Letters of Administration
Cases
In the Goods of Coleman.
[1926]
HANNA J. :
This case is a contest between two parties as to which should be granted letters of administration to the estate and effects of John Coleman, late of Castleblayney, Co. Monaghan, who died on the 20th of January of this year. The deceased had a large and prosperous business as a publican and chemist, which, in May of last year, he had turned into a private company, himself and his brother Peter, one of the claimants, being the two directors. The capital of the company was £2,000, and the shares representing same, save one qualifying share for Peter, were held by the deceased. He had other property in the nature of lands, money lent on mortgage, book debts, and shares in a co-operative company. He was a bachelor, and his next-of-kin consisted of his brother, Peter, and a sister, both of the whole blood, and the other applicanta half-brothertogether with some nephews and nieces, the children of a deceased brother, and two sisters of the half-blood. The two claimants are Peter Coleman, who is a farmer, publican, and shopkeeper in the village of Laragh, some miles from Castleblayney, and James Coleman, the half-brother, who is an ironworker at a weekly wage in Middlesbrough, Yorkshire.
One of the main contentions in this case is the fact, now urged against Peter Coleman by his half-brother, that he (Peter) has been convicted of felony. It is argued that the Court should not appoint a convict to administer any estate, and especially that, owing to disabilities under the Licensing Acts, I cannot in law, and should not, in my discretion, appoint a convict to the estate of a publican. The facts appearing from the documents exhibited are, that forty years agoto be exact, on 23rd March, 1883the applicant, Peter Coleman, was one of ten men tried for what was popularly called “The Armagh Conspiracy.” On arrest they were charged with treason felony, being members of a secret association called the Irish Patriotic Brotherhood, having as its object to overthrow Her Majesty’s Government in Ireland. To this there was added a count for conspiracy to murder, supported by the evidence of a former member, called in the report an informer, that the objects were “to put down landlordism, bailiffs and agents, kill and murder anyone who made themselves obnoxious, and to free Ireland from British rule.” It is not without interest as a link with our legal past and evidence of the independence of our Bar that these men were defended by a young barrister, Mr. O’Shaughnessy (our recent colleague, the Right Hon. Mr. Justice O’Shaughnessy). The case was tried at Belfast on a change of venue from the Winter Assizes, and though the learned Judge who tried the case indicated to the jury that a distinction might be made by them in the case of Peter Coleman, the jury found him guilty, and he was sentenced to ten years’ penal servitude. That sentence he served, and he returned after eight and a half years to his home and neighbours, where for thirty-five years he, as the affidavits show, has lived as a law-abiding citizen, respected by all sections of the community.
Though the applicant purged his offence by spending eight and a half years in prison, Mr. Jellett urges with earnestness, on behalf of the half-brother, that such a conviction makes Peter Coleman an outcast in this Courta legal pariah, to whom the laws of the Saorstát as administered in this Court extend no right. Unless I am compelled by the common law or statutory enactment, I cannot take that view. To the eye of the legal pedant, the indictment reads as one of the most serious charges that could be brought against any citizen, but to one who has lived in Ireland during the years since the trial, with a knowledge of its daily history, it is now an obvious and unemotional fact that, in the light of that history, Peter Coleman, then about 20 years of age, was but one of the vanguard of the army of Irishmen who have carried the same banner, and have finally placed over this Bench of the High Court the arms of Saorstát Éireann in place of those that symbolised British rule. In view of this I do not, in the exercise of my discretion, regard the moral obliquity of his offence from the same angle as the learned Judge who, forty years ago, sentenced him to the maximum sentence.
There have been amnesties for such acts in recent times (see Acts of Saorstat Eireann , Nos. 2 and 31 of 1923, and 40 of 1924). Is there no amnesty either in law or common decency for this long-forgotten incident? I am of opinion that there is.
Mr. Jellett relies on a statement of the common law, or early English-statute law, in Coke, 39b: Hensloe’s Case (1), where Lord Coke says: “The Ordinaries shall depute the next and most lawful friends, that is, the next of blood who are notattainted of treason, felony, or have other lawful disability, but are lawful friends.” This disability, even if it existed now, only took effect upon attainder; not upon conviction. Attainder followed upon judgment of death or outlawry; not upon conviction. Besides, attainder has been expressly abolished by 33 & 34 Vict. c. 23, s. 1. In my judgment, the statement in Coke is not now law applicable to this case, so as to bar a convict from becoming an administrator under the Court.
But there is more than this. What is the effect of having served his sentence? By the Felons Act, 1828 (9 Geo. 4, c. 32), sect. 3, it was enacted that, to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, who have undergone the punishment to which they were adjudged, every punishment for such felony after it has been endured shall have the effect of a pardon under the Great Seal. Conspiracy to murder is not a capital felony. The maximum punishment is that imposed on Coleman, viz., ten years’ penal servitude. He is in the same position as if pardoned. What is the effect of a pardon? Hawkins, in his Pleas of the Crown, Book 2, ch. 37, sect. 48 (title, Pardon), says: “I take it to be settled at this day, that the pardon of a treason or felony, even after a conviction or attainder, does so far clear the party from the infamy and all other consequences of his crime, that he may not only have an action for a scandal in calling him traitor or felon after the time of the pardon, but may also be a good witness notwithstanding the attainder or conviction; because the pardon makes him, as it were, a new man, and gives him a new capacity and credit.” In the case of Cuddington v.Wilkins (1), where the same point arose, the whole Court were of opinion that “though he [the plaintiff] were a thief once, yet, when the pardon came, it took away not only poenam, butreatum, for felony is contra coronam et dignitatem regis”; and the report proceeds: “When the King had discharged it, and pardoned him of it, he hath cleared the person of the crime and infamy wherein no private person is interested, but the Commonwealth.” The same view was accepted by Chief Baron Pollock in Leyman v. Latimer (2). From these great authorities it is clear that the law in this case is consistent with justice and humanity, the first and second virtues of Courts, according to Sir Wm. Scott, as reported in Evans v. Evans (3).
It is further argued that there are special legal disabilities created by statute in reference to publicans, and that, the substantial business of the deceased being his publichouse, Peter Coleman is, by reason of his conviction, disabled in law from having the licence transferred to him as administrator. By the English Licensing Act of 1870 (33 & 34 Vict. c. 29), sect. 14, it is enacted that every person convicted of felony shall for ever be disqualified from selling spirits by retail, and no licence can be granted to such a person. But that Act has never been applied to Ireland, and even in England the trend of judicial opinion seems to be that a free pardon removes such disqualification, as is indicated by the judgments of Baron Pollock and Hawkins J., in Hay v. Justices of Tower Division of London (1).In R. v. Vine (2), a decision that seems at first reading to be to the contrary was given by the majority of the Court, but on a careful perusal it will be found that the argument and judgments are mainly on the point as to whether the Act is retrospective or not, and the principle we are considering was not discussed. In Ireland, the only restriction imposed by the licensing code upon a person convicted of felony is contained in sect. 24 of the Refreshment Houses (Ir.) Act, 1860 (23 & 24 Vict. c. 107), which enacts that every person who shall be convicted of felony, or of selling spirits without licence, shall for ever thereafter be disqualified from selling wine by retail. Assuming that this section, though it may appear a meaningless legal anachronism, does impose a disqualification, it, construed strictly as a penal enactment, does not interfere with his obtaining an ordinary licence for the sale of spirits or beer, as there is throughout the code a distinction taken between wine and spirits (sect. 23 of the Act of 1860). But this question does not really arise. The licence can be taken in the name of the manager, who will be the nominee of the company, and, as administrator, the main duty of the person appointed would be to realise the interest of the deceased in the shares held by him in the company, call in all other assets, and distribute same amongst the next-of-kin.
In considering rival claims, as in this case, I have to exercise my discretion, having regard not only to personal character and legal disability, but also importance must be given to the residence of the applicants and the control of the Court over them, their blood relationship to the deceased, their knowledge of the affairs of the deceased, and their business capacity, the support of the next-of-kin, and whether any of their interests are adverse to the duties of an administrator.
James Coleman, the half-brother, though he resides out of the jurisdiction, has undertaken to procure a residence within the jurisdiction of the Saorstát for the purpose of qualifying himself to administer the estate and while doing so. Peter Coleman is a citizen of the Saorstát, and has a permanent residence here. James Coleman, though he has resided in England for forty years, alleges that he, too, is a citizen of the Saorstát. Following my own decision in McCoy’s Case (3), I must regard Peter as better qualified in this respect. James Coleman is only of the half-blood, has no real knowledge or experience of either of the trades at present carried on in the business, or of any business, but he undertakes that a nephew-in-law, who has a knowledge of the licensed tradebeing a publican in Castleblayneywill assist him, or become his manager. Peter Coleman owns the publichouse at Laragh, which is licensed in his wife’s name; has been in the business all his life, had the confidence of his brother, and advised him in business matters in connection with the company, and has an intimate personal knowledge of the nature of the business carried on. I accept the evidence of Mr. John Gillespie, solicitor, on this, as he is solicitor to the company, and a gentleman of high repute. The balance is again here in favour of Peter Coleman. As regards support of the next-of-kin, the rival claimants seem to have each about one-half of the interest. Neither has any real adverse interest to the fair administration of the estate.
Having ruled against the main contention of James Coleman against Peter, being also of opinion that the balance on the other topics is in favour of the latter, and having special regard to his residence in the Saorstát, I shall make an order that the grant do issue to him, and that James Coleman do pay Peter Coleman’s costs of this application when taxed.
In re Corcoran.
[1934] IR 574
Hanna J.
HANNA J. :
Under sect. 88 of the Probate Act (Ireland), 1857, the Court on a motion to assign a bond must be satisfied that the bond has been broken. There must, moreover, be not only a breach, but usually a substantial breach which amounts in fact to a general devastavit: a particular instance is not sufficient. In this case I am not satisfied that any such general devastavit has occurred.
The breach relied upon by Mr. Hewitt Poole for the applicant was the sale of the farm which consisted of freehold registered land. This sale, however, took place within the administrator’s year. Apart from that, in the bond entered into in this case, which is, I understand, the common form still in use in this Court, there is in my opinion no clause expressly covering freehold registered land, whereof the devolution of the legal interest on death and the succession to the beneficial interest are controlled by sects. 84 and 85, respectively, of the Local Registration of Title (Ir.) Act, 1891. Such land clearly does not come under the description of “personal estate” which is the only form of property included in the terms of the bond. This is a defect in the present form of bond which must be rectified.
With the exception of these registered lands I am not satisfied that any assets of the deceased came to the hands of the administrator, nor am I satisfied that if any such assets did come to his hands they were not properly administered by him.
In any case, the remarkable laches on the part of the next-of-kin in allowing seven years to elapse before moving would be sufficient of itself to disentitle the applicant to succeed in this motion.
The order sought must be refused with costs
In the Goods of Edward Albert Leeson, deceased
Thomas Alexander Leeson
High Court (Probate).
19 February 1937
[1937] 71 I.L.T.R 82
Hanna J.
“Edward Albert Leeson died intestate on the 25th March, 1932. Letters of Administration were granted to a lawful brother, James Walter Leeson (who himself died intestate on the 29th December, 1935). Other lawful next-of-kin were the Applicant (brother), Mary Louisa Warnock, Emily Frances Roberts (sisters), Violet Alice Leeson and Gladys Maud Cunniam (nieces).
The Applicant claims that there was a devastavit and a breach of Conditions of the Administration Bond for in that the Administrator distributed the estate without notice or regard to the claims as next-of-kin of the Applicant and Violet Alice Leeson and Gladys Maud Cunniam.
These averments will be proved by the affidavit of the Applicant filed this day and the documents therein referred to.
The Court will be moved by counsel for an Order that the joint and several bond dated April 16, 1932, by James Walter Leeson and The National Guarantee & Suretyship Association for the due administration of the personal estate of the above-named deceased be assigned to the Applicant for the purpose of enabling him to put the same in suit against the said Association, in respect of breaches of the conditions of the said Bond, for the benefit of the statutory next-of-kin of the deceased other than Mary Louisa Warnock and Emily Frances Roberts.”
The Affidavit of the Applicant in support of the Motion stated:—
“That Letters of Administration of the personal estate of Edward Albert Leeson, above-named deceased, who died in Dublin on the 25th day of March, 1932, a bachelor without parent and intestate, were granted forth of the Principal Probate Registry of the High Court of Justice, Saorstat Eireann, on the 22nd day of April, 1932, to James Walter Leeson, a lawful brother and one of the next-of-kin of the said deceased, the assets being then sworn at £3,779 10s. 3d. I beg to refer to an attested copy of the Schedule of Assets.
“That upon the occasion of the obtaining of the said Grant on the 16th day of April, 1932, the said James Walter Leeson, as such intended Administrator, with the National Guarantee & Suretyship Association, Limited, of No. 7 Westmoreland Street, Dublin. as his Sureties, entered into their joint and several Bond to the Honourable Timothy Sullivan, then President of the High Court of Justice in Saorstat Eireann, and his successors, in the sum of £7,600 conditioned for the due administration of the assets of the said deceased; as by the said Bond, of record in the said Principal Probate Registry, appears. I beg to refer to an attested copy of the said Administration Bond.
“That at the date of his death the said Edward Albert Leeson left him surviving the following lawful and only next-of-kin, that is to say:—Thomas Alexander Leeson (this present deponent), the said James Walter Leeson (the administrator), brothers; Mary Louisa (otherwise Minnie) Warnock, married woman, now of Kimberley, South Africa, Emily Frances Roberts, married woman, of 261 Harold’s Cross Road, Dublin, sisters, and the two following lawful and only children of John William Leeson (a lawful brother who died intestate on the 5th day of September, 1901, of the said Edward Albert Leeson, deceased):—Violet Alice Leeson, spinster, of Albert Road, Sandycove, Dublin, and Gladys Maud Cunniam, married woman, of 12 Quarry Road, Cabra, Dublin, nieces.
“That, as I was informed on my return to Dublin from the United States in February, 1936, and truly believe, the said James Walter Leeson, who himself died intestate on the 29th December, 1935, as such Administrator proceeded and purported duly and fully to administer the personal estate of the said deceased, and that he distributed the net assets, amounting to the sum of £3,285 13s. 9d., between himself, the said Mary Louisa Warnock and the said Emily Frances Roberts, without regard to the rights or interest of me, this deponent, the said Violet Alice Leeson and the said Gladys Maud Cunniam, and without notice of any kind to me intimating that my said brother, Edward Albert Leeson, had died. I beg to refer to a certificate of the death of the said James Walter Leeson upon which, marked with the letter “A,” I have signed my name prior to the swearing hereof.
“That I desire to have the said Bond assigned to me for the purpose of enabling me to put the same in suit against the said Suretyship Association in respect of the said breaches of the conditions thereof for the benefit of the said statutory next-of-kin of the said Edward Albert Leeson, deceased, other than the said Mary Louisa Warnock and Emily Frances Roberts.
“That my Solicitor, Mr. Joseph C. Erskine, has since the 11th day of June, 1936, conducted negotiations, which have not ended successfully, with the said Suretyship Association and with those who benefited by the distribution of the said estate, with a view to *83 having the claims of me, this deponent, the said Violet Alice Leeson and the said Gladys Maud Cunniam conceded and met.
“I depose to the matters herein referred to out of my own knowledge and as a result of enquiries made by me and on my behalf by my Solicitor and I beg to refer, in support of my application, to the several Solemn Statutory Declarations made in connection with this matter for the satisfaction of the said National Guarantee & Suretyship Association, Limited, by me (this deponent), by Stanhope Ernest Polden, by James Moore, by the said Gladys Maud Cunniam, by the said Violet Alice Leeson and by Alice Mary Doran.”
The Statutory Declarations referred to, inter alia, identified the applicant and his nieces, established their relationship to the deceased, and stated that they were advised by their solicitor and believed that they were entitled to their respective shares of the estate of the deceased.
The Administration Bond was in the following terms:—
“Know all Men by these Presents, that I, James Walter Leeson, of 24 Terenure Park, in the City of Dublin, Accountant, and The National Guarantee and Suretyship Association, Limited, are jointly and severally bound unto. The Honourable Timothy Sullivan, President of the High Court of Justice in Saorstat Eireann, and his successors in office in the sum of Seven Thousand, Six Hundred Pounds, to be paid to the said President or his said successor, for which payment to be made we bind ourselves and each of us for the whole, our Heirs, Executors and Administrators, firmly by these Presents.
Sealed with our Seals. Dated the Sixteenth day of April, in the year of our Lord One Thousand Nine Hundred and Thirty-two.
The Condition of this Obligation is such, that if the above-named James Walter Leeson, of 24 Terenure Park, in the County of the City of Dublin, aforesaid, the lawful brother and the intended administrator of Edward Albert Leeson, late of 49 Sydney Parade Avenue, in the County of the City of Dublin, Book-keeper, deceased, do when lawfully called on in that behalf make or cause to be made a true inventory of all the Personal Estate of the said deceased which has or shall come to his hands, possession or knowledge, or into the hands and possession of any other person for him and the same so made, do exhibit or cause to be exhibited into the said Principal Registry at Dublin whenever required by law so to do, and the same Personal Estate, and all other the personal estate of the said deceased at the time of his death, which at any time after shall come to the hands or possession of the said James Walter Leeson, or into the hands or possession of any other person or persons for him, do well and truly administer according to law (that is to say) do pay the debts which he did owe at his decease; and further, do make or cause to be made a true and just account of his said Administration whenever required by law so to do and all the rest and residue of the said Personal Estate, and do deliver and pay unto such person or persons as shall be entitled thereto under the Statutes in that case made and provided. And if it shall hereafter appear that any last Will and Testament was made by the said deceased, and the Executor or Executors or other persons therein named do exhibit the same into the said Principal Registry at Dublin, making request to have it allowed and approved accordingly, if the said James Walter Leeson being thereunto required do render and deliver the said Letters of Administration (Approbation of such Testament being first had and made) in the said Principal Registry at Dublin, then this Obligation to be void and of none effect or else to remain in full force and virtue.”
R. St. J. Chadwick, K.C. (with him Herbert Hare ) moved, pursuant to Section 88 of the Probate and Letters of Administration Act (Ireland), 1857 (20 & 21 Vict., c. 79).
William Black, K.C. (with him Maurice Walker ) for the National Guarantee and Suretyship Association (no affidavits having been filed in reply) opposed the motion.
Hanna, J., in the course of announcing his decision, said that he thought this case was quite clear. In accordance with the practice of the Court, so far as he knew, if an application for an order to put a bond in suit were made, and the applicant made a prima facie case that the conditions of the bond had not been complied with, the Court should, in the exercise of its discretion, unless there were special circumstances, grant it. His Lordship was satisfied that the applicant had made out a prima facie case that there had been a general maldistribution of the estate. The estate which should have been divided into fifths was apparently divided into thirds, the administrator giving himself and his two sisters one-third each, and leaving out of consideration the shares of the applicant, who was at that time abroad and came home only-last year, and the two nieces who were entitled to them.
The only point that remained was the *84 question of laches. There had been delay from the date of the death of Edward Albert Leeson, who died on 25th March, 1932, but at that time the applicant was abroad There was no explanation given why the two nieces did not take any steps, but so far as the applicant was concerned he got no intimation of the death of his brother until he came home in February, 1936, and correspondence had been passing relative to his and his nieces’ claims since 11th June, 1936.
On the question of guarantors his Lordship said that he would like to make the observation that in his own experience companies that became guarantors for administrators were very lax in not keeping in close touch with the administration of the estates. The company in this case apparently had never gone the length of finding out who were the next-of-kin. It was obviously the duty of the guarantors to ask the administrator: “Who are the persons entitled to the assets?” and there was no evidence before him that they did so. He thought that companies that undertook the liability of guarantors should do something more than merely receive premiums. They should at least keep an eye on the administration of the estate in their own interests For those reasons he thought the application should be granted.
His Lordship added that he had not considered the various issues of fact upon which Mr. Black had addressed him, because he believed it was not necessary where a prima facie case had been made to go any further The various issues could be raised if an action were brought on the Bond, and anything his Lordship had said would not affect them in any way.
The Order on the Motion stated (inter alia) that:—
“It appearing that the conditions of the Bond given by the Administrator herein have been broken.
It is Ordered by the Court that the Probate Officer, or Assistant Probate Officer, be at liberty to assign the said Bond to the said Thomas Alexander Leeson in order that he may sue in the appropriate Court on the said Bond in his own name as Trustee for all persons interested in the Estate of the said deceased to recover the full amount recoverable in respect of any breach of the conditions of the said Bond.
And it is further Ordered that the Costs of both parties of this application do abide the result of the contemplated action in Court.”
The Assignment of the Bond was in the following form:—
“Know all Men by these Presents that I. Joseph Antony Hand, Assistant Probate Officer of the Principal Probate Registry, Saorstat Eireann, pursuant to the 88th Section of the Probate and Letters of Administration Act (Ireland), 1857, and pursuant to an Order of the Honourable Mr. Justice Hanna made upon the 19th day of February, 1937, have Assigned and by these presents do Assign to Thomas Alexander Leeson, of 4 Ormond Road, Drumcondra, in the City of Dublin, the person named in the said Order, the annexed Bond bearing date the 16th day of April, 1932, for the due administration of the Effects of Edward Albert Leeson, late of 49 Sydney Parade Avenue, Sydney Parade, in the County of Dublin, Book-keeper, deceased, and all benefit and advantage arising therefrom.
In Witness whereof I have hereunto set my hand and Seal this 24th day of February, 1937.
Signed, Sealed and Delivered by the said Joseph Antony Hand in presence of:—
E H. Kenny,
Probate Officer,
High Court of Justice.
Joseph A. Hand.
Finnegan v. Richards & Anor
[2007] IEHC 134 (20 April 2007)
JUDGMENT of Mr. Justice William M. McKechnie delivered on 20th day of April, 2007.
The Parties
The plaintiff by trade is an electrician and he resides at Ivy Hill, Emyvale in the County of Monaghan. The defendants, Graham Richards and Paraic Madigan who are solicitors in the firm of Messrs Matheson Ormsby and Prentice of 30 Herbert St, Dublin 2, are sued as attorneys of one Barbara Allen and as the persons who, on her behalf, obtained Letters of Administration with will annexed to the estate of the late Emma Teresa Clancy who died on 13th May, 2004.
2. Reliefs Claimed
In the substantive action Mr. Finnegan claims, that in the circumstances pleaded, he became entitled to the beneficial ownership of the dwelling house and premises known as “Retreat Heights”, Glaslough, Co. Monaghan which was owned by the deceased at the time of her death. The defendants, after the delivery of the statement of claim issued a notice of motion dated 17th November, 2006 in which they seek from this court an order striking out the proceedings on the grounds that the same disclose no cause of action, are bound to fail, and otherwise constitute an abuse of process. They rely upon the courts inherent jurisdiction for this relief as well as calling in aid O. 19 r. 28 of the Rules of the Superior Courts. They make the application on two distinct grounds, the first being that at the date of the institution of the proceedings, no grant of administration had yet issued and accordingly the defendants lacked both the competence and capacity to be sued in a representative capacity. The second is the more conventional argument that the facts as pleaded fail to disclose any sustainable cause of action. This judgment deals solely with the matters raised by aforesaid notice of motion.
3. Background
On 22nd day of November, 1965, Emma Teresa Clancy made her last Will and Testament whereunder she appointed her husband, Padraic Clancy, as the sole beneficiary of her estate and also appointed him as the sole executor thereof. There was no issue of this marriage and her husband pre-deceased her. Accordingly, after her death on 13th May, 2004, one Barbara Allen, as her lawful niece became the person next entitled to obtain the right to administer her estate. This said lady duly appointed Graham Richards and Paraic Madigan to act as her attorneys in respect of all matters concerning the estate of the deceased person. Hence the naming of these individuals in the title of this action.
By letter, undated, but received on 22nd September, 2005, Messrs Daniel Gormley and Company, Solicitors, wrote on behalf of the plaintiff to Messrs Matheson Ormsby and Prentice, where the defendants are practicing solicitors. They alleged on behalf of Mr. Finnegan that by reason of “inter vivos” promises, made by the late Emma Clancy during the course of her life, the dwelling house and premises known as “Retreat Heights”, became, after her death, his property and accordingly did not form part of the estate of the deceased person. Having called for an acknowledgment of this situation the letter concluded by stating “if such confirmation is not forthcoming from your office we have instructions to issue proceedings against the estate without further notice and would be obliged if you would indicate whether you have instructions to accept same”.
On 2nd December, 2005, the plaintiff’s solicitors wrote once again complaining about what they described as a “further trespass” by servants or agents of the defendants to “Retreat Heights”. On 6th December, Matheson Ormsby and Prentice replied to that allegation, the details of which have no material bearing on the current application. In the said letter however they also stated “… notwithstanding that, you appear to be attempting to maintain that the matter has suddenly become urgent and requires injunctive relief, this is something which we simply do not accept. We confirm that we have authority to accept service of proceedings on behalf of our client. We also confirm that we will vigorously defend any proceedings that issue in this regard …”. (emphasis added)
Sometime in April or early May 2006, Daniel Gormley & Co. checked with the Probate Office and ascertained that Letters of Administration had still not by that date, been taken out to the estate of the late Emma Teresa Clancy. They also found out that the grant would not issue “prior to the 13th May, 2006”. The significance of this date and the potential problem of not having proceedings issued before then, were dealt with in their letter of the 5th May in the following matter:-
“The late Emma Teresa Clancy died on 13th May, 2004 and it is essential that we issue legal proceedings on behalf of our client within the period of two years from the date of her death.
Failing confirmation by return that you will accept service of proceedings on behalf of Graham Richards and Paraic Madigan as attorneys of your client Barbara Allen and also confirm by open letter that no point will be taken by your client on the statute of limitations having run before the grant of administration issues to your clients (sic)we are instructed to apply at the earliest possible date to the court to appoint an administrator ad litem without any further notice to you”.
On 8th May Messrs Matheson Ormsby and Prentice replied by confirming
“that we do have authority to accept service of proceedings on behalf of Graham Richards and Paraic Madigan. In relation to the issuing of the grant, we confirm that our client has responded to the queries raised with the Probate Office and that we are confident that the grant will issue in the near future”.
On the 9th May, the Plenary Summons was issued and on the 15th an unconditional appearance was entered to it.
On 26th June, Letters of Administration issued from the Probate Office and by letter of the same date Messrs. Matheson Ormsby and Prentice called for the delivery of the Statement of Claim. On 13th July, a copy of the will of the deceased was furnished to the plaintiff’s solicitors and again delivery of the Statement of Claim was requested. Further reminders in this regard were issued on 27th July, 2006 and on 20th September, 2006, of that year. Eventually on 27th September, the Statement of Claim was delivered. It was only some six weeks after this date that the relevant notice of motion was served.
8. The Statement of Claim
The following is pleaded in the Statement of Claim:-
(a) That since 1987 the plaintiff rendered various services to and expended various moneys for and on behalf of Emma Teresa Clancy as well as entertaining her for dinner every Christmas. Most of the expenses actually incurred were recouped to him by the deceased. In 1987 and 1988 she gave the plaintiff £100 each Christmas.
(b) At some unspecified date in 1989, Mr. Finnegan alleges that the plaintiff asked if he was wondering why she had not given him a Christmas gift that year as she had previously done. He answered that he was not and he then claims that the deceased said “The reason is I am going to give you this house, but that is between the two of us”, or words to that effect. As and from that date it is alleged that Mrs. Clancy frequently referred to the house “Retreat Heights” as “our house”, meaning of course to include Mr. Finnegan in the ownership thereof.
(c) A further conversation took place in April, 2004 when in the presence of Mrs. Finnegan it is alleged on behalf of the plaintiff that the deceased said “The house is yours. I am leaving it to you. It does not matter what anyone says. I don’t want you to sell it. I want you to give it to one of your boys”. Either then, or sometime shortly thereafter, the said Mrs. Clancy gave possession of the house to the plaintiff, including the title deeds and keys, and thereafter for the short period of her remaining life, she treated him with herself as the owner of the house.
(d) It is also pleaded that the plaintiff relied on the aforesaid promises and that thereafter he rendered services to the deceased without reward and expended moneys in respect of which he neither sought or obtained reimbursement. Finally he also claimed that he acted “to his detriment on foot of these reliances”.
9. Issues on this Application:
Against this background, and as set forth in para. 1 of this judgment, the defendants seek to have the plaintiff’s cause of action dismissed on two separate grounds. Firstly they claim that as of the 9th May, 2006, when the Plenary Summons issued, they lacked the capacity to be named as representative defendants in these proceedings as the letters of administration with the will annexed had not issued by that date. Accordingly the proceedings were a nullity and could not be maintained. Secondly they allege that the facts as pleased in the Statement of Claim do not constitute a cause of action and accordingly the proceedings are bound to fail. This allegation is put in a number of alternative ways including a suggestion that such pleaded facts, are frivolous and vexatious, are an abuse of process and therefore either under the inherent jurisdiction of the court or else under O. 19 r. 28 of the Rules of the Superior Courts, the proceedings should be dismissed.
10. Issue No. 1
There is no doubt but that the plaintiff, in his pursuit of this action, was faced with the time bar as provided for in s. 9 of the Civil Liability Act, 1961. Under s. 9(2) no proceedings are maintainable against the estate of a deceased person unless either
“(a) (the) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or
(b) (the) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, which ever period first expires”.
As no proceedings were in being at date of death, the two year reference is the relevant time period in this case. Accordingly in order to comply with this provision the plaintiff had to have his proceedings instituted within two years from the 13th May, 2004. Hence the relevance of and the urgency displayed in the letter of 5th May, 2006, from Daniel Gormley and Co. to Messrs. Matheson Ormsby and Prentice.
The other related matter of concern, also dealt with in that letter, was the fact that no grant of administration had issued or was likely to issue prior to the 13th May, 2006. The relevance of this is that administrators may not have been appointed by that date, on whom the proceedings could be served. Section 13 of the Succession Act, 1965 was not designed to overcome this difficulty but its provisions did ensure that the estate of an intestate person or a person dying without a surviving executor, always vested in some person even in the interval between death and the issuing of a grant. This section, like its predecessors which go as far back as s. 15 of the Court of Probate (Ireland) Act 1859, nominates the President of the High Court for that purpose.
As I have said such a provision is necessary so as to ensure that at all times the estate of a person, to whom the section applies, vests in some individual and is not left without protection or homeless. The reason why such a state of affairs may occur is that an administrator derives his title solely from the grant of administration, quite unlike an executor upon whom the real and personal estate of a deceased person vests immediately upon the death of the testator. See Woolley v. Clarke (1822) 5 B and Aid. 744 and Chetty v. Chetty (1916) 1 AC 603. A grant of probate is necessary only to confirm the authority of the executor or otherwise to offer formal proof of his status. See In Re Crowhurst Park (1974) 1 WLR 583. The position of an administrator however, is as matter of general law quite different and until such time as a grant of administration is obtained, that person has no rights or entitlement to and otherwise has no control over the estate. This proposition is however subject to the doctrine of “relation back” which I will refer to in a moment. That situation can quite evidently pose considerable difficulties for an intending plaintiff, who when faced with the time period specified in s. 9 of the 1961 Act, might find out that no grant of administration has or will be extracted in time, so that no administrator, as such, exists. This in turn begs the question of who to name as a defendant in the proceedings.
In such circumstances a plaintiff can of course seek the appointment of an administrator ad litem for the purposes of issuing his proceedings. The availability of this course of action was confirmed by Costello J. in Flack v. The President of the High Court, High Court, Unreported, 29th November, 1983 where the learned judge said:-
“Under the old law a person faced with the difficulties with which the plaintiffs in these proceedings were confronted was not without remedy: he could apply for and obtain the appointment of an administrator ad litem and join him as a defendant in this suit. The court has a similar power under s. 27 of the Succession Act, 1965 to make a grant limited to the defence of these proceedings”.
That approach, in the circumstances which existed, was not however pursued by the plaintiff in these proceedings. That case is also of general interest for outlining what the actual role of the President is under s. 13, of the Act.
Asserting these general principles of law and relying upon Ingall v. Moran (1944) KB 160 and the decision of Laffoy J. in Gaffney v. Faughnan, [2006] ILRM 481, the defendants submit that since the Plenary Summons were issued some six weeks prior to the grant of administration, then the proceedings are not maintainable in view of the fact that the estate had not vested in them at the relevant time. In response to this submission counsel on behalf of the plaintiff alleges that the decision in Gaffney v. Faughnan [2006] ILRM 481 was made in pen incuriam in that the decision of the Privy Council in Austin and Others v. Hart [1983] 2 WLR 866, was not open to the court, and accordingly the resulting decision cannot be relied upon as confirming what Ingall v. Moran would tend to suggest. He also referred to Allied Irish Coal Supplies Ltd v. Powell Duffyryn International Fuels Ltd [1998] 2 IR 519 but I do not quite see the relevance of this case.
In Ingall v. Moran (1944) KB 160, the plaintiff sued as the administrator of his son’s estate, seeking compensation for his wrongful death under the Law Reform (Miscellaneous Provisions) Act, 1934. There were two issues before the Court of Appeal, the first of which is the one of interest to us. It was alleged on behalf of the defendant in that case, that since the proceedings were a representative action they were never properly constituted in that Letters of Administration were not granted until 13th November, 1942, whereas in fact the writ issued on 17th September, of that year. Scott L.J., giving one of the judgments, pointed out that Mr. Ingall could only sue in a representative capacity but at the time of the writ he had no title to his son’s surviving chose in action. As the writ was not maintainable at date of origin it was “incapable of conversion by amendment into a valid action” (see p. 3 of the judgment). By this he meant that although the plaintiff had in fact obtained Letters of Administration by the date of the defendants application to strike out, that fact could not retrospectively render valid that which was a nullity ab initio. He therefore dismissed the action. This conclusion was endorsed in separate judgments by Goddard LJ and Luxmoore LJ.
During the course of his judgment Luxmoore LJ also touched upon the doctrine of “relation back” which in effect is an exception to the general proposition that an administrator cannot sue until Letters of Administration have issued. At p. 167 of the judgment the learned judge said the following
“It is, I think, well established that an executor can institute an action before probate of his testator’s will is granted, and that, so long as probate is granted before the hearing of the action, the action is well constituted, although it may in some cases be stayed until the plaintiff has obtained his grant. The reason is plain. The executor derives his legal title to sue from his testators will. The grant of probate before the hearing is necessary only because it is the only method recognised by the rules of court by which the executor can prove the fact that he is the executor … an administrator is of course in a different position, for his title to sue depends solely on the grant of administration. It is true that, when a grant of administration is made the intestate’s estate, including all choses in action, vests in the person to whom the grant is made, and that the title thereto then relates back to the date of the intestate’s death but there is no doubt that both at common law and in equity, in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ”.
It appears therefore that whilst the doctrine of relation back applies, it does not legalise the maintenance of an action by an administrator if that action was commenced prior to the issue of Letters of Administration.
Before mentioning Austin and Others v. Hart [1983] 2 WLR 866, I should deal with Gaffney v. Faughnan, [2006] 1 ILR 482. In that case the deceased died intestate on 15th April, 2002, with Letters of Administration being granted to the defendant on the 16th November, 2004. On the 15th April, 2004, a Plenary Summons issued but the defendant refused to accept service until after the Grant had been taken out. In that Summons the plaintiff did not make it clear that he was suing the defendant in a representative capacity. After an appearance was entered and the Statement of Claim delivered, the defendant issued a motion seeking what was virtually identical relief to that which is sought in this application. Laffoy J. dealt with the general law and cited with approval Ingall v. Moran (1944) 1 KB 160. The learned judge also referred to Creed v. Creed [1913] 1 I.R. 48 where, on an application by the plaintiff to amend the summons and statement of claim to show that he was suing in a representative capacity, the court struck out the action on the basis that when issued the plaintiff had no title to sue. A consideration of that judgment does not contain any analysis of the reasons for the courts decision. In any event Laffoy J., at p. 485 then continued
“The court has not been referred to any authority in which, as here, it was the defendant who was a party in a representative capacity. However, in my view, the same principle must apply. When a summons is issued the person named as defendant must be competent at that time to answer the alleged wrongdoing and meet the remedy sought. If he is not the action is not maintainable. If he subsequently obtains a grant of administration this will not cure the fundamental defect and render the action maintainable”.
Accordingly it can be seen that the principles outlined in Ingall and the courts conclusion in Creed v. Creed, were applied by analogy and apparently for the first time, to a situation where the representative was not maintaining an action but was in fact named as a defendant in proceedings instituted by a third party.
The case of Austin and Others v. Hart [1983] 2 WLR 866 is heavily relied upon by the plaintiff in order to suggest that if the judgment of Lord Templeman had been brought to the attention of Laffoy J. she would have decided otherwise in Gaffney v. Faughnan and in any event for the reasons set out in that decision he strongly urged this court not to follow Ingall v. Moran. The facts of Austin v. Hart are not materially relevant and do not require repetition. The judgment of Lord Templeman is however of considerable importance for his general remarks on the rule outlined in Ingall: At p. 871 he said
“In the cited cases the plaintiff did not have any right to sue in the capacity claimed. In the present case the appellants were entitled to sue in the capacities in which they claimed, provided, as happened, no executor or administrator intervened to bring an action within six months of the death of the deceased. In Ingall v. Moran (1944) K.B. 160, 169 … Luxmoore LJ could not help “feeling some regret”. In Hilton v. Sutton Stream Laundry [1946] K.B. 65, 73 … Lord Greene MR was not “averse to discovering any proper distinction which would enable this unfortunate slip to be corrected”. In Finnegan v. Cementation Company Limited [1953] Q.B. 688, 699, Singleton LJ lamented “that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them”. Accepting without approving, the decisions of the Court of Appeal which have been cited, their Lordship sees no reason to encourage any extension of their ambit.”
I respectfully agree with these observations which offer no support to a flourishing of this rule. In fact the very opposite is the case, with the Privy Council in Austin and Others v. Hart feeling distinctly uneasy about this principle.
In a further attempt (that is as well as s. 13 of the Succession Act, 1965) to overcome the potential harmful consequences for the estate of a deceased person, which result from a deferral of an administrator’s title until the date of grant, the courts have developed a rule known as the doctrine of “Relation Back”. This doctrine means that for limited purposes, a grant of administration will relate back to the date of death of the deceased person. See Thorpe v. Smallwood [1843] 5 M. and GR 760. The primary purpose of this rule is to protect the estate in the intervening period between death and the obtaining of a grant. B. Parke identified in Foster v. Bates [1843] 12 M. and W 266, at 233, what the justification for the rule was, namely that he the administrator, “may have recovery against the wrong doer who has ceased or converted the goods of an intestate after his death, in an action of trespass or trover”. Furthermore such an administrator may also sue for breaches of covenant occurring in the intervening period. See Long v. Burgess [1950] 1 KB 115. This rule however is not all embracing and does not on its face include the circumstances presenting in Ingall v. Moran [1944] 1 K.B. 160. Therefore as previously stated, actions commenced prior to the obtaining of a grant will not benefit from this rule even though the plaintiff subsequently obtains Letters of Administration. To date the doctrine has been thus so limited.
It seems to me that any rule of law, such as that espoused in Ingall v. Moran, which has such a rejectionist label attached to it by the English Court of Appeal and the Privy Council, should only be followed and applied where either this court is bound to so do or alternatively where the underlying reasons of justification so demand. Although I would always consider decisions of the Court of Appeal and of the Privy Council to be both persuasive and authorative, I am of course not bound by either. In addition whilst evidently I cannot speak for what Laffoy J. would have done, if Austin v. Hart had been opened to her, nevertheless could I offer the view that as a matter of probability she would have been impressed with the opinion of Lord Templeman and would have at least paused before extending the rule, by applying it, apparently without precedent, to a situation where the representative person was not seeking to maintain an action, but rather was being named as a defendant in such an action. In these unusual circumstances I cannot be sure that Gaffney v. Faughnan represents the conclusive views of Laffoy J. on the point. Therefore I feel free to consider the matter myself.
There is no doubt but that, subject to the second issue raised on this application, the plaintiff has a prima facie case against the estate of the deceased person. Equally so there is no doubt but that as of the 9th May, 2006 he was entitled to seek to enforce that claim by instituting proceedings. Moreover he did not require the existence of a grant to confer the status of a plaintiff, as such, on him. What therefore did he do wrong? It would appear, following Ingall v. Moran, that the Writ was premature and therefore irregular. Even if it was, why I ask, should that necessarily result in it being a nullity, where the defendants have assured the plaintiffs of their confidence in obtaining Letters of Administration imminently, and thus putting beyond question their capacity to be sued. In addition why should such a drastic result follow when the defendants raised no objection to the plaintiff suing and when prior to the grant, they entered an unconditional appearance. Again I ask why such a result in the absence of any prejudice, let alone substantial prejudice, and when the defendants involvement could only be for the benefit of the estate. How is the estate demnified by the institution of proceedings on the 9th May, 2006, when in fact no point could have been taken on and after the 26th June, 2006? What damage has been caused to it? In my view none. In fact the opposite is the position. The collection and preservation of the estate for those entitled is of the first importance and if a law suit exists which potentially jeopardises this process, it must be of equal importance that the estate is properly represented. In fact the only risk of instituting proceedings prior to the grant rests with a plaintiff in that he can never execute any award unless the named defendant had by that date obtained Letters of Administration. Moreover if such a defendant, for whatever reason, ultimately fails or refuses to extract a grant, then subject to any individual circumstances, the plaintiff may be liable for the costs of the proceedings. Likewise if a person, unconnected with the estate is wrongfully named, he can immediately so indicate and the court would surely make the required consequential order, including costs, virtually for the asking. Consequently I cannot identify any particular reason, consistent with the existence of this rule, which persuades me that in the circumstances of this case it is a good rule.
It seems to me that Singleton LJ, in Finnegan v. Cementation Company Limited was perfectly correct in suggesting that this technicality was “a blot in the administration of the law” and that equally so Lord Templeman was correct in saying that there should be no extension of the rules’ application. As of today’s date therefore, I would have little time for re-echoing the rigidity of technicalities within the law as was commonly the position at the time of Ingall v. Moran. Instead I would much prefer an approach based on justice where there are no compelling reasons to uphold and continue a rule capable of inflicting the opposite, namely injustice. For my part therefore if it became necessary for the purposes of this decision I would not extend the application of the rule to the facts of this case. In addition, even if I am wrong in this regard, I see no reason why circumstances like the present would not comfortably fall within the reasons which underline the doctrine of “relation back”. On either basis I would refuse the defendants application on this point.
Even if I should be incorrect in these conclusions there is another reason why I would refuse the defendants application. As appears earlier in this judgment Daniel Gormley and Co. Solicitors were fully alive to the twin difficulties arising by virtue of s. 9 of the Civil Liability Act, 1961 and the potential application of what I might call the rule in Ingall v. Moran. This is abundantly evident from their letter of the 5th May, 2006. That is why they sought confirmation, as they had previously done, that Matheson Ormsby and Prentice would accept service of the plaintiffs proceedings on behalf of the defendants and that no point would be taken on the two year period having run before the grant issued. In fact they went further and warned that in default of a response they would apply to have an administrator ad litem appointed. On 8th May Messrs Matheson Ormsby and Prentice replied with the contents of their letter being set out at para. 7 above. Therein they confirmed authority to accept service of the proceedings on behalf of the defendants and informed the plaintiffs solicitors of their confidence in obtaining a grant of administration in the near future. Whilst it is true to say that this letter did not specifically deal with the point about the statute of limitations and the date of the grant, nevertheless that letter, together with the subsequent unconditional appearance, (entered before obtaining the grant) the forwarding of the Letters of Administration to the plaintiff and the repeated calls for a Statement of Claim, all lead me firmly to the conclusion that the defendants, who had express notice of the point, had decided against raising it at any time prior to the delivery of the Statement of Claim. When or why in fact they decided to change their minds is unclear. Moreover and of crucial significance is the fact that in the absence of the letter of 8th May, Donal Gormley and Co. had sufficient time to apply for and obtain a grant of administration ad litem and thus could have put the present argument out of the defendants reach. In my opinion although very much aware of the pending difficulty, as it then was, they did not adopt such a course, because of their reliance, reasonably arrived at, on what they considered to be assurances from the defendants that they were safe in not so doing.
In my view therefore the letter of the 8th May, by reason of its contents and silence constituted a material representation by the defendants as duly authorised agents, which was intended to and in fact did influence the plaintiff to his detriment in refraining from applying for the appointment of an Administrator ad litem. See Halsbury 4th Ed Reissue Vol 16(2) 1052.
In such circumstances it would be entirely unconscionable to permit the defendants to now rely upon this point.
A not dissimilar situation was referred to by Henchy J. in Doran v. Thompson [1978] I.R. 223 where however on the facts of that case no such representation was found to have been made. At p. 225 of the judgment the learned judge said “Where in a claim for damages such as this a defendant has engaged in words or conduct from which it was reasonable to infer, and from which it was in fact inferred, that liability would be admitted, and on foot of that representation the plaintiff has refrained from instituting proceedings within the period prescribed by the statute, the defendant will be held estopped from escaping liability by pleading the statute. The reason is that it would be dishonest or unconscionable for the defendant, having misled the plaintiff into a feeling of security on the issue of liability and thereby, into a justifiable belief that the statute would not be used to defeat his claim, to escape liability by pleading the statute. The representation necessary to support this kind of estoppel need not be clear and unambiguous in the sense of being susceptible of only one interpretation. It is sufficient if, despite possible ambiguity or lack of certainty, on its true construction it bears the meaning that was drawn from it. Nor is it necessary to give evidence of an express intention to deceive the plaintiff. An intention to that effect will be read into the representation if the defendant has so conducted himself that, in the opinion of the court, he ought not be heard to say that an admission of liability was not intended”.
The principles outlined in that passage apply with equal force and directness to this case. Accordingly being satisfied that there is no question of the ultra vires doctrine applying, I would conclude that the defendants are estopped from raising what I have described as Issue No. 1 in this application.
The second and very much subsidiary point raised by the defendants was that the proceedings were bound to fail in that the pleaded facts disclosed no cause of action. They relied upon Barry v. Buckley [1981] I.R. 306 and Jodifern Limited v. Fitzgerald [2000] 3 IR 321 as disclosing the existence of the courts jurisdiction in this regard. Furthermore they have referred to the case of M.F. and E.F. v. J.D.F. [2005] 4 I.R. 155 as indicating what ingredients a plaintiff has to prove in order to establish a beneficial interest in property arising by way of proprietary or promissory estoppel.
There is no doubt but that the court has such a jurisdiction, with one of the earliest cases of real prominence in this regard being Barry v. Buckley [1981] I.R. 306. Since then there has been a multitude of cases in which this court and the Supreme Court have dealt with the ambit of the courts inherent jurisdiction when faced with an application to strike out an action in limine. Such jurisdiction “should be exercised sparingly and only in clear cases”. So said McCarthy J. in Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425. In that case the learned judge also felt that a statement of claim should not be struck out if it admitted of an amendment which would save the action. At p. 428 of the report McCarthy J. said “Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings: often times it may appear that the facts are clear and established but the trial itself will disclose a different picture”: See also para. 12.002 of Delaney and McGrath, Civil Procedure in the Superior Courts, where the authors cite some but by no means all, of the cases which have dealt with this topic in the past 25 years.
The case of Jodifern Limited v. Fitzgerald, which was referred to by the defendants is also useful, and in particular the judgment of Murray J. where at p. 334 of the report the learned judge said “The object of such an order is not to protect a defendant from hardship in proceedings to which he or she may have a good defence but to prevent the injustice to a defendant which would result from an abuse of the process of the court by a plaintiff. Clearly, therefore, the hearing of an application by a defendant to the High Court to exercise its inherent jurisdiction to stay or dismiss an action cannot be of a form of summary disposal of the case either on issues of fact or substantial questions of law in substitute for the normal plenary proceedings. For this reason, a primary precondition to the exercise of this jurisdiction is that all of the essential facts upon which the plaintiffs claim is based must be unequivocally identified. It is only on the basis of such undisputed facts that the court may proceed. Moreover, and this is the aspect which I wish to emphasise, where all the essential facts have been so identified, it must also be manifest that on the basis of those facts, the plaintiffs case have no foundation in law …”.
In applying these principles to the facts of this case I could not conceivably agree that the same is a fit or appropriate one to be dismissed at this juncture. In his affidavit grounding this application the second named defendant claims that there is no evidence of an expectation on behalf of the plaintiff of receiving this house or that the deceased encouraged such a belief on his part. Moreover it is suggested that the existence of a promise by the deceased is not evident and that the work done by the plaintiff on her behalf was of a voluntary nature and commenced before any conversation is alleged to have taken place. In addition the promise, such as it was, was not conditional upon the provision of services or the expenditure of money by the plaintiff on behalf of the deceased. For these and the other reasons contained within paras. 21 to 23 of the affidavit, it is claimed, as previously stated, that the proceedings are misguided and constitute an abuse of the court.
In my view this suggested conclusion is without substance and incorrect in law. As appears from the Statement of Claim the plaintiff alleges that the services which he carried out and the moneys which he expended, prior to any alleged representation, were largely made good to him by the deceased. After the first suggested representation was made in 1989 the plaintiff continued his commitment to the deceased but thereafter neither sought nor obtained recoupment. Moreover it is expressly pleaded that the reason why no gift was given to the plaintiff at Christmas 1989 was related to the deceased’s intention of leaving him her house and therefore inferentially one can also assume that that was the reason why the plaintiff continued providing services and expending moneys for a considerable time thereafter. His claim is also consistent with the fact that the deceased allowed him to so do without offering any consideration therefor. In my view whilst the Statement of Claim could be more thorough the same nevertheless adequately contains all essential ingredients, and accordingly, in my opinion discloses a prima facie cause of action.
In any event as McCarthy J. had warned in Sun Fat Chan v. Osseous the pleadings in the instant case are in their infancy in that no particulars have either been sought or delivered, no defence has been filed and no discovery has been obtained. In these circumstances it would be in my view an entirely unwarranted interference with the plaintiffs constitutional right of access to the courts to dismiss his action on the basis suggested by the defendants.
On this second issue therefore I would also dismiss the application.
Approved: McKechnie J.