THE SUPREME COURT
[Appeal No. 103/12]
Hardiman J.
MacMenamin J.
Laffoy J.
BETWEEN
EILEEN GUNNING
PLAINTIFF/APPELLANT
AND
BRIAN SHERRY SOLICITORS
DEFENDANT/RESPONDENT
Judgment of Ms. Justice Laffoy delivered on 8th day of October, 2015
The parties
1. The appellant on this appeal (Ms. Gunning) was the plaintiff in plenary proceedings which were initiated in the High Court on 8th November, 2010 (Record No. 2010/10220P). The respondent on the appeal and the defendant in the High Court proceedings is named as “Brian Sherry Solicitors”. Brian Sherry (the Personal Representative) is a solicitor. In the circumstances outlined later, he became, and is, the Personal Representative of James Gunning (the Testator), Ms. Gunning’s late father. In an affidavit sworn by him on 18th February, 2011, which grounded the application which is the subject of this appeal, he pointed out that the proceedings as brought against him are silent as to the capacity in which he is sued. He further averred that his only association with Ms. Gunning has been in his capacity as Personal Representative of the Testator. The only conclusion which can be drawn from Ms. Gunning’s participation in the High Court proceedings and, in particular, in the application which is the subject of this appeal, is that the Personal Representative was being sued in that capacity.
Background to the proceedings in outline
2. By his will dated 25th June, 1982 the Testator appointed Ms. Gunning to be executrix thereof. The effect of his will was that he devised a half interest in all his property, both real and personal, to his widow, Sarah Gunning (the Widow), and the remaining half interest to his daughters, Ms. Gunning and her sister, Mary Gunning. The Testator died on 10th October, 1984. A grant of probate of the said will issued to Ms. Gunning, as executrix named in the will, on 3rd September, 1985.
3. The asset of the Testator which became the subject of contention between Ms. Gunning and the Widow around the year 2000 was a dwelling house standing on in excess of three quarters of an acre at Blacklion, Greystones, County Wicklow, which was, and is, known as Chrysanthemum Cottage (the Cottage). At the time of his death the Testator held the Cottage under a lease dated 9th January, 1936 (the Lease) made between Isabel Jane Orpen and Florinda Kingdon Ward (both with addresses in the United Kingdom) of the one part and Patrick Gunning of the other part, which created a term of fifty years from the 1st day of November, 1935 at the yearly rent of £5. Patrick Gunning was the father of the Testator and the Testator succeeded him as lessee under the Lease. Accordingly, the term of the Lease expired just in excess of a year after the death of the Testator. Notwithstanding that, the Widow continued in possession of, and to reside in, the Cottage. Ms. Gunning, who had been living abroad for some years, returned with her daughter to live in the Cottage around 1991.
4. From late 1985 onwards, obviously the title of the Testator’s estate to the Cottage was anything but satisfactory. It appears from the documentation furnished to this Court that an attempt had been made by the Testator to acquire the fee simple under the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 (the Act of 1978) in or around 1980. However, that application was not successful. In 1998 an application was made to the Land Registry in the name of the Widow and Ms. Gunning to be registered as owners of the Cottage. The basis of that application was that the applicants had acquired a possessory title by adverse possession against the freehold owner, whoever the freehold owner was. That application (reference D98KW10103P) was eventually treated as abandoned in May 2000, when the Widow’s solicitors, Ferrys, lodged an application in the name of the Widow claiming to be sole full owner of the Cottage on the basis of adverse possession. That application (reference D00KW06927Y) was subsequently treated by the Land Registry as having been abandoned in June 2001, when, despite reminders, the Land Registry did not get a response from Ferrys in relation to rulings issued.
5. In 2001 the Widow adopted a different approach to get possession of the Cottage from Ms. Gunning. She instituted ejectment proceedings on the title (Record No. 154/01) in the Circuit Court, County Wicklow, on 5th March, 2001 claiming that she was in sole and exclusive occupation and possession of the Cottage until around 1990 when, at her invitation, Ms. Gunning and her daughter had moved into the Cottage under licence from, and with the permission of, the Widow. The outcome of those proceedings was an order made in the Circuit Court by His Honour Judge O’Hagan on 29th July, 2002 in which he ordered that the Widow had acquired no claim by adverse possession and dismissed her claim.
6. The next step the Widow took was to institute proceedings in the High Court by special summons (Record No. 2003/122SP) in 2003 against Ms. Gunning (named as Eileen Gunning Hameed) as defendant, invoking s. 26(2) of the Succession Act 1965 (the Act of 1965) to have the grant of probate of the will of the Testator to Ms. Gunning revoked and to have an order granting administration of the estate of the Testator to the Personal Representative made under s. 27(4) of the Act of 1965. The special summons proceedings were heard in the High Court by Smyth J., who delivered judgment on 31st July, 2003. One of the matters adverted to in that judgment was that there was no evidence before the Court that the Widow had ever been given or served with notice under s. 56(1) of the Act of 1965 informing her of her right to have the Cottage appropriated to her in satisfaction of her share of the estate of the Testator. Further, Smyth J. stated in his judgment that the plaintiff had not “observed her duties as a trustee”. In that regard, he was referring to s. 10(3) of the Act of 1965, which provides that a personal representative shall hold the estate of the deceased person as trustee for the persons by law entitled thereto. That finding was based on the facts recorded earlier by Smyth J. in which he stated that the evidence established that Ms. Gunning, unknown to the Widow and undisclosed to His Honour Judge O’Hagan in the Circuit Court, had set in train a line of inquiry as to the successors in title to the owners of the freehold in the premises and had sought to acquire the freehold for her own benefit and to be registered as sole owner of the premises in the Land Registry. Smyth J. concluded his judgment as follows:
“In the instant case [Ms. Gunning’s] intention to have herself registered as owner of the premises is in complete conflict with her role as executrix. In my judgment it is a very necessary and serious step to take to remove [Ms. Gunning] from her role - but on the evidence I am satisfied that it must be done. It is the only way in which this matter can be dealt with properly and impartially.
Accordingly, [Ms. Gunning] will cease to be as and from this judgment as executrix to the estate of the [Testator]; the Court hereby recalls and cancels the grant of probate of 3rd September, 1985 handed in to Court during the course of the hearing; and pursuant to s. 27(4) of the [Act of 1965] appoints Brian Sherry, solicitor . . . to be the administrator of the estate of the [Testator].”
7. The order of the High Court made pursuant to the judgment of Smyth J. was dated 31st July, 2003. Two components of the curial part of the order are relevant for present purposes. First, an order was made pursuant to s. 26(2) of the Act of 1965 removing Ms. Gunning as executrix of the will of the Testator. The second was that an order was made pursuant to s. 27(4) of the Act of 1965 that letters of administration of the estate of the Testator be granted to the Personal Representative. It is appropriate to record at this juncture that s. 26(2) of the Act of 1965 provides that the High Court shall have power to revoke, cancel or recall any grant of probate. While the effect of s. 26(2) was not set out in the order in the terms provided in the sub-section, clearly the intention in the order was to give effect to the statement in the judgment recalling and cancelling the grant of probate of 3rd September, 1985 which had issued to Ms. Gunning.
8. Pursuant to the order of the Court dated 31st July, 2003, on 25th April, 2006 letters of administration with the will of the Testator annexed issued from the Probate Office to the Personal Representative as the person appointed by the Court pursuant to s. 27(4) of the Act of 1965. That grant of letters of administration was expressed to be made by order of the Court dated 31st July, 2003. Further, it was noted on the order as follows:
“The Grant of Probate which issued from the Probate Office on 3rd September, 1985 having been Revoked by Order of the Court dated 31st July 2003.”
9. The time gap in the Personal Representative extracting the letters of administration was in part attributable to the fact that Ms. Gunning had appealed against the order of the High Court dated 31st July, 2003. An order of this Court made on 18th June, 2004 on a motion on the part of the Widow for an order striking out Ms. Gunning’s appeal for want of prosecution discloses what happened. It is recorded in the order that Ms. Gunning informed the Court that it was her intention to withdraw the appeal, which brought the appeal to an end. Accordingly, the judgment and order of Smyth J. are the final determinations on the issues thereby dealt with.
10. The Widow died on 4th April, 2005. There is attached to the written submissions filed by Ms. Gunning a copy of the grant of probate of the last will of the Widow which issued on 21st November, 2005 to Deborah Crowley and Padraic Ferry, both solicitors, the executors named in the said will. In that will, which was dated 24th September, 2004, the Widow specifically devised her interest or share in the Cottage to her daughter, Mary Gunning, for her own use and benefit absolutely. She devised and bequeathed the residue of her estate as to one half share to her daughter Mary Gunning and as to a quarter share to a grandson and as to the remaining quarter share to her granddaughter, Ms. Gunning’s daughter. The only relevance of the probate and will of the Widow for present purposes is that it points to the ultimate destination of her share in the Cottage and of her estate in general.
11. Before outlining the proceedings taken by the Personal Representative against Ms. Gunning after the grant of letters of administration issued to him, I propose returning to the reference made in the judgment of Smyth J. to Ms. Gunning having set in train a line of inquiry as to the successors in title to the owners of the freehold in the Cottage and having sought to acquire the freehold for her own benefit and to be registered as sole owner of the Cottage and lands in the Land Registry. On the hearing of the appeal, Ms. Gunning attached particular significance to two documents she handed in to this Court. One was an application form for a vesting by consent under the Act of 1978 (Form A) filed by her in the Land Registry on 15th October, 2002. In that Form A application, Ms. Gunning applied to have the fee simple vested in her on the basis that she had obtained the consent of the freehold owner. The second document was the consent form under the Act of 1978 (Form C). It named Pleione Tooley, with an address in the United Kingdom, as the owner of the fee simple. It also disclosed that the agreed purchase price for the fee simple in the Cottage was stated to be “£85.00 = €137.05” and receipt of £85 was acknowledged. The form was signed by “P. Tooley”. In the second schedule to the Form C the particulars of the interest of Pleione Tooley were stated as follows:
“I am the elder daughter of Florinda Kingdon Ward (nee Norman Thompson) and I believe Jane Orpen may have been her mother.”
12. The line taken by Ms. Gunning, both in the High Court and on the appeal, was that she had a superior title in the Cottage, that is to say, superior to the interest of the Personal Representative. In her written submissions she stated that she bought out the fee simple or ground rent in September 2002, eighteen years after the Testator’s death. One of the Land Registry applications referred to in the last paragraph of her written submissions is an application designated 02GR00968, which I assume is the application to which the Form A and the Form C referred to above apply. It is by no means clear what the outcome of the application was. However, on the copy of the Form A before the Court there appears the notation “W/D 20/8/03”, which suggests to me that it was treated as withdrawn by the Land Registry, following the order made by Smyth J. in 2003. In any event, there is no evidence that a vesting certificate was ever issued by the Land Registry in favour of Ms. Gunning. Indeed, it would not be surprising that none issued, apart altogether from the intervention of the High Court proceedings. There is nothing to show that the fee simple interest was vested in the lessors in the Lease, nor is there anything to prove that the title of the lessors, whatever interest they had, devolved to Pleione Tooley.
13. In February 2007 the Personal Representative brought proceedings against Ms. Gunning in the Circuit Court in County Wicklow on foot of an equity civil bill (Record No. 105/07(E)) claiming possession of the Cottage. The matter was heard in the Circuit Court by His Honour Judge White, who made the following orders on 4th November, 2008:
I presume that the reference to “a Deed of Consent” is the reference to the consent form (Form C) signed by Ms. Tooley. There is nothing in the papers before this Court to suggest that the Land Registry acted on foot of the consent form. Indeed, as outlined earlier, the impression I get is that it did not.
14. The decision of Judge White was appealed to the High Court. The appeal was heard by Murphy J. on 26th February, 2009. He ordered that the order of the Circuit Court dated 4th November, 2008 be affirmed. That was the end of the road as regards the Personal Representative’s claim for possession of the Cottage against Ms. Gunning. The order of the High Court, being an order on an appeal from the Circuit Court, was a final order.
15. Subsequently, an execution order issued from the Circuit Court in favour of the Personal Representative on 7th October, 2009. Eventually on 1st October, 2010 the Personal Representative attended at the Cottage with the Sheriff for the purpose of executing the order. Some time later, Ms. Gunning, in the company of her daughter, vacated the Cottage. Unfortunately, having subsequently broken back into the Cottage, Ms. Gunning was committed for contempt of Court to Dóchas Women’s Prison in Dublin. However, this Court is not concerned with the course of the proceedings by the Personal Representative against Ms. Gunning in the Circuit Court in County Wicklow subsequent to the initiation of the proceedings in the High Court the subject of this appeal.
16. Nonetheless, before considering those proceedings, it is appropriate to record that in the proceedings in the Circuit Court before His Honour Judge O’Hagan, in the proceedings in the High Court before Smyth J., in the proceedings in the Circuit Court before His Honour Judge White, and in the proceedings on the appeal from the Circuit Court to the High Court before Murphy J., Ms. Gunning was not legally represented. Moreover, she has not been legally represented in the proceedings the subject of this appeal, either in the High Court or on the appeal. Ms. Gunning would undoubtedly have benefited from professional legal advice from the late 1990s onwards, particularly as regards the complex legal issues in relation to the title to the Cottage.
The proceedings in the High Court
17. As stated above, the plenary summons issued on 8th November, 2010. To recapitulate, it is assumed that the Personal Representative is sued in his capacity as Personal Representative of the Testator. In the general endorsement of claim on the plenary summons Ms. Gunning (at paras. 8, 9 and 10) sought the following reliefs:
(a) an order for the return of the keys of her home, [the Cottage], without further delay;
(b) an order preventing the Personal Representative, and other named parties who are not before the Court, from interfering with her home and property and causing her and her family any further mental distress and torture; and
(c) damages for stress, torture, damage to her home, furniture and valuables from dampness over an extended period since her illegal eviction together with damage to her health, welfare and reputation and that of her daughter, Fatima.
18. The wrongdoing which Ms. Gunning alleged gave rise to her entitlement to such relief was set out in paras. 1 to 7 inclusive of the general endorsement of claim. In order to identify the foundation of Ms. Gunning’s claim, it is convenient to summarise those paragraphs, in which the following wrongdoing is alleged:
(i) abuse of privilege and power to steal and dispossess Ms. Gunning of her family home, the Cottage;
(ii) colluding with others to cover up the facts to steal her home and property on false and fraudulent documentation;
(iii) colluding with others to destroy, deface and conceal the fact that her home and property “was very valuable in a sought after area of Greystones, County Wicklow”;
(iv) the denial to her of her legal and lawful inheritance contrary to the Act of 1965;
(v) concealing vital evidence from the courts, the Land Registry offices and the County Council Planning Section and An Bord Pleanála;
(vi) filing false and fraudulent documentation in the Probate Office to mislead and deny Ms. Gunning her legal and lawful inheritance;
(vii) collusion with others to obtain a false and fraudulent court order for an illegal and unlawful eviction from her family home, the Cottage; and
(viii) mental torture and massive abuse of her eighty year old mother and interference with her sister, Mary Gunning, “in the use of the age old method of Divide and Conquer to destroy our Family to make belief that we were the authors of our own misfortune”.
In relation to the allegations at (viii), it is appropriate to recall that the Personal Representative’s entitlement to apply for a grant of letters of administration to the estate of the Testator derives from the judgment and order of the High Court (Smyth J.) in proceedings at the suit of the Widow made on 31st July, 2003 and his actual authority derives from the grant of letters of administration with the will of the Testator annexed, which issued to him after the death of the Widow. As those allegations at (viii) have not been advanced either by the personal representatives of the Widow or by Mary Gunning, none of whom are before the Court, it is unnecessary, and it would not be appropriate, to consider them further.
The application the subject of the appeal
19. Following delivery of Ms. Gunning’s statement of claim, but before delivering a defence, the Personal Representative brought an application to the High Court on 21st February, 2011 seeking the following orders:
(a) an order pursuant to Order 19, rule 28 of the Rules of the Superior Courts (the Rules) dismissing the plaintiff’s claim on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious;
(b) an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim as an abuse of process; and
(c) an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim on the grounds that it is an attempt to re-litigate a case that was decided by the Circuit Court and the High Court and is, accordingly, res judicata.
The applicant also sought an Isaac Wunder order prohibiting the plaintiff from issuing proceedings against the Personal Representative without leave of the Court. As recorded earlier, the application was grounded on the affidavit of the Personal Representative sworn on 18th February, 2011.
20. It is necessary to consider the process of the application through the High Court in detail. Fortunately, there are before this Court transcripts of the DAR recordings of the proceedings in the High Court. I have read and carefully considered the content of each transcript.
21. The matter first came on for hearing in the High Court before Hogan J. (the trial judge), on 16th May, 2011. There was also a motion by Ms. Gunning for discovery before the High Court on the same day. However, the trial judge took the view that it was logical to address the Personal Representative’s motion first. In my view, that was undoubtedly a sensible approach. In relation to the Personal Representative’s application, in broad terms, the response of Ms. Gunning was grounded on two propositions: that she was claiming absolute title to the Cottage; and that the earlier decisions of the Circuit Court and the High Court had been procured by fraud. After exploring those propositions with Ms. Gunning, the trial judge, having made it clear that the previous orders of the High Court were prima facie binding on him, indicated that he would give Ms. Gunning an opportunity to adduce clear evidence that the previous decisions were procured by fraud. Ms. Gunning was also to have an opportunity to demonstrate that she had, in fact, got a superior title to the Cottage than the Personal Representative had. In the circumstances the Judge adjourned the application to 27th June, 2011, having directed Ms. Gunning that any documents she wished to rely on should be served on the Personal Representative on or before 20th June, 2011. That decision was the subject of an order of the Court perfected on that day.
22. When the matter was back before the trial judge on 27th June, 2011, Ms. Gunning was still persisting in her argument that she had a superior title to the Personal Representative to the Cottage, but she had not produced any concrete evidence of that. Moreover, she was still persisting in her contention that the previous orders of the High Court had been procured by fraud, but, again, she had not produced any satisfactory evidence to that effect. In the course of hearing her submissions, the trial judge stated that he was minded to put the matter in for a full viva voce hearing and he made it clear that, given the existence of a previous High Court order (i.e. the order of Murphy J. on the appeal from the Circuit Court), he had no jurisdiction unless she could show that it was obtained by fraud. Later, the trial judge made it clear to Ms. Gunning that he was giving her the opportunity to establish fraud and also to establish that she had a superior title. In relation to the latter aspect of the matter he made it clear that she would have to get an opinion showing that she had a superior title either from a solicitor or a conveyancing counsel. On that basis, the matter was adjourned for hearing to 26th July, 2011. The matter did not proceed to hearing on 26th July, 2011, because on 20th July, 2011 the matter was listed for mention at the request of the Personal Representative. The position of the Personal Representative on that occasion was that, it being the holiday season, he had some difficulty in relation to adducing oral evidence. In any event, that problem became immaterial because, when the matter came before the Court, Ms. Gunning alleged that the trial judge had a serious conflict of interest and that she was objecting to him continuing with the case any further. The outcome of that was that the trial judge adjourned the application to enable Ms. Gunning raise the matter with the President of the High Court.
23. In the event, another High Court Judge, Cross J., was assigned to hear Ms. Gunning’s complaint. He heard Ms. Gunning’s application, which, in his ruling of 28th October, 2011, he characterised as an application to “remove Judge Hogan from sitting in judgment of my case, Eileen Gunning v. Brian Sherry”. Cross J. in a reasoned ruling addressed the history of the case, the involvement of the trial judge in the case, Ms. Gunning’s application and her grounds for seeking the relief she sought. He also cited the relevant authorities. He set out his decision as follows:
“I am of the view that Judge Hogan had showed absolutely no bias against [Ms. Gunning]. Given her status as a lay litigant, he was very indulgent of her and offered her every opportunity to make the case and, notwithstanding the fact that on the 27th June, 2011 she did not produce the evidence she was required to do, Judge Hogan still, in ease of her, ordered that the case go to full trial, when he clearly could have halted the case there and then on the [Personal Representative’s] motion. There was no bias against [Ms. Gunning] and no evidence either that the Judge assisted the legal representative of the [Personal Representative].”
Accordingly, Cross J. dismissed Ms. Gunning’s application. That decision was reflected in the order of the Court made on 28th October, 2011, in which it was ordered that Ms. Gunning’s application stood refused. There was no appeal against the order of Cross J. 24. The hearing of the Personal Representative’s application was resumed before the trial judge on 7th February, 2012. At Ms. Gunning’s insistence, counsel for the Personal Representative opened the grounding affidavit of the Personal Representative. He also opened the order of His Honour Judge White and the order of Murphy J. and made some brief submissions. Ms. Gunning was accompanied by a McKenzie friend, John Gill, whom this Court was informed has since died. Thereafter, Ms. Gunning and, occasionally, Mr. Gill, addressed the Court. It was clear that Ms. Gunning was still submitting that the Court orders on which the Personal Representative relied had been obtained, to use Mr. Gill’s terminology, “by false and malicious misleading information to the courts” (Transcript, page 12). It was also clear that Ms. Gunning was persisting in her claim that she was one hundred per cent owner of the Cottage. She was reminded by the trial judge that she was being given permission to call oral evidence (Transcript, page 24). After further allegations by Ms. Gunning and Mr. Gill against persons, most of whom were not before the Court, and an intervention from a person in the body of the Court, the trial judge reminded Ms. Gunning once again that he had given her every opportunity to call such witnesses as she saw fit (Transcript, page 32).
25. Later, in answer to a question from the trial judge as to how Ms. Gunning was claiming to be the one hundred per cent owner of the Cottage, Mr. Gill’s response was that she was going to have to get an opportunity to explain that. It then became apparent that Ms. Gunning was looking for a further adjournment (Transcript, page 34). Subsequently, it was made clear that she was looking for a two month adjournment. When the views of the Personal Representative were canvassed as to adjourning the Personal Representative’s application to dismiss the proceedings, the Personal Representative objected to an adjournment on the ground that Ms. Gunning had had an ample opportunity to gather the oral evidence which she had been informed by the Court she was entitled to adduce on the 27th June, 2011. Just before the lunch break, the trial judge ruled on the application for an adjournment and he refused it (Transcript, page 52).
26. After the lunch break, there was further interchange between Ms. Gunning and Mr. Gill and the Court, but no evidence was called. On the final occasion on which the trial judge informed Ms. Gunning that she could call whatever evidence she wished, her response was a request that he make his order, whereupon the trial judge commenced his ex tempore ruling (Transcript, page 59). In the course of the ex tempore ruling, having interrupted the trial judge, both Ms. Gunning and Mr. Gill left the Court. The trial judge ruled that he had no alternative but to strike out the proceedings as an abuse of process (Transcript, page 64). He then dealt with the application for an Isaac Wunder order. He stated that he would make such an order as would restrain Ms. Gunning from issuing any further proceedings in the High Court without the prior leave of the High Court (Transcript, page 66). As regards costs, the trial judge made an order that the Personal Representative was entitled to the costs of the proceedings to be paid out of the estate of the Testator and he made a costs order over against Ms. Gunning that she pay to the estate the costs of the proceedings, the costs to be taxed in default of agreement (Transcript, page 67). At the end, the trial judge stated that he would give his reasons in writing for the ruling on 28th February, 2012 and he adjourned the matter to that date.
The judgment of the High Court
27. The judgment of the High Court was delivered on 28th February, 2012 (Neutral Citation [2012] IEHC 88). Having outlined the factual background, the first proceedings in the Circuit Court (Record No. 154/01), the first proceedings in the High Court (Record No. 2003/122SP), and the withdrawal of the appeal by Ms. Gunning to this Court against the order of Smyth J., the second proceedings in the Circuit Court (Record No. 105/07(E)), and the appeal to the High Court against the order of His Honour Judge White, the trial judge (at para. 18 et seq.) went on to deal with the proceedings before him and the Personal Representative’s application to strike out the proceedings as an abuse of process. He stated (at para. 23) that, in the absence of any evidence that the earlier decisions were wrong in some way, much less evidence of fraud, it followed that the earlier decision of the High Court (the decision of Murphy J.) affirming the Circuit Court decision (the decision of His Honour Judge White) must stand. However, on the basis that it might be useful to do so, he went on to inquire of possible grounds of fraud which might conceivably exist or have existed. He made the point that the will of the Testator had never been challenged. In fact, it is difficult to see how Ms. Gunning could have challenged it, she having applied for and been granted probate of the will in 1985. The trial judge then considered two possible bases on which Ms. Gunning could claim to be the full owner of the Cottage: the first being that she purchased the fee simple reversion; and the second being that she had acquired a possessory title.
28. While emphasising that no formal documents of title were put before the High Court as evidence of her acquisition of the freehold reversion, the trial judge considered the first basis on the assumption, in Ms. Gunning’s favour, that she had purchased the reversionary interest. Lest there be any doubt on this point, I reiterate that there is no evidence before this Court that Ms. Gunning acquired the freehold reversion; all that is before this Court is the consent form (Form C) signed by Ms. Tooley, which, on the basis outlined earlier, proves nothing. The point made by the trial judge was that, if his assumption was correct, Ms. Gunning was, in any event, the personal representative of the Testator at the relevant time. The trial judge referred to the relevant legal principles governing the situation where a person in a fiduciary capacity acquires the freehold reversion in property in which the leasehold interest is held in trust (as here, because of the application of s. 10(3) of the Act of 1965), referring to a decision in Gabbett v. Lawder (1881) 11 L.R. Ir. 295 and the following passage from Delany on Equity and the Law of Trusts in Ireland (5th Ed.) at p. 225:
“. . . where a fiduciary purchases the reversion of a lease . . . it is probable that a trust will only arise in the circumstances outlined by Chatterton VC in Gabbett v. Lawder or where the fiduciary has clearly taken advantage of his position as lessee to obtain this benefit. However, having regard to the tenor of the authorities in this area, the onus will undoubtedly lie on the fiduciary to establish that he has not acted improperly, particularly where he occupies the position of trustee.”
The trial judge reached the following conclusion (at para. 30):
“. . . even if [Ms. Gunning] managed to buy out the fee simple reversion in the manner that she claimed, this does not give her any superior title, because, as a matter of law, she holds that reversionary interest on trust for the beneficiaries of her father's estate given that this was acquired at a time when she was executrix. This is not evidence of fraud, but it is rather the application of a rule of law designed in itself to prevent fraud.”
29. That the conclusion of the trial judge is correct is unquestionable. Further, I would point out that the position was even clearer on the case made by Ms. Gunning in this Court. She handed in the Form A and the Form C as evidence that she had acquired the freehold reversion. If she had, she would have done so on the basis that the leasehold interest under the Lease, which had passed to her as personal representative of the Testator, gave a statutory entitlement to acquire the fee simple compulsorily under the Act of 1978. While it is by no means clear that there was such an entitlement, if there was, and if Ms. Gunning obtained a vesting certificate under the Act of 1978, she would have unquestionably held that interest in trust for the estate of the Testator. It is interesting to observe that, in her written submissions in this Court, which were filed on 21st April, 2015, Ms. Gunning stated as follows:
“Later in 2002 I, as my father’s, Executrix, I bought out the Ground Rent by Consent from the Successors in Title of the Orpin estate . . .”
Thus, Ms. Gunning actually acknowledged that, assuming she had acquired the freehold, she had acquired it in a fiduciary capacity.
30. Turning to consideration of whether Ms. Gunning has acquired a possessory title to the Cottage, unlike the question as to the implications of the purchase of the fee simple reversion by Ms. Gunning, if it happened, which in my view is totally hypothetical because there is no evidence that it did happen, the question as to whether Ms. Gunning was in adverse possession for a sufficient period of time to have obtained a possessory title in the Cottage against the Personal Representative is anything but hypothetical. It has to be seen in the context that -
31. As the trial judge pointed out (at para. 32), the limitation period in respect of claims against the estate of a deceased person is six years, as provided for in s. 45 of the Statute of Limitations 1957 (the Act of 1957), as inserted by s. 126 of the Act of 1965, although it is appropriate to record that s. 123(1) of the Act of 1965 provides:
“A personal representative in the capacity of personal representative shall not, by reason only of section 10, be a trustee for the purposes of the Statute of Limitations, 1957.”
Further, in the case of claims by a personal representative to recover a deceased’s assets against a person holding adversely to the estate, the courts have held that the normal twelve year limitation period of twelve years, as prescribed by s. 13 of the Act of 1957, applies. As to the application of the Statute of Limitations to the position of Ms. Gunning, the trial judge stated (at para. 34):
“. . . the earliest possible date on which time might have run in favour of [Ms. Gunning] was 1999 when her mother [the Widow] left the property. Time was, however, interrupted by virtue of the fact that [the Widow] purported to terminate [Ms. Gunning’s] licence to remain in the dwelling in December, 2000 and then commenced proceedings in March, 2001 whereby she sought an order for possession. Even if it be said that time commenced again when Judge O'Hagan dismissed that claim in July 2002, it was interrupted again no later than February, 2007 when [the Personal Representative] commenced proceedings against [Ms. Gunning] as the legal personal representative of the estate of the [Testator]. Such periods of adverse possession as might have run in favour of [Ms. Gunning] do not approach the requisite period of 12 years.”
On the foregoing basis the trial judge concluded that a claim based on adverse possession had not been made out. That is consistent with the outcome of the Circuit Court proceedings initiated in 2007 and the affirmation by the High Court (Murphy J.) of the order of the Circuit Court made by His Honour Judge White.
32. The trial judge then went on to consider whether the Court should make an Isaac Wunder order against Ms. Gunning and he held that it should. His reasoning was that, while the plaintiff had issued only one action in her own name, the case of the Cottage had been in the courts for years. He stated (at para. 40):
“The very fact that these proceedings were commenced without a willingness to support the claim of fraud is itself evidence of abuse. A considerable amount of judicial time and resources have been expended in considering the rights of the parties to this dispute. The other beneficiaries to the estate have been adversely affected by this on-going litigation. Further litigation can only add to the misery which this tragic dispute over home ownership has caused.”
It is impossible to disagree with that reasoning.
Order of the High Court
33. The order of the High Court made on 28th February, 2012 ordered -
Notice of appeal
34. On 13th March, 2012 Ms. Gunning filed a notice of appeal against the judgment and order of the High Court. The only ground of appeal set out in the notice of appeal was that Ms. Gunning “was not given a fair hearing or indeed a hearing at all”.
Application for leave to amend grounds of appeal
35. In June 2015, Ms. Gunning brought an application to this Court pursuant to Order 28, rule 1 of the Rules seeking leave to allow her to include additional grounds of appeal. The application was resisted by the Personal Representative. It was listed for hearing before this Court with the hearing of Ms. Gunning’s appeal on 29th July, 2015.
36. On Ms. Gunning’s application seeking leave to allow her to include additional grounds of appeal, which the Court considered before hearing the appeal, Ms. Gunning outlined the additional grounds in the notice of motion as follows:
(a) that the Personal Representative, presumably meaning his solicitor’s practice, is now incorporated in the firm of Ferrys Solicitors who acted for the Widow in her Circuit Court and High Court cases against Ms. Gunning and, as such, a conflict of interest exists on the part of the Personal Representative in his capacity as administrator of the Testator’s estate;
(b) that the failure of the Personal Representative to administer the Testator’s estate for three years after he was appointed exacerbated the dispute between herself and her sister;
(c) that the original grant of probate issued to her was not revoked by the order of the High Court (Smyth J.) dated 31st July, 2003 and there cannot be two grants of probate for the same person so that the second one issued to the Personal Representative is invalid, Ms. Gunning having completed the administration of the Testator’s estate in 1985; and
(d) that she and her daughter have been in adverse possession since 1999.
37. The Personal Representative, in his replying affidavit sworn on 10th July, 2015 on the application to amend the grounds of appeal averred that his solicitor’s firm amalgamated with Ferrys Solicitors in October 2013.
38. Having heard the submissions of the parties on 29th July, 2015, the Court refused Ms. Gunning’s application to amend the notice of appeal by adding the additional grounds. First, the Court was satisfied that no conflict arose by reason of the Personal Representative having joined the firm of Ferrys in October 2013. In fact, Brian Sherry had been nominated to act as personal representative of the estate of the Testator in the proceedings brought by the Widow in the High Court in 2003, in which Ferrys acted for the Widow, and to which Ms. Gunning was a party, and he had effectively been appointed to the position of personal representative by the High Court (Smyth J.). Secondly, the suggestion of delay on the part of the Personal Representative or of consequences flowing therefrom was not raised in the High Court and cannot be raised on this appeal. Thirdly, as regards the suggestion that the first grant of probate of the will of the Testator had not been revoked, the Court was satisfied that that was not the case on the basis of the sequence of events outlined at paras. 6, 7 and 8 above and the content of the documents issued by the High Court as set out in those paragraphs. Finally, the issue as to adverse possession had already been finally determined by the High Court (Murphy J.) on the appeal from the Circuit Court. Despite the very clear, and, in my view, correct, guidance given by the trial judge to Ms. Gunning as to the approach she would have to adopt to overturn that final determination, no ground contradicting that approach or indicating any other basis for setting aside that final determination was advanced by Ms. Gunning. In short, the only inference one can draw from the conduct of the proceedings by Ms. Gunning is that she is not prepared to face the reality of the situation.
Conclusion on appeal
39. Accordingly, the only matter which remains on the appeal is whether Ms. Gunning was not given a fair hearing in the High Court, as she contends. As a careful consideration of the transcripts discloses, nothing could be further from the truth.
40. I agree with the views expressed by Cross J. as to the manner in which Ms. Gunning was treated by the trial judge in the hearings prior to 28th October, 2011. As regards the hearing on 7th February, 2012, it is amazing, having regard to the observations of Cross J., which I have quoted above, that Ms. Gunning did not prepare herself for an oral hearing on that day and was not in a position to adduce oral evidence in support of her case that the proceedings should not be dismissed as an abuse of process. Once again on 7th February, 2012, the trial judge was very indulgent of Ms. Gunning and she was given every opportunity to make her case and adduce evidence in support of it. I would go so far as to say that, bearing in mind what we learn from the Old Testament about Job, the trial judge demonstrated patience of biblical proportions.
41. Given that just short of nine months before the hearing on 7th February, 2012 the trial judge had afforded Ms. Gunning the opportunity to mend her hand and adduce clear evidence of the type necessary to avoid having her proceedings discontinued, and that despite reminders of what was required from both the trial judge and Cross J. in the intervening period, she did not do so, the trial judge, in my view, was quite correct in refusing to adjourn the Personal Representative’s application any further. It would have been grossly unfair, not only to the Personal Representative, but more importantly to the ultimate beneficiaries of the estate of the Testator, if he were to do otherwise.
42. The failure of Ms. Gunning to adduce any evidence in support of her multifarious allegations of fraud and falsification in connection with the previous decisions of the High Court or in support of her contention that she was the hundred per cent owner of the Cottage left the trial judge with no choice but to make the order he made dismissing Ms. Gunning’s proceedings as an abuse of process.
43. Even at the risk of unnecessary repetition, it is appropriate to reiterate that there were two fundamental factors underlying the position from which the trial judge had to start. The first was the existence of the judgment and order of the High Court (Smyth J.), the appeal brought by Ms. Gunning having been withdrawn, which finally determined that Ms. Gunning should be removed as personal representative and that a grant of letter of administration with the will of the Testator annexed should issue to the Personal Representative, on whom the duty of administering the estate of the Testator was then imposed. The second was the existence of the order of the High Court (Murphy J.) affirming the decision of the Circuit Court granting possession of the Cottage to the Personal Representative in that capacity, which meant that there was a final order in place that Ms. Gunning was not entitled to possession of the Cottage, there being no further right of appeal. As he stated in the passage from his judgment (at para. 23) referred to earlier, the trial judge had no option but to find that the latter decision of the High Court stood, there being no evidence on the basis of which the High Court could have considered setting it aside. That remains the position.
44. In summary, the plaintiff has not established that she was not given a fair trial in the High Court. Nor, following a careful consideration of all of the documentation put before this Court by Ms. Gunning as a personal litigant, has anything emerged on the appeal to suggest that the decision of the trial judge to dismiss the proceedings as constituting an abuse of process of the Court, being an attempt to re-litigate matters which have already been judicially finally determined, might have been incorrect. Therefore, the only course open to this Court on the appeal is to affirm the order of the High Court dismissing the proceedings.
45. Further, for the reasons advanced by the trial judge, I am of the view that it was appropriate that an Isaac Wunder order in the terms set out by the trial judge was made and that such an order should continue in existence. Unfortunately, the reality of the situation is that, by participating in the various proceedings in the manner in which she participated, Ms. Gunning has incurred liability for costs which has dissipated her entitlement to a share of the estate of the Testator. She may also have adversely affected the entitlement of the other beneficiaries, including her daughter. Although it is unlikely that she would agree, that she is restrained from continuing to litigate could well be seen as being in her interest.
Order
46. Accordingly, there will be an order dismissing the plaintiff’s appeal and affirming the order of the High Court as outlined at para. 33 above.
