THE SUPREME COURT
Appeal No. 216/2010
Denham C.J.
O’Donnell J.
McKechnie J.
Daniel Gallagher and Elva Gallagher
Plaintiffs/Appellants
And
Sean McGlynn and Catherine McGlynn
Defendants/ Respondents
Judgment delivered on the 10th May, 2016 by Denham C.J.
1. This is an appeal by Daniel and Elva Gallagher, the plaintiffs/appellants, referred to as “the appellants”, from the order of the High Court (Charleton J.) dated the 21st June, 2010, and perfected on the 22nd June, 2010. In that said order it was ordered that the appellants claim against Sean McGlynn and Catherine McGlynn, the defendants/respondents, referred to as “the respondents” be dismissed.
2. The appellants have brought this appeal against that order and state that they seek an order:
“To have [the respondents] investigated by the Garda Bureau of Fraud Investigation or the Criminal Assets Bureau because of the extent of fraud and cover up in this case”
3. The appeal was listed for hearing on the 17th December, 2015, and the Court heard submissions on behalf of the appellants and the respondents, both appearing on their own behalf.
4. This Court has considered the papers filed and heard the oral submissions made by the parties.
Background
5. There is a long history behind this appeal. The High Court (Edwards J) in the earlier related High Court judgment of McGlynn v Gallagher [2007] IEHC 329, summarised the background to these proceedings which I gratefully adopt.
6. Madge Friel died on the 31st March 2001, a widow without surviving issue, at Lagan Valley Nursing Home, Ballindrait in the County of Donegal. She made a will executed on the 28th December, 1994, in the presence of Sean McGlynn, solicitor, and his wife Catherine McGlynn. She appointed the respondents as executors of the said will.
7. Mrs Friel, in her will, devised and bequeathed her farm at Knocknabollan to Anton Gallagher, her cousin, in fee simple. Mr Anton Gallagher was the father of the first named appellant.
8. Mr Anton Gallagher died on 4th March, 2001, thereby predeceasing Mrs Friel. Thus, as per s.91 of the Succession Act, 1965, the devise to Anton Gallagher lapsed and became part of the residue of her estate. The residue legatees were the next of kin of Mrs Friel, her nephews and nieces, and the farm at Knocknabollan, as part of the residue, fell to be divided amongst them pursuant to s. 74 of the Succession Act, 1965, and the rules of intestacy.
9. The respondents, as executors of Mrs Friel’s estate, engaged auctioneers to sell the property and a buyer was procured. However it was discovered that the first named appellant was occupying the property by keeping cattle on the land and he refused to vacate the lands.
10. The respondents, as executors, brought Circuit Court proceedings to obtain vacant possession of the lands. His Honour Judge O’Hagan on the 9th March, 2006, struck out the defence of the first named appellant on the basis that it failed to disclose any reasonable answer to the respondents’ claim. He gave judgment in favour of the respondents and declared that the first named appellant be restrained from interfering with the sale of the property.
11. The appellants appealed that order to the High Court, and on the 8th October, 2007, the High Court (Edwards J.) made an order dismissing the appeal and affirming the order of the Circuit Court.
12. The first named appellant attempted to appeal the judgment and order of Edwards J. to this Court. However under s.39 of the of the Courts of Justice Act 1936, as re-enacted by s.48 of the Courts (Supplementary Provisions) Act 1961, a decision of the High Court on appeal from the Circuit Court “shall be final and conclusive and not appealable”. Thus this Court made an order on the 21st December, 2007, ordering that that this Court had no jurisdiction to deal with the matter.
High Court Special Summons and Motion to Dismiss
13. The appellants then issued a High Court special summons on the 30th January, 2008. The respondents issued a notice of motion on the 17th June, 2008, seeking that those proceedings be dismissed.
14. The motion came before the High Court (MacMenamin J.) on the 13th July, 2009, and the parties were directed to lodge written submissions.
15. The motion next came before the High Court (Charleton J.) on the 21st June, 2010, and after reading the submissions and hearing the parties, the High Court ordered that the appellants claim against the respondents be dismissed and that the appellants do pay to the respondents the costs of the proceedings when taxed and ascertained.
16. The order of Charlton J. is now under appeal before this Court.
Notice of Appeal
17. The appellants in their notice of appeal stated that they would rely on the following grounds of appeal:-
“1. Sworn evidence and all documents before Letterkenny Circuit Court, Co. Donegal.
2.Sworn Evidence and all documents before the High Court, Dublin 7.
3. We will also be relying on the evidence of witnesses.
4. Any other evidence that the honourable Court will allow.”
Decision
18. On the 9th May, 2006, Judge O’Hagan of the Circuit Court decided that Daniel Gallagher, the first named appellant, had no claim to the property.
19. On appeal this decision was affirmed by the High Court (Edwards J.) on 8th October, 2007.
20. Thus it has been determined that the first named appellant has no right to the property in issue, and neither does his wife, the second named appellant. Edwards J. at p. 22 of his judgment stated as follows:-
“ These are matters that might be appropriately raised in an administration suit. However, it seems to me that the first named defendant could never bring such proceedings because he does not have sufficient locus standi (i.e. standing in law)” to entitle him to challenge the Grant of Probate to the plaintiffs, or to contest the manner in which the plaintiffs are administering the estate pursuant to that Grant of Probate. To have sufficient standing in law he would have to be a beneficiary under the will, or a beneficiary on intestacy. He is neither.”
21. This is an appeal in proceedings where the summons does not show any right of action of the appellants.
22. Matters raised in defence in the case brought to the Circuit Court, and then on appeal to the High Court, are restated, relating to the estate of Mrs Friel.
23. This proposed action is vexatious, as it relates to issues already determined in litigation. Also, it has no prospect of success. Indeed, it appears to have been brought for an improper purpose of harassment of the respondents.
24. The Court is satisfied that the proceedings are vexatious and would dismiss the appeal.
