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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Cavey -v- Cavey & ors [2014] IESC 16 (04 March 2014)
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Cite as: [2014] IESC 16
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Judgment Title: Cavey -v- Cavey & ors Neutral Citation: [2014] IESC 16 Supreme Court Record Number: 211/12 High Court Record Number: 2010 7253 P Date of Delivery: 04/03/2014 Court: Supreme Court Composition of Court: Murray J., Clarke J., Dunne J. Judgment by: Clarke J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No: 211/2012] Murray J. Clarke J. Dunne J.
Francis Declan Cavey Plaintiff/Appellant and
Aidan Cavey, Jane O'Donoghue and Pamela O'Rourke Defendants/Respondents Judgment of Mr. Justice Clarke delivered the 4th March, 2014. 1. Introduction 1.2 The executors brought a motion before the High Court seeking to have the proceedings dismissed under alternatively:-
(b) that the proceedings must invariably fail as being statute barred having regard to the provisions of s. 9 of the Civil Liability Act 1961 ("the 1961 Act"). 2. The Appeal 2.2 Apart from the fact that these second proceedings are not the proceedings said to have been started with the limitation period, a further difficulty with that argument is, of course, that the first proceedings were very different relying, as they did, on a statutory entitlement to have proper provision made in circumstances where a court is satisfied that a deceased has failed in a moral duty to make such proper provision for a child. When that point was raised with him by the Court, Mr. Cavey indicated that he had, at the trial of the first proceedings, raised the question of promissory estoppel. However, it is clear from the transcript of the hearing before Laffoy J. that she determined that the only case before her on the pleadings was a claim under section 117. The relevant passage from the transcript reads as follows:-
Mr. Cavey: Yes, I wasn't sure when I was preparing the papers if promissory estoppel came under the heading of 117 or if it was an entirely separate matter. Ms. Justice Laffoy: Well, the only matter that is before me is a Section 117 and the determination I will make is whether you late father failed in his moral duty to make provision for you in his will in accordance with his needs and doing that I take into account the provision he did make for you in his will." 2.4 Because Mr. Cavey was a litigant in person and notwithstanding the fact that the point was not raised by him, the Court invited counsel for the executors to also address a second question. While it will be necessary to turn to the text of s. 9 of the 1961 Act in due course, it is clear that s. 9(2) refers to and governs the limitation period in respect of a cause of action which "has survived against the estate of a deceased person". The question which the Court invited counsel for the executors to address is as to how it is appropriate to characterise, in the context of that phrase, a claim in promissory estoppel which is to the effect that a person was in breach of a legal obligation to bequeath property in a will. Can it be said that such a claim is one "which has survived against the estate of" that person? In one sense such a claim can only arise when the person dies for it remains theoretically possible, up to the moment of death, that the relevant person could comply with their legal obligation by making or changing their will in such a way as to comply with whatever promise had been made. On one view, therefore, it might be said that a claim in promissory estoppel of that type only arises on death, is not, therefore, the type of claim covered by s. 9(2) of the 1961 Act and, thus, is not statute barred. Counsel argued that such a claim is, in its nature, a claim that the deceased had, during his life, failed to do something even though the time at which it could have been done was at any time up to the moment of death. It followed, counsel argued, that the claim was one which could properly be described as one which, if it existed, would have "survived against the estate of the deceased person", was thus covered by s. 9(2) of the 1961 Act and was thus, on the facts of this case, statute barred. 2.5 In addition, it should be emphasised that counsel also argued that, in the event that this Court was against him in resisting the appeal from the judgment of Herbert J. on the ground of the Statute of Limitations, he would also wish this Court to consider the point argued before, but not decided by, Herbert J. as to whether the claim brought in these proceedings amounted to an abuse of process. 2.6 Thus, three issues potentially arise. The first is as to whether Mr. Cavey's point about his prior proceedings is correct. 2.7 The second is the point concerning whether a claim of this type can properly be said to be a claim which has survived against the estate of the deceased and, thus, be statute barred. 2.8 The third, which only arises in the event that the appeal is successful on one or other of the other two points, is as to whether the proceedings ought nonetheless be dismissed as an abuse of process. I turn first, therefore, to Mr. Cavey's own point. 3. Mr. Cavey's Point 3.2 Mr. Cavey indicated that he believed that he could bring a claim in promissory estoppel in the context of a claim under section 117. I am prepared to accept that he did have that belief. But it is plainly wrong. The claims made in the first proceedings and these second proceedings are entirely different. The first involves the suggestion that a deceased person has failed in their moral duty to make adequate provision for a child. The second is a claim that a person (not necessarily a parent) has made a promise, relied on, as to what they will do in their will and has failed to meet that promise. There is absolutely no overlap between the two cases. 3.3 It is true that there was, as per the transcript reference already cited, a mention made by Mr. Cavey at the trial before Laffoy J. of promissory estoppel. It is clear that Laffoy J. ruled, as she was bound to rule on the papers, that the only claim before her was one brought under section 117. Even if it had been possible to amend or otherwise reconstitute Mr. Cavey's first proceedings, at that time, to include a claim in promissory estoppel, that claim would already have been out of time by that stage. The hearing before Laffoy J. was also well over two years after the date of death of Mr. Cavey's late father. Therefore, even on the basis of his own argument, the first time that Mr. Cavey brought before the Court any mention of a claim in promissory estoppel was outside the limitation period. 3.4 In any event, Laffoy J. ruled that the original claim was a claim under section 117 and only such a claim. No appeal against the judgment of Laffoy J. was pursued. That point must now be taken to have been definitively decided. There is, therefore, just no basis on which it can be said that Mr. Cavey brought a claim based on promissory estoppel at any time prior to the institution of these proceedings. 3.5 In addition, it does need to be noted that the one set of proceedings which were commenced within two years of the death of Mr. Cavey's late father are no longer, of course, in being, having been dismissed by Laffoy J., and then having been the subject of an appeal to this Court but where that appeal was withdrawn. What the executors seek to dismiss are these second proceedings which were, in any event, commenced outside of the two year period. 3.6 As already pointed out, these proceedings were commenced by Mr. Cavey more than three and a half years after his late father's death which is well outside the limitation period provided for if it can properly be said that this is a claim governed by s. 9(2) of the 1961 Act as being a claim "which has survived against the estate of a deceased person". I, therefore, turn to that question. 4. Is this Claim one which "has survived against the Estate"?
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either—
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires." 4.3 It seems to me that the proper approach to this question is to focus on the elements of the relevant cause of action. Assuming that all the necessary ingredients for a promissory estoppel can be established, then it follows that there was a legal obligation on a person, during their life, to make a will which complies with the promise made. While it is true that the person can make such a will at any time before death, it nonetheless follows that it is a failure to act during the lifetime of the deceased which gives rise to the cause of action. 4.4 This question has not yet been determined this Court but has been the subject of a number of decisions by the High Court most recently in the decision of O’Keeffe J. in Prendergast v McLaughlin [2011] 1 IR 102. In that case, the plaintiff alleged that he had been promised, in return for his assistance in working and maintaining farmlands, that he would be bequeathed those lands following the death of the owners. The plaintiff asserted that, in reliance of those representations, he continued to work on the lands to his detriment. The surviving owner died intestate and the plaintiff then sought to claim the entire beneficial interest in the lands. However, on a preliminary point, it had to be determined whether the plaintiff’s cause of action was one which “survived against the estate of a deceased person” and, thus, was governed by the relevant two year limitation period. Having examined conflicting lines of authority on the issue, O'Keeffe J. favoured one of those lines being the approach adopted by Fennelly J., hearing a Circuit Court appeal in Corrigan v. Martin (Unreported, High Court, 13th March 2006), in a case concerning a pre-existing obligation by a deceased to “transfer and/or devise” lands. Fennelly J. stated, at p. 6 of his judgment:
4.5 As to the other line of authority, Barron J., in Reidy v. McGreavey, (unreported, High Court, Barron J., 19th March, 1993), had taken a different view. At p. 5 of his judgment Barron J. stated "… the claim could not be maintained until the death of the testator because it could have been ascertained until then, that he had failed to honour his promise. Of course if he had repudiated his promise in his lifetime, this would have given rise to a cause of action at that stage". O'Keeffe J. in Prendergast, expressly preferred the approach of Fennelly J. in Corrigan to that of Barron J. in Reidy. 4.6 It seems to me that a significant distinction is made in s. 9(2), so far as claims against an estate are concerned, between a cause of action which results from an act or omission of the deceased, on the one hand, and a cause of action which may exist against those in charge of the administration of the estate of the deceased, on the other. If Mr. Cavey had a cause of action in promissory estoppel at all, it can only be because he might be able to establish that his late father was in breach of a legally enforceable promise in respect of bequeathing the family home to him. If such could be established it would be a failure, during his life, on the part of his late father to make an appropriate will to comply with his promise that gives rise to the claim. 4.7 That involves an allegation of a failure on the part of his father rather than a failure by the estate itself. How otherwise could such a claim be brought? It necessarily involves a claim against the estate but arising out of a failure on the part of the deceased. It seems to me that such a claim necessarily comes within the scope of the phrase "a claim surviving against the estate of the deceased" even if it is true that a deceased could have avoided such a claim being capable of being brought by complying with their promise to bequeath the relevant property up to the moment before their death. 4.8 I am, therefore, satisfied that, on a proper interpretation of the effect of s. 9 of the 1961 Act, a claim in promissory estoppel arising out of an enforceable promise by a person to leave property by will, is a claim which can properly be characterised as one which survives against the estate of that person in the sense in which that term is used in the section. It follows that the claim brought in these proceedings could only be maintained by Mr. Cavey if it had been commenced within two years of his late father's death. The claim not having been so commenced, it is clearly statute barred. It follows that Mr. Cavey's proceedings are bound to fail on that basis and should be dismissed. 5. Conclusions 5.2 I am also satisfied that a claim of this type, being a claim in promissory estoppel which arises out of a contention that a person was required to make a bequest by will, is a claim which can be said to survive against the estate of the person concerned for the purposes of s. 9 of the 1961 Act. It follows that a claim of this type is required to be brought, at the outside, within two years of the date of death of the relevant deceased. Because, as already pointed out, the only claim which has been brought by Mr. Cavey involving this cause of action is the one brought in these second proceedings, which were commenced significantly more than two years after the death of his late father, then it follows that this claim and these second proceedings are statute barred. 5.3 It also follows that the trial judge was correct in his interpretation of s. 9 of the 1961 Act and its application to the facts of this case and the appeal must, on that basis, be dismissed. It further follows, for reasons similar to those indicated by the trial judge, that it is, in those circumstances, unnecessary to address the alternative basis for dismissal put forward on behalf of the executors being that the proceedings ought be dismissed as an abuse of process under the rule in Henderson v. Henderson.
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