Judgment Title: C & anor v C & others Neutral Citation: [2013] IESC 36 Supreme Court Record Number: 215/13 High Court Record Number: 2011 2610 P Date of Delivery: 30/07/2013 Court: Supreme Court Composition of Court: Denham C.J., O'Donnell J., MacMenamin J. Judgment by: MacMenamin J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No: 215/2013]
Denham C.J.
M.C. (A WARD OF COURT SUING BY HER COMMITTEE MARGARET MOLONY) AND MARGARET MOLONY Plaintiffs/Respondents and F.C. AND J.H. AND J.H. T/A H BROTHERS Defendants/Appellants Judgment of Mr. Justice John MacMenamin delivered the 30th day of July, 2013. 3. Article 34.4.1 of the Constitution provides that the Supreme Court is the Court of Final Appeal. This Court exercises an appellate jurisdiction from the High Court. The jurisdiction of this Court on such appeals is addressed in the case of Hay v O’Grady [1992] I.R. 210. This Court does not engage in a complete re-hearing of a case on appeal. It proceeds rather on the facts as found by the trial judge and his inferences based on these facts. As Hay v O’Grady makes clear, if the findings of fact made by a trial judge are supported by credible evidence, then this Court is bound by those findings, even if there is apparently weighty evidence to the contrary. This Court will only interfere with findings of the High Court where findings of primary fact are not supported by evidence, or cannot in all reason be supported by the evidence (see also Pernod Ricard and Comrie plc v Fyffes plc (Unreported, The Supreme Court, 11th November 1988)). Furthermore, in Hay v O’Grady, McCarthy J. pointed out that an appellate court will be slow to substitute its own inference of fact for that of the trial judge, where such inference depends upon on oral evidence or recollection of fact. In drawing of inferences from circumstantial evidence, an appellate tribunal is, of course, in as good a position as the trial judge (see also O’Connor v Dublin Bus [2003] 4 IR 459; Quinn (A Minor) v Mid Western Health Board and Another [2005] 4 IR 1). 4. It is necessary to re-iterate that these basic principles as the appeal, presented by F.C., the first named defendant in person, appeared to be premised on the assumption that there were some segments of evidence before the High Court judge which should have lead him to a different conclusion. The questions are whether the findings of fact are based on evidence; and whether inferences are correctly and factually drawn. Moreover, the Court would point out that the main evidence in defence of this claim came from F.C. himself. The trial judge rejected this evidence as being entirely unreliable on a range of the fundamental issues in the case. The facts as found by the High Court 6. F.C., the first named appellant, is M.C.’s nephew. As a child, he formed a close relationship with M.C. He spent some periods with her. When F.C. became an adult, he visited his aunt on a regular basis. 7. The second and third named appellants are brothers who live in the same county as F.C. They own a business hiring out agricultural machinery. F.C. is said to work in that business. 8. On the 25th February, 2006, when M.C. was residing alone in Dublin, she became unwell. She was admitted to hospital. At that time, she had no close relations in Dublin but had a number of relations in her own native county, including F.C. Contemporaneous hospital records show she was admitted to hospital in Dublin with a history of intermittent confusion, amidst neighbours’ concerns about her welfare. She remained in hospital until the 26th April, 2006. 9. Prior to her discharge, M.C. was adamant that she wanted to go home to her house in Dublin. A family meeting took place. There, a plan was devised that M.C. would instead return to her native county and live there with M.K., who was F.C.’s partner. For approximately the next four years, she lived at various different locations either under F.C.’s supervision, or actually living with him under the one roof. On the 11th March, 2010, she was admitted to a nursing home, where she now continues to reside. 10. In circumstances which are described below, M.C.’s house in Dublin was sold yielding a net balance of €2,717,313.05. Some of these monies were used to purchase a house in her native county. On the 2nd May, 2008, the balance of €1,938,453.40 was transferred into M.C.’s account. The trial judge found that from the 16th May, 2008, until the 14th May, 2009, eight withdrawals took place from that account. The largest withdrawal, some €500,000, was made on the 14th April, 2009. By then, over €400,000 was transferred, either into F.C.’s sole account, or joint accounts in the names of F.C. and M.C. In total, therefore, some €900,000 was transferred to accounts over which F.C. exercised effective control. 11. As outlined later, a substantial part of the monies were placed in a machinery hire business where F.C. worked with the second and third named appellants. In order to justify this disposal of the monies, F.C. claimed that in 2006, he had made a “gentleman’s agreement” with J.H., the second named appellant, that funds would be provided to purchase machinery for the business, and that F.C. would be given a wage as soon as the business was built up. J.H. and F.C. were to hold joint ownership of the machinery, and if the business did not prosper, the machinery would be returned to F.C.’s sole ownership. The trial judge rejected the appellant’s evidence that, while of full capacity, his aunt knew of, or agreed to this very unusual and unprofitable arrangement. Evidence and findings on the capacity of the Ward 13. The trial judge found on the evidence that, during 2007 and 2008, M.C.’s cognitive impairment progressed from mild to moderate. The Court concluded that, at no time during 2008 or 2009 did M.C. have the capacity to engage in complex financial transactions, even though she did retain some capacity to deal with day to day affairs. At the hearing, F.C. produced taped phone calls between himself and his aunt. It might be thought this was a very strange thing to do unless there was some reason for it. F.C.’s ostensible reason for doing this was to demonstrate that his aunt retained full decision making capacity. The judge, in fact, held that these tapes demonstrated precisely the opposite; that M.C. was a person manifesting moderate dementia with a significant inability to communicate in a logical and coherent manner. The High Court’s findings on F.C. as a witness The law on undue influence 16. He quoted Denham J. in Carroll to the following effect:
17. Once a relationship giving rise to a presumption of undue influence is established, and where it has been shown in evidence that a donee has received a substantial benefit, the law provides the onus then lies on the donee to establish that the gift or transaction resulted from the free exercise of the donor’s will. That onus can be discharged by evidence showing the gift was the independent and well understood act of a person in a position to exercise free judgment. The Court held that the appellant had failed to discharge that onus. The sale of M.C.’s Dublin property The High Court’s findings on the financial transactions 20. The High Court was satisfied from the evidence, that the large sums of money which had been removed from the bank account between May 2008 to April 2009 were as a result of F.C.’s express influence. He concluded that F.C. had sought to exercise control and dominion over M.C., and to ensure that she acted in accordance with his wishes and for his benefit. He found support for his findings by what he found were F.C.’s dishonest and misleading dealings with Mrs. Wardlaw, his aunt’s solicitor, and his clear steps to bring about the sale of the Dublin property. The judge had regard, too, to the fact that F.C. attempted to have property which M.C. bought in her native county placed in their joint names. 21. The High Court concluded that there was no credible evidence that M.C. had received any legal or financial advice from the date that the sum of €1,938,453.41 was lodged to her bank, up to and after the final withdrawal of €500,000 on 14th April 2009. He concluded that F.C. gave false testimony in relation to the purchase of two properties in Poland. At one point in the hearing when seeking to explain this attempted concealment of part of the money in Poland, F.C. accepted that part, at least, of his evidence on the issue was “rubbish”. 22. The High Court held that the capacity of F.C. to influence M.C. to his benefit without regard to her genuine wellbeing, was best illustrated by the circumstances surrounding the final withdrawal of €500,000 in April 2009. This took place at a time when F.C. was aware an imminent psychiatric examination was due to be carried out on his aunt to assess her mental capacity. The judge held F.C. was involved in the cancellation of an initial appointment for the assessment, which had been due to take place just a matter of days after the withdrawal. He concluded that, to proceed with the withdrawal of €500,000, representing almost a third of M.C.’s remaining funds, when such funds were used by F.C. for a number of transactions for his own benefit, led inexorably to the conclusion that this withdrawal was as a result of influence used by F.C. for the purposes of obtaining such funds. 23. The trial judge found that €322,560 of the money was invested in the machinery hire business. All this money came from M.C.’s bank account. He also found that €215,000 was transferred from the same source to accounts in Poland under the control of F.C. and a Polish national, I.S. The trial judge found that F.C. transferred this money in order to ensure it would be invested in property there and not be available for repayment in the event of M.C. being taken into wardship.
The appellant’s submissions on appeal 25. At the appeal, F.C. mistakenly claimed that M.C. had actually received independent financial advice on the purchase of investments and shares. The person to whom reference was made during the appeal did not testify, ostensibly on the grounds of illness, despite the trial taking place in two blocs in October and December 2012. F.C. attempted again to offer explanations for his role in the forged letter and trying to hide the money in Polish properties. He sought to lay some blame on Mrs. Eleanor Wardlaw, M.C.’s solicitor, who, the trial judge, held was a careful, honest and credible witness. Finally, he claimed that M.C.’s constitutional rights to autonomy had been seriously violated and desecrated. The appellant had no locus standi to make such a claim. The appellant’s misconceptions on the role of this Court have been explained. There was ample evidence before the High Court judge for him to reach his conclusions. Conclusions 27. The appellants herein have failed to raise any substantial grounds of appeal. In the circumstances, this appeal will be dismissed. This Court affirms all the orders of the High Court, inter alia, setting aside the alleged gifts, and declaring that the monies and property bought therewith remain the property of the Ward of Court.
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