator to an agreement made before the grant irrespective of its benefit to the estate.”
Halsbury also clarifies that the doctrine of relation back applies for the purposes of the statutory provisions limiting the time for bringing proceedings to recover land …, since the administrator is “deemed to claim” as if there had been no interval of time between the death and the grant of administration. This is in the same terms as s.23 of the Statute of Limitations, and equally applies only to the recovery of land. A similar approach is taken in the Australian writings, where somewhat similar, but not identical legislation in all States, is found.
It is clear from the above statement that if an interest has been validly acquired in the interval, or title has ceased to exist in the meantime, the doctrine cannot assist the administrator. When an administrator has been appointed, his title to the real estate relates back to the intestate's death; see Re Pryse, 1904, P. 301, 306. All this concerns the application of the doctrine in the case law. S.23 of the Statute provides a statutory basis for the application of the doctrine of relation back, and is on its face, in broad and clear terms.
I am satisfied, however, that the section must be read so as to avoid the consequences of the approach contended for by the plaintiff. The best expression of the true meaning of the section is found in Jourdan on Adverse Possession 2002 [London], in which, in dealing with the English equivalent, he states:
“Under the general law, the estate of a deceased person vests in an executor at the moment of death. But an administrator’s title only vests on the grant of letters of administration, although for certain purposes it is treated as relating back to the death. Apart from the Limitation Act, 1980, s.26, time for bringing an action does not begin to run against the administrator until letters of administration are granted. The effect of s.26 is that time for recovering land runs against a deceased person’s estate, regardless of whether an executor or an administrator is appointed.” (emphasis added)
I am satisfied that this is a correct statement of the effect of the section. It means that, if in the interval between the death of an intestate and the appointment of an administrator, a party has procured a lawful interest in lands the subject of the administration, that interest may be sufficient to bar its recovery by the administrator, when appointed, acting in the interests of those who, but for such event, would have been entitled to the lands. In the result, time commenced to run against the estate for the purposes of adverse possession from either the date of death of Mrs. Dolan, or the date of possession by the defendant. In either event, in this case, well more than 12 years passed before July, 2000. It does not follow, however, in the present case, that by reason of this interpretation of s.23 of the Statute of Limitations, the claim of the defendant to adverse possession is thereby determined. That issue at all times depends on the appropriate limitation period.
Before dealing with the effect of s.13 of the Act on the issues arising, however, I should also dispose of the arguments under s. 24. That section appears to me, however, to be little more than a passage that spells out the consequences flowing from the expiry of the applicable limitation period – whatever that period may be. The estate itself in the land is not extinguished, but title to that estate may well be, if a party has successfully established that he has adversely possessed the property for the relevant period. I am not persuaded that s.24 has any substantive impact on, or is at all determinative of, which limitation period applies in the present case.
I now return to the real issue in this case, that arising under s.13 of the Statute of Limitations, which I find is not limited by the possible application of s.23. The role of the Chief State Solicitor’s is very material to the right in State authorities having the benefit of a 30 year limitation period under the provisions of s.2(1) of the Statute of Limitations. When the Attorney General renounces the right to seek Letters of Administration on behalf of the State (in whom the longer limitation period vests), and instead transfers that right to the Chief Solicitor, as already mentioned, I am satisfied he is entitled so to do, having regard both to the provisions of s.6 of the Act of 1924 and also to the provisions of s.65 of the Succession Act 1965. The consequence is that the relevant limitation period is not disturbed at all, and the Chief State Solicitor, as personal representative, cannot, by so acting, affect a limitation period which is determined by reference to the interests of persons otherwise entitled to the estate, in this case, the State, as intestate successor. As in the case of any other administrator, when the Chief State Solicitor is granted Letters of Administration on behalf of the State, he takes no beneficial interest in the estate in his own right, but can only act as and how required by law, as a trustee for the benefit of the ultimate beneficiaries. That position is no different to the position of an administrator who acts for personal beneficiaries.
Although in the Case State, and in argument, much emphasis was laid on the claim by the plaintiff to be a “State authority” within s.2(1) of the Statute of Limitations, and I have rejected that plea, I have also found that Letters of Administration were correctly granted to the former Chief State Solicitor, and the plaintiff as his lawful successor, has, as personal representative both the right and indeed the obligation in law, both to bring proceedings in respect of the recovery of the premises, and to defend the claim to adverse possession, representing the beneficiary, that is, the State, and including claiming the appropriate limitation period on its behalf. If on the other hand, he were an administrator acting for an on behalf of an individual, the period would be the shorter period of 12 years applicable to the beneficiary, namely, a person with s.13(2) and the period would be 12 years. This approach is unexceptional. I know of no case in which an administrator is entitled to alter or reduce the statutory period of limitation applicable to the beneficiary otherwise entitled, or is subject to a lesser period than that to which a beneficiary is entitled.
There is another reason why I do not think the position is determined by his presence or absence as a named State authority in s.2(1) is because, if for any reason, he was not entitled to raise representation to the estate of Mrs. Dolan, because he is not a State authority, then it would be perfectly possible for the grant to be set aside on consent. If that occurred, it would be a simple matter for the Attorney General to reapply for Letters of Administration to be granted to him again on behalf of the State, and commence fresh proceedings before the expiry of the 30 year limitation period. There might be costs implications in such an approach of course, but as to the substantive position, the consequences of the plaintiff not being expressly mentioned in s.2(1) as a State authority is immaterial to the applicable limitation period. Moreover, as mentioned earlier in this judgment, if a defendant pleads he has acquired adverse possession as against a person not already a party to the proceedings, such as in the present case against the President of the High Court, he cannot do so, as against that third party, by mere defence. He must instead counterclaim, naming the third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. The third party against whom he has asserted adverse possession is the President of the High Court, against whom however no relief has been sought, and against whom no counterclaim was lodged. It seems to me unsatisfactory that the appropriate party(ies) have not been joined, while at the same time the defendant seeks to suggest that the ultimate beneficiary, the State, is a person on whose behalf the administrator is not entitled to invoke the State’s a 30 year limitation period. Had the appropriate parties been joined against whom the adverse possession assertion is made, then the position would have been quite different, and the President would have been removed from the proceedings, on the above case law, with the administration continuing on behalf of the State, with the State’s limitation period being applied.
In this Case Stated, the nub of the defence is, in reality, confined to whether or not the defendant had already acquired adverse possession of the property in July, 2000, as against the President of the High Court, long before Letters of Administration were granted. I now propose to treat that issue. I have already held that the vesting of the estate, pro tem, in the President of the High Court does not, and could not deprive the administrator of the limitation period vesting in the State. For the reasons I have already mentioned, the President only holds, pro tem, a bare estate in the property, but no sufficient interest against which adverse possession could be claimed, and the President has neither powers nor obligations in that regard, as is clear from the case law. The defendant has of course been clever in not joining the State or even the President of the High Court in the proceedings, as to do so would have entitled those parties to be heard, and to raise their interests and limitation period. He has relied instead on the statement in Gleeson v. Feehan (No. 2), supra. As to the State’s interest, it does not have to be joined in order for the personal representative to resist the adverse possession claim on the basis of the limitation period found in s.13(1), for the reasons given.
I am satisfied that the correct period of limitation applicable in the present case is that provided for in s.13(1) of the Statute of Limitations.
The Third Question
I mentioned in the preliminary part of my conclusions, before dealing with the three particular questions, that much emphasis was placed on the meaning to be attached to the provisions of s.65, the Succession Act of 1965 and on its predecessors, both Irish and English in support of the respective contentions of the parties.
I find it is possible to rule on the third question without difficulty. As to the s.65 of the Act, having regard to the provisions of the section itself, and to the legislative history of its predecessors, as set out above, I am satisfied that the plaintiff’s argument is the correct one in law. The earlier legislation in the United Kingdom, even though it refers, at least prior to 1921, only to the personal estate (limitation periods in respect of Crown land were always different), together with later amendments were clearly before the Irish legislature when adopting the provisions of the Act of 1965, which dealt with both realty and personalty, and the deliberate omission of any reference to enactments as opposed to rule of law it would have said so. The Administration of Estates Act, 1925 s.30(1), cited above, specifically includes, as concerns personal estate, the following:
“… except as otherwise provided by this Act, the rules of law and equity, (including the rules of limitation under the Statutes of Limitation or otherwise) …”
In passing, although not specifically mentioned in the course of the appeal to this Court, I should mention that S.30(2) which applied in like or similar manner to proceedings commenced by the Crown, was itself, as is clear from the above extracts, also amended by a later Act. For the reaons set out in my later conclusions, these provisions of English legislation must also be seen in light of their history.
On this issue, I am persuaded by the argument of the plaintiff. Contrary to the defendant’s contention in relying on English legislation, the language referring to “time limits” or similar limitation rules, that exists within legislation that preceded the Act of 1965 demonstrates that, when adopting s.65 of the Act of 1965, the Oireachtas made a decision not to have the provisions of s.2(1) of the Statute of Limitations pre-empted by the adopting language in s.65 so as to have that effect, buy amendment or otherwise. Further, there is a plethora of case law supporting the plaintiff’s argument that the term “rules of law” is limited to judge-made rules. Since the Statute of Limitations is a legislative enactment, this further solidifies the argument that s.65 provision should have no bearing on the correct limitation period applicable. Finally, section s.3(1) of the Statute of Limitations should similarly have no effect. This is because, as the plaintiff argues, there is an express provision (13(1)) which directly applies to the facts of this case: therefore, on its own language s.3(1) cannot be relied upon.
The provisions of s.65 do not affect the position.
I mention in passing that no question has been posed in the Case Stated on the issue of estoppel, although it was addressed by the parties in some detail. I make no comment on this aspect of the submissions of either party.
I would answer the questions posed as follows:
Judgment of Mr Justice Finnegan delivered on the 16th day of February 2012
This matter comes before the court by way of a Case Stated from the Circuit Court pursuant to the Courts of Justice Act 1947 section 16. The questions raised on the Case Stated concern the appropriate limitation period within which, in the facts and circumstances hereinafter detailed, an action must be brought by a personal representative to recover lands forming part of the estate of a deceased in respect of whom the State is the ultimate intestate successor.
Facts agreed or found
The facts agreed or found by the learned trial judge are set out in the Case Stated as follows.
“1. The late Alice Dolan was the owner of a house at 36 Botanic Road, Dublin, which Dublin Corporation wished to acquire for the purposes of road widening. The Corporation made a deal with Mrs Dolan to acquire this property in exchange for a house at No. 6 Enniskerry Road, which the Corporation purchased with the intent that it would be conveyed directly to Mrs Dolan. An assignment dated 15th December 1978 between the vendors of No. 6 Enniskerry Road, the Corporation of the second part and the purchaser Alice Dolan of the third part was prepared. The assignment was executed by the vendors and by the Corporation but not by Mrs Dolan. The document has been stamped.
2. Mrs Dolan was allowed into occupation of No.6 Enniskerry Road. The Corporation carried out the road works involving 36 Botanic Road which are long since complete.
3. Mrs Dolan died intestate on the 22nd October 1981. The defendant learned of Mrs Dolan’s death, and the apparent absence of next-of-kin, in the course of his auctioneering business, and broke into the premises through the back door in February 1982. The late Alice Dolan, nee Alice Williams, had shared the house at 36 Botanic Road with her sister Mary Williams who predeceased her. Her husband had died in 1969.
4. A citation was issued on the 21st January 1998 and letters of administration were extracted on the 21st July 2000 by the plaintiff’s predecessor as Chief State Solicitor, Laurence A. Farrell, for and on behalf of the State, the Attorney General, Michael McDowell,(note: in fact David M. Byrne) having duly renounced his right and consented thereto.
5. These proceedings were issued on the 14th May 2002 and served on the 24th May 2002. The plaintiff brings the proceedings in his capacity as Chief State Solicitor and as successor to Laurence A. Farrell, who was appointed as personal representative of the estate of Alice Dolan, for inter alia an injunction directing the defendant to vacate the dwelling house and lands and to forthwith deliver up possession of the same to the plaintiff.”
Documents
From the documents annexed to the Case Stated it appears that Alice Dolan (hereinafter “the deceased”) by virtue of an assignment dated the 15th December 1978 became entitled to the leasehold interest under an indenture of lease dated 18th March 1902 in the premises 6 Enniskerry Road in the City of Dublin for a term of two hundred and forty five years from the 25th March 2002. The deceased died on the 22nd October 1981 intestate leaving no known next-of-kin her surviving. On the 26th September 1997 David M. Byrne the Attorney General executed a consent in the following terms:-
“And I hereby consent that Letters of Administration in the estate of the said deceased be granted to Michael A. Buckley, Dublin Castle, in the City of Dublin, Chief State Solicitor, as nominee and on behalf of the State. And I hereby appoint the said Chief State Solicitor to file or cause this consent to be filed for me in the Principal Registry of the said Court.”
Michael A. Buckley duly set about obtaining a Grant of Letters of Administration Intestate. For that purpose he completed the Oath for Administration which contained the following averment:-
“That by an instrument in writing dated the 26th day of September 1997 on which marked ‘A’ I have signed my name, Mr David Byrne, Attorney General of Ireland, duly renounced on behalf of the State all rights to Letters of Administration of the estate and effects of the said deceased and consented that same should be granted to me.”
It is to be noted that this not an accurate recital of the terms of the consent of 26th September 1997 which merely consented to the application for Letters of Administration “as nominee and on behalf of the State”.
On the 21st July 2000 Letters of Administration Intestate were granted to Laurence A. Farrell in the following terms:
“Be it known, that on the 21st day of July 2000 Letters of Administration of all the estate which devolves to and vests in the personal representative of Alice Dolan late of 6 Enniskerry Road, Phibsboro, Dublin, barrister deceased who died on or about the 22nd day of October 1981 at James Connolly Memorial Hospital, Blanchardstown, Dublin, intestate, a widow and a citation to the next-of-kin (if any) and all persons interested and their non-appearance thereto having been deemed and taken as and for a renunciation of their rights were granted by the court to Laurence A. Farrell of Osmond House, Little Ship Street, Dublin, Chief State Solicitor, for and on behalf of the State the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said Laurence A. Farrell having been first sworn faithfully to administer the same.”
No issue arises by reason of the succession from Laurence A. Farrell to Michael A. Buckley and to Desmond Grogan as Chief State Solicitor (see Succession Act 1965 section 65(3) post). Again no issue arises in relation to the succession of Michael McDowell to David M. Byrne as Attorney General.
Questions of law for determination by the Supreme Court
The questions of law for determination raised by the Case Stated are as follows:-
(a) Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957?
(b) Having regard to sections 23 and 24 of the Statute of Limitations 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof.
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
The statutory provisions
The relevant statutory provisions are as follows.
Statute of Limitations 1957
Section 2. “State authority” means any authority being:
(a) a Minister of State, or
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission, or
(d) the Revenue Commissioners, or
(e) the Attorney General.
Section 3. (1). Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.
Section 13. (1)(a). Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to recover any land after the expiration of thirty years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.
(2) The following provision shall apply to an action by a person (other than a State authority) to recover land –
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority whichever period first expires.
Section 14. (2) Where –
(i) was on the date of his death in possession of the land or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and,
(ii) was the last person entitled to the land to be in possession thereof
the right of action shall be deemed to have accrued on the date of his death.
Section 18. (1) No right of action to recover land shall be deemed to accrue unless the land is in possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
Section 23. For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the date of the death of the deceased and the grant of letters of administration.
Section 24. Subject to subsection 25 of this Act and to section 52 of the Act of 1891 at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the lands shall be extinguished.
The Succession Act 1965.
Section 73.(1) In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.
Succession Act 1965
Section 65.(1) Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate. (underlining added)
(2) Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.
(3) Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant.
Intestates Estates Act 1884
Section 2. Where the administration of the personal estate of any deceased person is granted to a nominee of Her Majesty (whether the Treasury Solicitor, or a person nominated by the Treasury Solicitor, or any other person), any action or other proceeding by or against such nominee for the recovery of the personal estate of such deceased person, or any share thereof, shall be of the same character, and be brought, instituted and carried on in the same manner, and be subject to the same rules of law and equity (including the rules of limitation under the Statutes of Limitation or otherwise), in all respects as if the administration had been granted to such nominee as one of the next-of-kin of such deceased person. (underlining added)
Section 3. After the passing of this Act an information or other proceeding on the part of Her Majesty shall not be filed or instituted, and a petition of right shall not be presented, in respect of the personal estate of any deceased person or any part or share thereof, or any claim thereon, except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject. (underlining added)
Administration of Estates Act 1925 (U.K.)
This Act in section 30 repealed and restated sections 2 and 3 of the Intestates Estates Act 1884 and extended the provisions to real property. Subsection (1) restated section 2 and subsection (2) restated section 3 of the 1884 Act.
Limitation Act 1939 (UK)
Section 34 of the Act amended subsection (2) of the Administration of Estates Act 1925 by deleting the words “within the same time and”. However subsection (1) still provided for actions by and against an administrator who is a nominee of the Crown that the ordinary limitation should apply.
Submissions of the Plaintiff
The plaintiff submits that the relevant limitation period is that prescribed by section 13(1) of the 1957 Act the Chief State Solicitor being a State authority within the definition in section 2(1) of the Act. The definition does not simply define State authority as those set out at paragraphs (a) to (e) but extends to “any authority being” one of those Authorities. The Ministers and Secretaries Act 1924 section 6(1) and the ninth part of the schedule to that Act provide for the vesting in the Attorney General of the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the Public Services specified in the section and in the ninth part of the schedule: included in the ninth part of the schedule is the Chief State Solicitor’s Department. It is submitted that the Chief State Solicitor’s office, being under the administration and control of the Attorney General, it is for the purpose of the Statute of Limitations an authority “being” the Attorney General and so a State authority. Section 3(1) of the Act provides that the provisions of the Act shall apply to proceedings by or against a State authority in the like manner as if the State authority were a private individual unless it is otherwise expressly provided in the Act. Section 13(1)(a) of the Act expressly provides for a thirty year limitation period in respect of an action brought by a State authority to recover any land.
Insofar as the defendant relies on the Succession Act 1965 there are material differences between section 65 of the Act and the corresponding provisions in the Intestates Estates Act 1884 and the English Administration of Estates Act 1925 section 30 as amended by the Limitation Act 1939. The 1884 Act expressly refers to limitation periods in sections 2 and 3. The restated section 3 contained in section 30(2) of the Administration of Estates Act 1925 had the words “within the same time and” deleted by the Limitation Act 1939 section 34. The Succession Act 1965 section 65 subsection (1), corresponding to section 2 of the 1884 Act and subsection (2) corresponding to section 3 of the 1884 Act make no mention of Statutes of Limitation or time limits.
In referring to “rules of law and equity” in section 65(1) the reference includes statutory enactments and so includes the Statute of Limitations 1957.
Submissions of the Defendant
The definition of “State authority” is clear and there is no basis upon which the court should extend the same and in particular to interpret the phrase “the Attorney General” as including the Chief State Solicitor. As the plaintiff is not a State authority section 3(1) of the 1957 Act applies. The Statute of Limitations applies to proceedings by or against a State authority in like manner as if the State authority were a private individual unless it is otherwise expressly provided. As the Chief State solicitor is not a State authority section 13(1)(a) of the Statute of Limitations has no application. The relevant limitation period is that in section 13(2)(a), twelve years.
The effect of the Succession Act 1965 section 65(1) and (2) is to place a State nominee in the same position in relation to limitation periods as a private individual: accordingly the relevant limitation period is twelve years. Reliance is placed on the United Kingdom Administration of Estates Act 1925 section 30 and the Limitation Act 1939 section 34 and on the passage in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate at paragraph 64.06 which states as follows:-
“If the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the nominee of the Crown, who has obtained a grant of letters of administration, to recover land forming part of an intestate’s estate is twelve years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same position as the subject for limitation purposes.”
Section 65(1) of the Succession Act 1965 has the same effect in relation to the State as the United Kingdom legislation. The phrase “same rules of law and equity” in section 65(1) and (2) of the Succession act 1965 should be interpreted as including the statutory provisions as to the limitation of actions and in particular the provisions of the Statute of Limitations section 13(1)(a).
Discussion
(a) Is the Chief State Solicitor a State Authority?
The definition of State authority in section 2 of the Statute of Limitations 1957 is clear. There is within the definition or within the Act as a whole nothing to suggest that the Attorney General for the purposes of the Act includes the Chief State Solicitor. However, the plaintiff calls in aid the Ministers and Secretaries Act 1924 which provides as follows:-
“6(1) There shall be vested in the Attorney General of Soarstat Eireann (who shall be styled in Irish Priomh-Aturnae Shaorstait Éireann and shall be appointed by the Governor General on the nomination of the Executive Council) the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney General for Ireland, the Solicitor General for Ireland, the Attorney General for Southern Ireland, the Solicitor General for Southern Ireland, the Law Adviser to the Lord Lieutenant of Ireland and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act and also the administration and business generally of public services in connection with the representation of the Government of Saorstat Éireann and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively together with the duty of advising the executive council and the several ministers in matters of law and of legal opinion.”
The Ninth Part of the Schedule lists the particular services assigned to the Attorney General as follows:-
Chief Crown Solicitor for Ireland
Chief State Solicitor’s Department and all local State solicitors
Treasury Solicitor for Ireland
Parliamentary Draftsman
Charities
Estates of illegitimate deceased persons.
I am not satisfied that the vesting in the Attorney General of the administration and control of the Chief State Solicitor’s Department by section 6(1) of the 1924 Act has the effect of expanding the definition contained in section 2 of the 1957 Act. The definition is clear and concise. The fact that the Attorney General has conferred upon him administrative powers in relation to the offices mentioned in the ninth schedule does not, I am satisfied, justify an extension of the meaning of State authority in the 1957 Act to include the Chief State Solicitor or other officers mentioned in the ninth schedule to the 1924 Act.
A similar drafting approach to that in the 1957 Act was adopted in the State Property Act 1954 where State authority is defined even more narrowly:-
“State authority” means any authority being –
(a) a Minister of State or
(b) the Commissioners (i.e. the Commissioners of Public Works in Ireland).
This contrasts sharply with the approach with the legislature took in the Succession Act 1965 section 65 dealing with actions by or against the State in relation to the Administration of Estates:-
“Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the solicitor for the Attorney General or any other person)…”
In defining State authority in the 1957 Act there are no general words, “such as any other person”. Had it been the legislative intention that Attorney General be broadly interpreted I would expect in the 1957 Act an approach similar to that adopted in the Succession Act 1965.
Historically, where the Crown by reason of the failure of all next-of-kin became entitled to the estate of a deceased, the practice was for representation to be raised by a nominee of the Crown, normally the Treasury Solicitor. To facilitate this practice, by the Treasury Solicitor Act 1876, the Treasury Solicitor was constituted a corporation sole. The Act continues to apply in Ireland. The wording of the consent of the Attorney General and of the Letters of Administration Intestate issued in this case reflect that procedure – the grant is made to the Chief State Solicitor as nominee for and on behalf of the State. It is quite clear that the person entitled to bring or defend proceedings on behalf of the estate is the Chief State Solicitor to whom representation has been granted. This will remain the position until an assent is executed to a Minister of State pursuant to the provisions of the State Property Act 1954. The Minister of State being a State authority could then maintain proceedings. As the Chief State Solicitor can be called upon at any time to execute an assent in favour of a State authority (normally the Minister for Finance) it does not appear to be necessary to construe Attorney General widely to enable the State’s interest to be protected where representation issues on behalf of the State to the Chief State Solicitor. For this reason also I would not extend the definition of State authority.
I am satisfied that the Chief State Solicitor is not a State authority within section 2 of the Statute of Limitations 1957.
(b) Is the relevant limitation period that provided for in section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
As the plaintiff is not a State authority within the meaning of the Act of 1957, section 13(1)(a) of the Act does not apply. The relevant limitation period is that in section 13(2)(a).
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
As section 13(2)(a) is the relevant provision of the Statute of Limitations this question is moot: however, I propose dealing with the same briefly. The defendant’s submission is that, in the event that section 13(1)(a) applies, then the Succession Act 1965 section 65(1) has the effect of applying the ordinary period of limitation which would apply had the administrator been a person beneficially entitled to a share in the estate, that is twelve years. Section 65(1) applies to this action: it provides that such action shall be subject to“the same rules of law and equity in all respects as if the grant had been made to the administrator as a person beneficially entitled to a share in the estate.” Had it been the legislature’s intention in enacting section 65(1) to apply not just rules of law and equity but enactments it would have done so in express terms. Thus the Succession Act 1965 in section 12(1) commences as follows:-
“All enactments (including this Act) and rules of law…”
The Succession Act itself distinguishes between rules of law and enactments. I am satisfied that it is not the effect of section 65(1) to apply statutory limitation periods.
The legislative history of section 65 is relevant. The Intestates Estate Act 1884 section 2 applied where administration was granted to a nominee of the Crown. The effect of the section was to apply the ordinary rules of limitation to any action coming within the section whether by or against the nominee of the Crown. Likewise section 3, in relation to actions by or against the Crown coming within that section, applied the ordinary rules of limitation. Section 3 related to informations and other proceedings and petitions of right claiming in an estate and is not relevant to the present case. The result was that thenceforth the rules of limitation could be relied upon by or against the Crown. See In re Mason [1929] 1 Ch.1, In Re Blake [1932] 1 Ch. 54. In the United Kingdom prior to the enactment of the Irish Statute of Limitations 1957 there were two statutory amendments to the 1884 Act sections 2 and 3. The Administration of Estates Act 1925 section 30 repealed sections 2 and 3 and re-enacted the same in section 30(1) and (2) extending them to real property. The Limitation Act 1939 amended section 30(2) (corresponding with section 3 of the 1884) by deleting the words “within the same time and” : thus at the enactment of the Succession Act 1965 the position in the United Kingdom was that in actions coming within section 30(1) of the 1925 Act (corresponding with section 2 of the 1884 Act) the same limitation period applied to an action by or against a Crown nominee as if the administrator was a next-of-kin. Section 30(2) of the 1925 Act no longer provided for a limitation period. The Succession Act 1965 repealed sections 2 and 3 of the 1884 Act and in substance re-enacted the same in section 65 (1) and (2) but without in any way prescribing in express terms in either subsection for a limitation period. Having regard to the legislative history I am satisfied that it was the intention of the legislature in enacting section 65 of the Succession Act 1965 to repeal and re-enact in an amended form sections 2 and 3 of the 1884 Act by no longer applying a limitation period: the effect of this is that the limitation periods provided for in the Statute of Limitations 1957 section 13(1) and (2) are unaffected by section 65 of the Succession Act 1965.
It follows from this that had the appropriate limitation period in this case been that prescribed by section 13(1)(a) of the Statute of Limitations that limitation period would be unaffected by the provisions of section 65(1) of the Succession Act 1965. However as the appropriate limitation period is that prescribed by section 13(2)(a) of the 1957 Act section 65(1) has no application. Section 65(2) does not provide for a limitation period so that the relevant period where that section applies is that provided for by section 13(2)(a), twelve years.
Conclusion
I would answer the questions of law for determination raised by the Case Stated as follows:-
(a) Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957?
Answer: No.
(b) Having regard to sections 23 and 24 of the Statute of Limitations 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
Answer: the relevant limitation period in this case is prescribed by section 13(2) of the Statute of Limitations 1957.
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
Answer: No.
