Proprietary Estoppel
UK Cases
Willmott v Barber
Chancery (1880) 15 Ch.D. 96; 49 L.J.Ch. 792; 43 L.T. 95; 28 W.R. 911
FRY J.: . . . It requires very strong evidence to induce the Court to deprive a man of his legal right when he has expressly stipulated that he shall be bound only by a written document. It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do.
How, then, does the present case stand? It appears to me that the Plaintiff has proved that he was mistaken as to his legal rights. It is said that he was affected with notice of the contents of Barber’s lease, because he knew that he held the property under a lease. It is not necessary for me to decide the point, though it may well be that as between him and Barber the Plaintiff is affected with notice of the contents of the lease. But, in my judgment, when the Plaintiff is seeking relief, not on a contract, but on the footing of a mistake of fact, the mistake is not the less a ground for relief because he had the means of knowledge. Then it is said the Plaintiff expended money on the faith of his mistake. But can I say that he expended the money on the faith of his right to an option to purchase the three acres, rather than on the faith of his possession of the one acre? At the time when he made the expenditure he had not exercised that option, or even made up his mind whether he would do so. I should have great difficulty in coming to a judicial conclusion that he expended the money on the faith of his having that option, free from the rights of Bowyer. Then, had Bowyer knowledge of his own rights? There is no other evidence on this point, except that he positively swears that he did not know that his consent to an assignment by Barber was necessary and I have no reason to doubt the truth of what he says. Again, did the Defendant Bowyer know of the Plain tiff’s mistake about his rights? For this purpose I must assume that the agree ment between the Plaintiff and Barber was communicated to Bowyer. But if it was, what was there in it to shew him that the Plaintiff was ignorant of his rights? He might well have supposed that the Plaintiff was a prudent man, and that he had made inquiries as to the provisions of Barber’s lease. And again, taking the Plaintiff’s own account of the interview between him and Bowyer in January, 1875, what is there in what then passed which could lead Bowyer to suppose that the Plaintiff believed that he had a right to an assign ment of the lease without Bowyer’s consent in writing? The fact that he asked Bowyer whether he would object to him as a tenant would naturally impress Bowyer’s mind with the notion that he believed that he had some veto in the matter. I cannot, therefore, conclude that the mistaken belief of the Plaintiff was brought home to Bowyer’s mind, and that being so, I cannot restrain Bowyer from exercising his legal rights.
Inwards v Baker
Court of Appeal [1965) 2 Q.B. 29; [1965) 2 W.L.R. 212; 109 S.J. 75; [1965) 1 All E.R. 446
LoRD DENNING M.R.: In this case old Mr. Baker, if I may so describe the father, in 1931 was the owner of a little over six acres of land at Dunsmore in Buckinghamshire. His son, Jack Baker, was living in those parts and was thinking of erecting a bungalow. He had his eye on a piece of land but the price was rather too much for him. So the father said to him: ” Why not put the bungalow on my land and make the bungalow a little bigger.” That is what the son did. He did put the bungalow on his father’s land. He built it with his own labour with the help of one or two men, and he got the materials. He bore a good deal of the expense himself, but his father helped him with it, and he paid his father back some of it. Roughly he spent himself the sum of £150 out of a total of £300 expended. When it was finished, he went into the bungalow; and he has lived there ever since from 1931 down to date. His father visited him there from time to time.
In 1951 the father died. The only will he left was one he made as far back as 1922 before this land was bought or the bungalow was built. He appointed as executrix Miss Inwards, who had been living with him for many years as his wife and by whom he had two children. He left nearly all his property to her and her two children by him. He left his son, Jack Baker, £400. Miss Inwards appointed her two children as trustees of the will with her. The trustees under the will did not take any steps to get Jack Baker out of the bungalow. In fact they visited him there from time to time. They all seem to have been quite friendly. But in the year 1963 they took proceedings to get Jack Baker out. Miss Inwards died during these proceedings. Her two children continue the proceedings as the trustees of the father’s will.
The trustees say that at the most Jack Baker had a licence to be in the bungalow but that it had been revoked and he had no right to stay. The judge has held in their favour. He was referred to Errington v. Errington and Woods ([1952] 1 K.B. 290), but the judge held that that decision only protected a contractual licensee. He thought that, in order to be protected, the licensee must have a contract or promise by which he is entitled to be there. The judge said: ” I can find no promise made by the father to the son that he should remain in the property at all-no contractual arrangement between them. True the father said that the son could live in the property, expressly or impliedly, but there is no evidence that this was arrived at as the result of a contract or promise merely an arrangement made casually because of the relationship which existed and knowledge that the son wished to erect a bungalow for residence.” There upon, the judge, with much reluctance, thought the case was not within Errington’s case ([1952] 1 K.B. 290), and said the son must go.
The son appeals to this court. We have had the advantage of cases which w<;re not cited to the county court judge-cases in the last century, notably Dillwyn _v. Uewelyn ( (1862) 4 De G.F. & J. 517) and Plimmer v. Wellington Corporation ( (1884) 9 App.Cas. 699). This latter was a decision of the Privy Council which expressly affirmed and approved the statement of the law made by Lord Kingsdown in Ramsden v. Dyson ( (1866) L.R. 1 H.L. 129, 170). It is quite plain from those authorities that if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity. Mr. Goodhart urged before us that the licensee could not stay indefinitely. The principle only applied, he said, when there was an expectation of some precise legal term. But it seems to me, from Plimmer’ s case in particu lar, that the equity arising from the expenditure on land need not fail “merely on the ground that the interest to be secured has not been expressly indicated
. . . the court must look at the circumstances in each case to decide in what way the equity can be satisfied” (9 App.Cas. 699, 713).
So in this case, even though there is no binding contract to grant any particular interest to the licensee, nevertheless the court can look at the circum stances and see whether there is an equity arising out of the expenditure of money. All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do. In this case it is quite plain that the father allowed an expectation to be created in the son’s mind that this bungalow was to be his home. It was to be his home for his life or, at all events, his home as long as he wished it to remain his home. It seems to me, in the light of that equity, that the father could not in 1932 have turned to his son and said : ” You are to go. It is my land and my house.” Nor could he at any time thereafter so long as the son wanted it as his home.
Mr. Goodhart put the case of a purchaser. He suggested that the father could sell the land to a purchaser who could get the son out. But I think that any purchaser who took with notice would clearly be bound by the equity. So here, too, the present plaintiffs, the successors in title of the father, are clearly themselves bound by this equity. It is an equity well recognised in law. It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that, as the result of that expenditure, he will be allowed to remain there. It is for the court to say in what way the equity can be satisfied. I am quite clear in this case it can be satisfied by holding that the defendant can remain there as long as he desires to as his home.
I would allow the appeal accordingly and enter judgment for the defendant.
DANCKWERTS L.J.: I agree and I will add only a few words. It seems to me the claim of the defendant in respect of this property is amply covered by Errington v. Errington and Woods ([1952] 1 K.B. 290), Dillwyn v. Uewelyn
(4 De G.F. & J. 517) and Plimmer v. Wellington Corporation (9 App.Cas. 699).
Further, it seems to me to be supported by the observations of Lord Kingsdown in Ramsden v. Dyson (L.R. 1 H.L. 129, 170). It is true that in that case Lord Kingsdown reached a result on the facts of the case which differed from that reached by the other members of the House of Lords, but Lord Kingsdown’s observations which are relevant in the present case have received support since that case was decided; and, in particular, I would like to refer to the observa tions in the judgment of the Privy Council in Plimmer v. Wellington Corporation (9 App.Cas. 699). It is said there (at p. 713): “Their Lordships consider that this case falls within the principle stated by Lord Kingsdown as to expectations created or encouraged by the landlord, with the addition that in this case the landlord did more than encourage the expenditure, for he took the initiative in requesting it.”
There are similar circumstances in the present case. The defendant was induced to give up his project of building a bungalow on land belonging to somebody else other than his father, in which case he would have become the owner or tenant of the land in question and thus have his own home. His father induced him to build on his, the father’s, land and expenditure was made by the defendant for the purpose of the erection of the bungalow.
In my view the case comes plainly within the proposition stated in the cases. It is not necessary, 1 think, to imply a promise. It seems to me that this is one of the cases of an equity created by estoppel, or equitable estoppel, as it is sometimes called, by which the person who has made the expenditure is induced by the expectation of obtaining protection, and equity protects him so that an injustice may not be perpetrated.
I am clearly of opinion that the appeal should be allowed and judgment should be entered for the defendant.
Pilling v Armitage
Chancery (1805) 12 Ves.Jun. 79
RANT M.R.: . . . Can they then claim upon the general equity; having laid out a great deal o money in improving the mills, with the knowledge of the Defendant, standing by seeing them go on, not objecting, or in any degree interfering to prevent them? Whatever equity might arise upon that footing would be of a different sort from that which they could claim upon a specific engagement for a lease of a different duration. As to that, if you disconnect the improvements from any specific engagement, upon the faith of which they were made, it is very difficult to give the Plaintiff the benefit of those improvements: to whatever degree they may have ameliorated the estate. I would go every possible length to aid parties in obtaining reim bursement of expenditure upon another’s property; of the benefit of which he has deprived them by the exercise of his legal right; determining their lease from year to year. Whatever his own breast may suggest to him, the question here is, what legal and equitable redress can be obtained.
There are different positions in the books with regard to the sort of equity, arising from laying out money upon another’s estate through inadvertence or mistake: that person seeing that; and not interfering to put the party upon his guard. The case, with reference to which that proposition is ordinarily stated, is that of building upon another man’s ground. That is a case, which supposes a total absence of title on one side; implying therefore, that the act must be done of necessity under the influence of mistake; and undoubtedly it may be expected, that the party should advertise the other, that he is acting under a mistake. But I do not know any case, in which a lessee either of a term, or from year to year, making any improvement upon the estate in his possession, though with the complete knowledge of the landlord, has been held entitled as against that land lord to have his lease prolonged, until he shall obtain reimbursement for the improvements he has made; for he has a title, of which he knows the duration. He is not under a mistake with regard to the nature of his title. He may perhaps be guilty of great imprudence; if the expectation, that his lease will be renewed, or his possession from year to year will continue, prove unfounded. But, because that expectation is disappointed, can I say, he has acquired a right to a prolongation of his lease, or to a lease for a certain period? …
It would then come back to the case of tenant from year to year, making improvements at his own discretion, upon the hope, arising from the habit of his landlord, that it would be worth his while to take the chance; having no apprehension of being disturbed; and, I believe, that is the real truth of this case. These parties, independent of any promise, rested so much upon the faith, that they should not be disturbed in the enjoyment, as their ancestors had not been for many years, that they thought themselves as safe, as if they had a lease. But can I convert that hope into an actual engagement by the landlord, binding him down to permit them to continue in possession, not for a definite period, according to the agreement of 1790, but until they shall be reimbursed? See, how far that would extend. The case hardly occurs of a good tenant, especially where tenants are seldom turned out, who does not make some improvement. Can a Court of Equity say, such a tenant is never to be removed, until it has been settled in equity, how much he has laid out under the expectation, that he should not be turned out, and the landlord would not exercise his legal right until reimbursement? This is a hard case upon the Plaintiffs, if they lose all this money; but, to give redress in a particular case, likely to occur rarely, am I to lay down a principle, that would shake the security of property in almost all its ramifications, and the dealings of men with each other? For that purpose I must say, that the true measure of justice is, that a landlord shall never turn out a tenant, if improvements have been made with the knowledge of the landlord, until the tenant shall be completely reimbursed.
E.R. Ives Investment Limited v High
Court of Appeal [1967] 2 Q.B. 379; [1967] 2 W.L.R. 789; [1967] 1 All E.R. 504
LORD DENNING M.R. : . . . Now here is the point. The right of way was never registered as a land charge. The purchasers, the plaintiffs, say that’ it should have been registered under Class C (iv) as an estate contract, or under Class D (iii) as an equitable easement: and that, as it was not registered, it is void against them, the purchasers. Even though they had the m:>st explicit notice of it, nevertheless they say that it is void against them. They claim to be entitled to prevent Mr. High having any access to his garage across their yard: and thus render it useless to him. They have brought an action for an injunction to stop him crossing the yard at all.
One thing is quite clear. Apart from this point about the Land Charges Act, 1925, Mr. High would have in equity a good right of way across the yard. This right arises in two ways:
1. Mutual benefit and burden
The right arises out of the agreement of November 2, 1949, and the sub sequent action taken on it: on the principle that “he who takes the benefit must accept the burden.” When adjoining owners of land make an agreement to secure continuing rights and benefits for each of them in or over the land of the other, neither of them can take the benefit of the agreement and throw over the burden of it. This applies not only to the original parties, but also to their successors. The successor who takes the continuing benefit must take it subject to the continuing burden. This principle has been applied to neighbours who send their water into a common drainage system: see Hopgood v. Brown ([ 1955] 1 W.L.R. 213); and to purchasers of houses on a building estate who had the benefit of using the roads and were subject to the burden of contributing to the upkeep: see Halsall v. Brizell ([1957] Ch. 169). The principle clearly applies in the present case. The owners of the block of flats have the benefit of having their foundations in Mr. High’s land. So long as they take that benefit, they must shoulder the burden. They must observe the condition on which the benefit was granted, namely, they must allow Mr. High and his successors to have access over their yard: cf. May v. Belleville ([1905] 2 Ch. 605). Conversely, so long as Mr. High takes the benefit of the access, he must permit the block of flats to keep their foundations in his land.
2. Equity arising out of acquiescence
The right arises out of the expense incurred by Mr. High in building his garage, as it is now, with access only over the yard: and the Wrights standing by and acquiescing in it, knowing that he believed he had a right of way over the yard. By so doing the Wrights created in Mr. High’s mind a reasonable expectation that his access over the yard would not be disturbed. That gives rise to an “equity arising out of acquiescence.” It is available not only against the Wrights but also their successors in title. The court will not allow that expectation to be defeated when it would be inequitable so to do. It is for the court in each case to decide in what way the equity can be satisfied: see Inwards v. Baker ([1965] 2 Q.B. 29; supra, p. 71); Ward v. Kirkland ([1966] 1 W.L.R. 601) and the cases cited therein. In this case it could only be satisfied by allowing Mr. High and his successors to have access over the yard so long as the block of flats has its foundations in his land.
The next question is this: was that right a land charge such as to need registration under the Land Charges Act, 1925? For if it was a land charge, it was never registered and would be void as against any purchaser: see section 13 of the Act. It would, therefore, be void against the plaintiffs, even though they took with the most express knowledge and notice of the right.
It was suggested that the agreement of November 2, 1949, was ” an estate contract” within Class C (iv). I do not think so. There was no contract by Mr. Westgate to convey a legal estate of any kind.
It was next suggested that the right was an ” equitable easement ” within Class D (iii). This class is defined as “any easement right or privilege over or affecting land created or arising after the commencement of this Act, and being merely an equitable interest.” Those words are almost identical with section 2
(3) (iii) of the Law of Property Act, 1925, and should be given the same meaning. They must be read in conjunction with sections 1 (2) (a), 1 (3) and 4 (1) of the Law of Property Act, 1925. It then appears that an “equitable easement” is a proprietary interest in land such as would before 1926 have been recognised as capable of being conveyed or created at law, but which since 1926 only takes effect as an equitable interest. An instance of such a proprietary interest is a profit prendre for life. It does not include a right to possession by a requisi tioning authority: see Lewisham Borough Council v. Malony ([1948] 1 K.B. 50). Nor does it include a right, liberty or privilege arising in equity by reason of “mutual benefit and burden,” or arising out of “acquiescence,” or by reason of a contractual licence: because none of those before 1926 were proprietary interests such as were capable of being conveyed or created at law. They only subsisted in equity. They do not need to be registered as land charges, so as to bind successors, but take effect in equity without registration: see an article by Mr. C. V. Davidge on “Equitable Easements” in (1937) 59 Law Quarterly Review, p. 259 and by Professor H. W. R. Wade in [1956] Cambridge Law Journal, pp. 225-226.
The right of Mr. High to cross this yard was not a right such as could ever
have been created or conveyed at law. It subsisted only in equity. It therefore still subsists in equity without being registered. Any other view would enable the owners of the flats to perpetrate the grossest injustice. They could block up Mr. High’s access to the garage, whilst keeping their foundations in his land. That cannot be right.
I am confirmed in this construction of the statute when I remember that there are many houses adjoining one another which have drainage systems in common, with mutual benefits and burdens. The statute cannot have required all these to be registered as land charges.
I know that this greatly restricts the scope of Class D (iii) but this is not disturbing. A special committee has already suggested that Class D (iii) should be abolished altogether : see the report of the Committee on Land Charges ( (1956) Command Paper 9825, para. 16).
In these circumstances it is not necessary to consider the counterclaim. I would only say that I do not think that the owners of the block of flats have acquired a “squatter’s title” to the space occupied by the foundations. They were only licensees and cannot acquire a title by limitation. If they were entitled to block up Mr. High’s access over their yard, he would, I think, be entitled to require them to remove the foundations from his land. But, fortunately for them, no such consequence will befall them. They can keep their foundations there, but they must not block up or impede his access across their yard, with or without vehicles. . . .
DANCKWERTS L.J.: . . . There is another equitable ground on which Mr. High’s rights may be protected, which has nothing whatever to do with the Land Charges Act. It is discussed in Snell’s Equity, 26th ed. (1966), pp. 629–633, under the name “proprietary estoppel,” and the comment is made (p. 633) that “the doctrine thus displays equity at its most flexible.” There are two aspects in which this equitable principle applies in the present case. Firstly, in the present case Mr. High, in reliance on the arrangement made with Mr. Westgate, allowed the encroaching foundations to remain on his land and built his house without proper access except over the yard, and finally built his garage in such a way that it was useless unless access to it and from it could be had over the yard. Mr. Westgate acquiesced in the use of the yard for access, and the Wrights stood by and, indeed, encouraged Mr. High to build his garage in these conditions and for these purposes. Could anything be more monstrous and inequitable afterwards to deprive Mr. High of the benefit of what he has done?
Secondly, the Wrights had continued to enjoy the benefit of the encroaching foundations on Mr. High’s land. It would no doubt be quite an expensive job to remove the encroaching foundations and provide other support for the building. Equity does not allow a person who takes advantage of such a situation to deny to the other party the corresponding benefits which were the consideration for allowing the foundations to remain.
The plaintiffs bought the property subject to Mr. High’s equitable rights and the property was so conveyed to them. They had full knowledge of the situation, yet they continue to enjoy the benefits of the situation and wish to deny to Mr. High the benefit of what he was induced to do in reliance on the mutual arrangement. As long as the plaintiffs continue to enjoy the foundations, they must accept the terms of that enjoyment.
This is not a registrable charge, and section 199 of the Law of Property Act, 1925, has no application ….
WYNN L.J.: . . . In my opinion the plaintiffs as successors in title are bound by that estoppel. I do not regard myself as thereby saying anything contradictory of the proposition submitted to the court that the said equity or equitable ease ment, as distinct from the estoppel, was rendered void as against the plaintiffs by the statutes to which I have referred. Estoppels arising from representations made by owners of land that rights exist affecting their land will, unless in form they are limited to the duration of the interest of the representor, bind successors to his title. . . .
Such equities as arise from merely standing by whilst expenditure is jncurred under a mistake of fact or law, or from attempts both to approbate and reprobate a deed, always supposing them to be capable of registration, which is, I think, on the whole an open question, may not survive the lethal effect of the Land Charges Act unless they have been registered. On the other hand, I cannot see that the statute has any impact upon an estoppel, nor do I think that an estoppel could be registrable under its provisions.
Cases
Cullen v. Cullen
[1962] IR 269
Kenny J.
The plaintiff, Mr. John Cullen, began his career in business as a shop assistant in Enniscorthy. He prospered and established his own shopkeeping business in which he sold boots, shoes and groceries: he also bought a farm near Enniscorthy. He was married in November, 1928, when he was forty-seven and his wife was twenty-three. There were five children of the marriage, Sean, who was born on the 2nd September, 1929, Martin, Liam, Patrick and Joseph. Joseph has never been in good health and has been away from home for a number of years. After the marriage, Mrs. Cullen helped her husband in the business at Enniscorthy by keeping the books and helping in the shop.
The plaintiff’s business continued to prosper and in April, 1944, he purchased for £6,890 premises at Adamstown to which an intoxicating liquor licence was attached. The premises purchased consisted of a bar, a grocery shop, a store, living accommodation and about 60 acres of land. The family moved from Enniscorthy to Adamstown and have lived there since 1944. The plaintiff retained his business in Enniscorthy which was conducted by a manageress.
In 1945, the eldest son, Sean, left school and went to work in the business: in 1946, the second son, Martin, left school and he too went to work in the business. In 1946, Sean won a prize of £6,250 in a sweepstake but did not receive the money until he was 21 years of age.
From the time that the family moved to Adamstown there were quarrels between them: although it was not a happy household there were not any serious disputes until 1949. I am satisfied that relations between the plaintiff on the one side and Mrs. Cullen and the children on the other got progressively worse from 1945, that there had been numbers of quarrels before 1949 and that from the time that Sean and Martin began to work in the business their father was suspicious of them. In 1949, when Sean was nearly twenty, he came home from a dance at three o’clock in the morning and was told by the plaintiff to go away and not to come back. He remained away for two or three weeks and returned when his mother told him that the plaintiff wanted him to come back.
In 1951 the plaintiff went to Dublin for a serious operation and remained there for about six months. He left his wife to run the business (which had an annual turnover of about £10,000) but left £20 in cash only for the financing of the business. The plaintiff was the only person with authority to draw cheques on the bank account used in connection with the business, and when Mrs. Cullen wanted to pay some debts due to suppliers she sent the cheques to the plaintiff in Dublin for signature: the plaintiff sent her a reply that the accounts were to be paid out of the cash takings of the business or by money order. This happened at a time when the customers of the business were likely to be seeking credit.
Mrs. Cullen got a loan of £700 from a friend and opened a bank account in her own name and, when her husband returned in the spring of 1952, this loan was repaid.
When the plaintiff returned, the disputes and quarrels began again. In May, 1952, there was a quarrel between the plaintiff and Sean as a result of which Sean left and went to Dublin where he remained for three weeks. He returned at his mother’s request. About this time the plaintiff began to accuse his wife and children of robbing him and made this accusation to a number of customers who were in the shop. Martin Cullen asked a Mr. Lawton who was the accountant of the business to see his father and an interview took place between them in June, 1952. Martin was worried about these charges as his father was in charge of the cash in the business and he thought that his father would try to show a loss in the business so that the view that he was being robbed would be confirmed. When the accounts were completed at the end of 1952, they showed a substantial drop in profits. When the accounts had been received by the plaintiff a further discussion between the plaintiff and Mr. Lawton took place and the plaintiff subsequently told Martin that there would have to be a big change in the running of the business as so much money had gone astray. Unfortunately none of the accounts of the business for any period prior to June, 1959, were given in evidence, and although I indicated at the end of the evidence that I thought that they would be of assistance counsel for the defendants objected strenuously to any of them being handed in.
Patrick had left school in the summer of 1953 and wanted to go to a university: his father was strongly opposed to this as he wished him to go into the business. Sean had got his sweepstake prize and he offered to pay Patrick’s university fees and to provide him with money to enable him to stay in Dublin. Patrick went to University College, Dublin, in the autumn of 1953 and returned to Adamstown for the Christmas vacation about the 20th December, 1953. On the morning of the 25th December, 1953, the plaintiff told Sean and Patrick that they were to leave because they had disobeyed him; the disobedience was that Patrick had gone to University College, Dublin, and Sean had provided the money for him to do this. Mrs. Cullen made some reference to the day and thereupon the plaintiff ordered all the family to go. Some two weeks afterwards the plaintiff sent a message to them that he would like them to return and all except Sean returned. Sean went to Dublin for some time and subsequently bought a grocery and bar business and a farm some five or six miles from Adamstown. He has continued to deal with the shop at Adamstown. For some time before Sean left, relations between his father and him were extremely bad; they did not have meals together and hardly ever spoke to each other.
In June, 1954, Martin left Adamstown because of some quarrel with the plaintiff and stayed in Dublin until August when he was asked by Mr. Lawton to return and a Father Scallan brought him a message that his father wished him to return. There was a meeting between the plaintiff and Martin at which a new arrangement for the running of the business was worked out. Martin was to be the manager of the business, was to make his own arrangements for the employment of a staff and the ordering of goods and was to have complete control of it except that the plaintiff was to sign the cheques. This arrangement came into force in January, 1955, and worked reasonably well for some time. A new bank account was opened to which the plaintiff lodged £500 and the business seems to have prospered. However, in 1956, the plaintiff began to refuse to sign cheques and, as many of the goods supplied to the shops came from suppliers who insisted on cash on delivery, the running of the business became difficult. Father Kehoe, the local curate, intervened successfully on a number of occasions and persuaded the plaintiff to sign cheques. In 1957 the plaintiff had a number of quarrels with customers in the shop; these were not serious but they showed that the plaintiff wanted to assume the management and to end the arrangement under which Martin was managing the business. Discussions took place between the plaintiff and Martin and it was agreed that Martin’s management would end in January, 1958, and that the plaintiff would pay him £3,500 as a reward for the way in which he had managed the business: this sum was, I think, intended to be a share of the profits which had been made by Martin. Martin bought a farm, called “Coolnagreina,” near Adamstown, for £2,050 with the money which the plaintiff had given him but he continued to live in the premises at Adamstown. The plaintiff did not approve of the purchase of the farm and Martin had been singularly tactless in not consulting him about the purchase. Despite this the relations between them from January, 1958, until March, 1959, seem to have been reasonably good.
The plaintiff took over the management of the business in January, 1958: Mrs. Cullen still worked on the books and did a certain amount of ordering. The plaintiff managed the business without any serious incident until the beginning of 1959 when he refused to order flour or meal and left the business without these for some weeks: he also told a firm who were regular suppliers of the business that goods which they brought to the premises for delivery were to be taken away. In March, 1959, he dismissed an assistant and about this time Mrs. Cullen asked a Dr. Gilroy to see her husband. She complained to him that her husband was interfering in the running of the business, that he was insulting customers and that he was preventing the wholesalers from supplying goods. The plaintiff had not been seen by Dr. Gilroy before this and one of the mysteries of this case is why Mrs. Cullen asked Dr. Gilroy to see her husband and did not consult Dr. Murphy, his regular medical attendant. Dr. Gilroy saw the plaintiff on the 26th March, 1959. In the course of the interview the plaintiff said that he was going to run his business himself and that his wife and family were robbing him. Dr. Gilroy’s attempts to persuade the plaintiff to see a psychiatrist or to accept treatment failed. Throughout the interview the plaintiff emphasised that he was not interfering with anybody and, as proof of this, told Dr. Gilroy that he prayed for everybody and that he had composed a prayer which he recited to Dr. Gilroy.
In April Dr. Gilroy was again requested by Mrs. Cullen to see her husband. She had told him that Dr. Murphy was the plaintiff’s regular medical attendant and Dr. Gilroy spoke to Dr. Murphy. Dr. Gilroy saw the plaintiff on the 9th April and the interview was similar to that of the 26th March; the plaintiff showed considerable hostility to his family and was not prepared to submit himself to treatment. Some time after this the plaintiff was, at Dr. Gilroy’s suggestion, seen by a Dr. Condon, who specialises in mental illnesses. Dr. Condon wished to see the plaintiff a second time and saw him with Dr. Gilroy at the end of April. Dr. Condon suggested that a temporary private patient reception order under s. 185 of the Mental Treatment Act, 1945, should be made and, according to Dr. Gilroy, said that the plaintiff should be given a sedative and removed from Adamstown. Dr. Gilroy’s view was that the plaintiff was suffering from a paranoid illness. It is necessary to emphasise that the doctors who gave evidence drew a distinction between a paranoid illness and the condition known as paranoia. Their evidence was that a paranoid illness is a social illness in which the patient believes that people are ill-disposed towards him: it involves delusions and false judgments and is frequently characterised by suspicions held by the patient that his family are trying to ruin him. In this illness the reasoning powers are intact but impaired on some subjects. In paranoia, on the other hand, the patient has a number of systematised delusions which are unshakable: the paranoic is rational on all matters except on those on which he has the inflexible delusions. It is a form of insanity and is incurable.
In the first week in June, Dr. Gilroy asked Dr. Vincent Crotty, the resident medical superintendent of the Mental Hospital in Waterford, to see the plaintiff. Dr. Crotty first interviewed Mrs. Cullen who told him that she believed that her husband was mentally ill, that he believed people were plotting against him and were plotting to take his property from him. Dr. Crotty saw the plaintiff on the 5th and 6th June. On the first occasion Dr. Gilroy was present and, I think, signed the certificate certifying that the plaintiff was suffering from mental illness and required not more than six months’ treatment. Dr. Crotty thought that the plaintiff had an emotional disturbance sufficient to be called a mental illness; the plaintiff repeated to him the accusations against his family and Dr. Crotty was struck by the fact that he seemed to have no human feeling for them. The doctor thought it advisable that Mrs. Cullen should have somebody in the house with her when the plaintiff was there as he thought that there was a risk that the plaintiff would become violent. Dr. Crotty was also of opinion that the plaintiff required treatment and telephoned to Waterford to arrange for the attendance at Adamstown on the next day of two Brothers of the Order of St. John of God who were to remove the plaintiff. Dr. Crotty saw the plaintiff again the next day and the interview followed the same course as that of the 5th June except that Father Kehoe came to the interview at the plaintiff’s request. Father Kehoe was strongly opposed to the removal of the plaintiff to a mental hospital and said that the cause of the plaintiff’s trouble was not his mental attitude but the attitude of his wife and children to him and that that would still be there when the plaintiff came back after treatment. Father Kehoe gave evidence that Dr. Crotty said that the plaintiff was a paranoic: Dr. Crotty denied most strenuously that he said this and I think that Father Kehoe is confusing this interview with some other meeting. Dr. Crotty then signed either the medical certificate or the order and gave it to the Brothers. Neither the medical certificate nor the order was proved, but I infer that the certificate given by Dr. Gilroy was given under s. 184 of the Act of 1945 and that the order under that section was made by Dr. Crotty. The order cannot have been made under s. 185 as that requires a certificate of two registered medical practitioners and the consideration of it by the person in charge of the institution. The order made authorised the removal of the plaintiff from Adamstown and his detention for six months from the date of the order.
The plaintiff was determined that he would not be removed to a mental institution. He escaped from Adamstown and persuaded a relative to drive him to Dublin. He took some books and ledgers relating to the business with him so that he would be able to send out accounts, a step which shows that his business faculties were not impaired in any way. The plaintiff gave a dramatic account of the attempt by the two Brothers to give him an injection and says that he then went for Father Kehoe and brought him back. I find it difficult to accept this highly coloured version of what happened and I find it more difficult to understand how the plaintiff escaped. Apparently all the arrangements had been made to bring him to Waterford when the certificate or d een signed by Dr. Crotty and another of the mysteries in this case is how the plaintiff escaped from Adamstown and why he was not taken into custody.
I regret that the certificate and order made were not proved as s. 186 of the Act of 1945 seems to authorise the arrest of the person to whom the order relates within a period of seven days from the time the order was made, but all the confused and tortuous negotiations which followed were carried on because the plaintiff and his adviser, Father Kavanagh, believed that the order which had been made authorised his arrest long after the seven-day period had expired.
Dr. Crotty’s final view of the plaintiff was that he was suffering from some kind of mental illness, but he could not come to any definite conclusion what it was. He thought that the plaintiff’s mental illness was caused either by some special external stress which was responsible for his behaviour or that he was suffering from a paranoid illness. I accept the whole of the evidence given by Dr. Crotty. I am satisfied that on the 5th and 6th of June the plaintiff behaved in the way which Dr. Crotty described. Having heard all the evidence, I am convinced that the plaintiff’s condition in the year 1959 was caused by his reaction to considerable mental stress and that this stress arose from the conflict between his determination to assert and show his authority on all possible occasions and the attitude of Mrs. Cullen and Patrick to this. The plaintiff was convinced that his family should always give way to him and, when they did not do this, he took refuge in suspicions and fantasies.
As the plaintiff did not return to Adamstown again, except for a short visit in January, 1960, and as he did not meet the members of his family again (except for a short meeting with Patrick) I think that I should now state my conclusions on the events up to June, 1959. I am satisfied that the plaintiff had and has very strong inflexible opinions about his authority as a husband and father and that he has equally strong views about the obligation of the members of his family to obey this authority; he has probably had these views since he was married but they became more vocal and more intense from 1949 and I am satisfied that the plaintiff never understood the opposition which these views would provoke in the members of his family who lived and worked with him. These views made it certain that there would be trouble with his children when they reached the age of eighteen or nineteen. The plaintiff is entitled to have these views; they were commonly held 80 or 90 years ago if we accept the evidence given by the literature of that period, but they were not common in 1959; and though it may be said that they are the views which should prevail, they are not now generally acted on: any attempt to enforce them is almost certain to lead to distressing domestic conflicts. The best evidence of the plaintiff’s views on these matters is provided by a number of sentences from his evidence. In the course of it he said:”Boys should obey their father and Missus should obey her husband,” at a time when he was speaking about young men of twenty-three and twenty-four; “Let him (Patrick) recognise his boss”; and in answer to the question as to whether he had put Sean out in 1952, his reply was, “Yes, I had authority to do it. It was well done for.” Moreover, throughout his evidence there were references to who was to be the boss and the illuminating remark by him that he “ruled his family fairly.” While many think that other parents should apply these maxims to their children, most of us know that any attempt to apply them to our own is likely to produce conflict. The plaintiff, however, was determined that he would apply them to his family and, from the time that Sean was seventeen, the inevitable quarrels started.
From 1952 until June, 1959, Mrs. Cullen and Sean, Martin and Patrick tried to deal with the problem presented by the plaintiff’s views by ignoring the plaintiff’s orders and by doing their best to avoid quarrels. The situation was one calling for considerable tact and, on Mrs. Cullen’s part at least, considerable diplomacy, and she did not possess either of these qualities. She committed a serious error of judgment in always siding with her children against the plaintiff and all of them were foolish in presenting a united front to their father whenever any quarrel or dispute arose. I accept the candid evidence of Sean Cullen on this aspect of the case. In the course of it he said that in what led up to the disputes the plaintiff was not always wrong but that in the actual disputes when they came, he was always wrong because no one could reason with him. This attitude to the plaintiff by the members of his family aggravated an already difficult situation; it induced the plaintiff to try to assert his authority and, above all things, to give public demonstrations of it, and as his remarkable views about his authority were ignored he believed that his family were against him. From that it was an easy step to the belief that he was being robbed by them”an idea which he repeated in the witness box. The questioned authority is always the one most violently asserted. I think that Martin’s success in running the business did not endear him to the plaintiff, and when Martin left, Mrs. Cullen thought in a vague way that the business was going down because of the plaintiff’s management. Throughout 1957, 1958 and the early months of 1959, the plaintiff became more and more convinced of the rightness of his views about his authority and, when they were not accepted, about the necessity of demonstrating it in public and of securing its acknowledgment by his wife and children: when it was not acknowledged, the ideas of persecution, maltreatment and being robbed grew stronger. The plaintiff withdrew more and more into his own world of fantasy; he attempted to assert his position by quarrelling with the customers, by ordering them out, by refusing to accept goods brought to the premises on the ground that he had not ordered them and, in every way he could, showing that he was the owner of the business.
I am satisfied that Sean, Martin and Patrick did not steal anything from the plaintiff. It may be that in early years they took some pocket money from the cash in the shop but they were being paid very little and the cash arrangements in businesses in country areas are very different from those which prevail in cities or towns. I cannot help thinking that Joseph’s illness had far more to do with this domestic tragedy than any of the witnesses were prepared to allow.
The plaintiff gave evidence and, having heard his evidence, I am perfectly satisfied that he is now sane and that he still has considerable business capacity. I think that he is now capable of managing the business at Adamstown, though the management will be somewhat erratic and stormy; but as he still has these views about the necessity for the acknowledgment of his authority, there is a risk that his condition of June, 1959, may revive if he returns to Adamstown when his wife is there.
During the case it was hinted on a number of occasions that the certificate of the 6th June, 1959, was the result of a conspiracy between Mrs. Cullen, Martin, Patrick and the doctors and that all of them knew that the plaintiff was sane at all times. I am satisfied that Mrs. Cullen was responsible for the request to the doctors to come to examine her husband and that though her sons may have known that she was going to do this, they did not attempt to influence the doctors in any way. I reject entirely the suggestion that there was any conspiracy between the doctors and Mrs. Cullen and the suggestion that the doctors knew that the plaintiff did not require treatment and that he was sane. I am satisfied that in June, 1959, the question of the plaintiff’s authority was preying so much on his mind that he was suffering from a high degree of nervous tension which caused a temporary mental illness and that it disappeared when he had left the source of the stress which was his family. He still has the views, but it was the resistance to the views which produced the behaviour of June, 1959. Considerable support for this view is to be found in the fact that the plaintiff’s relations with his sons who did not live at Adamstown became good when they left: thus his relations with Sean in connection with the running of the farm were good and his relations with Martin seem to be good until he got the idea that Martin was responsible in part at least for bringing the doctors to examine him.
In 1959 Mrs. Cullen wanted the business run by Patrick, Martin and herself as she did not consider the plaintiff fit to run it. She had complained to the doctors that her husband was interfering in the business; as the business was his, this shows that she thought he should be out of it. She did not seem to me to be a domineering woman. In the course of her evidence she said on a number of occasions that she wanted the plaintiff treated because she thought the business was going down. At the end of the case I suggested to counsel for the defendants that the production of the accounts of the business up to the 6th June would be helpful on this issue. I understand that the plaintiff has not got these accounts, but, when the matter was mentioned some time after the evidence had concluded, counsel for the defendants refused to produce the accounts or to allow me to inspect them if they were handed in. The grounds given in support of this attitude were not convincing. Mr. Liston made it clear that the plaintiff would welcome the accounts being handed in. I cannot make any finding on the question whether the business at Adamstown was going down in 1958 and in 1959 in the absence of these accounts but the refusal to allow them to be produced suggests to me that the accounts do not show the suggested reduction in business.
It is now necessary to take up the story of the events after the 6th June. The plaintiff came to Dublin where he met Father Kavanagh, a member of the Vincentian Order, who has been a lifelong friend of his. Father Kavanagh had him medically examined and was told that the plaintiff was sane. Father Kavanagh thought quite rightly that the main thing was to ensure the plaintiff’s liberty by getting the order for his arrest withdrawn and that everything possible should be done to achieve this. On the 11th June a discussion took place in Dublin between Mr. Lawton (who I infer had been summoned to Dublin by Father Kavanagh), Father Kavanagh and the plaintiff, and, as a result, Mr. Lawton was authorised to tell Mrs. Cullen that the plaintiff was prepared to make over to her the place at Adamstown. Unfortunately Mr. Lawton was not told that he was to make it clear to Mrs. Cullen that the condition attached to this was that Mrs. Cullen, Martin and Patrick were to acknowledge in writing that the plaintiff was sane and were to take all necessary steps to have the order authorising his arrest withdrawn. Mr. Lawton returned to Enniscorthy on the 11th June and shortly afterwards went to see Mrs. Cullen. He told her that he came with a message from Father Kavanagh and that her husband was transferring his property at Adamstown and the money due in connection with the business to her but that she was not to touch the cattle on the land. He also told her that she should try to get the business going and when she said that she had no capital, he advised her to go to the Provincial Bank, to open an account and to lodge £400 from her own monies and to use the account to run the business. Mrs. Cullen subsequently lodged £403 to a bank account in her name and this account was used to run the business. There was also a discussion about a portable house which Mrs. Cullen had won in a competition organised by the “Sunday Press.” I shall deal with this in a later part of this judgment. On the 17th June Father Kavanagh went to Enniscorthy to see Dr. Murphy, who was the plaintiff’s regular doctor, and was apparently told that the plaintiff could still be arrested on the order which had been made. Ho came back to Dublin and told the plaintiff that he should get legal advice. The legal advice was that the plaintiff would have to insist on a written withdrawal of the allegations of mental instability and to this the plaintiff added the proviso that his authority as owner of Adamstown had to be recognised. As the negotiations were about the transfer of Adamstown to Mrs. Cullen, it is difficult to understand why the plaintiff introduced the recognition of his authority as a condition of the transfer, but it provides another illustration that what mattered to the plaintiff was the acknowledgment of his authority. Father Kavanagh again saw Mr. Lawton in August and told him what Mr. Cullen required and this was passed on to Mrs. Cullen.
Since the 6th June Mrs. Cullen has been conducting the business at Adamstown and Martin and Patrick have been working for her. Patrick has been living in the premises all the time and Martin lived there until his marriage in August, 1960.
On the 14th September, 1959, the plaintiff’s solicitor wrote to Martin Cullen, requiring him to leave the house at Adamstown and to give up any connection with the management of the farm and business. A similar letter was sent to Patrick and a letter was sent to Mrs. Cullen, requiring her to cease interfering with the business and telling her that her grownup sons would not in any event be allowed to stay on in the house. Father Kavanagh carried on some further unsuccessful negotiations in an attempt to settle the differences. Mr. Lawton died in November, 1959. On the 18th June, 1960, the plaintiff commenced proceedings against Patrick and Martin, claiming an injunction to restrain them from interfering in the business and from trespassing on the property at Adamstown. An application by the plaintiff for an interlocutory injunction was refused by Mr. Justice Haugh on the 4th April, 1960.
Whatever be the position of children under 21 years of age who live in their father’s house, those over 21 are licensees of their father when they are on property (including the family home) belonging to him. If the site of the bungalow is left out of consideration for the moment, the defendants were licensees of the plaintiff when they were on the premises at Adamstown and they had not any proprietary interest in them. As the licence which they had to enter and reside there was revoked by the letters of the 14th September, the grounds upon which it was sought to justify their continued presence on the premises have now to be examined. The first ground is that pleaded in para. 6 of the defence, which reads:”
“As a further defence to the matters alleged in paragraphs 4 and 5 of the statement of claim the defendants say that in or about the month of August 1954 the plaintiff agreed with the second-named defendant, Martin Cullen, to hand over to him as from the 1st day of January 1955 the management of the said business at Adamstown save that the plaintiff would retain the sole right to sign cheques on the bank account relating to the said business. The second-named defendant accordingly managed the said business and with the approval of the plaintiff employed the first-named defendant therein and the defendants say that it was in pursuance of the said agreement that the defendants resided in the said dwelling-house and managed or worked in the said business. The said agreement was terminated by the plaintiff in or about the month of January 1958 when the plaintiff resumed the management of the said business but the plaintiff continued to employ the first-named defendant in the said business and
permitted both the said defendants to reside in the said dwelling-house.”
The letters of the 14th September, 1959, written by the plaintiff’s solicitor to both the defendants required them to leave the premises and were a termination of any contract of employment which existed between the plaintiff and the defendant, Patrick Cullen. The matters pleaded in para. 6 of the defence do not afford a justification of the defendants’ presence on the premises.
A further justification is that pleaded in para. 7, which is in these terms:””The defendants further say that in or about the month of June 1959 the plaintiff voluntarily left the said dwelling-house and went to reside in Dublin and subsequently in Enniscorthy and shortly after his departure informed or caused to be informed the said Sarah M. Cullen that he was making over and transferring to her his said property at Adamstown aforesaid absolutely and that she should open a new account in the Provincial Bank of Ireland, Enniscorthy Branch, in her own name for the purpose of the said business. The said Sarah M. Cullen accordingly opened such account and put to the credit thereof the sum of £400 out of her own money and applied the same for the purpose of carrying on the said business and thereafter carried on and still carries on the said business on the footing that she was legally or in equity entitled to the said property and has employed and still employs the defendants as assistants in the said business and authorised and permitted and still authorises and permits them to reside in the said premises in connection with their employment and the plaintiff was not on the 14th day of September 1959 and has not since been and is not now entitled to terminate and has not lawfully terminated the employment of the defendants or of either of them as such assistants or assistant or the right of the defendants or of either of them to reside on the said premises in connection with such employment.”
Mrs. Cullen is not a party to this action. At the end of the argument I suggested that she should be added as a party so that the claim pleaded in para. 7 could be dealt with. The plaintiff and the defendants declined to make any application to add Mrs. Cullen as a party but despite this I think that I must deal with this claim. I wish, however, to place on record that Mrs. Cullen was in Court throughout the hearing of the case and that she gave evidence for the defendants.
The plaintiff authorised Father Kavanagh to tell Mr. Lawton that he was going to transfer to Mrs. Cullen the place at Adamstown and every blade of grass on it and everything except the cattle on the lands and Mr. Lawton told her of this.
It seems to me that this was a statement of intention by the plaintiff of what he proposed to do. He offered to do this because he wanted to retain his liberty and to avoid arrest under the order made under the Mental Treatment Act, 1945. Mr. Matheson has relied on the decision in Dillwyn v. Llewelyn (1) as an authority for the proposition that the Court should now compel the plaintiff to transfer the lands and premises at Adamstown to Mrs. Cullen. The case is an authority for the proposition that a person claiming under a voluntary agreement will not be assisted by a Court of equity but that the subsequent acts of the donor may give the donee a ground of claim which he did not acquire from the original gift. In that case a father had told his son (the plaintiff) that he should live near him and had offered him a farm in order that the plaintiff might build a house: there was a written memo in which the father confirmed that it was his wish that his widow should give the lands to his son so that he would have a house. The plaintiff expended a large sum of money in building a house on the lands. Lord Westbury held that the making of the promise to give the lands coupled with the knowledge that the plaintiff had spent a considerable sum of money in building the house on the lands gave the plaintiff an equity to call on those claiming through the father to complete the gift. In this case, however, the only act relied on by Mrs. Cullen to create the equity is the putting of £403 into the business on Mr. Lawton’s suggestion; she has, however, been in receipt of the profits of the business since the 6th June, 1959, and these are considerably more than the sum which she paid in. Moreover, the balance sheet of the business as at the 31st December, 1960, shows a sum of £680 16s. 2d. to the credit of the bank account (I assume that this is the bank account in her name) and she could at any time since January, 1960, have repaid out of the profits of the business the monies advanced by her. The equity referred to by Lord Westbury is a discretionary one and when I consider the circumstances in which the plaintiff made the statement that he was about to transfer the property at Adamstown to his wife and that he made it because he believed that it was the only way by which he could remain free, I have no doubt whatever that it would be grossly inequitable to regard Mrs. Cullen as being entitled to a transfer of the property at Adamstown or as having acquired any proprietary interest, legal or equitable, in the property as a result of what was said. The use by Mrs. Cullen of her own monies for the running of the business, particularly when she could have repaid this advance at any time, does not, in my opinion, create any claim in conscience or in equity which the Court should enforce or give any ground for disregarding the general principle that equity will not aid an imperfect gift. As Mrs. Cullen has no proprietary interest in the property the defendants cannot shelter behind her permission to them or her employment of them in the business. A further ground relied on was that the plaintiff made no provision for Mrs. Cullen when he left, that she had to run the business to provide maintenance for herself and that she was accordingly entitled to employ the defendants and to license them to reside in the premises. In the circumstances I think that she was entitled to conduct the business when the plaintiff left, but she had no authority to employ either of the defendants in the business or to license them to reside in the premises after the letters of the 14th September.
A further justification pleaded in para. 8 is that the plaintiff made an oral contract with Patrick Cullen in 1954 under which Patrick Cullen agreed to reside in the dwelling-house at Adamstown and to work in the business and that the contract has not been terminated by the plaintiff. There was no evidence to support this and I decline to infer such a contract.
There was no evidence that the defendants had ever excluded the plaintiff from the Adamstown premises or that they had refused to allow him to take part in the management of the business. I think that Patrick (who did not give evidence) ignored his father’s orders in 1958 and 1959 and that he placed orders with suppliers without consulting him even though he had been told that he was not to do this. The defendants, however, are trespassers on the plaintiff’s property at Adamstown and their continued presence on the property is a continuing trespass. The plaintiff asks for an injunction to restrain them from trespassing and the question whether such an injunction should issue has been the subject of my most anxious consideration; the delay in giving judgment has been due to this aspect of the case. A claim for an injunction by a father against his two adult sons to prevent them coming to what was”and what the father wants to be” the family home is certainly novel; there is no reported case in Ireland on the matter and, as far as I have been able to trace, the problem has not been considered by any of the Courts in the United States of America or in Canada. There are two decided cases on the matter in England.
When Mr. Liston was opening the case he said that the plaintiff wanted an injunction because he wished to return to his property at Adamstown without the fear of being certified under the Mental Treatment Act and because the plaintiff felt that this could not happen if his two sons were not excluded from the property. The defendants’ presence on, or absence from, the property at Adamstown does not seem to me to have anything to do with the likelihood of the plaintiff being certified for temporary treatment under the Mental Treatment Act, 1945. Sect. 185 of that Act empowers the wife or a relative of the person to make an application for a temporary reception order and if a certificate is signed by two registered medical practitioners, certifying that the person to whom the certificate relates is suffering from mental illness and requires suitable treatment, the order for temporary reception may be made. This argument does not seem to me to justify the grant of an injunction.
The plaintiff’s strongest ground for an injunction is that he is the owner of the property at Adamstown, that he wants his two sons excluded from the property because he wants to run the business and because, as he put it in his evidence,”the children are a trouble to me and I do not want them.”Moreover, it is highly probable that the plaintiff’s nervous tension and nervous condition of June, 1959, will revive if his sons are in Adamstown when he returns. He is not prepared to return as long as they are there and the refusal of an injunction will be a denial of his right of property in the premises at Adamstown.
Against the grant of an injunction it has been urged 1, that it would be inequitable to give an injunction because both the defendants have acted on the plaintiff’s promise that he would make over the property at Adamstown to his wife; 2, that he who seeks equity must do equity and that the plaintiff, seeking the equitable relief of an injunction, must carry out his own promises; 3, that as the plaintiff is not seeking an injunction against his wife (which he could not get in any event), there should not be an injunction against the defendants; 4, that the plaintiff is quite free to return and run his business without interference by the defendants; 5, that the result of an injunction would be to cut off the defendants from social relations with their mother so that they could not visit her; 6, that Mrs. Cullen says that she is not prepared to live alone with her husband and that she wants somebody to stay in the house; 7, that if the plaintiff became ill the defendants could not take the risk of going to visit him or make any effort at reconciliation; 8, that neither of the defendants has ever claimed to be entitled to take part in the running of the business; and 9, that the grant of an injunction in this case would be contrary to the provisions of the Constitution dealing with the family.
There was no discussion about the general principles on which the Court decides whether an injunction should be granted or not except for a reference to the two cases in which the suitability of an injunction as a method of preventing a son from entering his parents’ home was discussed. The Court has to consider the balance of convenience, but this weighing becomes difficult when the refusal of an injunction amounts to a denial of the plaintiff’s right to decide who shall be on his property and the grant of an injunction is the intrusion by the Court into family and domestic relations which should be governed by affection, respect and the sense of moral obligation which all of us have and not by Court orders.
The Directors of the Imperial Gas Light and Coke Co. v.Broadbent (1) was a case in which the plaintiff sought an injunction to restrain a nuisance created by the manufacture of gas near his grounds. The Vice Chancellor granted an injunction and his order was affirmed by the Lord Chancellor, Lord Cranworth. The defendants appealed to the House of Lords and the Lord Chancellor, Lord Campbell, in the course of his opinion said (at p. 610):””It is argued that it is highly inexpedient in this case to grant an injunction. Why, this is the very case for an injunction, because it is a case in which an action cannot sufficiently indemnify the party who is injured. How can he prove to a jury the exact quantity of pecuniary loss that he may have sustained? He may be able to show the value of the flowers and trees that have been destroyed, but how can he show the irreparable injury done to his trade by his customers leaving him, whom he may find it most difficult or impossible to get back.
“Then we are told that an action is to be brought, I know not how often, I suppose an annual action, that actions are to be multiplied indefinitely. I cannot but think that this would be a denial of justice to a person who has proved the injury he has sustained, especially when the party of whom he complains still obstinately persists in doing what produces effects so injurious to him”; and in the same case Lord Kingsdown said (at p. 612):””The rule I take to be clearly this: if a plaintiff applies for an injunction to restrain a violation of a common law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law; but when he has established his right at law, I apprehend that unless there be something special in the ease, he is entitled as of course to an injunction to prevent the recurrence of that violation.”
The Chancery Amendment Act, 1858 (21 & 22 Vict., c. 27), better known as “Lord Cairns’s Act,” had not been passed at
the time when the Imperial Gas Light and Coke Co. Case (1) was commenced and was not referred to in the argument in that case. Sect. 2 of Lord Cairns’s Act (which is in force in Ireland: see Solomon v. Red Bank Restaurant, Ltd. (2) and Leeds Industrial Co-operative Society, Ltd. v. Slack (3) provided:””In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act . . . it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction,” and s. 28 of the Supreme Court of Judicature (Ireland) Act, 1877, provided (so far as material):””And whereas it is expedient to take occasion of the union of the several Courts whose jurisdiction is hereby transferred to the said High Court of Justice to amend and declare the law to be hereafter administered in Ireland as to the matters next hereinafter mentioned: Be it enacted as follows:
. . . . . . .
“(8) . . . and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable.”
The effect of Lord Cairns’s Act was explained by Lindley L.J. in Shelfer v. City of London Electric Lighting Co. (4).He said:””The jurisdiction to give damages instead of an injunction is in words given in all cases . . . but in exercising the jurisdiction thus given attention ought to be paid to well settled principles; and ever since Lord Cairns’s Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalising wrongful acts; or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrongdoer is in some sense a public benefactor . . . ever been considered a sufficient, reason for refusing to protect by injunction an individual whose rights are being persistently infringed . . . Lord Cairns’s Act was not passed in order to supersede legislation for public purposes, but to enable the Court of Chancery to administer justice between litigants more effectually than it could before the Act . . .
Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer, by way of example, to trivial and occasional nuisances: cases in which a plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief. In all such cases as these, and in all others where an action for damages is really an adequate remedy”as where the acts complained of are already finished ”an injunction can be properly refused. There are no circumstances here which, according to recognised principles, justify the refusal of an injunction . . .”
In Colls v. Home and Colonial Stores, Ltd. (1) Lord Macnaghten said, at p. 192:””Then, with regard to giving damages in addition to or substitution for an injunction” that, no doubt, is a delicate matter. It is a matter for the discretion of the Court, and the discretion is a judicial discretion. It has been said that an injunction ought to be granted when substantial damages would be given at law. I have some difficulty in following out this rule . . . But the recovery of damages, whatever the amount may be, indicates a violation of right, and in former times, unless there were something special in the case, would have entitled the plaintiff as of course to an injunction in equity. I rather doubt whether the amount of the damages which may be supposed to be recoverable at law affords a satisfactory test. In some cases, of course, an injunction is necessary”if, for instance, the injury cannot fairly be compensated by money”if the defendant has acted in a high-handed manner”if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others.” In the same case Lord Lindley said, at p. 212:””The general rule that where a legal right is continuously infringed an injunction to protect it ought to be granted is subject to qualification, as was carefully explained by Sir George Jessel in Aynsley v. Glover (1); and more recently by the Court of Appeal in Shelfer v. City of London Electric Lighting Co. (2).”
The decision of Buckley J. in Behrens v. Richards (3) is authority for the proposition that a successful plaintiff in an action for trespass is not entitled as of course to an injunction. Waterhouse v. Waterhouse (4) is a decision of the same Judge. It was an uncontested application for judgment by a father claiming an injunction to restrain his son, aged 35, from entering his father’s house. Buckley J. refused to grant an injunction and in the course of his judgment said:””An injunction to restrain a trespass is not a matter of course. If a man intrudes into another man’s house, or if a man having paid for a seat in the pit of a theatre insists on forcing himself into the stalls, the proper remedy is one much more simple than an application to this Court for an injunction. This plaintiff may, for aught I know, be entitled to such a remedy elsewhere if he has a case for it. But an injunction is a formidable weapon, to be used only when justified by such a state of facts as upon precedents and principles well established in this Court justify its application. Under circumstances, an injunction to restrain a defendant”even though the defendant be the plaintiff’s son”from entering on premises would be right. But the facts alleged in this case are far from justifying an order that a son shall not enter his father’s house. The duty of a father towards his son does not come to an end when, by reason of the latter having attained his majority or having reached a riper age, he may be properly called upon to provide for himself. Even when a child is an infant the parents’ duty to provide maintenance and education is of imperfect obligation, and whether in a Court of law or of equity its direct enforcement may be difficult or impossible. But the duty arising from the relation of parent and child, whether directly enforceable or not, is a duty of which the parent can in no circumstances divest himself. The duty is not limited to providing maintenance during infancy or any other time. It is a duty so to conduct himself in all respects towards his child as is right in him, he being his father. For many purposes this Court deals with questions as between parent and child in manner different from that which would be applied between strangers in blood. The Court as between father and son regards not merely obligations which are legally enforceable, but obligations which arise from the relations between the parties”obligations which are not legal, but may be called moral. There may be cases in which a son by misconduct may have rendered it very difficult for his father to determine how properly to discharge his parental duty. But the duty remains. The son also has his duties, and the father is not only entitled, but ought to use every legitimate means to ensure that his son shall perform them. No misconduct of the son, however, can abrogate the duty of the father. There might be a case in which the father might be entitled (say for the proper discharge of his duty to others) to forbid his son even to enter his house. But except in very grave circumstances this Court would never make an order with the intent and result of severing the connection which ought to exist between parent and child. There are no facts alleged here upon which I should consider it right in this case, even if it could be right in any case, to make an order the result of which would be that, if the son came to see his father, the latter might apply to the Court to commit the son to prison for breach of an injunction. To use every legitimate means to induce or even to drive a man to conduct himself as a good son and a good citizen is, of course, right. But this is not a result which can be achieved by injunctions of this Court. The forces to be employed are those of education, example, influence, and guidance from childhood and throughout life. These are matters in respect of which a father always owes the duty of a father to his sons. Apart from other considerations, it would be strange if a Court of justice were to intervene with an order cutting the son off from his father.”
In Stevens v. Stevens (1) Coleridge J. granted an injunction to a mother to restrain her son from breaking and entering her dwelling-house but, in doing so, he emphasised that the circumstances of the case were very grave.
In Solomon v. Red Bank Restaurant, Ltd. (2) Johnston J. considered all the authorities on Lord Cairns’s Act and remarked that the tendency of the more recent cases suggested a note of encouragement in favour of damages rather than an injunction.
After much consideration I have come to the conclusion that this is not a case in which an injunction should be granted against the defendants. I realise that I am denying the plaintiff one of the incidents of his fundamental right of property but I refuse the injunction because 1, it would make a reconciliation between the plaintiff and his sons impossible and would prevent them visiting him in an effort to restore more normal relations;
2, It would make it impossible for the defendants to visit their mother who is obliged to live with the plaintiff and would mean that she would have to leave her home in order to see them.
3, The defendants have never attempted to exclude the plaintiff by active steps from the control and management of his business.
4, The defendants have stated in Court through their counsel that they do not intend to prevent the plaintiff returning to the premises and that they do not intend to interfere with him in the conduct and management of the business.
5, Relations between fathers and their sons should not be governed by the heavy artillery of Court orders, injunctions or the threat of committal to prison, but by respect, affection, honour and the feeling of moral obligation.
6, There is a risk that the plaintiff’s hostility to his wife may revive when he returns to Adamstown and somebody should be in the house to protect her.
7, The plaintiff is in control of the business at Enniscorthy and receives the grazing rents out of Adamstown.
Although an injunction is refused, the plaintiff is entitled to damages against the defendants for their continued acts of trespass. There was no evidence that the defendants received any of the profits of the business and I dismiss the claim for an account against them. I will award £50, damages, against the first-named defendant and £50, damages, against the second-named defendant for trespass.
I come now to deal with the ownership of the site on which the house, won by Mrs. Cullen in the competition in the”Sunday Press,” had been erected. However unfortunate the Cullens may have been in their domestic relations, they have been singularly fortunate in competitions; Sean had won a substantial prize in the Hospitals Sweepstake and in March or April, 1959, Mrs. Cullen had won a fully furnished portable house. She gave this house to Martin and the plaintiff knew this in April, 1959. Martin intended to erect the house on his lands at Coolnagreine and, when representatives from the”Sunday Press” visited Adamstown in April, 1959, a site on his farm at Coolnagreine was selected. Shortly after this, Martin began to prepare the site for the house and did some work on the foundations. He had offered the house to his father before the 6th June, 1959, as he thought that his father did not approve of the position selected for it, but the offer was not accepted. When the plaintiff left Adamstown on the 6th June, Mrs. Cullen decided that she would like to have the house erected on the farm at Adamstown and, when she was speaking to Mr. Lawton, she told him this and sought her husband’s permission for it. Mr. Lawton said that he did not see why the permission was necessary as the property at Adamstown would be transferred to her; she persisted and Mr. Lawton undertook that he would write to Father Kavanagh and would telephone to her when he got a reply. A few days afterwards Mr. Lawton wrote to Father Kavanagh who discussed the matter with the plaintiff. The plaintiff told him that it was not necessary to discuss the matter because he was making over the place at Adamstown to Mrs. Cullen and that she could put the house where she liked. This discussion took place on the 13th or 14th June. Father Kavanagh gave this information to Mr. Lawton who then telephoned Mrs. Cullen and told her that she could go ahead with “the project as mentioned” and put the house up wherever she liked. Mrs. Cullen sent a message to Martin that he was not to go on with the preparation of the site on his farm and was to put up the house on the lands at Adamstown. He then stopped the preparation of the site on his own lands and began to work on a site for the house at Adamstown. He employed a man to work with him and spent about £200 in installing a water supply and building the foundations. The house arrived at the end of July and was assembled and erected in August. Some time after it was erected Martin heard that his father objected to its being placed at Adamstown and in August, 1960, Martin, who was about to get married, wrote to his father asking him to attend the wedding, and added:””I am hoping that you will give me the site the bungalow is on and your blessing.”
I am satisfied that Martin would have erected the house on his own lands if the plaintiff had not given Mrs. Cullen permission to put up the house at Adamstown and that he erected the house on the lands at Adamstown because he relied on the permission given. I am convinced that the plaintiff knew at all times that Mrs. Cullen had given the house to Martin and that the house was being erected for Martin to live in. It would cost £700 at least to take it down now and to lay foundations for it elsewhere; the cost of the decoration of the house which would be made necessary by its removal would be all additional £100. It has been submitted on the authority of Ramsden v. Dyson (1) that Martin Cullen has acquired a right to compel the plaintiff to transfer to him the site on which the house now stands. That case decides that if a stranger begins to build on land which he thinks is his and the real owner, seeing the mistake, abstains from correcting it and leaves him to continue, equity will not afterwards allow the real owner to assert his title to the land; but that if a stranger builds on land knowing it to be the property of another, equity will not prevent the real owner from claiming the lands afterwards. In this case, however, Martin knew that the land belonged to the plaintiff and his letter written in August, 1960, supports this view. In my opinion the argument based on Ramsden v. Dyson (1) is incorrect.
I am of opinion, however, that the plaintiff is estopped by his conduct in giving consent to the erection of the house at Adamstown when he knew that the house had been given to Martin and that the plaintiff cannot now assert any title to the site on which the house has been erected. There was a representation by him that he consented to this and that representation was acted on by Martin who spent £200 at least in erecting the house and gave a considerable amount of his time to this work. It seems to me that the principle stated by Denning J. in Central London Property Trust, Ltd. v. High Trees House, Ltd. (2) and affirmed by the same Judge when he was a Lord Justice of Appeal in Lyle-Meller v. Lewis & Co. (Westminster), Ltd. (3) applies to this aspect of the case and that the plaintiff cannot withdraw the permission which he gave for the erection of the house on the lands at Adamstown and cannot now assert a title to the site on which the house stands or to the house. While the estoppel created by the plaintiff’s conduct prevents him asserting a title to the site, it does not give Martin a right to require the plaintiff to transfer the site to him: if I had jurisdiction to make such an order I would do so, but I do not think I have. However, neither the plaintiff nor any person claiming through him can now successfully assert a title to the lands on which the house is built by any proceedings and, at the end of the twelve-year period from the date when the erection of the bungalow commenced, Martin will be able to bring a successful application under s. 52 of the Registration of Title Act, 1891, for his registration as owner. If this case goes further, I hope that it will be held that I was wrong in deciding that I had no power to order the plaintiff to transfer the site to Martin. There is a claim in the pleadings that Martin has acquired a lien on the lands but this was not argued. I must accordingly dismiss the counterclaim.
There will be judgment on the plaintiff’s claim for £50, damages, against Patrick Cullen and for £50, damages, against Martin Cullen, both up to this date.
I have considered the question of costs. The plaintiff claimed an injunction and has failed on that part of his claim. Much of the time which the hearing of the action took was caused by the case made by the defendants that the plaintiff was obliged to transfer the premises and lands at Adamstown to Mrs. Cullen. That case and the counterclaim have failed. I will award the plaintiff one half of the costs of the action and I will award the defendants the costs of the motion for the interlocutory injunction: the two sets of costs will be set off against each other and the balance due will be certified by the Taxing Master. There will be no costs of the counterclaim. I will give a certificate that it was reasonable to commence these proceedings in the High Court owing to the important nature of the action.
C.F. -v- J.D.F.
[2005] IESC 45 (12 July 2005)
Judgment of Mrs Justice McGuinness delivered the 12th day of July 2005
In these family law proceedings there are two appeals before the court, the first being an appeal by the respondent J.D.F. against the judgment and order of the High Court (O’Sullivan J.) made and delivered on the 16th day of May 2002 and the second an appeal by the applicant C.F. against a subsequent order made by the same judge in the High Court on the 14th day of November 2002. Since both appeals arise from the same original family law proceedings in which the applicant sought a decree of judicial separation together with wide ranging ancillary orders the appeals were heard together. As is frequently the case in such proceedings both parties accept that their marriage has irretrievably broken down and there is no appeal against the actual decree of judicial separation. The appeals arise from ancillary matters, details of which will become clear later in this judgment.
THE FACTUAL BACKGROUND
The factual background as found by the learned trial judge is set out in his original draft judgment and his revised written judgment of the 16th May 2002. In summary the facts are as follows. The applicant C.F. (“the wife”) was born on the 1st December 1957. The respondent J.D.F. (“the husband”) was born on the 30th January 1953. The parties were married in a civil ceremony on the 15th November 1989, having previously participated in a religious ceremony of marriage on the 19th October 1988. There are two children of the marriage, both daughters, M. born 13th November 1992, now twelve years of age, and E. born 28th January 1995, now ten years of age.
The wife had been previously married on the 8th August 1980. This marriage was short lived and a church annulment was granted after approximately eighteen months. The parties obtained a decree absolute of divorce in England on the 27th March 1989; this was accepted as being valid in this jurisdiction.
The husband and wife were involved in a relationship from in or about 1985. The husband worked as a trader in the Bank of Nova Scotia in Dublin. The wife operated a business as a beautician. This business operated mainly in a provincial city but had two branches in Dublin.
At the beginning of the relationship the wife owned a house in the provincial city where she had her business. She sold this house in 1985 and divided the proceeds between investment in her business and a contribution towards the acquisition of the family home in the Donnybrook area of Dublin. The husband also contributed to the acquisition and the refurbishment of this property, in part by means of a bank loan.
The husband came from a farming background in the County Wicklow area. The wife had an interest in horses, as had the husband. In 1989 the husband bought a farmhouse from his aunt. This farmhouse was situated in close proximity to a considerable farm owned by the husband’s father. The farmhouse was situated on half an acre, but had no other land attached to it. It is held in the husband’s sole name.
In 1992 the husband and wife moved to reside in this property in Wicklow, where their two children were born. The wife’s businesses went through a somewhat troubled period and were sold – it appears at some small loss, or at least with no profit – between 1992 and 1994. The family home in Donnybrook was sold in 1996 for the sum of £160,000.
In 1998 the husband’s employment at the bank was terminated and he received a settlement from his employers. In or about this time he embarked on the establishment of a stud farm business at the family home in Wicklow. He invested money in developing stables and other facilities for this business. Considerable financial evidence was given during the lengthy trial in the High Court regarding this business, and indeed regarding all other aspects of the parties’ financial history, but for the purposes of deciding the issues on this appeal there is no need to consider the details of this evidence. The learned trial judge accepted on the evidence that by 2002 the stud farm business was making a profit.
Since there was no land attached to the parties’ family home in Wicklow, the husband operated the stud farm on 22 acres of land adjacent to the family home which was part of the farm owned by his father, Mr J.F. senior. Although the husband used this land for the purposes of his stud farm, the land remained in the ownership of his father. The husband from time to time assisted his father on his farm, and it appears that the father, though now elderly, also at times assisted his son. The learned trial judge held that they had a close relationship.
After the wife sold her businesses she was no longer employed outside the home. With the aid of a housekeeper she cared for the home and children. She frequently rode out horses for a neighbouring farmer, had an active social life and was involved in charities. The learned trial judge held that her contribution to the stud farm business was minimal.
There were difficulties in the marriage from in or about 1995. These worsened in 1997-8. In April 2000 the wife issued the present proceedings. She left the family home in October 2000. Since then she has lived in rented accommodation in County Kildare. The children lived in the main with the wife, but continued to attend the local school which is near the family home. The wife has a relationship, which the learned trial judge held was not sexual, with another man.
THE PROCEEDINGS
Since the Special Summons initiating the proceedings does not appear to be included among the pleadings provided to this court it is not entirely clear what precise reliefs were originally sought by the applicant wife. However, these can in the main be inferred from the judgment and order of the learned trial judge. It is clear that throughout the proceedings the wife maintained that the 22 acres on which the stud farm operated formed part of the family home or at least part of the matrimonial assets.
On the 20th March 2001 the wife’s solicitors wrote to the solicitor for the husband’s father, Mr J.F., stating that it was the wife’s case that the father held lands jointly and/or on trust for the husband and in addition that the husband was or was likely to be the beneficiary of lands held in his father’s name. The solicitor sought to carry out a valuation of Mr F. senior’s lands. They also made reference to bank accounts which they alleged were held jointly by Mr F. senior and his son and sought discovery concerning these accounts. The letter continued as follows:
“As we are formally notifying you of the claim made by our client in relation to the above mentioned property, you might confirm whether your client seeks an opportunity to make representations with respect to any orders the court might make pursuant to the Family Law Act 1995. Alternatively, you might confirm whether your client is agreeable to being joined as a notice party to these proceedings.”
While it is clear on the evidence before the High Court that this letter was received by the solicitors and was shown to Mr F. senior, it appears to have evoked no response. No steps were taken by the wife’s solicitors to make the husband’s father a notice party to the proceedings.
Mr F. senior was called as a witness by the wife. His examination in chief by senior counsel for the wife, Ms Clissmann, was criticised both by senior counsel for the husband and, at times, by the judge as tending towards cross-examination. Mr F. senior was clearly not particularly anxious to assist the wife’s cause. His solicitor, Mr Osborne, was present in the court with him and occasionally intervened in the proceedings to clarify matters, for example in connection with his client’s will. During the course of argument before this court Ms Clissmann submitted that the letter sent to Mr F. senior constituted sufficient notice to him and that it was not necessary for him to be made a notice party to the proceedings.
The trial was lengthy, lasting some nine days. A great deal of the evidence turned on the financial resources of the husband, both in this jurisdiction and in the Isle of Man, on the ownership of the farm lands and on the operation of the stud farm. Fortunately, since the central issue of the first appeal turns on a particular point of law, there is no need to survey the detail of this evidence. Suffice it to note that it was clearly established that the 22 acres on which the stud farm operated remained, as it had always been, in the legal ownership of Mr F. senior. (The matter at issue in the second appeal is entirely separate, and will be dealt with later in this judgment.)
The learned trial judge gave judgment on the 16th May 2002. In his order he granted a decree of judicial separation. By way of ancillary relief he further ordered:
“1. That the respondent do have the right to occupy for life the family home situate at S. Stud, G., in the County of Wicklow to the exclusion of the applicant;
2 That the said family home do include the 22 acre site immediately adjoining the residence upon which site the respondent has developed the stables, yard, lunge ring and enclosed fenced area;
3 That the respondent do pay to the applicant a lump sum of €489,000 being the sum of €461,000 representing a fair evaluation of the applicant’s interest in the assets (with the exception of the furniture of the house) of the family home and the sum of €28,000 to balance the notional sum available to the respondent in the context of extra costs caused by his lack of co-operation with the requirements of discovery;
4 That the applicant do continue to have the benefit of the children’s allowances;
5 That the respondent do until he has paid the aforesaid lump sum continue the existing maintenance and thereafter that he pay to the applicant for maintenance the sum of €2,100 per month being the sum of €500 in respect of the applicant and the sum of €800 in respect of the each of their two children;”
The order went on to provide for the maintenance of two life policies for the benefit of the applicant and the children and for a pension adjustment order. It also provided that the respondent should continue to pay VHI premia for the two children and also their medical and dental bills. The learned judge also ordered that the mutual Succession Act rights of the parties be extinguished. The parties were granted join custody of the two children and the matter of residence and access was set out in a detailed schedule to the order in accordance with a scheme advised by Dr. Gerard Byrne, Consultant Child Psychiatrist.
This, however, was not the end of the matter. During the month of June 2002 the wife formed the intention of moving the children from the school which they had been attending near Dunlavin to a school near her current residence in County Kildare. Without any notice to the husband she went ahead from June onwards making arrangements for this. The new school term began on 2nd September 2002. On 31st August the wife informed the children that they were moving to a new school. On the same day she informed the husband that she had sent him a fax informing him of this. The fax was not in fact sent until the following day, 1st September. The principal of the Dunlavin School was informed on the 30th August that the children would no longer be attending there.
On 7th October 2002 the husband brought a motion seeking orders of attachment and committal against his wife. This motion was heard by O’Sullivan J. on the 14th November 2002. The learned judge found the applicant to be in contempt and ordered that in lieu of imposing a fine on the applicant the lump sum ordered to be paid by the respondent to the applicant pursuant to the order made on the 16th May 2002 be reduced by €25,000 to the sum of €464,000. The learned judge also remitted the matter of the schooling of the children and any questions regarding access to the District Court. This order was appealed by the applicant by notice of appeal dated the 17th December 2002.
Up to that point the husband had not appealed the order of the 16th May 2002. However, by a motion dated the 1st July 2003 he sought from this court an enlargement of time within which to serve a notice of appeal. This motion was heard on the 11th July 2003. An extension of time was granted on the following terms:
“1. That the respondent do pay to the applicant the sum of €250,000 within six weeks of the date hereof on account of the lump sum payment of €464,000 due by him to the applicant – execution for the balance of the said sum to be stayed pending the determination of the appeal herein or until further order.
2. That the respondent shall be at liberty to further mortgage the family home at S. Stud, G, County Wicklow up to a sum of €250,000.
3. The undertaking to the court by the respondent which the court doth note that he will not dispose of the said property without the consent of the applicant pending the determination of the appeal herein or until further order.”
This court was informed that the said sum of €250,000 had in fact been paid to the wife. The husband filed a notice of appeal dated the 31st July 2003. The court was informed during the course of the hearing of the two appeals that in the interim further proceedings concerning financial matters had been heard by the High Court and that a further order made by the High Court is at present under appeal, but no details of these proceedings have been provided.
THE RESPONDENT’S APPEAL
In his notice of appeal the respondent sets out some thirteen grounds of appeal, many of them dealing with matters of detail which arose during the course of the trial in the High Court. Senior counsel for the respondent, Mr Gleeson, however, in making his submissions to this court largely confined himself to two major grounds. The first of these was that the learned trial judge erred in law and in fact in holding and in so providing in his order that the family home included the 22 acre site upon which the stud farm had been developed. The second was that the judge had erred in law in holding in his judgment that, despite the fact that it was not open to him to make a property adjustment order in relation to the 22 acre site, he should take into account the value of that property adjoining the family home as an asset available to the respondent. It was as a result of these two errors of law and fact, Mr Gleeson submitted, that the learned trial judge had valued the family home at £600,000 and ordered an excessive lump sum to be paid by the husband to the wife.
In order to put these grounds of appeal in context it is necessary to consider some important passages in the judgment of the learned trial judge. The first of these is at pages 5 to 6 of the judgment and is entitled “Family Home”. The learned judge states as follows:
“The first issue is as to whether the family home should now be regarded as including the 22 acre site immediately adjoining the residence upon which the respondent has developed the stables, yard, lunge ring and enclosed fenced area. As is clear he has spent a considerable amount of time and money in developing these facilities on land in the legal ownership of his father. The evidence in the case has shown that there is a close working relationship between the respondent and his father. The respondent had taken charge of managing bank accounts for his father in the Isle of Man over several years from the early 1980s and it is clear that they trust each other with their sensitive and private affairs. The applicant claims that these 22 acres are now beneficially owned by the respondent. It is submitted that in the light of authorities which include Gillett v Holt and Another [2000] 2 A.E.R. 289, Re Brasham (deceased) [1987] 1 A.E.R. 504, Phoenix Smyth and John Joseph Halpin and Another [1997] 2 I.L.R.M. 39, Inwards and Baker [1965] 1 A.E.R. 446 and Cullen v Cullen [1962] I.R. 268 that I should now hold that these lands are beneficially owned by the respondent. Against this it is submitted that it is not open to me to make a property adjustment order because the property is legally and beneficially invested in the respondent’s father who has not been given proper notice of the applicant’s claim in respect of this interest. Furthermore it is submitted that crops were growing on the bulk of the 22 acres prior to 1998 and therefore the use of these fields by the respondent for the past four years or so is not sufficiently long to give him any equity therein.
I agree that it is not open to me to make a property adjustment order in relation to the 22 acres. On the other hand, in light of the authorities which I have considered, and the evidence makes it clear that the respondent’s father was fully aware of and accepted the respondent’s activities in developing these lands as a stud for his own benefit and that of his family, in my opinion the respondent would be in a position to resist any claim by his father to exercise control over these lands. Furthermore I consider it unlikely that the father would take any such steps against the respondent. Accordingly in my view I should take into account the value of this property adjoining the family home as an asset available to the respondent.”
The second passage occurs at page 12 of the judgment, as follows:
“The applicant is in principle entitled to a fair lump sum having regard to the value of the family home which as I have held includes the 22 acres. On the evidence a reasonable assessment of this value is £600,000 which half is represented by €381,000. The applicant has claimed €500,000 plus the cost of purchase at 10% to enable her to purchase an alternative to the family home. In addition she is claiming a lump sum to enable her to discharge her debts including the bank loan. I approach the issue of asset share on the basis that the court should provide not only for the needs of the applicant (where there is provision to do so) but also should assess a fair lump sum to reflect her interest in the family assets (not necessarily 50%) even if this is greater than her specific needs (again, assuming there is sufficient to make such provision).”
The learned judge went on to consider the law in relation to the distribution of matrimonial assets. Subsequently, however, when calculating the total lump sum to be paid by the husband to the wife, he confirmed the sum of €381,000 as representing her “share in the family home” (page 15 of the judgment). To this sum he added €50,000 to represent compensation for the wife’s contribution to the family through her care of the home and children plus some monies contributed from a joint account. He then added the sum of €30,000 to meet the wife’s expenses in acquiring a new home for herself. He went on to add (at page 15):
“To this sum must be further added a sum of €28,000 to balance the notional sum available to the respondent in the context of extra costs.”
The judge then dealt with the other issues set out in his order.
In her submissions to this court senior counsel for the applicant wife relied in the first place on the wide discretion given to the court in making both lump sum and periodic maintenance orders in judicial separation proceedings as set out in section 16 of the Family Law Act 1995. The duty of the court was to “endeavour to ensure that such provision is made for each spouse concerned and for any dependent member of the family concerned as is adequate and reasonable having regard to all the circumstances of the case.”
Ms Clissmann drew attention to section 16(2)(a) of the Act whereby the court is directed to have regard to the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future (my emphasis). She pointed out that the learned trial judge in his judgment had specifically considered the provisions of section 16 of the 1995 Act, together with the case law both in this jurisdiction (J.D. v D.D. [1997] 3 I.R. 64) and in England (White v White [2000] 3 WLR 1571). The learned judge had concluded his consideration of the law governing a division of the matrimonial assets by stating (at page 13 of the judgment):
“Accordingly I take my cue from the close association between the two jurisdictions acknowledged by the Supreme Court and conclude that in this case also dealing with judicial separation I must, having of course considered all of the statutory guidelines, reach a result which would be consonant with the principle established in M.K. v J.P. (otherwise S.K.). With regard to the reference of J.D. v D.D. I note that in that case McGuinness J. said (at page 59):
‘On a practical level this marriage was a lengthy partnership of complementary roles and it seems to me that it should result in a reasonably equal division of the accumulated assets.’
In the present case since, in my view, the assets and income available to the parties (the income being primarily that of the respondent but also, of course, I take into account the earning power of the applicant herself) do not exceed an amount sufficient to meet the needs of both parties it is necessary only to acknowledge the application of a general principle such as was indicated by McGuinness J. in J.D. v D.D.”
Counsel submitted that in taking this approach the learned judge was entirely correct.
As regards the issue of the 22 acres in the legal ownership of Mr F. senior, Ms Clissmann submitted that the trial judge was correct in taking into account the value of the 22 acre plot of land as an asset available to the husband. The learned judge’s conclusion was based on consideration of various authorities, including Smyth v Halpin [1997] 2 ILRM 38, Cullen v Cullen [1962] 1 I.R. 268, Gillett v Holt [2000] 2 All ER 289, Re Basham (deceased) [1987] 1 All E.R. 405 and Inwards v Baker [1965] 1 All ER 446. The judge had tacitly accepted that the circumstances surrounding the development of this 22 acre site amounted to estoppel by representation, or proprietary estoppel. The husband’s father had permitted his son to use the land as if it was his own throughout the period of the operation of the stud farm. It was submitted that on the basis of the doctrine of proprietary estoppel the respondent’s father would be prevented from insisting on his legal rights over the 22 acre site.
Ms Clissmann accepted that in most of the cases of proprietary estoppel there was a representation by words or deeds but she submitted that mere acquiescence or “conscious silence” might also suffice. In this context she referred to the case of Salvation Army Trustee Company Limited v West Yorkshire Metropolitan County Council [1981] 41 P & Cr. 179. Counsel pointed out that the respondent had invested considerable sums of money in improving the facilities of the stud farm and asserted that the evidence before the High Court indicated that the respondent’s bank manager believed that Mr F. senior would “in due course” transfer the land to his son. The land in issue was neither divided nor disposed of by the learned trial judge in his decision of 16th May 2002, Ms Clissmann argued. The legal title that Mr F. senior enjoyed remained intact and unaltered by the proceedings. The beneficial interest in the land was merely considered relevant by the learned trial judge in terms of calculating the wealth of the respondent.
THE LAW AND CONCLUSIONS
It is, of course, correct, as submitted by counsel for the applicant, that the court is given a wide discretion in making, inter alia, an order that a spouse should make a lump sum payment towards the general maintenance of the other party to the marriage. It is also correct that one of the twelve criteria set out in section 16(2) sub-sections (a) to (l) includes the property and other financial resources which each of the spouses is likely to have in the foreseeable future.
It seems to me that in his general consideration of the principles governing the division of this family’s resources the learned trial judge’s approach was entirely correct. He was concerned to establish a situation where the husband would be enabled to generate an income to assist in the support of his wife and children, while at the same time the wife would be provided with the monetary resources which she needed to provide herself with a separate home. He also – and this received comparatively little attention in any of the submissions made to this court – envisaged the necessity for the wife to take positive steps to earn an income through her own efforts, something which she appears not to have done so far.
The real issue before this court, however, is whether the learned trial judge erred in his definition of the family home to include the 22 acres in the legal ownership of the respondent’s father and in his resulting assessment of the respondent’s financial assets – the assets which fell to be divided between the respondent and his wife.
The term “family home” is defined in section 2 of the Family Home Protection Act 1976, as amended by section 54(1)(a) of the Family Law Act 1995. The amended section provides as follows:
“2.—(1) In this Act “family home” means, primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving.
(2) In sub-section (1), ‘dwelling’ means any building or part of a building occupied as a separate dwelling and includes any garden or other land usually occupied with the dwelling, being land that is subsidiary and ancillary to it, is required for amenity or convenience and is not being used or developed primarily for commercial purposes, and includes a structure that is not permanently attached to the ground and a vehicle, or vessel, whether mobile or not, occupied as a separate dwelling.”
In National Irish Bank v Graham [1995] 2 I.R. 244 this court stressed that the term “family home” is restricted to the precise terms of the Family Home Protection Act 1976. The court held that the definition of “family home” could not be extended by the judiciary beyond the words of that Act. Finlay C.J. in his judgment (at page 251) said:
“Firstly, I am quite satisfied that the word ‘primarily’ contained in the first sentence in this section means, in its ordinary construction and in the construction which must be given to it in this section, that the definition of a family home as a dwelling in which a married couple ordinarily reside is in the first place the appropriate definition within the Act. The necessity for that word becomes clear when one considers the second sentence contained in the sub-section namely ‘the expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides’ etc. You have clearly therefore in this section a primary definition and you have an additional or subsidiary definition; both are expressed in complete terms and leave no room for the addition of any other subsidiary definition by judicial interpretation.”
It is therefore clear that in referring to the “family home” as including the 22 acres the learned trial judge erred.
Ms Clissmann argues, however, that even if the 22 acres are not included in the family home as such, that land may be included in the family assets that fall to be divided between the spouses because, she submits, the husband had acquired a beneficial interest in it. It is obvious that he has not required a beneficial interest through any contribution – direct or indirect – to its acquisition. Even in the somewhat liberal context of family law the making of improvements to property cannot establish any form of beneficial title; see, for example, McC v McC [1986] ILRM 1 and N.A.D v T.D. [1985] I.L.R.M. 153.
It is claimed on behalf of the applicant that the respondent has acquired a beneficial interest in the 22 acre plot through proprietary or promissory estoppel, or, as counsel put it, through estoppel by representation. The difficulty about making this argument, in my view, is that in order to establish such an estoppel there must actually be a promise, or at least a reasonably clear direct representation or inducement of some kind. It is not sufficient to say that this or that was permitted to happen or that third parties looking at the situation thought that a particular outcome was likely. Neither is it enough that a man who is seeking a loan implies to his bank manager that his father may be going to transfer land to him.
This principle is clear from the cases on which Ms Clissmann relies in her argument. In Smyth v Halpin [1997] 2 ILRM 38, as set out in the head note, the plaintiff asked his father to provide him with a site where he could build a house, but his father responded “this place is yours after your mother’s day – what would you be doing with two places?” The plaintiff’s father suggested that the plaintiff should build an extension to the family home. An extension was designed by an architect on the assumption that the entire house would eventually belong to the plaintiff. The site on which the extension was built was transferred to the plaintiff so that he could use it as security to borrow the money required to build the extension. The father had left the house to his wife for life and subsequently to the plaintiff. In a later will he left the house to his wife for life and subsequently to one of the plaintiff’s sisters. At page 40 of the report Geoghegan J. sets out what happened:
“The father suggested that the plaintiff build an extension to the family home. The reference to the plaintiff being left the place after his mother’s day did not take the plaintiff by surprise because in 1983 he had had an earlier discussion with his father in the kitchen of the house during which the father asked him did he want the place and he said he did. I accept that this conversation took place also.
For the purpose of constructing the extension to the house, the services of an architect, Mr O’Daly, were retained and his designs were done in the context that the entire house would ultimately become the plaintiff’s. In order to build the extension, the plaintiff had to apply for a loan from the First National Building Society but that Society needed security. Accordingly the site had to be transferred to the plaintiff and this was done. What emerged was in no sense a real house but rather a self-contained section of a house…I find it difficult to conceive that the plaintiff would ever have adopted his father’s suggestion in relation to the extension to the house if it was not understood that he was to become the ultimate owner of the entire house.”
The clear evidence of an actual promise, which was quite specifically acted upon, was before the court. The court accordingly directed that an appropriate deed or instrument be executed to effect the vesting of the remainder interest in the house in the plaintiff.
In Cullen v Cullen [1962] 1 I.R. 268, an earlier Irish case, the plaintiff’s wife won a portable house in a competition. She gave this house to her son (M.). He offered it to his father who refused it. M. began to prepare a site for it on his own lands. When the plaintiff went to Dublin his wife thought it would be suitable to have M.s house erected on the family lands at Adamstown and she sought her husband’s permission to do so. He replied by messenger that he was making the place over to her and she could erect the house where she liked. As a result M erected the house on the lands at Adamstown rather than on his own lands.
In the course of a comprehensive judgment Kenny J. said (at page 291):
“I am satisfied that Martin would have erected the house on his own lands if the plaintiff had not given Mrs Cullen permission to put up the house at Adamstown and that he erected the house on the lands at Adamstown because he relied on the permission given. I am convinced that the plaintiff knew at all times that Mrs Cullen had given the house to Martin and that the house was being erected for Martin to live in.”
Kenny J. held, however, that Martin had not acquired a right to compel his father to transfer the site to him. At page 292 he concluded:
“I am of opinion, however, that the plaintiff is estopped by his conduct in giving consent to the erection of the house at Adamstown when he knew that the house had been given to Martin and that the plaintiff cannot now assert any title to the site on which the house has been erected. There was a representation by him that he consented to this and that representation was acted on by Martin who spent £200 at least in erecting the house and gave a considerable amount of his time to his work…While the estoppel created by the plaintiff’s conduct prevents him asserting a title to the site, it does not give Martin a right to require the plaintiff to transfer the site to him.”
In an earlier part of his judgment (at page 280) Kelly J. referred to the position of adult children who reside on their parents’ property:
“Whatever be the position of children under 21 years of age who live in their father’s house, those over 21 are licensees of their father when they are on property (including the family home) belonging to him. If the site of the bungalow is left out of consideration for the moment, the defendants were licensees of the plaintiff when they were on the premises at Adamstown and they had not any proprietary interest in them.”
This was stated despite the fact that the sons in question had operated the family business on the lands at Adamstown for a considerable period during their father’s absence.
The operation of the same principle may be seen in the English cases to which this court was referred. In Inwards v Baker [1965] 1 All ER 446 a specific suggestion was made to a son that he should build a bungalow on his father’s land, which he did, and he lived in the bungalow unchallenged for over thirty years. It was held by Lord Denning that since he had been induced to build the bungalow and had expended money for that purpose in the expectation of being allowed to remain there, equity would not allow the expectation so created to be defeated, and accordingly the defendant was entitled to remain in occupation of the bungalow as long as he desired to use it for his home. There was, however, no question of transfer of title.
In the more recent case of Gillett v Holt [2000] 2 All ER 289 were that in 1952 Gillett, who was then twelve years old, met and became friendly with Holt, a thirty eight year old gentleman farmer and bachelor. Four years later Gillett left school on Holt’s suggestion to work on his farm, and continued to work for him for nearly forty years. During that time he moved into a property owned by Holt’s company and, through his wife and children, effectively provided Holt with a surrogate family. Over the course of their relationship, Holt gave Gillett repeated assurances, usually before an assembled company on special family occasions, that he would inherit the farm business and in 1986 executed a will leaving Gillett his residuary estate. At a later stage Holt summarily dismissed Gillett and made another will excluding Gillett entirely. It was held that the doctrine of proprietary estoppel could not be treated as subdivided into three or four watertight compartments. Rather, the quality of the relevant assurances could influence the issue of reliance which was often intertwined with detriment (my emphasis). In that case the judge had erred in holding that Holt’s assurances were incapable of forming the foundation for an enforceable claim based on proprietary estoppel. The crucial issue was the quality of the assurances that were given – in other words, the quality of the promise.
This principle permeates all the cases on which the applicant relies. Ms Clissmann specifically refers to Salvation Army Trustee Company v West Yorkshire Metropolitan County Council [1981] 451P and Cr. 179 as establishing a criterion of “conscious silence”. But even in this case the “conscious silence” followed after a period where very specific and detailed representations were made to the Salvation Army by the local authority, on which the Salvation Army strongly relied, and as a result of which they embarked on the building of a new hall.
It seems to me, therefore, that in the present case the respondent operates on the 22 acre plot under a licence from his father. In order to establish a beneficial interest accruing to the son by means of a proprietary or promissory estoppel there must be at least some clear evidence of an actual promise, inducement or representation by the father to the son that he intended the son to be the owner of the land. Inferences from conduct are not sufficient, particularly if they are not supported by the evidence at the trial.
Mr F. senior gave evidence in the High Court. On reading his evidence, the strong impression that comes across is that he is quite determined to retain the ownership of his land. On the 17th April at page 87 to 88 of the transcript, Ms Clissmann puts questions to him about his son’s activities on the 22 acres. At question 403 she asks:
“403. Q. And you have permitted him – or would it be fair to say that you have
permitted him to do all of that?
A. Sure, yes.
Q. Would it be fair to say that you have encouraged him?
A. I can’t say I encouraged him nor I can’t say I discouraged him, there was nothing else he could do, he had no job.
Q. Can you tell the court does anybody else use the lands, the 22 or 30 acres other than your son and daughter-in-law?
A. No, my daughter doesn’t use it – my son is there, my daughters are in Dublin.
Q. Sorry, I mentioned your daughter-in-law.
A. Well, she hasn’t been there for a long time.
Q. Your son treats that land as his own, or does he treat the land as his own, the 22 or 30 acres – the land around his house – his family home?
A. He doesn’t treat it as his own, he treats it as any land is in the habit of being treated.
Q. Like a farmer treats his land?
A. Yes as a farmer…
Q. Treats his own land?
A. Yes, as a farmer treats his land, it is kept fertilised, it is kept rolled and kept the same as any land should be kept.
Q. So he treats it as his own?”
At that stage Mr Mohan, then senior counsel for the husband, intervened to protest that Ms Clissmann was cross-examining her own witness.
At page 95 of the same transcript Ms Clissmann questions Mr F. senior about the water supply to his son’s family home. At question 436 onwards a series of questions occur:
“436 Q. Very good, My Lord. Mr F., we understand that the well which feeds water to the family home of C.F. and your son?
A. Yes.
437 Q. Is the land registered in your name?
A. That is correct.
438 Q. With regard to that are you prepared to co-operate in trying to clarify the title so that there will be a wayleave?
A. Pardon.
439 Q. Would you be prepared to give a wayleave for the well. Would you allow access to the well for anybody who might own that house?
A. I would hold control over the well. I own the well and I intend to hold it.
440 Q. What do you do with the well Mr F.?
A. It supplies water to the land…
444. Q. With regard to the septic tank would you be prepared to co-operate with regard to access to the sceptic tank?
A. I am not too sure whether the septic tank is on my land or not.
445 Q. Well, if it were Mr F, would you be prepared to co-operate?
A. I would not…
447 Q. Well, I may be mixed up, Mr F., if there is a soak pit perhaps on lands in your name, would you be prepared to co-operate in relation to that?
A. I would not.”
During the course of Mr F.’s evidence he was questioned about his will. It appeared that he was somewhat confused about the possible question of a trust. His solicitor, Mr Osborne intervened at this point. Eventually a copy of Mr F. senior’s will, dated 5th October 2001, was produced to the court. This is included in the material before this court. Following a number of legacies the residue of his estate is dealt with as follows:
“All the rest, residue and remainder of my property of every nature and kind both real and personal that I may die possessed of I give devise and bequeath to my wife, A, for her lifetime and after her death to my son J.D.F. for his lifetime and after his death I leave on trust to my trustees subject to the following terms and conditions:
(1) to my granddaughters M and E.F. daughters of my son J.D.F. on condition that he has principal custody and be responsible for their upbringing, education and religious education until they attain 21 years or later at the discretion of my said trustees. In the events that the courts do not grant custody or C.F. refusing custody of my said grandchildren to my said son, I direct that this inheritance be forfeited and descend on the following terms:
(2) my said property I grant to my trustees and I charge them with exercising the following power of appointment on the date of death of my said son J.D.F.
(3) to appoint one of the following in fee simple
(a) M.F.
(b) E.F.
(c) G.F. my daughter
(d) M.F. my daughter
(e) any child or children of my son J.D.F. other than at (a) and (b) above.
In default of appointment I direct that the property shall go to my daughters G. and M. or their issue in equal shares.”
It is, of course, clear that Mr F. senior is, at least to some extent, motivated by hostility to his daughter-in-law, and the uninvolved observer may not find his attitude particularly attractive. Nevertheless his stated position is that not only has he no intention of transferring the land in question to his son during his lifetime but even after his death he is unwilling to bequeath to his son more than a life interest. That was his evidence at the time of trial in April 2002. Other than his tacit permission from in or about 1998 onwards to the respondent to carry on his stud farm business, there was no evidence before the High Court that he had previously made any promise, offered any inducement or given any assurance to his son that he would transfer to him the 22 acres that is in issue.
In my view, therefore, the doctrine of promissory or proprietary estoppel cannot operate. The respondent has not by the operation of an estoppel acquired a beneficial interest in the 22 acres in question. The 22 acres thus cannot be held to be an asset of the respondent or a part of the matrimonial assets of the couple and the learned trial judge erred in so treating it.
It would, perhaps, have been open to the learned trial judge pursuant to section 16(2)(a) of the Act of 1995 to give some weight to the future prospects of the respondent in calculating the lump sum to be paid by him to the applicant, but it was not, in my view, open to him to include the total value of the 22 acres owned by Mr F. senior as an integral part of the value of the family home and subsequently to divide that value equally between the spouses. I would allow the appeal on that ground. It is unnecessary to deal with the subsidiary grounds of appeal.
What, however, should be the outcome of allowing this appeal? Over three years have passed since the hearing in the court below – three years in which the value of property in the counties bordering on the greater Dublin area has escalated and the financial position of the parties may well have substantially altered. This court cannot, in the course of an appeal, receive evidence of these matters. Neither is it desirable, or even sensible, for this court to attempt to readjust the orders made by the learned High Court judge on the basis of the figures that applied in 2002. It seems to me that the only course open to this court is to return the matter to the High Court to enable up-to-date financial and valuation evidence to be received and a fresh adjudication made.
I am well aware that for the parties this is a most unfortunate outcome. Already a disproportionate amount of the parties’ resources have been spent in legal costs. At the conclusion of the hearing of this appeal the court strongly suggested to the parties that even at that late stage the wisest course would be for the parties to endeavour to reach an agreed settlement; I would now reiterate that advice in the strongest possible terms. It is of no advantage to either party to expend further resources on litigation either in this particular matter or in the other aspect of the proceedings which, the court was informed, is also under appeal.
In this context I will also refer to some remarks made by the learned Chief Justice at the conclusion of a recent family law matter The Oireachtas, in framing our family law statutes, has given a wide ranging and virtually unlimited jurisdiction to the Circuit Court. No doubt this was done in order to enable litigants to avoid the very high costs that are inevitable in a prolonged High Court action. Where the parties in family law proceedings are, to use the current phrase, of “high net worth”, and many millions of euros are at stake, it may be necessary to invoke the jurisdiction of the High Court. This is not such a situation. As the learned Chief Justice remarked in the earlier case, it is difficult to understand why the decision was taken to risk the cost implications of a High Court action in the light of the limited financial resources of this family.
THE APPLICANT’S APPEAL
The factual background to this second appeal has been set out earlier in this judgment. The applicant appeals against the order of O’Sullivan J. in the High Court made on the 14th November 2002, by which he found the applicant guilty of contempt of the High Court for failing to comply with the judgment and order of the court dated the 16th day of May 2002.
The grounds of the applicant’s appeal are set out as follows:
“1. That the learned judge erred in law and in fact in finding the applicant guilty of contempt for failing to comply with the judgment and order of the High Court dated the 16th May 2002 as the said order did not specify the school attended by the infants.
2. That the learned judge erred in law and in fact in ordering that in lieu of imposing a fine on the said applicant the lump sum ordered to be paid by the respondent to the applicant pursuant to the order made on the 16th May 2002 be reduced by €25,000 to the sum of €464,000 as the learned trial judge had no jurisdiction to vary the said order and further without prejudice to the above, that the reduction in the said lump sum order was disproportionate to the contempt so found.”
As regards the first ground, it is of course correct that the order of 16th May 2002 does not specify the school attended by the children. However, it is clear from the transcript of the trial, from the learned trial judge’s judgment and from the form of the order that no question had been raised as to the children ceasing to attend their current school. It appears that agreement in regard to the details of the parents’ joint custody of the children was reached only after much negotiation and with the advice and assistance of Dr. Gerard Byrne. The arrangements were a delicate balance.
While the wife stated in evidence that in April 2002 she had not formed the intention of changing the children’s school, it was less than one calendar month after the making of the High Court order that she began to make arrangements to move the children to a new school. It is clear from her evidence that she was well aware that it was most unlikely that the children’s father would agree to this move. Nonetheless she persevered in making the arrangements. She not only failed to inform the respondent of the arrangements she was making, she also, in what was no doubt a further effort at concealment, did not inform the principal of the school in Dunlavin that the children were no longer to be pupils there. More seriously still, in my view, she did not inform the children themselves of the change of school until two days before the beginning of term.
The issue before the High Court and on appeal before this court, however, is not the welfare of the children but whether the applicant was in contempt of the order of 16th May 2002. I am in complete agreement with the finding of the learned High Court judge in finding that she was in contempt.
As regards the second ground of appeal, the learned High Court judge has helpfully provided a note for the benefit of this court as follows:
“I wish, with regard to the amount of €25,000 assessed by me in view of fine, to advert to the figure of €28,000 notionally assigned to the respondent on the division of assets, in effect, a penalisation of the respondent for his lack of co-operation with the court in the matter of discovery. (see page 8 of my judgment delivered the 16th May 2002).
It seemed to me that the contempt of the applicant (if I was correct in so holding it to be) was comparable to the failures of the respondent with regard to discovery and anything less than a substantial sum in lieu of a fine would have failed to reflect this.”
In my view the learned trial judge was correct in balancing the contempt of the applicant as against the respondent’s lack of co-operation with the court – in itself a form of contempt. In the end result the actual level of the penalties imposed is thus somewhat immaterial, since they may virtually be off-set one against the other. I would dismiss this appeal.
R. (J.), A Ward of Court, Re
[1992] IEHC 1; [1993] ILRM 657 (2nd October, 1992)
High Court
COSTELLO J
1. Since 1990 the ward has been living in a psychiatric hospital, unable to manage his own affairs. The ward’s committee now wants to sell the dwellinghouse in which he formerly lived because it has fallen into a dilapidated state. The ward is unmarried but his committee has ascertained that since 1978 he had been living in the dwellinghouse with a lady who still resides in it and who now claims rights in relation to it. This lady has been named as the respondent to this motion, a motion seeking an order for sale. As will appear later, it is obviously in the interests of the proper management of the ward’s estate that this be done, but the court is of course bound by any rights affecting the property and the court’s power of sale may be restricted by rights which may have been created by the ward. The issues now for determination are the nature of the rights, if any, to which the respondent is entitled in the property, and the proper order to be made in the circumstances.
2. The ward is now aged 73 years. He was admitted to a psychiatric hospital in Dublin on 19 July 1990 for investigation of a depressed mood, weight loss and inability to take care of himself. He was then depressed and disorientated, with decreased concentration and some short term and some long term loss of memory. It was established on assessment that he could not live on his own and that he required help with dressing, bathing, toileting and even with sorting out his own possessions. A diagnosis of multiple infarct dementia having been made he was transferred to a psycho-geriatric unit. Since then his mood has fluctuated and at times he is regarded as a suicide risk. In February of this year he became very agitated but a change in medication seemed to bring about an improvement for a limited time. His cognitive functions cannot improve but there is a possibility, but it is only a possibility, that his depression may improve. His life expectation is quite good, but he will need full-time institutional care for the rest of his life. I am quite satisfied that he will never be able to return to live in his former dwellinghouse. He made a will in 1988 and I think it is extremely unlikely that he will ever be capable of making another will.
3. When taken into wardship on 8 October 1990 the General Solicitor was appointed committee of his person and his estate. There is presently standing to the credit of his account the sum of £39,205.61. In addition he is the owner of a dwelling house the subject of these proceedings.
4. The respondent to this motion was born on 2 November 1944 so that she is now nearly 48 years of age. She married in 1965 but her husband left her in September 1971 and she has not heard from him since. There were two children of the marriage, a son born in July 1968 and a daughter born in February 1970 but as the respondent was unable to look after them they were brought up by her mother. In 1968 she suffered a brain tumour. The operation to remove it was successful and thereafter for some years she was able to work as a tailoress. But in 1977 a second brain tumour developed and although it was successfully removed she has since been disabled; her leg is permanently weakened so that she has to use a stick, and one of her arms is almost powerless. She has been unable to work and has had only a small disability pension on which to live. She has suffered from depression. This was so severe that in 1978 she required hospitalisation in a Dublin hospital. There she met the ward. He too was undergoing psychiatric treatment. They struck up a friendship which developed into a deeper relationship and resulted in his asking her to go to live with him in the dwelling which is the subject of these proceedings. They lived together as man and wife until 1990 when the ward had to be taken into hospital because of the illnesses to which I have referred. When they lived together the ward maintained the respondent out of his resources, and in addition gave her a small allowance to augment her disability pension.
5. The respondent’s claim to a legal interest in the ward’s dwelling is based on the following facts. She says that when she went to live with him that he represented to her that he would look after her, and that she would be sure of a home for the rest of her life. She says that he continued to make these representations to her and she acted on them. Furthermore, on 2 November 1988 the ward made a will. By it he bequeathed:-
all my property of every nature and kind whatsoever both real and personal including my residence at. . . to my great friend . . .[the respondent] for her own use and benefit absolutely….
and he appointed the respondent executrix of his will. The evidence establishes that the will was validly executed, and that the ward was of sound mind, memory and understanding when he executed it. 2 November was the respondent’s birthday. On that day he handed her a folder which contained his will and said to her, ‘it’s not my house now, it’s our house and eventually it will be your house’. It will be recalled that the ward was then 69 years of age, and that the respondent was 44.
6. The ward’s dwelling is now in a very dilapidated state, as appears from an architect’s report of 31 July 1991. Urgent repairs are needed to the roof and the rear wall, the house timbers need to be checked and because of damp penetration their replacement may be necessary. The cost of making the house structurally sound is estimated at £34,000. The ward’s only money is a sum of £39,205 and out of this, liabilities will have to be discharged including (a) such sums that may be due to the hospital, (b) the cost of future maintenance, (c) costs of the committee (past and future), (d) the possibility of future specialist nursing for the ward and (e) eventually his funeral expenses. The respondent agrees that the dwelling is in need of repairs but has obtained a contractor’s estimate that urgent repairs could be carried out at a cost of £3,000.
7. The claims advanced on behalf of the respondent are based (a) on the representations made to her at the time she went to live with the ward and subsequently and (b) the representations made on 2 November 1988. She relies on the principles of the law of estoppel. For present purposes I will use the classification which is now generally accepted (see Snell’s Principles of Equity, 28th ed., p. 554 and Halsbury’s Laws of England (4th ed.), vol. 16, 1071, 1072) and refer to (i) promissory estoppel and (ii) proprietary estoppel. A promissory estoppel will arise where by words or conduct a person makes an unambiguous representation as to his future conduct, intending that the representation will be relied on, and to affect the legal relations between the parties and the representee acts on it or alters his or her position to his or her detriment the representor will not be permitted to act inconsistently with it (see Snell’s Principles of Equity, 28th ed., 556). If the subject matter of the representation is land, no right or interest in the land results from this estoppel – a personal right is vested in the representee which will preclude the representor from enforcing a title to the land. A proprietary estoppel is different in a number of ways. When it relates to land it may result in the creation of rights in or over the land. It has been explained as follows:-
8. Where one person (A) has acted to his detriment on the faith of a belief, which was known to and encouraged by another person (B), that he either has or is going to be given a right in or over B’s property, B cannot insist on his strict legal rights if to do so would be inconsistent with A’s belief. (See In re Basham [1987] 1 All ER 405 at 410).
Maharaj .v. Chand [1986] AC 898 illustrates the operation of the law relating to promissory estoppel. This was a case which originated in Fiji and was eventually decided by the Privy Council. The plaintiff and the defendant were living as man and wife (but unmarried) when the plaintiff applied to the housing authority for a lease to enable him to build a house. With the approval of the Native Land Trust Board he obtained a sub-lease and erected a house on the land demised to him. In reliance on a representation made by the plaintiff to her that it would be a permanent home for her and her children the defendant left her flat and went to live with the plaintiff. Their relationship later broke down. The plaintiff left the house, giving the defendant permission to remain in it. Later he revoked the permission and instituted ejectment proceedings against her. The trial judge dismissed the claim on the ground that the plaintiff was estopped from evicting her. On appeal the plaintiff succeeded on the ground that the licence he gave the defendant was an unlawful ‘dealing’ within the meaning of s. 12 of the Native Land Trust Act. The Privy Council allowed the defendant’s appeal and restored the order of the trial judge.
9. In reaching its conclusions the Privy Council firstly held that s. 12 did not apply as the right on which the defendant relied was a purely personal right and no ‘dealing’ with the land in breach of the section had occurred. Its opinion was that it might have been possible, but for the provisions of that section, to have made out an entitlement to an equitable interest in the land but this had not been claimed. The claim advanced was a more modest one, namely that the requirements of a promissory estoppel existed. It was pointed out that the plaintiff had represented to the defendant that the house would be a permanent home for herself and her children, that in reasonable reliance on this representation she acted to her detriment by giving up her flat, that it was not possible to restore her to her former position. In these circumstances it would be ‘plainly inequitable’ the court concluded for the plaintiff to evict her and held that she had permission to reside permanently in the house, that this was a personal right which did not amount to a property interest diminishing the right of the plaintiff’s lessor or mortgagee.
Greasley .v. Cooke [1980] 1 WLR 1306 is an example of proprietary estoppel. It was a case in which the owners by inheritance of a dwelling house took ejectment proceedings against an occupier whose defence was that she had reasonably believed and was encouraged by members of the family of the deceased owner so to believe that she could regard the property as her home for the rest of her life and that she was entitled to a declaration to that effect. The evidence established that in 1938 at the age of 16 she went to the house as a maid servant of the deceased, that from 1946 she had co-habited in it with one of the deceased’s sons, that after the owner’s death she remained in the house and looked after it and also cared for the deceased’s mentally ill daughter, that she received no payment, that she had been assured by members of the family that she could regard the house as her home for the rest of her life. It was held by the Court of Appeal that once it was shown that the defendant had relied on the assurances given to her then the burden of proving that she had acted to her detriment in staying on to look after the house without payment did not rest on her and that in the absence of proof to the contrary the court could infer that her conduct was induced by the assurances given to her, that expenditure of money was not a necessary element to establish proprietary estoppel, and that it was for the courts to decide in what way the equity established by the evidence should be satisfied.
10. Another example of the operation of the doctrine of proprietary estoppel is to be found in ln re Basham [1987] 1 All ER 405. The plaintiff’s mother married a second time when the plaintiff was aged 15. The plaintiff worked for her stepfather without payment for many years, helping him to run various public houses and a service station. After she had herself married she considered moving elsewhere but she was dissuaded by her stepfather from doing so. After the death of her mother she looked after her stepfather. He owned a cottage and on many occasions he indicated to her that she would get the cottage on his death in return for what she had been doing for him and also his estate. But he died intestate and two nieces were his next of kin. The plaintiff instituted these proceedings claiming a declaration that she was entitled to the deceased’s entire estate because the deceased had induced and encouraged in her the expectation or belief that she would receive the estate on his death and because she had acted to her detriment in reliance on that expectation a proprietary estoppel arose in her favour. She succeeded in her claim.
11. Having stated the principle of proprietary estoppel already quoted, the court pointed out that although the principle is commonly known as proprietary estoppel where the belief is that A is going to be given a right in the future it may properly be regarded as giving rise to a species of constructive trust, the concept employed by a court of equity to prevent a person from relying on his legal rights when it would be unconscionable for him to do so. The court held that a proprietary estoppel could be raised when an expectation exists that future rights would be given over a person’s residuary estate. As the plaintiff’s belief that she would inherit the estate had been encouraged by the deceased and as the plaintiff had acted to her detriment in subordinating her own interests to the wishes of the deceased in reliance on her belief that she would inherit, she had established a proprietary estoppel and was entitled to the estate. The court considered how effect should be given to the equity which had arisen in the plaintiff’s favour. It held that the extent of the equity was to have made good, as far as could fairly be done between the parties, the expectations which the deceased had encouraged. It followed from this that the plaintiff was entitled to a declaration that the personal representatives held the whole of the net estate in trust for the plaintiff.
Conclusions
12. In the light of the facts and the applicable legal principles, I have come to the following conclusions:-
(1) The uncontradicted evidence is that at the time that the respondent went to live with the ward and thereafter he represented to her that he would look after her and that she could be sure of a home in his dwellinghouse for the rest of her life. I think the respondent acted on this representation and that she did so to her detriment. The law relating to the nature of detriment suffered by a representee has been clarified by a number of recent cases. As was shown in Maharaj .v. Chand detriment may exist when a representee leaves a permanent home on the faith of a representation that another will be offered in its place. Whilst I have no evidence of where the respondent was living in 1978 I think I am entitled to assume that she had a house or a flat which she gave up to go live with the respondent and that accordingly she has made out a case of promissory estoppel as she acted on the representation made to her. It would be plainly inequitable for the ward now to deny that she has a right to live in his house and it seems to me that she has an equity which entitles her to stay in the house rent free for as long as she wishes to which the court must give effect.
(2) I do not think that any further or additional rights were conferred by the events of 2 November 1988. When on 2 November 1988 the ward handed the respondent a folder and said ‘it’s not my house now, it’s our house and eventually will be yours’ I think he was intending by those words to give a gift of an interest in the house to the respondent. But the respondent cannot claim any enforceable rights from this fact, because the gift was an imperfect one which the courts cannot enforce. I do not think that by using those words and handing her the executed will the ward thereby conferred on the respondent an immediate beneficial interest under a constructive trust – the ward intended that she would have (a) a right to reside in the house during his life and (b) ownership of it after his death, but he did not intend that she would have an immediate beneficial interest in it – if he had so intended he would have arranged to transfer the property either to her alone or jointly with him. And the respondent cannot rely on the doctrine of estoppel because she cannot show that she acted in any way to her detriment arising from the representation which was made to her on 2 November.
13. In cases such as this the court must (a) ascertain the nature of the equity to which a representee is entitled and (b) decide in what way the equity may be satisfied (see Denning MR in Greasley v Cooke, op. cit., p.1312). The equity which the respondent has been able to establish is a right to reside in the ward’s dwellinghouse for her life and normally such a right would be satisfied by an order refusing to evict the representee or where the representor is a ward of court refusing to sell the dwellinghouse. But there are special circumstances in this case. The house is in a very serious state of dilapidation. Major work needs to be done on it. There has been severe damp penetration which has caused the timbers to rot. There is rising damp in the basement walls, the plumbing and electrical wiring needs to be replaced. The cost of doing the work was estimated last year as being £34,000 approximately. It is quite a large three storey house and the respondent no longer uses the basement. It is not reasonable to spend the ward’s limited resources in attempting to repair it and the respondent herself has no money to do so and no doubt it is declining in value all the time. The respondent’s equity can be satisfied by selling the house and buying another smaller one suitable for the respondent’s needs. It should be bought in the ward’s name but I will declare that the respondent has a right to reside in it for as long as she wishes. This will not of course prejudice in any way the rights she will have should the ward predecease her (as would normally be expected) and should he not revoke his will (a most remote eventuality).
14. In order to satisfy the equity the new house should meet the respondent’s reasonable needs for accommodation as a single person. It should be purchased in consultation with the respondent and should any difference arise this motion can be re-entered. The committee should take expert advice as to when to sell and when to purchase the new property.
15. I will therefore order that the premises be sold provided that there is made available to the respondent suitable alternative accommodation in a dwelling to be purchased in the ward’s name, and I will declare that the respondent has a right to live in the newly acquired dwelling for as long as she may wish.
McDonagh v. Denton & Anor
[2005] IEHC 127
JUDGMENT of O’Sullivan J. delivered the 15th day of April, 2005
Introduction
By deed dated 28th August, 1981, the plaintiff purchased from the late Margaret L. Stewart a plot of ground (hereinafter “the disputed plot”) situated behind the back gardens of Nos. 57-61 Cowper Road and those of Nos. 1-6 Fortfield Gardens in Rathmines, County Dublin. The disputed plot was accessed by a laneway from Fortfield Gardens and surrounded by a circulation laneway for the use of approximately ten garages giving onto these laneways.
The late Margaret L. Stewart died on 21st July, 1984 and her cousin James Stewart was appointed her personal representative.
By deed of 5th September, 1986, James Stewart conveyed to the defendants a property which I shall refer to as Fortfield House (which lies at the corner of Cowper Road and Fortfield Gardens).
Fortfield House was conveyed by assignment of a leasehold interest comprised in an indenture of lease dated 24th March, 1934. This lease comprised not only the dwelling house known as Fortfield House but a number of ground rents from properties adjoining it, and, the disputed plot.
The deed of 28th August, 1981 to the plaintiff carved the disputed plot out of the take comprised in the 1934 lease.
The deed of assignment to the defendants was registered at 10.10 a.m. on the 10th October, 1986 in the Registry of Deeds.
The plaintiff’s deed was registered on 23rd October, 1987 in the Registry of Deeds.
In January, 2001 notices were sent by the Derelict Sites Section of Dublin Corporation to both the plaintiff and the defendants. The notices stated that there had been complaints about the disputed site saying that it was neglected, derelict, and in an unsightly condition and required the recipients to remove all rubbish, cut back and remove all overgrowth, fence and secure the site against illegal access and dumping and inform the Section of their future proposals for the site.
The notice to the plaintiff was addressed to his then previous home in Greystones, County Wicklow and he did not receive it until several months later.
Shortly after receipt of their notice, at the beginning of February, 2001, the defendants carried out substantial works at the disputed site which included removing trees, shrubs and soil, surrounding the site with a fence, and securing it with a padlocked gate.
The plaintiffs commenced these proceedings by plenary summons dated 12th December, 2001 seeking injunctions against the defendants, damages for trespass, and a declaration that the defendants are estopped by their conduct from asserting that the disputed plot is included in their deed.
Issues
Prima facie in the above circumstances by s. 5 of the Registration of Deeds Act, 1707, the plaintiff’s deed “…shall be deemed and adjudged as fraudulent and void…” as against the defendants’ prior registered deed.
The plaintiff submits, however, that s. 5 of the 1707 Act should not avail the defendants in the present case for a number of reasons, as follows:-
1. The defendants’ deed did not contain the disputed plot because it had already been conveyed to the plaintiff;
2. The defendants did not agree to buy the disputed plot;
3. The court should treat the status quo ante as being the situation immediately before the defendants moved in to secure the disputed plot in February, 2001 and on that basis conclude that the defendants would never have been granted an injunction prohibiting the plaintiff’s access to the plot if only by reason of laches;
4. The first named defendant is estopped by his conduct from asserting his prior registered deed against the plaintiff’s.
Was the disputed plot included in the conveyance to the defendants?
Mr. Dwyer S.C. for the plaintiff submits that prior registration of a subsequent deed can do no more than secure priority: specifically, it cannot enlarge the interest conveyed by the deed so as, in this case, to include in it the disputed plot which had already been conveyed to the plaintiff.
There is no question but that the late Margaret L. Stewart intended to and did convey the disputed plot to the plaintiff. That being so, her personal representative simply did not have an interest in the disputed plot to convey to the defendants. Whatever was registered by the defendants it did not include an interest in the disputed plot for this reason.
Mr. O’Donnell S.C., counsel for the defendants, submits that this argument would defeat the entire purpose of the Act of 1707.
It is clear on the evidence that the disputed plot was the subject of an unambiguous agreement between the late Margaret L. Stewart and the defendants. It is equally clear that the disputed plot was conveyed in the plaintiff’s deed of August, 1981 (there is a collateral issue in relation to the transfer of the laneway access into it which is irrelevant to this point).
So far as the conveyance to the defendants is concerned, and subject to the next point which deals with the issue of whether the defendants actually agreed and intended to purchase the disputed plot and whether the late Mr. White of Adams Auctioneers actually agreed and intended to sell it to him, it is equally clear, in my view, that the conveyance to the defendants included the disputed plot.
That being the case, it seems to me that the plaintiff’s deed is indeed captured by s. 5 of the Act of 1707 and must, as against the deed of the defendants, so far as this point goes, be deemed and adjudged as fraudulent and void.
Did the defendants agree to buy the disputed plot?
This submission is made against the background of evidence which shows a probability that the brochure advertising Fortfield House for sale by auction in 1986 referred to an area of land too small to include the area of the disputed plot and did not, it seems, make any reference to a plot separate from the immediate curtilage of Fortfield House itself; and the evidence in the case of the plaintiff’s wife and her neighbour Catriona Warfield that they attended at a pre-auction viewing where they were given a brochure but where the auctioneer’s representative made no mention of a small plot separate from the house curtilage.
Furthermore, requisitions on title and answers thereto, it is submitted, were consistent only with an intention to deal with the house and curtilage as excluding a separate plot. Replies indicating that there was no separate land were accepted on behalf of the defendants’ solicitor, Mr. D’Arcy of Finbar J. Crowley and Co. solicitors. Moreover a search against the land on behalf of the purchasing defendants failed to reveal the fact that the plaintiff had applied for and been refused planning permission to build a house on the disputed plot shortly after they acquired it in 1981. This, it is submitted, shows that the mind of the defendants’ agent was addressed only to Fortfield House and the immediate surrounds, and no separate search was made against the disputed plot. A further point made in this context is that when the plaintiff purchased the disputed plot in 1981 it became apparent to his lawyers, albeit subsequently, that the deed to the plaintiff did not include the access laneway which was held under a separate lease of 1932. This matter was cleared up and a separate conveyance provided. It is submitted that had the defendants truly intended to purchase the disputed plot their lawyers would, in turn, have discovered this defect and had it rectified. They did not do so because, the plaintiff argues, no one concerned with the later transaction was in fact intending to deal with the disputed plot.
In response, the first named defendant has given evidence that he did not attend the auction or indeed know about it at the time at all. He first sighted Fortfield House when he was passing it and noticed a sign advertising it for sale. He went immediately to the late Ben White of Adams Auctioneers and was shown over the house, the relatively small garden and was taken around via Fortfield Gardens and the laneway into the disputed plot. He said the late Mr. White was interested in architecture and discussed architectural aspects of the property with him and, in particular, how the site was squared off, and how it included the disputed plot and also a number of garages on the eastern side. Mr. White made no reference to a prior sale of the disputed plot. Mr. Denton said that the same day he went to Mr. White’s office and paid a deposit. Some six weeks later he attended at the office of his solicitor, Mr. D’Arcy, who explained to him about the leasehold interest that he was buying by reference to the original map attached to the 1934 lease. This map did not show a dividing line between Fortfield House and the disputed plot, indicated only building lines (which were different to the actual boundaries of the houses actually built), and showed the area including the area of the disputed plot as a yellow square all contained within a red line bounding the take under that lease. The balance of the take was coloured green.
Evidence was given by Karl Hayes of Messrs. Gore & Grimes solicitors who was the individual partner in that firm who acted in the transaction conveying Fortfield House to the defendants. Mr. Hayes was not aware of the prior sale of the disputed plot to the plaintiff. This had been carried out by his partner, Louis Healy of the same firm who at the time dealt with Mr. O’Brien-Kenney acting for the plaintiff as purchasers.
Karl Hayes’ evidence was unambiguous; his understanding and intention was that the conveyance to the defendants included the disputed plot. He was dealing with Mr. D’Arcy of Finbar J. Crowley solicitors acting for the defendants as purchasers and his view was that it was also Mr. D’Arcy’s intention and understanding that he was purchasing an interest which included the disputed plot on behalf of the defendants. Neither of them had any inkling of a previous transaction affecting the disputed plot. A draft deed which he offered to Mr. D’Arcy included the disputed plot. He never actually saw the property himself. He attended the closing which was a “three-way closing” in that he was present for the vendor, Mr. D’Arcy was present for the purchaser, and Mr. David Anderson (as he then was) of Messrs. Gerard Scallan and O’Brien solicitors was present on behalf of Hill Samuel who were providing money to the defendants for the purchase of the property and who in fact registered the defendants’ deed on 10th October of the same year.
Gerard D’Arcy, legal executive now retired, also gave evidence that at the time he was working with Messrs. Finbar J. Crowley solicitors, who were acting on behalf of the defendants, and that he was the individual who looked after the defendants’ business. It was his understanding and intention, also, that the conveyance to the defendants included the disputed plot. He was not aware that it was a separate plot from the curtilage of Fortfield House and the reference to the map in the 1934 lease would not have alerted him to this fact. He was not aware of the deed of 1981 conveying the plot to the plaintiff. Nothing alerted him to the separate existence of the disputed plot and this explains why he was satisfied with replies to requisitions which did not alert him to a parcel of land that was separate from and independent of Fortfield House and its curtilage, and why no search was made against such an independent plot which would have revealed a prior planning application by the plaintiff. When he showed Mr. Denton the 1934 leasehold map and asked him if the house and plot shown thereon were included, Mr. Denton said they were.
My conclusion on this aspect of the case is that the defendants did indeed intend to purchase the disputed plot as part of Fortfield House, that this was the understanding reached between the late Mr. White of Adams Auctioneers and Mr. Denton and that this understanding was conveyed by these principals to their respective lawyers who also had a clear understanding to the same effect.
At the end of the plaintiff’s case, Mr. O’Donnell S.C. asked me to non-suit the plaintiff. I refused and in giving my ruling indicated that the plaintiff had made out a prima facie case that the defendants had not intended to purchase the disputed plot. That prima facie case, was established, in my view, by reference to the apparent non-inclusion of the disputed plot in the brochure, some aspects of the replies to requisitions and the result of the searches, and the evidence of the plaintiff’s wife and Catriona Warfield.
That was a prima facie case only, however, and in my opinion the evidence summarised above clearly establishes that the intentions of the defendants and the relevant lawyers was that the disputed plot was included in the sale to them.
The defendants query their title
Before moving on to consider the next of the four issues dealing with the status quo, I wish at this point to deal with a letter written on behalf of the defendants to Messrs. Gore & Grimes on 19th November, 1986. I turn to it specifically because it was relied on in the submissions made at the conclusion of the plaintiff’s case to suggest that the defendants must be treated as having had notice of the plaintiff’s deed of 1981 at the time that they contracted to purchase the disputed plot and at the time that their deed was registered, namely on 10th August, 1986 and accordingly that they cannot rely on the prior registration of their deed.
The letter was written on 19th November, 1986 by Gerard D’Arcy on behalf of Finbarr J. Crowley and Co. to Messrs. Gore and Grimes. It refers to the sale of Fortfield House by James Stewart on behalf of Margaret Stewart, deceased, to Kenneth and Ann Denton and reads as follows:
“Dear Sirs,
With further reference to the above we are requested by our client to seek clarification from you with regard to the inclusion or otherwise of the plot of ground at the rear of Fortfield House.
Apparently there is a small field at the rear of Fortfield House and although our clients understood that this plot was included in the sale to them, they are now not quite sure.
As you are aware the Title Documents to the property are with Gerard Scallan and O’Brien and before putting our clients to the expense of taking same up on accountable receipt we would be obliged for any information you can give us.”
The background to that letter was provided by Mr. Denton as follows. He said that shortly after he moved into Fortfield House, his next door neighbour, one Richard Evans, came round to welcome him to the area. Mr. Denton jokingly referred to the fact that he was Mr. Evans’ landlord and then Mr. Evans made reference to the fact that he had heard a rumour that the plot at the rear had been sold beforehand.
Mr. Denton said that he immediately contacted Mr. D’Arcy because he thought that his title should be checked. Mr. D’Arcy in turn said that it was his practice within a day or two to act on these instructions and accordingly it is likely that the conversation between Richard Evans and Kenneth Denton occurred within a day or two prior to 19th November, 1986, the date of Mr. D’Arcy’s letter.
The importance of these dates is that they exclude the possibility that Kenneth Denton became aware before the middle of November of any suspicion or question relating to his title to the disputed plot. This in turn rules out the suggestion made by the plaintiff that the Dentons were so aware and therefore must be fixed with knowledge of the plaintiff’s conveyance at a time when they agreed to purchase Fortfield House or indeed at a time when their deed was registered, namely on 10th October, 1986.
In light of the evidence which I have summarised in the immediate foregoing, it is clear that there is no evidence to show that either of the defendants were aware of the plaintiff’s prior purchase in circumstances which would have put them under an obligation to inform themselves further. Their deed was well registered before there was any suggestion made to Kenneth Denton suggesting a prior purchase of the disputed plot.
Mr. D’Arcy’s letter of 19th November, 1986 was ultimately replied to in a letter from Karl Hayes of Messrs. Gore & Grimes, dated 14th July, 1987, and reads as follows:
“Further to your letter of 19th November, 1986, concerning a Plot of Ground at the rear of Fortfield House, we are now in a position to confirm to you that this Plot is not included in the property purchased by your client. It was sold by Mrs. Stewart during her lifetime, in 1979, to a Mr. Patrick McDonagh.”
At this point in my judgment I am dealing only with the suggestion made by the plaintiff that the defendants had notice of the plaintiff’s prior purchase of the disputed plot. This reply and the defendants’ response to it will fall to be considered at a later point when I am dealing with the issue of estoppel.
So far as I am now concerned, however, my view is that neither of the defendants had anything approaching notice of the plaintiff’s prior purchase of the disputed plot before their own deed was registered on 10th October, 1986.
The status quo ante
In these proceedings the plaintiff seeks an injunction requiring the defendants to leave the disputed plot and restore it to its undisturbed condition (so far as possible).
The defendants have been in possession of the disputed plot since February, 2001. Their action at that time was taken in response to the notice sent to them by the Derelict Sites Section of Dublin Corporation. Mr. Denton, in response to a question as to what he would have done had the notice to the plaintiff been actually received by the plaintiff at that time, said that he would have taken legal advice. I have no doubt but that so would the plaintiff. I intend to treat this aspect of the case upon the basis that they would have received competent and proper advice which, in my opinion, would have included some temporary arrangement whereby the corporation would have been satisfied pending clarification of the conflicting legal claims of the parties. In this way the court would have come to deal with the issues now before it in these proceedings.
I agree with the submission of the plaintiff in this matter in relation to the status quo and take the reply indicated above of Mr. Kenneth Denton to show that he too would have approached the problem raised by the corporation’s notice in a manner intended to get to the bottom of the legal conundrum facing the parties rather than to exercise a “might is right” policy. In the circumstances, however, I do not think that the action taken in February, 2001 in clearing the site and making it secure can fairly be described as a policy of “might is right” without further qualification. This qualification includes the fact that the defendants were not aware at the time that such a notice had been served by the corporation on the plaintiff (the plaintiff himself was not so aware for a considerable time); they were under threat that the corporation had compulsory acquisition powers unless there was an appropriate response and they had been made aware that there were complaints about the state of the disputed plot, which Mr. Denton in evidence accepted, saying that he was not surprised by the notice as the site had become very overgrown.
Injunction?
I now turn to consider, briefly, the evidence from both sides in relation to what they did or did not do in regard to their claimed ownership of the disputed plot over the period since each claimed to have acquired it.
Plaintiff’s evidence
The plaintiff himself said that initially he agreed to purchase the disputed plot subject to planning permission. He applied for planning permission for a house and when he was refused he decided to purchase it anyway. He decided to maintain the plot bearing in mind the interests of their neighbours. Mr. Louis Healy of Messrs. Gore & Grimes solicitors who had acted for the late Margaret L. Stewart in conveying the disputed plot to the plaintiff said that part of her reason for selling it was it had become semi-derelict and she could not afford to keep it maintained. That was a description of the disputed plot in 1979; this description was the subject of strong disagreement from Mr. Thomas Cosgrove who lived at all relevant times at No. 61 Cowper Road, which is beside Fortfield House, and whilst he would have agreed that the site was overgrown, he would not have agreed at all that it was semi-derelict. On the contrary, it was a popular green area containing shrubs, trees and birds and in his view, there never was a problem about dumping. A photograph was produced in court taken from the air in 1986 which shows a considerable amount of overgrown hedging and bushes and so on surrounding the disputed plot and Mr. Denton’s evidence at one point was that one could have concealed a small herd of elephants in it.
Mr. McDonagh said that he visited the plot on average once every two months over the period but acknowledged that there would have been longer periods in between and it emerged that the plaintiff and his wife were living in Germany between 1989 and 1991 albeit that Mr. McDonagh returned for business purposes frequently during that period. Mr. McDonagh instanced a handful of occasions when he dealt with third parties who were attempting to exercise rights over the disputed plot. In 1981, a Mr. O’Connell was growing vegetables on it and Mr. McDonagh came to an agreement that Mr. O’Connell would leave after he had harvested his crops. Subsequently, in 1998, a Mr. Kelly was using the disputed plot for building materials and once again Mr. McDonagh exercised his claims to ownership so as to have Mr. Kelly bring an end to this activity. A third incident involved Judge Connellan who was carrying out work adjoining the laneway system and Mr. McDonagh considered that this work might be intruding on his legal interests. This matter was sorted out between them by Mr. O’Brien-Kenney who at the time was Mr. McDonagh’s solicitor.
Apart from the foregoing specific instances, Mr. McDonagh gave evidence of visiting the site regularly, responding to complaints about dumping and rubbish, and on one occasion arranging for the removal of a skip from the laneway adjoining the disputed plot. He also gave evidence that he was aware that “things got done” by the immediate neighbours and he mentioned in this context, a Mr. Hurley as being particularly “proactive”.
Mr. McDonagh and his wife, Angeline McDonagh, gave evidence that they used one of the garages adjoining the laneway for storing household goods and, in particular, bicycles that their children had outgrown. The area was particularly known to Angeline McDonagh because her parents had lived in No. 57 Cowper Road. Her father died in 1984 and her mother had been in a nursing home for four years before she died in 1992 but the house was kept until that year as it had been divided with some people still living upstairs. One of their children continued to live in the house in Cowper Road while the plaintiff and his wife lived in Germany between 1989 and 1991. She visited the site occasionally; she had no idea how often but because they owned it they always took an interest in the site. Nobody ever said to her that there was a problem about the condition of the inside of the disputed plot but only with dumping on the laneway outside. When there was dumping there, she and her husband arranged to have it cleared away.
Mr. McDonagh acknowledged that during the past few years he has been retired and he has been out of Dublin more than in previous years and that his involvement with the disputed plot has become somewhat less. He did say, however, that he had put notices up at the disputed plot saying “private property – no trespassing” and “no dumping”. The latter was because there was a problem about dumping which he had himself, on occasion, to sort out.
He also insisted that there was a fence surrounding the disputed plot at all times since he acquired it in 1981 notwithstanding that the hedges may have become somewhat overgrown.
Defendant’s evidence
Mr. Denton said that when he inspected the disputed plot with the late Mr. White there was no sign of any fence and certainly there were no signs. He said the hedge was very overgrown. In response to this specific point, Mr. McDonagh insisted that there was a fence but acknowledged that he could not say with certainty in relation to 1986 whether or not there were signs there.
Mr. Denton said that he visited the plot frequently often with his children, occasionally with his wife and sometimes without her. The dumping was not an acute problem but there were empty cider cans and drinking bottles which he would clear up and dispose of. On one occasion there was a skip there and he arranged for its removal by contacting the company – named Access Waste – whose telephone number was on the side of the skip. He said that between 1986 and 1996 he did not carry out any work and he did not know the plaintiff during this period. In fact neither the plaintiff nor the first defendant knew each other until the court proceedings. Mr. Denton said that occasionally neighbours would cut branches which were obstructing the laneway especially in the north west and north east corners. They often added their own waste to waste for collection.
The foregoing is a summary of the evidence in relation to the physical acts of ownership done by the parties.
Laches, acquiescence and injunction
Mr. Dwyer S.C. submitted, on behalf of the plaintiff, that once it was accepted by the court that the status quo ante is the situation as it existed immediately before the defendants took over the site in February, 2001 it becomes apparent that no court would have granted the defendant an injunction permanently to remove the plaintiff from the site, if only by reason of laches.
This submission was not elaborated to any extent nor was it responded to by Mr. O’Donnell S.C. in any great detail.
I will therefore consider the submission on the basis of first principles and in the light of the findings reached in the immediately preceding portion of this judgment.
Whilst it may be remarkable, the evidence is that neither the plaintiff nor the defendants knew each other or of each other until they appeared in court. Mr. Denton accepted that he did no work at the site in the ten years from 1986 to 1996; Mr. McDonagh did some work but it is clear that the site was permitted to continue in such an overgrown state that it attracted the attentions of the Derelict Sites Section of Dublin Corporation. Clearly any amount of work done at the site was minimal. My impression is that perhaps more work was done on the laneway immediately surrounding the site than inside it although some work of the latter description by way of clearing dumped rubbish seems also to have occurred. Mr. McDonagh gave evidence that persons contacted him through his solicitor although he does not know how they were aware of his relationship with the site. He arranged to have notices put up but they did not disclose his identity or any contact information.
In these circumstances it is possible, no matter how surprising, that the parties did not in fact come to know each other or of each others existence until they met in court. Accordingly I propose to deal with the submission that no court would have granted the defendants a permanent injunction removing the plaintiff from the site given the situation and history as it existed in, say, January, 2001 upon the basis that the parties did not know each other or of each others existence.
In those circumstances it seems to me quite unlikely that a court would have refused the defendants an injunction merely on the grounds of laches, let alone acquiescence. If laches is a defence to an application for a permanent injunction at all in Irish Law (and there is doubt about this: see discussion in “Equity and the Law of Trusts in the Republic of Ireland” by Mr. Justice Ronan Keane (as he then was) at paras. 3.11 and 15.09), it seems that it will apply only if it can be shown that the applicant (in this case the defendants) for the injunction knew of the circumstances giving rise to his claim for an injunction against the respondent (in this case the plaintiff) for a considerable period before applying for relief, such that it would be inequitable to grant it.
The evidence would have shown that by letter of 14th July, 1987 Mr. Karl Hayes of Messrs. Gore & Grimes had confirmed that the disputed plot had been purchased by a Mr. Patrick McDonagh. This would not have established, however, that the defendants knew of Mr. Patrick McDonagh’s activities in relation to the site any more than Mr. Patrick McDonagh knew of the defendants’, albeit the latter were limited effectively to arranging the removal of a skip and frequent visits. The evidence would also have shown that the defendants’ deed was registered prior to the registration of the plaintiff’s deed.
In these circumstances I very much doubt that a court would have been satisfied to determine the issue conclusively between the parties on the basis of the defendants’ alleged laches, let alone acquiescence. The court would also have learned of the correspondence between the solicitors acting for the parties in 1996 and in my view would have moved to consider that aspect of the case rather than simply dismiss the defendants’ prior registered claim out of hand, so to speak, on the grounds of the defendants’ laches. In the circumstances I too am not prepared to deal with this case on such a narrow basis and I intend, accordingly, to proceed to consider the correspondence which passed between the solicitors acting for the parties both in the years 1986/7 and in 1996 in the context of the submissions concerning estoppel by representation.
Estoppel by representation
I now turn to deal with issues arising out of correspondence, in the first instance, between the defendants’ solicitor and the solicitor for the vendor to him and, in the second instance, between the plaintiff’s solicitors and the defendants’ solicitors.
The first piece of correspondence comprises Mr. D’Arcy’s letter to Messrs. Gore & Grimes of 19th November, 1986 and the reply from Karl Hayes of the latter firm dated 14th July, 1987, already quoted above.
The first named defendant did not become aware of any suggestion that a third party had bought the disputed plot until his conversation with his neighbour, Richard Evans, which conversation occurred a few days at most before Gerard D’Arcy’s letter of 19th November, 1986.
I turn now to consider this correspondence in the broader context of the plaintiff’s submission that the first named defendant is estopped by his conduct from relying on his prior registered deed as against the plaintiffs.
The first named defendant’s evidence was that the disputed plot was very important to him and that his price of £76,000 was calculated by reference not only to Fortfield House itself but also the disputed plot. There was no ambiguity about his agreement with the late Mr. White of Adams Auctioneers to the effect that the disputed plot was included and he only became aware of the possibility of a prior purchase and the need to have his title checked out days before Mr. D’Arcy’s letter of 19th November, 1986.
Mr. D’Arcy in evidence said that he did not specifically remember his instructions from the defendants which gave rise to his letter of 19th November, 1986 but accepted that he would not have written it in the way he had (where he refers to seeking clarification and his clients’ understanding that the plot had been included in the sale to them but that they were now not quite sure) if those instructions had expressed a high degree of concern or anxiety on the part of Mr. Denton. He said that he first became aware that the disputed plot was separate from Fortfield House and its curtilage at the time he wrote this letter in November, 1986. He also said that if Mr. Denton had been very concerned at the time he probably would have remembered it. He said that Mr. Denton did not get onto him again after the letter until it was eventually replied to on 14th July, 1987 and indeed this tallies with Mr. Denton’s own evidence to like effect.
Mr. D’Arcy said that when he received the reply of 14th July, 1987, to the effect that the disputed plot was not included in Mr. Denton’s purchase because it was sold by Mrs. Stewart during her lifetime in 1979 to a Mr. Patrick McDonagh, he simply forwarded a copy of that letter to Mr. Denton without taking any further step. He did not furnish advices to Mr. Denton and he did not hear from Mr. Denton subsequently. Sometime later he left Messrs. Finbar J. Crowley & Co. and had no further dealings with Mr. Denton.
Mr. Denton was asked why he did not respond in anyway to the letter indicating that he did not have title to the disputed plot and he said that he was under pressure from his business which was troublesome at the time and he had a lot of things happening which were much more pressing. He had young children to take to and from school and he was concerned with their sporting activities. He said he did not take it from this letter that Mr. McDonagh owned the plot. He was confused; he owned it and how could Mr. McDonagh own it. His troublesome business required a huge amount of attention at the time.
In fact, shortly after this, Mr. Denton gave up his business which was a printing business, in favour of dealing in property. In this latter context he attended lectures given by the institute of auctioneers and in particular he recalls lectures by Mr. Paul Goode which would have included some appreciation of the effect of the Registration of Deeds Act, 1707. Mr. Denton thinks that he would have become aware, initially, of this Act in 1996 or 1997.
In 1986, ten years earlier, he would not have had an appreciation of the effect of registering his deed and in fact did not become aware that the deed had been registered in October, 1986 until much later. Nor was Mr. D’Arcy made aware of it: the deed was registered by the solicitors acting for the company, Messrs. Hill Samuel, who advanced money to the defendants to buy Fortfield House.
This absence of factual and legal awareness on the part of the defendants may, indeed, explain the relatively casual instructions lying behind Mr. D’Arcy’s letter of 19th November, 1986. Even granted that the acquisition of the disputed plot was very important to Mr. Denton, he was, at the time, dealing with what his neighbour Richard Evans described as a rumour that it had been sold before he bought it and this was confusing to Mr. Denton and he required an explanation. He had legal professionals acting for him and this might well explain the relatively casual instructions and the relatively casual attitude to the long delay before a reply was given.
What is more difficult to understand, however, is the complete failure of Mr. Denton to react to the unambiguous reply from Messrs. Gore & Grimes in their letter of 14th July, 1987. He says he was under pressure at work and busy with his family. It seems to be the case that his printing business was causing problems and he was becoming interested in property in South Africa, where he had visited first in 1992 and subsequently in 1998 when he bought a house there. Also he has become interested in investment property since around that time.
Despite taking all these considerations into account, I have to say I find it quite difficult to understand why a person, to whom the acquisition of the disputed plot was very important and who had received an unambiguous assertion from the solicitors who sold it to him that the sale did not include the plot because it had been sold in 1979 (later corrected to 1981) to a Mr. Patrick McDonagh, did not lift the phone to his legal advisors and start asking questions. The initial rumour communicated to him by his neighbour was sufficient in his mind to make an inquiry about his title. One can understand that he may not at that stage have experienced any great degree of anxiety. What I do not understand, however, is why this relatively relaxed attitude, if such it was, was not completely upended on receipt of the letter of 14th July, 1987 from Messrs. Gore and Grimes. If a rumour from the mouth of a neighbour merited investigation in November, 1986, a categorical confirmation from the vendor’s solicitors in July, 1987 merited a much more concerned reaction rather than simply no response at all.
Whilst I accept that Mr. Denton may have been under considerable pressure from his business and as a parent, which may well have included financial pressure, I simply cannot understand how he can have been too busy and too preoccupied to raise the issue as a matter of priority with his legal advisors.
I note also, in this context, however, that none of this information would at the time have been communicated to the plaintiff or his lawyers, so that there is no question that the defendants by their silence, inactivity or apparent acceptance (if that is what it was) in July of 1987 amounted to a representation to the plaintiff for the purposes of the doctrine of estoppel. The plaintiff at the time simply knew nothing about all of this correspondence.
The later correspondence
It was different ten years later when Mr. Brian O’Brien-Kenney wrote a letter on behalf of the plaintiff to Mr. Douglas Heather of Lennon Heather & Co., solicitors then acting for the defendants. This letter confirmed an earlier telephone conversation. The correspondence which followed is important and therefore I will quote it. The letter of 3rd October, 1996 after giving the references reads as follows:
“I refer to your telephone conversation this morning and would be grateful if you could let me have, as soon as possible please, a Certified Copy of the Deed of Assignment dated 5th September, 1986, James Stewart (as legal personal representative of Margaret Louise Stewart) to Kenneth Denton and Ann Denton; in particular please make sure that the map attached to the deed is fully completed, including colouring.
He then confirms that he will discharge scrivenery fees.”
On the same date Douglas Heather wrote to the first defendant seeking instructions as follows:
“Brian Kenny, solicitor for Pat McDonagh contacted me in connection with (Fortfield House). He wants to obtain a copy of the Assignment whereby yourself and Ann purchased Fortfield House from the Stewarts in 1986. Apparently, his client Pat McDonagh purchased a plot of ground from the Stewarts prior to 1986 and, as the Deed was lost for some years, it was not registered until 1987. He is anxious to clarify that the lands sold to you by the Stewarts did not include the lands which his client had purchased back in 1980/81. If you are agreeable to me dealing with his query, I will need to get the original title documents to Fortfield House. I think initially it is best if you contact me and let me know what your views are in relation to this matter. I am sure that you are fully aware of Mr. McDonagh and I do not know whether you wish to assist him or not.”
This letter was produced in court and Mr. Denton referred to a manuscript note on his copy which reads as follows:
“7.10.96 Spoke to Sandra Kerns – asked if title could be checked.”
Mr. Denton said that this reflected his response which was to have his own title checked. Just over a week later Mr. Brian O’Brien-Kenney wrote direct to Mr. Louis Healy of Messrs. Gore & Grimes on the same subject matter. His letter said:
“I refer to our telephone conversation last Wednesday morning and note that you will kindly let me have a Certificate from your Firm to the effect that the premises comprised in the Deed of Assignment dated 5th September, 1986 between James Stewart, as legal personal representative of Margaret Louise Stewart deceased, and Kenneth Denton and Ann Denton did not include any portion of the property comprised in the Deed of Assignment dated 28th August, 1981, Margaret L. Stewart to Patrick McDonagh.
I note that you will also let me have copies of the letter from Finbar Crowley, solicitor, and your reply dated 14th July, 1987 in relation to the said matter. If you could forward me the foregoing as soon as possible I would be much obliged.”
On 17th October, 1996 Mr. Louis Healy replied to Mr. O’Brien-Kenney’s letter of 11th October as follows:
“With reference to the above matter, we hereby confirm that the property comprised in the Deed of Assignment dated the 5th day of September, 1986, between James Stewart as legal personal representative of Margaret Louise Stewart deceased and Kenneth Denton and Ann Denton did not include any portion of the property comprised in the Deed of Assignment dated 28th August, 1981, between Margaret Louise Stewart and Patrick McDonagh.
As requested, we enclose herewith, for your attention, copy letter from Messrs. Crowley Miller & Co., solicitors, raising the initial query, dated 19th November, 1986, and our reply thereto dated 14th July, 1987. You will note in our reply, that we erroneously referred to the Deed of Assignment to Mr. McDonagh as being effected in 1979.”
With that letter, presumably, were enclosed the letter from Gerard D’Arcy of Finbar J. Crowley & Co. to Gore & Grimes of 19th November, 1986 and a copy of the reply from Karl Hayes of Gore & Grimes dated 14th July, 1987.
Following this Brian O’Brien-Kenney wrote to Douglas Heather again on 21st October, 1996 saying that he no longer needed the Deed of 5th September, 1986;
“…as I have now received from Gore & Grimes, solicitors, an appropriate Certificate which confirms the information which I had been seeking viz. that no part of the property which my client had previously purchased from Ms. Stewart, during her lifetime, was included in the sale by her legal personal representative to your client.”
Finally there was a last letter from Brian O’Brien-Kenney to Douglas Heather dated 11th November, 1996 repeating his first request from 3rd October, 1996 with emphasis on the map fully and correctly coloured in and confirming a discharge of the scrivenery fee.
I now turn to consider what was said in evidence by Mr. Heather and by Mr. O’Brien-Kenney and their respective clients about this correspondence.
Defendants’ solicitor’s evidence
Douglas Heather said he wrote to Kenneth Denton (I have already quoted this letter) and they had a conversation and in which he told Kenneth Denton that he had looked at the request and at his lease and asked him was the plot part of the demised area. He said that Mr. Denton said it was and that he advised that in those circumstances Mr. Denton had bought all of the lease. When asked for his advice, he said that he thought Mr. O’Brien-Kenney’s approach was peculiar where he had not been given a copy of the deed under which Mr. McDonagh claimed title nor had he been given a copy of the Certificate from Messrs. Gore & Grimes. He advised Mr. Denton that from the documents in front of him Mr. Denton owned the plot of ground and he had no evidence that anyone else had title. He said he did not do a search in the Registry of Deeds and that it would not have benefited him because there are no maps in the Registry of Deeds. He had no recollection of being told by Mr. Denton of the letter from Messrs. Gore & Grimes of July, 1987. He did not think if he had, his advice would have changed, because he had a deed in front of him. If a portion of Mr. McDonagh’s deed had been assigned and registered ahead of Mr. Denton’s, he said that would mean the 1981 deed took precedence and that Mr. Denton would have an issue with the vendor of the land to him. He confirmed that his advice was given in ignorance of the existence of the letter of July, 1987. At the conclusion of his evidence he said to me that he assured Mr. Denton that he had purchased the property. He had no countermanding evidence, no document of a legal import, for example, a title document, to suggest otherwise and he thought that Mr. O’Brien-Kenney was “flying a kite” to use a term in his letter. It also transpired that he was not familiar with the letter of 14th July, 1987 from Messrs. Gore & Grimes and when he read it and considered it he indicated that it would be inappropriate for him to try and recount how he would have advised his client nine years before in light of the letter.
Plaintiff’s solicitor’s evidence
Mr. O’Brien-Kenney gave evidence in relation to this correspondence.
In the first place he pointed out that his letter asserted specifically that the site was not included in the sale to Mr. and Mrs. Denton and said he had put that information in the letter for a very good and specific reason, namely, that if Mr. Heather had any idea or suggestion that that was untrue that he must inevitably come back to him straight away with an objection. He described his letter as an invitation to a competent and experienced solicitor to indicate to him if he had any idea that he was making an incorrect statement in his letter. He said that, as an experienced conveyancing solicitor himself, if he received such a letter, he would be aghast if he thought that his client was the owner of the property in question; he would immediately send a copy to his client and ask him what they were going to do about it.
Later, however, he acknowledged that his letter was merely a request for a certified copy of a deed and not a request for anything else. He said that if there was no reply to his letter (asserting his client’s title) that this non-response would be persuasive evidence for a purchaser’s solicitor in regard to Mr. McDonagh’s title. He accepted that a solicitor taking his clients instructions in these circumstances would be perfectly within his rights to ignore the letter and not to respond if his client had received advice that he held title to the property.
He was then asked why he again sought the deed from Messrs. Lennon Heather on 11th November, 1996 and said that he already had a copy of the memorial of that deed and that, notwithstanding his earlier letter saying he did not need the deed he felt it would be beneficial to have a copy of the deed because a purchaser’s solicitor might well prefer to have a copy of the actual deed rather than merely a copy of the memorial of the deed. The purchaser’s solicitor would have the letter (described by Mr. O’Brien-Kenney as a Certificate) from Messrs. Gore & Grimes saying the property was not included in the take plus the correspondence of 1986 and 1987 which he was advised was of tremendous relevance and he said that that, combined with the documents and letter to Messrs. Lennon and Heather, was, he was advised, very persuasive for a purchaser’s solicitor.
When he was asked why, having cancelled his first request following the letter from Messrs. Gore & Grimes he reiterated it, he said:
“Because I felt that if a copy was forthcoming, it would be beneficial in terms of providing it to a prospective purchaser’s solicitor, in addition to the copy memorial of that deed, but when I got no further reply to that letter either, I said to myself, well, I have to work with what I have got.”
Later he said:
“It was not necessary to follow it through because the memorial of the Deed of Assignment to Mr. and Mrs. Denton contained, if you like, the critical words. I was only looking for a copy of the deed as a supplementary piece of evidence, but it was not crucial, and the solicitor acting for the prospective purchaser indicated to me that he was not concerned about the absence of a copy of the deed. That he was satisfied that a copy of the memorial of the deed of assignment to Mr. and Mrs. Denton was in itself perfectly adequate evidence.”
He also, later, said that sending his letter to Douglas Heather, explaining that Messrs. Gore & Grimes had told him that the plot was not included in the sale to Mr. and Mrs. Denton, was in itself a very risky move because it was clearly inviting Mr. and Mrs. Denton to contradict immediately, “…which is what I would do if I were in their shoes.” He acknowledged, however, that they were perfectly entitled to do what they did which was to ignore the assertion made in his letter. He further acknowledged that they never admitted to him through their solicitors or otherwise that Mr. McDonagh had title to this property. He also accepted that he never communicated to Mr. Denton or his solicitor the claim of title which Mr. McDonagh had over the property until November of 1996.
Plaintiff’s evidence
The plaintiff said that in the latter half of the 1990’s it became clear that people were interested in purchasing the disputed plot and he got his solicitors to check out the title and only then became aware that another title had been registered ahead of his. He himself gave no thought to the registration of his deed and he did not communicate with his solicitor regarding his title until 1996 nor did he do so with Messrs. Gore & Grimes and never with Messrs. Lennon Heather until 1996. He did not instruct his solicitors to communicate with the defendants or their solicitors prior to that time. He acknowledged that Messrs. Gore & Grimes communicated his claim to title to the defendants’ solicitors in July of 1987.
He was not asked about how did he give any account of the advices he may or may not have received from Brian O’Brien-Kenney in relation to the correspondence between his solicitor and Mr. Heather in November, 1996.
Defendant’s evidence
In relation to this correspondence, Mr. Denton said that he had previously instructed his solicitors to take up his title deeds when Messrs. Hill Samuel had decided to cease doing business in this country and a replacement loan was procured from the Bank of Scotland. When Mr. Heather wrote to him, he spoke to Sandra Kearns. He thought the disputed plot was part of his property but he felt the title should be checked. Mr. Heather confirmed that it was part of his property and that he had no need to be concerned and this reassured him. He did not want to engage in the expense of proving his title and his instructions were not to respond further to Mr. O’Brien-Kenney’s request. He accepted that Douglas Heather’s letter to him of 3rd October, 1996 called to mind the previous letter of July, 1987 from Messrs. Gore & Grimes when he was told he had not purchased the disputed plot. He felt anxiety when he got the letter and that he needed clarification and so he asked Sandra Kearns to have his title checked. The result was that Douglas Heather assured him that the plot formed part of his ownership. He did not know whether he told Mr. Heather of the July, 1987 letter. He had kept a copy of it. On getting Douglas Heather’s advice, he saw no need to incur further fees. It was put to him that Mr. McDonagh was entitled to assume that he was not challenging his title when Mr. O’Brien-Kenney’s assertion of it to his solicitor evoked no response. He said he was a layman not a legal professional and that he had bought the plot and house and understood clearly that he owned the plot despite the letter from Messrs. Gore & Grimes in July, 1987. He was satisfied on the advice of Douglas Heather that he owned the plot and that there was no need to respond to Mr. O’Brien-Kenney’s correspondence.
He said he had kept the letter of 14th July, 1987 from Messrs. Gore & Grimes but was not sure whether he had told Douglas Heather about it at the time of Mr. O’Brien-Kenney’s letter of November, 1996. Douglas Heather, had no recollection of hearing about that earlier letter and accepted that his advices were given without knowledge of it. The probability, in my opinion, is that Mr. Denton did not disclose the earlier letter of which he had kept a copy to Mr. Heather because the latter would surely have recalled and probably retained that copy had this happened. Mr. Denton simply was not sure on this point, which I find difficult to understand, given that he had kept a copy of the earlier letter and said at an earlier point in his evidence that he had an open relationship with his solicitor. My view of the evidence is that, for whatever reason, Mr. Denton did not furnish a copy of the earlier letter to Mr. Heather in 1996 or tell him about it. Accordingly the advices given to him by Mr. Heather were given in light of the most recent correspondence of 1996 only and without the benefit of the information contained in the earlier correspondence.
The respective positions of the parties’ solicitors
This has significance for a number of reasons. Mr. Heather in evidence said that he thought that Mr. O’Brien-Kenney was “flying a kite” in his November, 1996 correspondence. That reaction is not difficult to understand when one remembers that the correspondence came to him out of the blue – that is, not in any particular context. Specifically it was not in the context of a discussion about a plot at the rear of Fortfield House – it merely sought a copy of the relevant deed of assignment with particular attention to be paid to the map. The next thing Mr. Heather knew was that the request was cancelled because of a “Certificate” from Messrs. Gore & Grimes confirming the information being sought, namely, that no part of the property which Mr. O’Brien-Kenney’s clients had previously purchased was included in the sale to Mr. Heather’s clients. This letter did not enclose the “Certificate” or a deed or make any specific reference to a title or the location or characteristics of the particular portion of the property which was causing concern to Mr. O’Brien-Kenney. Again, no context. The last thing that Mr. Heather would have known was the repeated request, despite prior cancellation, for a copy of the deed with particular attention to the map, but no further details were given so that, yet again, the request remained without any specific context other than that the respective clients of these two solicitors had purchased property from the same vendor. Side by side with this information Mr. Heather had before him the clear documents of title which were unambiguous and his client’s instructions (which excluded reference to the correspondence a decade earlier) not to engage in unnecessary expense.
This picture would have looked very different, I think, if Mr. Heather had, at the time, been given a copy of the 1986/87 correspondence by his client. This would have revealed, first, that the piece of ground in question was a plot at the rear of Fortfield House, second, that in November, 1986 his client was “now not quite sure” whether he had bought it despite originally thinking that he had, third, that the solicitors for the vendor unambiguously asserted in July, 1987 that his client had not bought this plot because it had been sold to a Mr. Patrick McDonagh (the same purchaser referred to in the November, 1996 correspondence), and fourth, that this sale had occurred in 1979 (an error for 1981).
As a result of this information, Mr. Heather would have been aware that, from Mr. McDonagh’s point of view, he had owned the plot for more than a decade and a half and that, so far from his solicitor’s letter of November, 1996 being an exercise in kite flying, his claim was actually backed by the solicitors for the vendors and their attitude had been communicated to his (Mr. Heather’s) client in July, 1987.
In this context the significance of the request for the map would have come into sharp focus together with the fact that he knew, as he said in evidence, that the memorial registered in the registry of deeds did not include a map.
Here, now, was a formal solicitor to solicitor request, the response to which might well have implications no matter what that response was, and indeed in my view, no matter how peculiar was the approach of Mr. O’Brien-Kenney. All this, of course, is hypothetical because Mr. Denton did not furnish Mr. Heather with the earlier correspondence.
Mr. O’Brien-Kenney’s approach to Mr. Heather was, it is true, tentative rather than assertive. He merely requested a copy of the relevant deed with a properly coloured in map. He did not reveal the specific context in which this request was being made, and, in particular, did not indicate specifically the importance of a properly coloured map. When cancelling his initial request, whilst he gave as his reason the receipt of a Certificate from Messrs. Gore & Grimes, he did not specifically refer to a map attached to the Certificate or give any further explanation beyond saying that it confirmed that no part of the property purchased by his client had been sold to Mr. Heather’s client.
The foregoing considerations must be tempered, at the least, by the fact that Mr. O’Brien-Kenney had received from Mr. Healy of Messrs. Gore & Grimes, by letter of 17th October, 1996, a copy of the 1986/1987 correspondence – correspondence which he was entitled to assume was also available to Mr. Heather because it comprised a query and response raised by Mr. Denton’s then solicitors. It should also be remembered, of course, that Mr. O’Brien-Kenney must have been aware that the deed to the Dentons had been registered whereas the deed to his own client had not.
I have read and re-read my own notes and the professional transcript of the relevant portion of Mr. O’Brien-Kenney’s evidence and I am satisfied that he relied on the fact that there was no response to his letter asserting the plaintiff’s title indicating a disagreement with that view. There are internal tensions, not to say contradictions, in the evidence of Mr. O’Brien-Kenney – particularly in relation to whether Mr. Heather was or was not entitled to respond to the assertion of the plaintiff’s title – but one thing is clear and it is that Mr. O’Brien-Kenney relied on the absence of a challenge to his assertion of the plaintiff’s title in his letter of November, 1996 as part of his argument to convince the purchaser’s solicitor of his client’s title to the property. Another portion of this argument, which he regarded as “of tremendous relevance”, was the correspondence of 1986 and 1987 between Finbar J. Crowley and Co. and Messrs. Gore & Grimes solicitors.
Under cross-examination Mr. O’Brien-Kenney accepted that a solicitor receiving such a letter was perfectly within his rights not to reply to it but it is clear, notwithstanding, that, so far as he was concerned, the absence of a reply was significant.
Subsequently the plaintiff entered negotiations with one Mr. Cormac MacCartaigh and ultimately in September, 1999, agreed to sell the disputed plot to him. Mr. MacCartaigh has taken specific performance proceedings against the plaintiff which are fully defended but which I am told are in abeyance pending the outcome of this case.
Conclusion on representation
In my view, the fact that Mr. Heather did not reply to Mr. O’Brien-Kenney’s assertion of the plaintiff’s title in his letter of 21st October, 1996 amounted, in the circumstances, to a representation on behalf of the defendants that there was no disagreement with that assertion.
I have come to this conclusion because I think that letter must be seen in the context created by the correspondence of a decade beforehand between Messrs. Crowley and Gore & Grimes solicitors. The fact that Mr. Heather was not aware of such a context arose because his client did not furnish him with that earlier correspondence; if he had my view is that it would have been incumbent on Mr. Heather to have challenged Mr. O’Brien-Kenney’s assertion of the plaintiff’s title at that point in time.
It is obvious that, had such a challenge been made, the plaintiff would not have agreed to sell the disputed plot to Mr. MacCartaigh before the issue had been clarified. In my view, the plaintiff relied on the defendants’ representation indicating that he was not challenging the plaintiff’s title as an important element in establishing his own title to sell to Mr. MacCartaigh.
I have also had to consider whether it was necessary that Mr. Denton, either by himself or through his solicitor, should have become consciously aware that the plaintiff was proposing, in reliance on the representation made, to sell the disputed plot to Mr. MacCartaigh or anyone else. There is no evidence that the defendant or his solicitor were made so aware.
It seems, to me, common sense that where one solicitor formally raises with another the question of his client’s title and subsequently asserts his client’s title to that other solicitor, both must be aware that this is not simply an academic exercise but that it is being engaged in for the purpose of relying on that title for whatever reason.
This approach seems to accord with principle. In the thirteenth (2000) edition of Snell’s equity at p. 640 the following appears:
“Once it is shown that O gave assurances or other encouragement to A, and A suffers detriment, it will readily be inferred that the detriment was suffered as a result of the encouragement: the burden of proof is on O to show that A’s conduct was not induced by the assurances.”
This proposition is supported by a number of authorities the primary one of which is Greasley v. Cooke (Court of Appeal) [1980] 1 W.L.R. 1306.
In that case Lord Denning M.R. said at p. 1311:
“The first point is on the burden of proof. Mr. Weeks referred us to…Brikom Investments Limited v. Carr [1979] Q.B. 467, 482 – 483 where I said that, when a person makes a representation intending that another should act on it:
It is no answer for the maker to say: ‘You would have gone on with the transaction anyway’. That must be mere speculation. No one can be sure what he would, or would not, have done in a hypothetical state of affairs which never took place….Once it is shown that a representation was calculated to influence the judgment of a reasonable man, the presumption is that he was so influenced.
So here. These statements to Ms. Cooke were calculated to influence her so as to put her mind at rest, so that she should not worry about being turned out. No one can say what she would have done if Kenneth and Hedley had not made those statements…”
A little later, dealing with detriment, he said:
“It so happens that in many of these cases of proprietary estoppel there has been expenditure of money. But that is not a necessary element. I see that in Snell’ on Equity, 27th Ed. (1973), p. 565, it is said:
”A’ must have incurred expenditure or otherwise have prejudiced himself.’
But I do not think that is necessary. It is sufficient if the party, to whom the assurance is given, acts on the faith of it, in such circumstances that it would be unjust and inequitable for the party making the assurance to go back on it: see Moorgate Mercantile Company Limited v. Twitchings [1976] 1 Q.B. 225 and Crabb v. Arun District Council [1976] 1 Ch. 179, 188.”
Detriment
This aspect of the case can be dealt with under two headings, namely works on site and the contract with Mr. MacCartaigh.
Mr. O’Donnell has submitted that the works carried out by the plaintiff at the disputed plot were so low level as not to amount to detriment in the law of estoppel. I have summarised those works in the foregoing and it is my distinct impression that the condition of the site remained more or less the same between August, 1981 when the plaintiff acquired his title and February, 2001 when the defendants moved in to clear and secure the plot. The plaintiff did carry out individual acts of ownership and maintenance, one of them being in 1998 (that is after the representation comprised in the November, 1996 correspondence) involving a Mr. Kelly who was using the disputed plot for storing building materials. I am not aware, however, what all this cost the plaintiff; it cannot have been very substantial. On this aspect of detriment I agree with Mr. O’Donnell that such works of maintenance and expenditure of outlay on the disputed plot as followed November, 1996 (when the defendants’ representation was made) were no different in character than those which preceded the representation made at that time and would not have amounted to detriment for the purposes of the doctrine of estoppel, even if it could be shown – which I do not think it has been – that they were carried out in reliance on that representation.
As I understood the plaintiff’s case this aspect of detriment was gently cast aside, if not abandoned, following my ruling on the defendants’ application for a non- suit.
The second aspect of detriment, namely the plaintiff’s contract to sell the disputed plot to Mr. MacCartaigh, is however, unambiguously relied upon by the plaintiff. In response, Mr. O’Donnell submits that, because in his defence to Mr. MacCartaigh’s specific performance proceedings the plaintiff denies the existence of the contract, he cannot assert its existence in the present case in the context of detriment. Moreover he has pleaded loss of opportunity to market and sell the disputed plot by reason of the defendants’ assertion of title but there is no evidence, submits Mr. O’Donnell, that the plaintiff went to the market or attempted to sell the plot at all.
In my opinion, however, being involved as a defendant in specific performance proceedings is in itself a substantial detriment. I do not know what the outcome of those proceedings will be and probably the less I say about them the better. Apart from the consumption of time, the worry of litigation, the exposure to a claim for damages and the payment or exposure to payment of lawyers there is the uncertainty of outcome and the on-going delay in having the plaintiff’s title to the disputed plot – such as it is – clarified as between him and Mr. MacCartaigh.
Neither do I accept the point that simply because the plaintiff has asserted in his defence that no agreement exists between himself and Mr. MacCartaigh that he is thereby disentitled to rely on the agreement and on those proceedings as constituting detriment in the present case. Denials and assertions in pleadings are there for a particular purpose namely to identify issues and clarify to one’s opponent what is required to be proved. They are not evidence of what is asserted or denied and indicate no more than the stance being adopted by the plaintiff in defending the specific performance proceedings.
The law
The following extract from the judgment of Blayney J. in Haughan v. Rutledge [1988] I.R. 295, at p. 300 sets out the broad principles of the relevant law in a convenient form:-
“I was referred to Snell’s Equity (28th Edition 1982) at p. 559 where the four conditions which need to be satisfied for such an estoppel (i.e. proprietary estoppel) to arise are set out…
These four conditions are as follows:-
1. Detriment.
‘There is no doubt that for proprietary estoppel to arise the person claiming must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment.’
2. Expectation or Belief.
‘A must have acted in the belief either that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest.’
3. Encouragement.
‘A’s belief must have been encouraged by ‘O’ or his agent or predecessor in title.’
4. No bar to the equity.
‘No equity will arise if to enforce the right the claim would contravene some statute, or prevent the exercise of a statutory discretion or prevent or excuse the performance of a statutory duty.’
In my opinion, it is a correct statement of the law that if these four conditions are satisfied then an equity will arise which can be enforced against the owner of the land, and this was not disputed by counsel for the defendant.”
I have already indicated that the plaintiff has prejudiced himself or acted to his detriment in the sense indicated in contracting to sell the disputed plot to Mr. MacCartaigh thereby exposing himself to specific performance proceedings.
It is also clear that the plaintiff in agreeing to sell the disputed plot to Mr. MacCartaigh acted in the belief that he already owned a clear and transferable interest in the property namely by reason of the conveyance to him in August, 1981.
He was, further, in my view encouraged in the foregoing belief by the silence of the defendants’ solicitor when confronted with an assertion of the plaintiff’s title in his solicitor’s letter of November, 1996.
Fourthly, it has not been suggested that there is a bar to the equity and in those circumstances an equity arises in this case which can be enforced by the plaintiff against the defendants.
Satisfaction of the equity
Because, in my view, it would be unjust and inequitable if the defendants were able to assert their prior registered title to the disputed plot as against the plaintiff, there should be appropriate orders restraining the defendants from interfering with the plaintiff’s beneficial ownership, occupation, possession and enjoyment of the disputed plot and, I think, an order directing the defendants to surrender the relevant keys to the plaintiff.
On the other hand, the defendants have carried out works to the disputed plot which, despite the criticism made in relation to them by the plaintiff during the trial, were to the advantage of the owner of the plot. The corporation has done nothing and is apparently satisfied with the response to its derelict site notices and the plot has been cleared and fenced and secured. Mr. Denton gave evidence that he engaged a Mr. Nally to carry out work in February, 2001 and that this cost him £7,550. He is entitled in principle to be repaid this sum.
I will discuss with counsel the terms of the orders that should be made.
Approved: Philip O’Sullivan
Prendergast -v- Mc Laughlin
[2009] IEHC 250
DEFENDANT
JUDGMENT of Mr. Justice O’Keeffe delivered on the 20th day of May, 2009
1. In these proceedings, the Plaintiff claims a declaration that he is entitled on the death of the late Patrick Dempsey, Deceased, formerly of Ballinamona, Clifden in the County of Kilkenny, to the entire beneficial interest of the lands comprised in the estate of the said Deceased at Ballinamona, Clara in the County of Kilkenny, pursuant to promise made to, and reliance by the Plaintiff thereon during the lifetime of the said Deceased that the interests in these lands would devolve to the Plaintiff after his death and further pursuant to consideration given by the Plaintiff.
2. On 21st day of April, 2008, the High Court made an order pursuant to O. 25 of the Rules of the Superior Courts directing that the following point of law be determined as a preliminary issue prior to the substantive hearing of this action.
Whether the Plaintiff’s claim is statute barred pursuant to the provisions contained in Part II and in particular Section 9 of the Civil Liability Act 1961, as amended, and pursuant to the provisions contained in the Statute of Limitations Act 1957, as amended, by the Statute of Limitations (Amendment) Act 1991.
3. The following facts are agreed by the Defendant and the Plaintiff for the purpose of determining the preliminary issue between the parties and strictly without prejudice to the Defence delivered herein. For the purpose of the substantive hearing, no admissions are being made on behalf of the Defendant herein.
(i) The Defendant is the personal representative of the late Patrick Dempsey, Deceased, formally of Ballinamona, Clara in the County of Kilkenny, who died on 28th August, 2003 (hereinafter “the Deceased”). The Deceased died intestate and a Grant of Letters of Administration Intestate were taken within the name of the Defendant as a lawful nephew of the Deceased on 27th February, 2006.
(ii) The Plaintiff is a farmer and resides at Clarabricken, Clifden, County Kilkenny.
(iii) John Dempsey was the late brother of the Deceased, and died on 11th July, 2000 and made his last Will and Testament on 7th April, 1997. The said, John Dempsey, bequeathed the farmlands hereinafter mentioned to the Deceased together with a small legacy of the Plaintiff in the sum of £2,000 (€2,539.48). A grant of probate was extracted by the Deceased in the estate of his brother, John Dempsey on 18th December, 2000.
(iv) The Deceased and late John Dempsey were bachelors who lived together in the farmhouse and land situate at Ballinamona, Clara, County Kilkenny and contained in Folio 2516, Register of Freeholders, County Kilkenny.
(v) The farmlands situate at Ballinamona consisted of approximately 85 to 90 acres and were in the sole ownership of the late John Dempsey. The Deceased was the owner of a separate farm at Rathbourne, County Kilkenny and consisting of approximately 156 acres and contained in Folio 859, Register of Freeholders, County Kilkenny.
(vi) The Plaintiff was a neighbour of the Deceased.
(vii) The Plaintiff alleges and for the purpose of trying the preliminary issue, it is agreed that he assisted both the Deceased and the late John Dempsey in working and maintaining the farmlands at Ballinamona for a period in excess of 25 years prior to the date of the death of the Deceased and the late John Dempsey in working and maintaining the farmlands at Ballinamona for a period in excess of 25 years prior to the date of the death of the Deceased.
(viii) The Plaintiff alleges and it is agreed for the purpose of the preliminary issue, that the Plaintiff was repeatedly told by the late John Dempsey and the Deceased that the farmlands at Ballinamona would be left to him after both had died. The Plaintiff relied upon these repeated promises and assurances by both the late John Dempsey and the Deceased continued to provide assistance in the management and running of the farm at Ballinamona and thereby acted to his prejudice.
(ix) It is alleged and agreed for the purpose of the preliminary issue, that in or about the month of July 1998, that a meeting took place between the late Patrick Dempsey, the Deceased William Dempsey, also Deceased (being a brother of the said Patrick and John Dempsey and the Plaintiff. At the said meeting, John Dempsey stated he was leaving the lands in Ballinamona to the Plaintiff. It is alleged and agreed for the purpose of trying the preliminary issue that John Dempsey, Patrick Dempsey and William Dempsey agree to this arrangement and with this assurance the Plaintiff continued to provide assistance in the working of the farm at Ballinamona.
(x) It is agreed that the late John Dempsey died on 11th July, 2000 and by his last Will and Testament dated 7th April, 1997, demised and bequeathed the farmlands at Ballinamona to the late Patrick Dempsey together with a small legacy to the Plaintiff in the sum of €2,539.48 (IR£ 2,000) after the death of the late John Dempsey, the Plaintiff continued to provide assistance on the farmlands at Ballinmona.
(xi) It is alleged and agreed for the purpose of trying the preliminary issue, that some 6 or 7 weeks before the death of the said Patrick Dempsey, Deceased, on 28th August, 2003, the Deceased asked the Plaintiff to visit him. The Deceased informed the Plaintiff at the said meeting that he had given instructions to a solicitor, Mr. Martin Crotty, Solicitor of 45 Parliament Street, Kilkenny, to make a Will and that in the Will he was leaving the farm at Ballinamona to the Plaintiff. Thereafter, the Plaintiff continued to assist the Deceased with the management and maintenance of the farmlands at Ballinamona until his unexpected death on 28th August, 2003.
(xii) It is agreed solely for the purpose of trying the preliminary issue that on or about July 2003, the Plaintiff instructed his solicitor, Martin Crotty, to make a draft Will, which said Will was never executed.
4. In Part II of the Civil Liability Act 1961 (hereinafter “the 1961 Act”), section 9 provides as follows:-
“(1) In this section ‘the relevant period’ means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of the deceased person unless either –
(a) 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) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.”
Section 8 of the 1961 Act provides as follows:-
“(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.
(2) Where damage has been suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of subsection (1) of this section, to have been subsisting against him before his death such cause of action in respect of that act as would have subsisted if he had died after the damage was suffered.”
5. Section 6 of the 1961 Act defines an excepted cause of action as meaning:-
“(a) a cause of action for breach of promise to marry or for defamation or for seduction or for inducing one spouse to leave or remain apart from the other or for criminal conversation, or
(b) any claim for compensation under the Workmen’s Compensation Act, 1934.”
The Submissions of the Defendant
6. Mr. Robert Haughton, S.C. on behalf of the Defendant submitted that the Plaintiff’s cause of action is “a subsisting cause of action” within the meaning of section 8 of the 1961 Act. As such, it survives against the estate of the Deceased as the claim is based on the sole ground that the Deceased failed to fulfil the alleged promise that he had made in his lifetime to bequeath certain lands to the Plaintiff in consideration of the Plaintiff continuing to assist him (and his predeceased brother) in their farming work. It was, therefore, a claim based on an alleged breach of contract and had been so pleaded.
7. The Deceased died on 23rd August, 2003 and as there was no proceedings in being at the time of his death therefore in order to come within the relevant limitation period provided by section 9 of the 1961 Act, these proceedings ought to have been commenced within two years of that event, that is on or before 22nd August, 2005. Proceedings were not commenced until the plenary summons issued on 25th July, 2006. Hence, it was submitted the Plaintiff’s claim was statute barred under the provisions of section 9(2)(b) of the 1961 Act. Section 9 of the Act provides that no proceeding shall be maintained in respect of “any cause of action whatsoever which has survived against the estate of a Deceased person” unless those proceedings come within paragraphs (a) or (b). Reference was made to the words in section 9(2) “any cause of action whatsoever”. It was submitted that the meaning of this phrase is clear and unambiguous, that the words should be given their natural and ordinary meaning in accordance with the norms of the statutory interpretation. Reference was made to D.B. v. Minister for Health and Children [2003] 3 IR 12, where the Supreme Court reiterated with approval the dicta of the Supreme Court in Howard v. Commissioners of Public Work [1994] 1 I.R. 101 including the following passage from Denham J.:-
“Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words.”
8. It was submitted that there was no necessity to look beyond the literal interpretation of the words themselves as they are clear, unambiguous and do not suggest or imply any degree of the consistency or absurdity. The phrase “any cause of action whatsoever” must include all actions that can be maintained by one person against another or howsoever arising including proceedings including equitable relief. The use of the words “whatsoever” brings all actions into account.
9. It was submitted that even if one is to take the purposive approach to the interpretation of the sub-section, the inclusion of “all causes of action” must be considered in the light of the goals sought to be achieved by s. 9 in limiting the liability of an estate to claims brought within a defined period and to thereby allow the estate to be duly administered without delay and, hence, at latest, after the expiry of the relevant time period. In support of this, reference was made to the Supreme Court decision in Moynihan v. Greensmyth [1977] 1 I.R. 55.
10. It was submitted that the legislature intended to introduce an absolute time period outside of which the estate of the deceased person could not be troubled by any litigation, notwithstanding the possible harshness that might occur.
11. Section 9 was not introduced by the legislature, it was contended, as an amendment to any of the provisions of the Statute of Limitations 1957. The section is not expressed in those terms, as it would be, if it were a simple amendment to s. 11 of the Statute of Limitations 1957. The section is expressed in absolute terms and was introduced as an all-encompassing provision, providing an omnibus limitation period in all causes of action surviving the death of the person. No exceptions are permitted, in direct contrast to s. 11 (9)(a) of the Statute of Limitations 1957, and to s. 45 of the Statute (as inserted by s. 126 of the Succession Act 1965). In the latter case, the limitation period is inserted in the original Statute, thus providing a new limitation period for claims to a share in the estate of a deceased person. No qualifications were expressed to s. 9 of the 1961 Act, and if the legislature had intended that there should be exceptions of special cases, it would have amended the Statute of 1957, or provided that the specific s. 9 be subject to those provisions of the Statute.
12. It was submitted that the plaintiff’s cause of action in these proceedings, whether in contract, quasi-contract or equity, fell within the statutory definition of “any cause of action whatsoever”.
13. It was submitted that whilst the common law rule that death ended all actions in personal torts has now been usurped by s. 8 of the 1961 Act, s. 9 applies to “any cause of action on which is survived against the estate of a deceased”. The cause of action which the Plaintiff sues upon is founded on breach of an alleged promise. At para. (1) of the reliefs sought, this plaintiff seeks a declaration of beneficial interest of the lands “pursuant to promise made to and reliance by the plaintiff thereon . . . and further pursuant to consideration given by the plaintiff.” Similarly, the second relief sought by the plaintiff is an order for the “performance of the said promise”.
14. The plaintiff’s cause of action, it was submitted, is founded in contract or quasi-contract. The plaintiff was suing the defendant in his capacity as personal representative of the Deceased, Patrick Dempsey, for breach of the Deceased’s promise to bequeath the lands to the plaintiff. That breach could only have occurred during the lifetime of the Deceased and the cause of action therefore accrued before the death of the Deceased.
15. The Deceased cannot breach a promise post mortem. It was submitted that the same principle applies in the case of quasi-contract. However, to the extent that the Plaintiff may base his claim on promissory estoppel, it would be a claim not arising after the death of the Deceased, but a claim subsisting, because that claim can only be founded on some unconscionable conduct of the deceased during his lifetime. The plaintiff’s cause of action arises on the failure of the deceased to execute a Will bequeathing the lands to him during his lifetime, even though evidence relating to such cause of action may emerge after death but the plaintiff’s cause of action, if there is such, subsisted during the lifetime of the deceased.
16. The defendant relied on the decision of Fennelly J. in the Circuit Court appeal case of Corrigan v. Martin (Unreported, 13th March, 2006) where the court held that a cause of action on foot of a promise to leave lands to a plaintiff, was a cause of action subsisting at the date of death and consequently the provisions of s. 9(2) applied. In that case, the plaintiff being a nephew of the deceased had injured himself on the defendant’s farm. The deceased was uninsured and agreed that he would transfer or devise the lands to the deceased in consideration for the plaintiff’s forbearance in suing the deceased. In addition, the plaintiff also pleaded that he worked on the farm. Fennelly J. at p. 6 of his judgment categorised the plaintiff’s cause of action as one falling within s. 8(1) as follows:-
“Firstly, I am satisfied that the correct interpretation of the plaintiff’s cause of action’s in the light of the section [8] is that the obligation of the deceased was to perform the contract during his lifetime and not at the moment of his death. Hence, the cause of action was complete immediately before his death. It is unnecessary to decide how long before the death. The cause of action, therefore, subsisted at the moment of death and survived against his estate by virtue of section 8(1). Secondly, I am satisfied that the Oireachtas intended by the strong and clear language of section 9(2) to apply a maximum two year limitation period to all claims against the estates of deceased persons. Section 8(1) applies to ‘all cause of action (other than excepted causes of action) subsisting against him’ (none of the excepted cases is relevant). The Oireachtas intended that provision to apply to all causes of action coming into existence right up to the point of death itself. It is unreal and almost metaphysical to distinguish between causes of action existing immediately prior to the death and those which matured on the death itself. I do not believe that the Oireachtas can have intended to make such fine distinction. It would serve no useful purpose which has been identified in this case.”
17. Fennelly J. also approved the dicta of O’Higgins C.J. in the Supreme Court in Moynihan v. Greensmyth at 372, where the stated:
“One relevant consideration is that those charged as executors or administrators of estates of deceased persons are entitled and, indeed, bound to carry out their tasks with reasonable expedition and that creditors of the estate and, ultimately, the beneficiaries are entitled to have the estate administered within a reasonable time. I believe the Oireachtas deliberately chose to impose a short but fair time limit on claims so that these desirable objectives would be achieved.”
18. Fennelly J. dismissed the plaintiff’s submission that as the Statute of Limitations Act 1957, did not impose a statutory limitation period for claims seeking specific performance, that s. 9(2) does not apply to such claims as there is no “relevant period” within the meaning of s. 9(1). The court held that s. 9(2) was clear in that no action was maintainable unless it was instituted within the earlier of the time period set out in s. 9(2)(a) or (b) and stated at p. 8:-
“The important and governing words are the introductory ones. The action cannot be maintained unless the plaintiff can bring himself within one of the two subparagraphs, in this case subparagraph (b). This is not affected by the fact that there is “no relevant period” for the purposes of the Statue of Limitations. The applicable period is the one which “first expires”. That may or may not be the two year period. If the “relevant period” expired within two years of death, the claim is barred. If there is no such period, it is barred after two years. I believe this interpretation is in accordance with common sense and the clear intention of the legislature.”
19. Accordingly, it was submitted the plaintiff’s cause of action, if not based on common law but on equitable grounds, only comes within s. 9(2) and is not maintainable against the estate of the Deceased since it falls outside of the relevant periods allowed under either paras. (a) or (b). The Act of 1961 permitted of no exceptions based on equity.
20. As an alternative argument, the defendant submitted that “damage” complained of by the plaintiff is the loss of property and that the “act” which the plaintiff complains of is the failure by the deceased to devise or bequeath the lands prior to his death. He referred to the plaintiff’s claim that the “damage” may have been discovered after death and that no cause of action accrued before death. If that is the case (which was not accepted by the defendant) the provisions of s. 8(2) apply and the cause of action is one deemed to have been subsisting if the deceased died after he had suffered the damage. This is because under the section the damage is deemed to have been suffered before the deceased died and therefore the cause of action was one which was subsisting before his death.
21. He submitted that if there was doubt as to interpretation of s. 8(2), the court must adopt a purposeful purposive approach and that the statutory purpose behind s. 8(2) is to provide a finite time period within which a third party, other than a beneficiary under a Will, may make a claim against a deceased and to allow the estate of the deceased to be administered in a timely fashion.
Submissions of the Plaintiff
22. Mr. David Hardiman, S.C., on behalf of the plaintiff, submitted that the plaintiff’s claim was to enforce the fulfilment of a promise upon which, for many years, he placed reliance by acting to his material detriment. The claim lies in equity and is long established as equitable/proprietary/promissory estoppel by giving rise to a constructive trust. The circumstances from which such a claim can arise is a promise of inheritance as was evidenced in Basham v. Basham, [1987] 1 A.E.R. 405 and McCarron v. McCarron, (Supreme Court, 13th February, 1997). Alternatively, it was submitted that a promise can be made which does not give rise to a dispute until a testamentary context arises.
23. He referred to two decisions of Barron J., the first in Reidy v. McGreevy and Others, (High Court, 19th March, 1993) and Governor and Company of Bank of Ireland v. Kathleen O’Keeffe, (High Court, 3rd December, 1986). In the Reidy case, the son of the deceased claimed to be remunerated for staying at home and working his father’s land over two periods prior to the father’s death. He claimed that on both occasions he did so as the result of promises by his father that if he did so he would exercise a special power of appointment vested in him (the father) in favour of the plaintiff. The claim was based upon the existence of a constructive trust and in relation to an issue concerning the statute of limitations, Barron J. stated at p. 5:-
“The claim based upon the existence of the constructive trust is covered by the decision of Costello J., in J.R., a Ward of Court, delivered on 2nd October, 1992. Where it would be unconscionable to disregard a promise such as that alleged here, the Court will declare the existence of a constructive trust. The question which arises here is whether such a claim is one available against the promisor and so capable of being barred after the lapse of two years from the date of his death.
The nature and extent of the claim is dependent upon the facts. What may be unconscionable upon one set of facts, may not be upon another set. So, depending upon the facts, the plaintiff may be entitled to an estate in property; to a charge over it; or to nothing. But whatever the facts, the claim could not be maintained until the death of the testator because it could not have been ascertained until then, that he had failed to honour his promise. Of course if he had repudiated his promise in his life time, this would have given rise to a cause of action at that stage.”
24. In Bank of Ireland v. O’Keeffe, the bank issued proceedings against the defendant as legal personal representative of her late husband Michael O’Keeffe who died on 11th February, 1982. The proceedings were in respect of monies due on a continuing guarantee. A demand for payment on foot of the guarantee was made against the deceased’s estate on 6th May, 1982 and the proceedings were issued on the 19th February, 1985, Barron J. at p. 50 stated:-
“The claim which is brought is one which was not maintainable until after demand made and no cause of action could have arisen until such demand was made – see In re: J. Brown’s estate, Brown v. Brown, [1893] 2 Ch 300. In that case there was a joint and several covenant in a mortgage by the deceased and his son to pay the principal on demand and in the meantime to pay interest. The deceased joined in the mortgage as a surety only. Seven years after his death a demand had been made against his estate on foot of the covenant. It was held that no cause of action had accrued against his estate until such demand. It seems to me that similarly in the present case no cause of action existed whereby the plaintiff could sue either the deceased or his estate until demand had been made. Since demand was not made until after the death of deceased, it follows there was no cause of action subsisting against him at the date of death.”
25. The plaintiff submitted that a will speaks from death and that the failure of will to satisfy a promise cannot speak any earlier. Any concept about wrong in law or equity involves both obligation and breach. It was submitted that the defendant’s concept of limitation in this case confuses the two elements. Until the contingency in a promise is breached, no wrong is done. However, it is submitted that the operation of s. 9 of the 1961 Act is based on the survival of a subsisting cause of action against a deceased. Until the deceased in this case died or the execution of his Will (or perhaps until the defendant refused to honour the deceased’s promise), no cause of action arose. It was submitted that this was the fundamental logic which underlined the judgment of Barron J. in Reidy’s case. It was submitted that no special principle of interpretation of s. 9 was required. Its meaning was plain, where a person can be sued whilst alive, the claim must be issued within two years of his death at the latest. This is not changed merely because section 9 refers to “any cause of action whatsoever”.
26. It was submitted that the promise of inheritance creates an interest equivalent to that of a beneficiary who has six years right of action after death. There is no discordance it was submitted in the availability of this period with any policy of finality. A personal representative can be sued on his contract for the same length of time, and if he distributes without regard to liabilities, he may likewise be sued. If the defendant argues that a period of two years manifested a policy for early closure of claims the argument shows no awareness of the context of administration.
Supplemental submissions
27. The plaintiff submitted that two fundamental points of difference arose from the present case and the decision in Corrigan v. Martin. Firstly, it was stated in Corrigan the application was to “transfer and/or devise”. It was stated that the court expressly found that “the correct interpretation of the plaintiff’s cause of action . . . is that the obligation of the deceased was to perform the contract during his lifetime and not at the moment of his death.” This was an inescapable conclusion if the plaintiff’s claim pleaded a “transfer” which could only be inter vivos. First, it was claimed that the decision was based on such an interpretation and was of no wider effect. Secondly, it was claimed that the part played in the Corrigan case by the deceased’s death was no more than the last point at which his obligation could be fulfilled. His death was not a point in time at which the obligation arose, but merely the point in time to which the obligation extended. It was submitted that no reference was made in Corrigan’s case to circumstances in which an obligation arises specifically and only by Will as in the testamentary case of equitable estoppel. It was claimed that the Corrigan decision had no discussion of or application to testamentary estoppel claim that the only authority in this area is Reidy v. McGreevy.
Decision
28. Reverting to the statement of agreed facts, the relevant facts are:-
“That the plaintiff was repeatedly told by the late John Dempsey and the deceased that the farmlands at Ballinamona would be left to him after both had died. The plaintiff relied upon these repeated promises and assurances by both the late John Dempsey and the deceased, continued to provide assistance in the management and running of the farm at Ballinamona and thereby acted to his prejudice…”
29. Relevant facts state that in or about July 1998 a meeting took place between the late Patrick Dempsey, the Deceased, William Dempsey also deceased (being a brother of the said Patrick and John Dempsey) and the plaintiff. At the said meeting, John Dempsey stated that he was leaving the lands at Ballinamona to the plaintiff, the Deceased asked the late John Dempsey to leave the lands at Ballinamona to the Deceased and that the Deceased in turn bequeath them to the plaintiff. It was alleged and agreed, John Dempsey, Patrick Dempsey and William Dempsey agreed to this arrangement and with this assurance, the plaintiff continued to provide assistance in the working of the farm at Ballinamona.
30. I accept the defendant’s submission that the plaintiff’s cause of action is founded in contract or quasi contract as the plaintiff is suing the defendant in his capacity as personal representative of the deceased, Patrick Dempsey for breach of the deceased’s promise to bequeath the lands to the plaintiff. The breach could only have occurred during the life time of the deceased and the cause of action therefore accrued before the death of the deceased. I also conclude, based on the agreed facts that the plaintiff’s claim can alternatively be based on promissory estoppel or equity. As such it is not a claim arising after the death of the Deceased but a claim subsisting at death, namely, the failure of the Deceased to execute a Will bequeathing the lands to the plaintiff during his lifetime. I do accept that the evidence relating to such cause of action emerged after death, the plaintiff’s cause of action in contract, quasi contract or in equity subsisted during the lifetime of the Deceased. I reject the plaintiff’s submission to the contrary.
31. Furthermore, I prefer the reasoning of Fennelly J. in Corrigan v. Martin to that of Barron J. in Reidy’s case. In the Corrigan case Fennelly J. analysed in detail the interplay between ss. 9 and 8 of the Act. There is no such analysis or examination of the two sections in the Reidy case. In referring to s. 8(1) which applies to “all cause of action (other than excepted causes of action) subsisting against him” Fennelly J. stated:-
“The Oireachtas intended that provision to apply to all causes of action coming into existence right up to the point of death itself. It is unreal and almost methaphysical to distinguish between causes of action existing immediately prior to the death and those which matured on the death itself. I do not believe the Oireachtas can have intended to make such a fine distinction. It would serve no useful purpose which has been identified in this case.”
I would in particular adopt the foregoing passage.
32. In my opinion the facts in Bank of Ireland v. O’Keeffe are distinguishable to the instant case, the cause of action only arose once the letter of demand had been sent on foot of the guarantee.
33. When a cause of action has survived the estate of the deceased while two alternative periods are provided under s. 9(2)(a) and (b), subparagraph (a) does not apply as no action was pending the date of death of the deceased.
34. In Corrigan v. Martin, Fennelly J. had to consider an agreement whereby the Deceased would “transfer and/or devise the lands to” the Plaintiff. The factual position in that case is that it refers to a “transfer” but is also based on an obligation to “devise” the lands to the Plaintiff. In the instant case there is an obligation as set out on the agreed facts, that the Deceased in turn bequeath the lands to the Plaintiff. The words of Fennelly J. are apt in the present case in:-
“That the obligation of the deceased was to perform the contract during his lifetime and not at the moment of his death. Hence the cause of action was completed immediately before his death…the cause of action, therefore subsisted at the moment of death and survived against his estate by virtue of section 8(1).”
35. The period provided under (b) is the earlier of the relevant period, being the expiry of the limitation period under the provisions contained in 1957 Act or alternatively the period of two years from the date of death of the deceased. As the deceased died on 28th August, 2003 proceedings ought to have been issued by 27th August, 2005, the period of two years after the death of the deceased. The proceedings did not issue until the 25th July, 2006 and accordingly the plaintiff’s claim whether it arises in contract, quasi contract or in equity is statute barred.
Smyth v. Halpin
[1996] IEHC 56; [1997] 2 ILRM 38 (20th December, 1996)
High Court
Geoghegan J.
1. The plaintiff was brought up in a house and farm situated at Mill Road, Knock, Castletown, Co. Meath. In 1987, the plaintiff decided to marry one Patricia Fox. The plaintiff intended, if he could obtain a suitable site that he could afford, to build a dwelling house for himself and his new wife. He requested his father to provide him with a site on the father’s land. According to the plaintiff’s own account (which I accept) his father’s response was in words to the following effect:-
2. This place is yours after your mother’s day – what would you be doing with two places?
3. The father suggested that the plaintiff build an extension to the family home. The reference to the plaintiff being left the place after his mother’s day did not take the plaintiff by surprise because in 1983 he had had an earlier discussion with his father in the kitchen of the house during which the father asked him did he want the place and he said he did. I accept that this conversation took place also.
4. For the purpose of constructing the extension to the house, the services of an architect, Mr. O’Daly were retained and his designs were done in the context that the entire house would ultimately become the plaintiff’s. In order to build the extension, the plaintiff had to apply for a loan from the First National Building Society but that society needed security. Accordingly, the site had to be transferred to the plaintiff and this was done. What emerged was in no real sense a separate house but rather a self-contained section of a house. Even if nobody knew of any conversations between father and son, I think that any reasonable person with knowledge of the family such as a friend or relation would have assumed that the intention at all material times was that the entire house would become the property of the plaintiff upon the deaths of his parents. I find it difficult to conceive that the plaintiff would ever have adopted his father’s suggestion in relation to the extension to the house if it was not understood that he was to become the ultimate owner of the entire house.
5. The plaintiff’s father who is now deceased made a number of wills. The earliest will that can be traced was one dated as far back as 20 April 1966. That will contained the following bequest:-
6. I give, devise and bequeath my cottage with plot of land attached at Knock aforesaid and also my farm of land in the townland of Knock to my wife, Mary Anne Smyth for her life or until she remarries and on her death or remarriage to my son, Ian Smyth absolutely subject at all times to the rights of my children to reside in the cottage until they shall respectively attain the age of 25 years or marry.
7. The Ian Smyth referred to in that devise and bequest is a brother of the plaintiff. Under the father’s next will, however, dated 13 February 1976 which again predated the relevant conversations, he made the following devise and bequest:-
8. I give, devise and bequeath my cottage with plot of land attached at Knock aforesaid and also my farm of land in the townland of Knock to my wife, Mary Anne Smyth for her life or until she remarries and on her death or remarriage to my son, Felix Gerard Smyth absolutely subject at all times to the rights of my children to reside in the cottage until they shall respectively attain the age of 25 years or marry.
9. It is to be noted therefore that as early as 1976 it was the testator’s intention that the plaintiff should ultimately receive both the house and the farm.
10. The next will was dated 21 October 1986. This will post-dated the original conversation but predated the discussions at the time of the engagement. The relevant devise and bequest under this will is slightly altered and reads as follows:-
11. I give, devise and bequeath my lands together with my dwelling house at Knock, Castletown, to my wife, Mary Anne for her life and thereafter to my son, Felix Gerard but subject to the right of my daughters, Ann and Regina to have the option to choose a half-acre site each off my lands for the purpose of erecting a dwelling house thereon. Ann and Regina are to have the option for a period of four years from the date of my death.
12. The ‘Regina’ referred to is the second named defendant in this action. It is to be noted that under the 1986 will also subject to the option in relation to the sites, the plaintiff was to get the house and lands after his mother’s death. The next will which was the second last will of the deceased is dated 25 June 1991 and is of considerable interest. Under that will, the lands at Knock were devised and bequeathed to the plaintiff’s mother for her life and thereafter to the plaintiff absolutely. The dwelling house at Knock was bequeathed to the plaintiff’s mother for her life and thereafter to the second named defendant absolutely. It is clear that at that stage the deceased changed his mind in relation to the dwelling house. Finally, under the last will dated 23 July 1992, the plaintiff appointed the first named defendant and one Thomas Smyth (now deceased) to be executors of the will and he devised and bequeathed the lands at Knock to his wife Mary Anne for her life and thereafter to the plaintiff absolutely. But he also devised and bequeathed the dwelling house at Knock to his wife for life and thereafter to the second named defendant, that is his daughter Regina absolutely. Various pecuniary legacies were given to other children and the will then contained the following devise and bequest which is also of some controversy in these proceedings:-
13. I give, devise and bequeath to my son, Felix Gerard the right of way currently used by him for the benefit of his property over the lands surrounding my dwelling house at Knock, Castletown absolutely.
14. The plaintiff of course knew nothing of the father’s change of mind in relation to the house and only learnt that when the will was read out after the death. These proceedings have now been instituted by him seeking a declaration that he is entitled to the reversionary interest in the dwelling house expectant after the lifetime of Mary Anne Smyth. He is also seeking an order by the court directing that the first named defendant do transfer to the plaintiff the interest to which the plaintiff is entitled to. Alternatively, the plaintiff is seeking to recover the monies expended on the house and he is also seeking to establish that the right of way given to him under the last will is a right of way across the garden attached to the deceased’s dwelling house to the rear of the dwelling and not the alternative right of way as apparently suggested by his mother and the second named defendant.
15. The plaintiff does not and indeed cannot ground his action upon contract. He does not suggest that there was any agreement on his part to confer any benefit on his father in return for making over the dwelling house. The fact that the plaintiff has not tried to make that very convenient case is to his overall credit in my view when assessing the credibility of his evidence. It might have been easy for him to have suggested that the father indicated that it would suit him if the plaintiff could look after him and his wife in their old age and that in return for that he would allow him build an extension to the house for immediate living in and give him the entire house in due course along with the land. Although such an agreement would not have been in writing or indeed evidenced by writing, it might have been quite a simple matter to establish it through acts of part performance. However, none of that arises. The plaintiff does not suggest that there was a contract. His claim to have the reversionary interest transferred to him is an equitable claim based on the principle of proprietary estoppel. The question I have had to consider therefore is whether in the light of the authorities on proprietary estoppel the facts of this case give rise to a proper recourse to that principle and if so, whether the application of the principle of proprietary estoppel in this case actually requires that this Court make an order directing a transfer of the reversionary interest. The granting of the latter remedy would effectively involve permitting the estoppel to be used as a sword and not merely a shield and would also be an exceptional inroad into the well established principle that equity will not complete an uncompleted gift.
16. The kind of proprietary estoppel invoked in this case has its origins in Dillwyn v. Llewelyn (1862) 4 De GF & J 517. In that case a father had placed a son in possession of land and at the same time signed a document which was intended to be a conveyance of the land to him but proved not to be sufficient for the purpose. The son, with the full approval of the father, built a house on the land and occupied it as his own residence. After the father’s death, he claimed and obtained a court declaration that he was beneficially entitled to the land and an order requiring the trustee to whom the father had devised the land under his will to convey it to him. Two important principles emerged from that case. First of all the extent of the estate to be handed over was determined not by what was in the document but by the nature of the transaction and the entitlement then to that estate arose by reason of the expenditure acquiescence. The same principle has been applied in a number of other English cases. In Inwards v. Baker [1965] 1 All ER 446, for instance, the Court of Appeal held that in a case where a father had suggested to his son that he build on his land which the son then did largely at his own expense, the son had an equity to remain in the house for the rest of his life notwithstanding that the father in fact left all his property to a lady with whom he had lived for some years and the two children he had by her. The son who lived in the house in that case was unmarried and the court took the view that a life interest was sufficient. The following passage from the judgment of Lord Denning MR at p. 449 illustrates the position:-
17. In this case, it is quite plain that the father allowed an expectation to be created in the defendant’s mind that this bungalow was to be his home. It was to be his home for his life or, at all events, his home as long as he wished it to remain his home. It seems to me that, in the light of that equity, the father could not in 1932 have turned to the defendant and said ‘you’re to go, it is my land and my house’. Nor could he at any time thereafter so long as the defendant wanted it as his home.
18. Counsel for the plaintiffs put the case of a purchaser. He suggested that the father could sell the land to a purchaser who would get the defendant out but I think that any purchaser who took with notice would clearly be bound by the equity. So here, too, the plaintiffs, the successors in title of the father, are clearly themselves bound by this equity. It is an equity well recognised in law. It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that, as a result of that expenditure he will be allowed to remain there. It is for the court to say in what way the equity can be satisfied. I am quite clear in this case that it can be satisfied by holding that the defendant can remain there as long as he desires to use it as his home.
19. The important sentence in that passage is:-
20. It is for the court to say in what way the equity can be satisfied.
21. As I understand the authorities, the court is at large as to how best it will protect the equity and of course it has to consider what the equity is. In this case the clear expectation on the part of Mr. Smyth was that he would have a fee simple in the entire house. The protection of the equity arising from the expenditure therefore requires in this case that an order be made by this Court directing a conveyance of that interest to him. The same principle is well enunciated in the judgment of Cumming-Bruce LJ in Pascoe v. Turner [1979] 2 All ER 945 at p. 950 where the following passage appears:-
22. So the principle to be applied is that the court should consider all the circumstances and the counter-claimant having at law no perfected gift or licence other than a licence revocable at will, the court must decide what is the minimum equity to do justice to her, having regard to the way in which she changed her position for the worse, by reason of the acquiescence and encouragement of the legal owner. The defendant submits that the only appropriate way in which the equity can here be satisfied is by perfecting the imperfect gift as was done in Dillwyn v. Llewelyn.
23. Later on in the judgment at p. 951, Cumming-Bruce LJ had this to say:-
24. We are satisfied that the problem of remedy on the facts resolves itself into a choice between two alternatives; should the equity be satisfied by a licence to the defendant to occupy the house for her lifetime or should there be a transfer to her of the fee simple?
25. The main consideration pointing to a licence for her lifetime is that she did not, by her case at the hearing, seek to establish that she had spent more money or done more work in the house than she would have done had she believed that she had only a licence to live there for her lifetime. But the court must be cautious about drawing any inference from what she did not give in evidence as the hypothesis put is one that manifestly never occurred to her. Then it may be reasonably held that her expenditure and effort can hardly be regarded as comparable to the change of position of those who have constructed buildings on land over which they had no legal rights.
26. The court went on to take the view that the equity established in that case could only be satisfied by granting a remedy which ensured to the defendants security of tenure and quiet enjoyment. The court therefore ordered that the gift be perfected by the execution of the appropriate conveyance.
27. In my view, the plaintiff has clearly established that he falls within these principles. The only remaining question to be considered is the right of way. I am entirely satisfied that having regard to all the surrounding circumstances of the case, the right of way being referred to in the will is the way which has been used by the plaintiff close to the house. It is unfortunate that there is now bad feeling between the plaintiff on the one hand and his mother and sister on the other hand who are occupying the original part of the house. I would hope therefore that the plaintiff would be as considerate and tactful as he can in the use of the right of way but I will declare his entitlement to it as I do not find it credible that the way referred to in the will is the other right of way for the benefit of the farm.
28. I will direct that an appropriate deed or instrument be executed to effect the vesting of the remainder interest in the house in the plaintiff and I will discuss further with counsel as to the nature of that document and as to who are to be the parties to it.
Department of the Environment v Leeburn
[1990] NI 135 (High Court)
The facts are set out in the judgment.
Carswell J: This is an application brought by the plaintiff Department, which is the road authority with a duty to maintain all public roads, against the defendant, who is a trader in occupation of a mobile shop situate on part of a public road at Inniscarn Drive, in the Rathcoole estate, Newtonabbey, County Antrim. The Department s case is that it is entitled to seek possession against the defendant, who has no title to remain and is a mere trespasser. The defendant contends that he has had an implied licence to remain, by reason of the long occupation of the shop on the site by himself and the person from whom he purchased it, and the fact that the Department charged and collected rates on the shop for some years, and that the Department is estopped from seeking to eject him now.
Rathcoole estate is a housing estate of publicly-owned houses, laid out some years ago by the then housing authority. It was laid out in the usual fashion in streets, which were duly made up. At some time the streets, including Inniscarn Drive, were taken over by the Department of the Environment or its predecessor as road authority. The evidence concerning the date of adoption of Inniscarn Drive was sketchy, since the relevant records were destroyed in a fire, but the Department placed before me a map showing the road in question as part of the area now treated as adopted. I am satisfied on the evidence that the portion of road on which the shop is situate is and was at all material times part of the road which the Department has a duty to maintain.
Inniscarn Drive is a cul-de-sac, which according to the defendant s affidavit is a quiet road with little traffic movement. The map shows that it terminates in a hammerhead , or turning area. The defendant s shop is situated on this hammerhead. It is a mobile van fitted out as a shop, whose wheels have been removed, and it is now and has for some time been mounted on concrete blocks. The defendant bought it in May 1984 from one JHC Stewart, who had carried on business there for some years. Although neither the defendant nor Mr Stewart ever had any authority to place the shop in the position which it occupies, it is plain that the district council is by no means opposed to the business being carried on there, because of the shortage of suitable shopping facilities in the immediate area. No steps have been taken to enforce planning control against him or to prosecute him under any provision for remaining there, and the council has given the defendant a street trading licence and renewed it from time to time.
A fact upon which the defendant s counsel placed some emphasis was that for a number of years the shop has been rated. The rating authority is the Rating Division of the same Department, and the shop, known as 61A Inniscarn Drive, is entered in the valuation list under the description of shop , with a net annual value of 50. The Department has sent out rates accounts for some years to the defendant and his predecessor in title as occupiers of the hereditament, which they have duly paid.
On 26th April 1989 a representative of the Department delivered to the premises a letter dated 25th April 1989 giving the defendant notice to vacate the premises. A copy was given to the defendant s wife. It was not in a form appropriate to the circumstances, in that it is plainly taken from a standard form letter relating to dwelling houses, and refers to the ownership of the lands by the Department. No formal demand for possession is required, however, in a case such as the present. If the defendant should be regarded as having a licence by reason of the acceptance of rates, a topic with which I shall deal later, I consider that this letter was sufficient to indicate to the defendant that he was not permitted to remain any longer and should take steps to remove the shop.
The summons was brought under Order 113, rule 1(1) of the Rules of the Supreme Court (Northern Ireland) 1980, which provides:
Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.
The defendant comes within the class of persons against whom the rule permits proceedings to be brought, but there is a much more substantial issue whether the Department as road authority satisfied the description of a person who claims possession of land. To do so it must be entitled to possession, which is, of course, a relative concept. It must have a better claim to possession than the defendant, who has none, if the Department s case is correct. But it must still have some title to possession of the road which gives it sufficient title to sue.
In England there would be no difficulty with this point, since by s 263(1) of the Highways Act 1980 it is provided that every highway maintainable at the public expenses vests in the highway authority. Similar provisions have been part of English statute law on highways since the Public Health Act 1848. It was settled in a series of decisions on this legislation that the highway authority holds a statutory fee simple determinable in the event of the street or road ceasing to be a public highway. The authority s interest in the land extends to the surface and to so much below it is as necessary to support the surface as a road. It is not necessary for me to review the English case-law, and I need only refer to the decision at the beginning of the line, Coverdale v Charlton (1878) 4 QBD 104 and two at the end of the branches of authority, Foley s Charity Trustees v Dudley Corporation [1910] 1 KB 317, on the extent of the ground to which the title extends, and Tithe Redemption Commission v Runcorn UDC [1954] 1 Ch 383, [1954] 1 All ER 653, on the nature of the title, in which the decisions are reviewed. In Wiltshire County Council v Frazer 47 P & CR 69, 82 LGR 313 it was held that the highway authority had a sufficient title to the surface of the highway to enable it to bring a summons under Order 113 for possession against trespassers. Accordingly, if there were a similar provision in the statute of law of Northern Ireland to s 263(1) of the Highways Act 1980 it seems to me clear that the Department would have sufficient title to found its claim in the present proceedings.
The difficulty which faces the Department is that there is not and never has been a comparable provision in the statute law of Northern Ireland or in that of Ireland before 1920. The Public Health (Ireland) Act 1878, the comparable provision to the Public Health Act 1875 which applies to England, did not contain any provision equivalent to s 149, which provided that all streets in urban districts being or which at any time should become highways repairable by the inhabitants at large should vest in and be under the control of the urban authority. Nor has any similar provision been included in any of the roads legislation passed in Northern Ireland.
It is necessary therefore to go back to the common law in England, and the authorities relating to roads in Ireland, in order to ascertain what title, if any, the road authority can now be said to hold. In Rangeley v Midland Railway Co (1868) LR 3 Ch 306, 311 Lord Cairns LJ described the legal status of a public road in the following terms:
In truth, a public road or highway is not an easement, it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing, the public generally taking upon themselves (through the parochial authorities or otherwise) the obligation of repairing it. It is quite clear that that is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement.
Lord Cairns did not deal in that judgment with the issue of possession of the surface of the road, and I think that his reference to occupation has to be read subject to a rather older decision on ejectment, whose authority was never to my knowledge doubted by succeeding generations. In Goodtitle d Chester v Alker (1757) 1 Burr 133 the Court of King s Bench held that the owner of land dedicated as a public highway can maintain ejectment for an encroachment upon it. Lord Mansfield CJ said that where land is subject to passage over it as the King s highway,
The King has nothing but the passage for himself and his people: but the freehold and all profits belong to the owner of the soil
The import of the decision accordingly was that the owner of the land had possession, the necessary foundation for an action for ejectment, and it followed that the public did not have possession, but only the right of passage. Nor apparently did the inhabitants at large of the parish, upon whom the obligation to repair fell, have any greater interest than the public as a whole.
In Ireland before 1898 the duty of repair of roads continued to rest by common law upon inhabitants of the parish. Under the Grand Jury Act 1836 the grand jury had the power to make a presentment for the execution of public works, including road repairs. It was not, however, under any obligation to repair roads, and Palles CB doubted in Clements v Tyrone County Council [1905] 2 IR 415, 432, whether it had any obligation even to make a presentment when road repairs were required. The work was carried out by the county surveyor, who was appointed by the Lord Lieutenant.
The amount of the interest of the owner of the land and of the public was in issue in two 19th century Irish cases, in both of which Goodtitle d Chester v Alker (1757), was regarded as good law. In Herbert v Kennan (1854) 7 IR Jur 43 a landlord sued for ejectment against his tenant, who raised the defence of ejectment by title paramount. It appeared that unknown to the parties a public road existed across the land, and that at some time the county surveyor had obtained an order against a third party compelling the pulling down of a wall which had been built across the line of the road. It was held that this action on the part of the county surveyor did not amount to ejectment by title paramount. Pennefather B said at page 45:
The soil of this portion and the premises … still remains in the landlord. An easement of way is granted to the public over the surface, and that is all the county surveyor is entitled to, but this does not amount to a legal estate in the land . . . The county surveyor has a right to keep such a passage in repair, and the public are entitled to use it as such, but no further. The right to the soil, and freehold and title, continues in the landlord …
In Merrick v Cummins (1858) 9 ICLR 249 the issue was the extent of the estate taken where a bridge was built. In the course of deciding this issue O Brien J said at page 262:
… the estate and freehold in the land over which a public road is made remains in the former owner, subject to a right of user or easement over it in the public …
At page 264 Crampton J said:
In the case of presented roads, an easement only is given to the public; the road is still private property; but, subject to the easement, the road is, and remains emphatically, private property …
The Court also indicated, in following the decision in Goodtitle d Chester v Alker (1757) that if the landlord had possession which entitled him to bring ejectment, it was inconsistent that another party could also have such title. Acceptance of the same principle underlay the decision of Porter MR in Attorney-General v Mayo County Council [1902] 1 IR 13, in which the defendant council, the successor to the grand jury, purported to give authority to two evicted tenants to erect a dwelling on land forming part of the county road. The Master of the Rolls held that it had no power to do so. At page 19-20 he said:
Of course, I need not say that, subject to the public easement, the soil is and remains the property of the lord of the soil, and that anyone using it for a different purpose, as for sporting and the like, would be a trespasser.
It was argued on behalf of the Department that the imposition of the duty of maintenance of roads by Article 8(1) of the Roads Order (Northern Ireland) 1980 by implication conferred upon the Department a right to possession in order to carry out its statutory duty. It should be observed, however, that this express duty of repair is by no means new. Section 82 of the Local Government (Ireland) Act 1898 imposed a duty on every county and district council to keep all public works maintainable at the cost of their county or district in good condition and repair Public works were defined by s 109 of the Local Government (Ireland) Act 1898 as meaning any road or work in respect of which presentment could have been made by the grand jury. I have not found any suggestion in any of the decided cases or the commentaries which I have consulted that the obligation of repair gave a right to possession which would suffice to ground the present claim. It does not appear to be necessary to imply such a right to possession in order to confer sufficient power upon the road authority to carry out its functions. The authority could carry out its function of seeing to the repair of public roads by having an easement (or quasi-easement) which would allow it to enter upon the lands on which the road is situate and carrying out any necessary work on the road. If it is not necessary to imply a right to possession going beyond this, I do not think that the law will imply it.
I therefore hold that the Department has not established that it is entitled to possession in law of the road, and accordingly cannot satisfy the requirements of Order 113, rule 1(1). That is not to say that it is left without remedy against the defendant for his trespass, if such his occupation is. It could resort to proceedings to enforce those other remedies, and it will be open to it to do so if it wishes, even though not successful in these.
This finding is sufficient to dispose of the summons, but since the issue of licence and estoppel was fully argued, and may become material if other proceedings are brought, I think that I should express my opinion on it.
The defendant s counsel relied on the fact that rating demands were sent to the defendant by the Rating Division of the same Department as showing that knowledge of his occupation of the shop on Inniscarn Drive had to be imputed to the defendant, even if the Roads Division had not become aware of it until more recently. This was sufficient, he submitted, to confer a licence upon the defendant, so that he was more than a mere trespasser. I think that there is some substance in this argument, and I shall approach the issue on the footing that the defendant was at some time a licensee by reason of these facts.
The licence was, however, revoked by the letter of 25th April 1989 to which I have referred. Faced with this, counsel for the defendant then argued that the issue of rating demands had the effect of creating an estoppel, which operated to prevent the Department from revoking its licence. The reply put forward on behalf of the Department was first, that the rating of the shop did not give rise to any estoppel, and secondly, that if an estoppel had been created, equity did not require it to be permanent, and in the circumstances of the case it no longer operated to bar the Department from requiring the defendant to move his shop off the public road.
Equitable estoppel is commonly divided for purposes of exposition into promissory estoppel and proprietary estoppel : see, eg, Snell s Principles of Equity, 28th ed, page 561. In the first form the representor is precluded from resiling from his representation or promise, whereas in the second form he is precluded from denying the other party s supposed rights in the representor s property: ibid. It might be said that proprietary estoppel is based upon misleading by acquiescence, whereas promissory estoppel is based upon misleading by representation.
The usual example of proprietary estoppel is where a plaintiff expends money on land, in the expectation that he shall have rights over it. In such a case equity will not permit the defendant to enforce his legal rights and deprive the plaintiff of his expectation, where it would be unconscionable for him to do so. The locus classicus is the speech of Lord Kingsdown in Ramsden v Dyson (1866) LR 1 HL 129, 170:
The rule of law applicable to the case appears to me to be this: If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an exception, created or encourage by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such a promise or expectation.
The principle has been applied to licences in a number of cases, where it has been held that when a licensee has been permitted or encouraged by the licensor to act in such a way that an estoppel arises in his favour — normally by the expenditure of money on the lands — the licensor will be bound by it and will be unable to ejects the licensee inconsistently with the representation which forms the basis of the estoppel. So in Inwards v Barker [1965] 2 QB 29, [1965] 1 All ER 446, the court held that the licensee could in the circumstances remain as long as he desired to use the bungalow which he had built on the lands as his home. In Ward v Kirkland [1967] Ch 194, [1966] 1 All ER 609, the licensee was given a permanent right to retain the use of drains which he had installed. On the question of the need to establish a positive request, encouragement or incitement by the licensor, Ungoed-Thomas J said at page 239 of the former report:
It was suggested before me that there was a distinction between an act which is acquiescing or encouraging in a person in such circumstances to expend money and merely standing aside with the knowledge that such money was being expended in reliance on having the right which is claimed. I, for my part, fail to see any substance in this distinction. The fundamental principle of the equity is unconscionable behaviour, and unconscionable behaviour can arise where there is knowledge by the legal owner of the circumstances in which the claimant is incurring the expenditure as much as if he was himself requesting or inciting that expenditure. It seems to me that abstention as well as a request or incitement can fall within the principle from which the claimant s equity arises.
Brownlee v Duggan [1976] 5 NIJB, which was relied upon by the defendant, is an example of this category of estoppel.
It may be seen from these authorities that the doctrine of proprietary estoppel grew up round the expenditure of money on another s land under a misapprehension, in which that other had at least acquiesced. I shall discuss later in this judgment whether the doctrine is confined to such situations or whether they are but an illustration of a wider principle of equity.
The doctrine of promissory estoppel developed situations involving promises or representations concerning the binding nature of contractual relationships. It will be necessary to consider whether it is limited to such cases, or whether these also are but examples of a wider principle. The fons et origo of the doctrine is to be found in the speech of Lord Cairns LC in Hughes v Metropolitan Railway Co (1877) 2 App Cas 439, 448 where he said:
It is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results — certain penalties or legal forfeiture — afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.
In Birmingham and District Land Co v London and North Western Railway Co (1888) 40 Ch D 268, 286 Bowen LJ developed the theme after referring to and rejecting the suggestion that the principle applied only to cases of forfeiture, as follows:
The truth is that the proposition is wider than cases of forfeiture. It seems to me to amount to this, that if persons who have contractual rights against others induced by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in suspense or abeyance for some particular time, those persons will not be allowed by a Court of Equity to enforce the rights until such time has elapsed, without at all events placing the parties in the same position as they were before. That is the principle to be applied. I will not say it is not a principle that was recognised by Courts of Law as well as of Equity. It is not necessary to consider how far it was always a principle of common law.
When the doctrine was resuscitated after many years of neglect by Denning J in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, [1956] 1 All ER 256, he was prepared to apply it in the case of a covenant in a lease for payment of rent, again a contractual relationship. The principle was confirmed by the House of Lords in Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] 2 All ER 657, [1955] 1 WLR 761, but without discussion of the present point. It was again confirmed by the Privy Council in Ajayi v RT Briscoe (Nigeria) Ltd [1964] 3 All ER 556, [1964] 1 WLR 1326, in terms of parties to a contract, but once more the breadth of the principle was not in issue.
In Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839, [1968] 2 All ER 987, 991B Donaldson J expressed the opinion that a pre-existing contractual relationship between the parties was not essential, provided that there was pre-existing legal relationship which could in certain circumstances give rise to liabilities and penalties. This was taken up and put on a broader basis again by Lord Denning MR in Evenden v Guildford City APC [1975] QB 917, [1975] 3 All ER 269, 273, where he said, after refusing to limit promissory estoppel to cases where parties are already bound contractually:
It applies whenever a representation is made, whether of fact or law, present or future, which is intended to be binding, intended to induce a person to act on it and he does act on it.
In Crabb v Arun DC at [1976] Ch 179, [1975] 3 All ER 865, 871 Lord Denning MR expanded the principle beyond contractual rights to rights arising under title deeds, or by statute, but the editor of Spencer Bower and Turner on Estoppel by Representation (3rd ed) p 383 points out that in doing so he attributed words to Lord Cairns which did not appear in his speech in Hughes v Metropolitan Railway Co (1877). He reiterated his opinion in Brikom Investments Ltd v Carr [1979] QB 467, [1979] 2 All ER 753, 758j, where he said:
The principle extends to all cases where one party makes a promise or representation, intending that it should be binding, intending that the other should rely on it, and on which that other does in fact rely, by acting on it, by altering his position on the faith of it, by going ahead with a transaction then under discussion, or by any other way of reliance.
He went on to hold that the successors in title to the promises could also rely upon the representation. Both Roskill LJ and Cumming-Bruce LJ, declined to go as far as Lord Denning MR, and expressed the view that it would be wrong to extend the doctrine of promissory estoppel to the extent of abolishing in a back-handed way the doctrine of consideration. They reached the decision of the case on another ground, but they were particularly unwilling to hold that assignees of the promisee could rely on the original promise. Finally, in discussing the principle in James v Heim Gallery (London) Ltd 41 P & CR 269, 256 EG 819, 821, Buckley LJ described the point whether the relationship need be a contractual one as one which still seems to be an open question, while Oliver LJ at p 825 formulated the law in terms of relying upon strict contractual rights.
In some recent cases the view has begun to emerge that the distinction between promissory and proprietary estoppel is unnecessarily rigid, and that they should correctly be regarded as applications of a single larger principle of equity. In Crabb v Arun DC [1976] Ch 179, [1975] 3 All ER 865, 875f Scarman LJ expressed the view that in pursuit of the enquiry which the court had to conduct he did not find helpful the distinction between promissory and proprietary estoppel. In Taylor Fashions Ltd v Liverpool Victoria Friendly Society (1979), reported in [1981] QB 133, [1981] 1 All ER 897, Oliver J went rather further, and accepted that proprietary estoppel (aliter estoppel by acquiescence or estoppel by encouragement) was virtually equated with promissory estoppel, both being mere facets of the same principle (page 917b). He deplored the tendency to force cases into a Procrustean bed constructed from some unalterable criteria (page 918c), and propounded a broader test:
Whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment (page 915j).
While recognising the force of these views, I venture to doubt whether quite as complete a fusion can be made of two doctrines which have their roots in rather different situations, and the differences between them may still have to be regarded as material points of distinction. I respectfully agree that the distinction between acquiescence and representation may correctly be regarded as too rigid, and that the association of each only with its own type of estoppel may require reconsideration. It may be that the law is moving in the direction of accepting the doctrine of promissory estoppel as part of a generalised equitable principle, whereby a person who makes a promise intended to be binding, upon which the promises acts to his detriment, will not be allowed to go back upon it unless the promisee can be restored to his original position. The justice of such a principle is obvious, but it cuts across other well-established rules such as consideration and privity of contract. Lord Hailsham LC warned in Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741, [1972] 2 All ER 271, that the whole sequence of cases based on promissory estoppel since Central London Property Trust v High Trees House [1947] KB 130, [1956] 1 All ER 256, may need to be reviewed and reduced to a coherent body of doctrine by the courts. Until this is done, I should myself be chary of attempting to unify the two branches of estoppel in all respects.
The defendant has not expended any money on the land which he is occupying. He bought a mobile shop which had been placed on the lands and rendered immobile by removal of the wheels, but there is no suggestion that it has been affixed to the realty or that it could not be removed from the site if required. The case therefore does not come within the classic confines of the proprietary estoppel doctrine. For it to do so it would have to be accepted that acting in some manner to his detriment, other than by expending money in such a way that the outlay accrues to the value of the lands, will suffice to satisfy its requirements. I should be willing to assume in the defendant s favour that the doctrine is of such width, since it seems consistent with principle that it would be unconscionable for a licensor to insist upon his legal rights and eject the licensee if he has encouraged him to believe that he will be allowed to stay indefinitely and has stood back and watched him act to his detriment in a manner which does not ensure to the permanent benefit of the lands. I think that such permanent benefit is but one, though a very strong, example of factors which equity may regard as making it unconscionable for the licensor to end the licence.
In the same way, the present case does not come within the classic doctrine of promissory estoppel, because there was never any contract between the Department and the defendant. The early cases placed it firmly on the basis of reliance on existing contractual rights. If the wider basis put forward by Donaldson J in Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839, [1968] 2 All ER 987, is correct, that any pre-existing legal relationship will suffice, then the case may come within it, on the ground that the defendant became a licensee, by reason of the Department s knowledge of the presence of his shop and its acquiescence in that state of affairs.
I must attempt to draw these threads together by relating the facts of the case to the principles. I consider that it might be said that the defendant acted to his detriment by purchasing the shop and going into occupation. I do not express any decided view on this, because I think that further facts would be required before one could do so.
If he did so, then one has to consider whether the Department acted in such a way that it would be unconscionable for it now to claim its legal rights against the defendant by terminating his licence. All that it did was to issue rate demands and accept the rates when paid each year. That might conceivably be construed as acquiescing in his occupation, but I should myself find it difficult to suppose that it should have been regarded by the defendant as an assurance of permission for an unlimited stay. Hereditaments which exist should be placed in the valuation list, and when they are in the list the rating authority must collect the rates due on them. Merely valuing them does not ordinarily imply any permanence, and it is not uncommon to find relatively temporary hereditaments rated so long as they are in existence, for example, car parks on sites cleared for development which has been deferred. Again, it is probable that further facts will be required, and I do not express a definite opinion on the point, but it appears to me rather doubtful whether the Department s acts were such that it should be held to be unconscionable for it to terminate the licence.
If it were held that the defendant suffered a detriment, it would then be necessary to consider whether that creates a permanent estoppel, or whether it lasts only until such time as the defendant has had a reasonable opportunity to retrieve his position. In Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] 2 All ER 657, [1955] 1 WLR 761, the House of Lords placed some emphasis on this qualification, expressed by Bowen LJ at the end of the passage which I quoted earlier from Birmingham and District Land Co v London & North Western Railway Co (1888). They held that the gist of the equity lay in the fact that one party had by his conduct led the other to alter his position. TMMC had suspended the operation of TECO s contractual obligations, and equity would not allow it to enforce them. This was not, however, a permanent waiver, and the equitable prohibition came to an end once TMMC had given reasonable notice to TECO that it was to end and made it clear that they were bound to put their house in order.
It seems to me that this part of the doctrine applies to the present case. It is true that in the classic proprietary estoppel case the equitable prohibition is not temporary in this fashion; but this is so because the classic case concerns expenditure of money on another s land, which by the nature of things is not ordinarily remediable. Accordingly, if it is held that the doctrine of proprietary estoppel extends sufficiently widely to encompass a case such as the present, I consider that the equitable prohibition is capable of being brought to an end in such a way. It is clear that if the case is classified as one of promissory estoppel it can be, and it seems to me that the principle should operate in the same way in both branches of equitable estoppel.
When one applies this conclusion to the present case it seems to me rather difficult for the defendant to deny that he could retrieve his position by moving the shop in some manner, after receiving reasonable notice. Again, I do not propose to make a finding on this, for further evidence may throw more light on what he could do with the shop if required to move and the length of notice which should be regarded as reasonable.
The final argument addressed to me by the Department s counsel on this part of the case was that a government department cannot be estopped from exercising its duties and powers. The clearest authority for this proposition is to be found in Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204, 38 P & CR 7 and the present case does not appear to come within either of the exceptions formulated there by Megaw LJ The argument seems to have considerable force, but I shall not attempt to decide the point.
I accordingly do not propose to attempt to reach any conclusions on these issues. Nor is it necessary for me to do so, in view of my finding on the Department s title to bring the proceedings by summons under Order 113. I have set out my views in extenso on the issues of law, however, since they were argued in some detail, it may assist the parties to have those views in order to determine their course of action.
The summons must be dismissed.
Bracken v Byrne
[2006] 1 I.L.R.M. 91JUDGMENT of Mr. Justice Clarke delivered 11th March, 2005.
On the 24th July, 1967 William Bracken, on the basis of a then intended marriage between his daughter Catherine Mary Bracken and Timothy Byrne, executed a deed of settlement (“the deed of settlement”) whereby he transferred all of the properties described in Folio 2242 of the register County Wicklow to Catherine Mary Bracken and Timothy Byrne so that after their marriage they would become joint tenants in fee simple of the property subject to certain rights.
Insofar as material to this case the rights specified are those at item 2 in the deed of settlement which conferred the right upon “Joan Bracken and Mary Bracken (daughters of the said William Bracken and Mary Bracken) to reside and to be supported and maintained in the said dwelling house at any time they or either of them during their respective lives shall choose to reside there whilst unmarried”.
The plaintiff is the Joan Bracken mentioned in that clause in whose favour a right of residence and maintenance and support was conferred by the deed of settlement. The defendant is the Catherine Mary Bracken to whom, in conjunction with her soon to be husband Timothy Byrne, the property was vested. Mary Bracken, who is also mentioned in the clause conferring rights, has long since married and no right continues to subsist in her favour.
For much of the intervening period Joan Bracken lived and worked in different guises in Dublin but did from time to time visit the family home. That home was itself replaced by a more substantial dwelling which remains in the ownership of the first named defendant. Timothy Byrne, unfortunately, died on 21st February, 2000. In addition the second named defendant, Michael Byrne, who is a son of Timothy Byrne and the first named defendant has benefited by the transfer to him of part of the lands which were previously comprised in Folio 2242 County Wicklow subject to the rights of maintenance and support in favour of the plaintiff.
In those circumstances the house, in respect of which the right of residence exists, remains in the ownership of the first named defendant while the lands out of which the right of maintenance and support is to be met are now, in substance, owned by the second named defendant.
In order to understand fully the issues between the parties it is necessary to describe in some detail events in the latter part of the 1990s and the early years of this decade. In circumstances which are not particularly germane to these proceedings the plaintiff suffered significant financial reversals in the mid to late 1990s which culminated in her finding herself in a position where, contrary to her previous life experience, she had no significant employment, no interest of ownership in any residential property and only a relatively small sum of cash in capital (being the net proceeds that were left after the disposal of a restaurant business which had not been a success and the premises in which the business was conducted having been the subject of a fire in circumstances where it was underinsured).
In all those circumstances it was suggested to the plaintiff by the first named defendant (in conjunction with her husband) that she should come to reside in the family home. It seems clear that neither party had, at that time, got in the forefront of their minds the fact that the plaintiff might have a legal entitlement so to do. However the plaintiff did, in fact, go back to reside in the family home and appears for some reasonable period of time to have lived there as a member of the family and to have enjoyed support and maintenance in practice even if same was not consciously being provided in fulfilment of the obligations under the deed of settlement.
It is again common case between the parties that during 1999 a suggestion was made to the plaintiff by the first named defendant and her husband that the plaintiff would be provided with a site on a separate plot of ground which was also in the ownership of Timothy Byrne. In general terms it seems that such an arrangement was perceived to be advantageous to all concerned in that the site was nearer to Dublin where much of the plaintiff’s interests were still centered. She had also gained employment which by that time again required her to travel to Dublin.
What is, however, in serious controversy between the parties is the basis on which such a site was to be provided. The plaintiff gave clear evidence that the contemplated arrangement was that she would be given the site fully to the extent that it would be placed into her name. She accepted that it would have been for her to secure the building of a house on the site. She had retained the capital sum previously referred to and it was envisaged that that sum, perhaps topped up by a relatively moderate mortgage, would be sufficient to build a house.
The first named defendant has equally strongly maintained that the arrangement was to the effect that the plaintiff would be given only a limited interest in the property. I will return to this conflict of evidence later in the course of this judgment.
It is again common case that on foot of whatever arrangements may have been in place the plaintiff sought and ultimately secured planning permission from Wicklow County Council in respect of the building of a dwelling house. It is also common case that contact was made, on the recommendation of the first named defendant, with a builder who provided a quote for the construction of the dwelling house concerned.
Unfortunately just as the planning process was coming towards a close Timothy (who was more normally called Theo) Byrne died some few months after notification of intention to grant planning permission had been given and very soon after the final notification of the grant of planning permission had occurred.
Soon after that disputes arose between the plaintiff and the first named defendant as to whether she was to receive a limited interest in the site or was to obtain it entirely in her own name. There can be little doubt that those disputes led to a significant worsening of relations between the parties. As a result the plaintiff investigated her legal entitlements and ultimately received advice on the provisions of the deed of settlement.
In those circumstances these proceedings were brought which seek either the payment of a sum of money to represent the value of the rights of residence maintenance and support which necessarily involves a claim as against the first named defendant in relation to the right of residence and as against the second named defendant in respect of the right of maintenance and support. All such claims relate to a loss both to date and into the future.
In the alternative to the claim in respect of a right of residence (but not in respect of the claim in relation to a right of maintenance and support) the plaintiff contends that she is entitled to enforce the agreement which she alleges was in place in relation to the site.
Rights of residence and maintenance – the law
Section 81 of the Registration of Title Act, 1964 provides:-
“A right of residence in or on registered land, whether a general right of residence on the land or an exclusive right of residence in or on part of the land, shall be deemed to be personal to the person beneficially entitled thereto and to be right in the nature of a lien for monies worth in or over the land and shall not operate to create any equitable interest in the land”.
The only occasion when that section has the been the subject of judicial consideration arose in Johnson and Anor v. Horace [1993] ILRM 594 where Lavan J. had to consider the effect of the section in the circumstances of that case.
It should be noted that at p. 598 of the judgment Lavan J. indicated that neither the case law nor the statute clarifies whether or not the beneficiary of the right or the owner of the property can insist on the right being converted into monies worth. In dealing with that issue the court went on to state the following:-
“I have no doubt but that there are circumstances in which a court could enter by agreement with the parties into a valuation of their respective interests. There are also circumstances where a court might compel such a valuation in the general interest of the administration of justice or under its equitable jurisdiction”.
On the facts of the case before him Lavan J. was satisfied that there was duress on the part of the defendant owner and no abandonment of the right of residence on the part of the plaintiff. Much of the remainder of the case was concerned with how the rights could be valued and whether, on the facts of that case, it was appropriate to direct that the rights no longer be enforced and be, in substance, converted into money.
It is important to note that Lavan J. went on to hold that “the defendant has not the means nor the intention to make proper provision for the plaintiff’s right of residence”. In those circumstances the plaintiff was awarded injunctive relief which in substance allowed her to become able to enjoy the right of residence and also was awarded damages in respect of interference with the right up to the date of trial.
It is clear therefore, that the reason why Lavan J. was not persuaded to convert the plaintiff’s entitlement to money was that it was impractical on the facts of that case so to do. The case is therefore not authority for the proposition that a court could not covert the right of residence to money in an appropriate case.
However that begs the question as to what would be such an appropriate case. Neither counsel in the case before me argued that there was an entitlement, as of right, on the part of either the owner of the property or the beneficiary of the right to have the right converted into money.
In a case where the owner of such rights is effectively excluded from the enjoyment of those rights by the owner of the property there may be circumstances where the appropriate form of redress which the court should grant would be to value the rights and direct that the beneficiary be paid for those rights rather than to grant injunctive relief. Clearly the ability of the defendant to pay the sums thus awarded would be an important factor in the exercise of the court’s discretion as to whether the remedy should be by way of injunctive relief to restore the enjoyment of rights on the one hand or the payment of the sum of money in lieu on the other hand. However in many such cases it may well be that the breakdown in relations between the parties is not for as clear-cut a set of reasons as enabled Lavan J. in Johnson to take the view which he did on the facts of that case. The circumstances which may lead to such a breakdown can lie at any point upon a spectrum from one where the entire blame may rest upon the beneficiary of the right on the one hand to a case where the entire blame may rest upon the owner of the property on the other hand. Indeed it is, perhaps, important to note, that in the absence of very voluminous evidence indeed it might, in many cases, be difficult for the court to determine, with any precision, the precise apportionment of blame in relation to what will, often, be a breakdown in relations between parties stemming from a whole variety of reasons.
In the light of such general observations it is necessary to address the question as to the proper approach of the court in circumstances such as this.
Prima facie the starting point must be that the entitlement of the beneficiary of a right is to have that right enforced. Therefore the starting point should be that the owner should be entitled to appropriate injunctive relief to ensure that they can enjoy the right.
However there may be circumstances where that is not practical or reasonable. Obviously the parties are free to agree the terms upon which rights can be extinguished. Furthermore, as Lavan J. pointed out in Johnson the court can enter by the agreement of the parties into a valuation of their respective interests. More difficult questions arise where one party asserts that the rights should be exercised but the other suggests that the rights be converted into money. In principle the party seeking the cash conversion could be either the beneficiary of the rights or the owner of the property. In this case it is the beneficiary who seeks to have her entitlements paid off in money. The first named defendants says that there has been no prevention of the exercise of the rights concerned and that no entitlement to money therefore arises. It seems to me that one of the questions which the court needs to address is as to whether it has been demonstrated that it is not reasonable, in all the circumstances of the case, to require the beneficiary to be satisfied with the enjoyment of the rights to which she is entitled, enforced, if necessary, by appropriate injunction.
In most cases the practical enjoyment of a right of residence and a right of maintenance and support will require the owner of those rights to be involved in, at least to some extent, a quasi family situation. To require such a situation to continue in circumstances where there has been a sufficient degree of breakdown in the relationship between the parties so as to render it unreasonable to require the parties concerned to live in those circumstances must lead the court to a situation where it has to consider alternative remedies.
A further question which the court needs to consider is as to the extent to which it may be possible to apportion responsibility for the situation which has led to it being unreasonable to require the continuance of the arrangements in practice. Clearly a case where that responsibility rested wholly or substantially on the beneficiary of the right would give rise to a situation in which the owner of the property could not reasonably be expected to allow for the continuance of the exercise of the right. However in those circumstances it may well be that the beneficiary would have placed him or herself in a position where they might be said to have forfeited any entitlement either to the actual exercise of the rights to have a payment in money to the value of the rights. On the other hand where the reasons whereby it had become unreasonable to expect the continuance of the exercise of the rights stemmed wholly or substantially from the actions of the owner of the property there can be little doubt that it would be an appropriate to consider the exercise of the court’s jurisdiction to award to the beneficiary of the rights a sum measured as the value of the rights in lieu of their continued exercise together with an appropriate sum in damages to compensate for any loss to the date of hearing.
The difficulty arises in cases where it may not be possible to establish that either party is wholly or substantially at fault. That raises the question as to how far it is necessary for the beneficiary of the rights to go in establishing responsibility for the state of affairs on the part of the owner of the property in order to be able to invoke the jurisdiction of the court for the award of such money. Intermediate cases where both parties must bear some of the responsibility will, therefore, give rise to the greatest difficulty.
Having regard to the fact that the primary entitlement of the beneficiary of the right is to exercise of the right conferred upon them, it seems to me that the appropriate test must be that in addition to satisfying the court that it has become unreasonable in all the circumstances of the case to require the beneficiary to be content with the exercise of the right, it is also necessary for the beneficiary to satisfy the court that the balance of the responsibility for that situation lies upon the owner of the right. It is not, however, necessary for the beneficiary to establish that they are entirely free from responsibility.
Application to the facts of this case
Both sides gave conflicting evidence as to the circumstances which pertained in the house both before and most particularly after the death of Theo Byrne. While the plaintiff made certain minor complaints as to the situation prior to that unfortunate event it does not seem to me that any of the matters complained of could go any distance towards a meeting the test which I have identified above as being one where it is necessary to show that by virtue of circumstances which were predominately the responsibility of the owner it had become unreasonable to expect a continuance of the practical exercise of the right by the beneficiary.
That matters became considerably more fraught after the death of Theo Byrne is undoubtedly clear on either account. On the basis of all of the evidence I am satisfied that what led to a breakdown in relations between the plaintiff and the first named defendant was the dispute which emerged over the nature of the interest which the plaintiff was to be given in the site. Until that dispute arose any issues between the parties were of little significance. Thereafter relations became strained and, as is the wont in such situations, matters which might not have given rise to any great acrimony between the parties started to become major issues. The plaintiffs principal complaint is really that she was not treated, in a number of important respects, in a manner which was consistent with her having an entitlement to reside in the house rather than being there with the permission of the first named defendant. Some of the matters complained of may not have being of great importance and would not have been likely to have given rise to any serious acrimony were it not for the unhappy differences that emerged from the dispute over the site. It seems to me, therefore, that an analysis of that dispute is essential to understanding much of the acrimony that ensued.
On that issue the plaintiff’s case is simple. She was to get the site put into her name.
I have to confess that I found it considerably more difficult to understand the first named defendants case. In answer to counsel for the plaintiff in the course of cross examination she said the following at Q. 203 (day 2):-
“Of course the house would be in her name, naturally, but the site would never be in her name. Joan was getting planning permission so obviously the house was going to be in Joan’s name but the site would never be in her name.”
It should be noted that the context of the question which elicited that answer was an invitation to the first named defendant to explain why the plaintiff would be required to spend her own money on building the house if it was not to be put into her name.
I find it impossible to accept that the arrangement was as described by the first named defendant. I have taken into account that she (the first named defendant) is not someone familiar with property or business and that such matters were almost certainly exclusively dealt with by her husband. However she was involved in the making of the arrangements in relation to the site and it seems to me that her recollection as to what those arrangements could not be correct. In the circumstances, and having had the opportunity to observe both parties and consider the totality of their evidence in that regard, I have come to the view, on the balance of probabilities that the account of the plaintiff as to what those arrangements were is more likely to be correct and I therefore find as a fact that the arrangements entered into between the first named defendant and her husband on the one hand and the plaintiff on the other hand was to the effect that a site would be placed into the name of the plaintiff. While it was not specifically referred to I am satisfied that it was implicit in that agreement that, as a result, the plaintiff would no longer have to exercise her right of residence.
In the light of that finding it seems to me that much of the acrimony that followed stemmed from the legitimate concerns of the plaintiff that her sister was going back on the arrangement that had been freely entered into. While it would be wrong to absolve the plaintiff from any blame in relation to the worsening of relations and while many of the instances described in the evidence are relatively minor in themselves I have nonetheless come to the view that they need to be viewed against the background of the fact that relations had seriously deteriorated by reason of the first named defendant backing out on the agreement previously reached.
I have therefore come to the view that the situation had, within a relatively short time after the death of the late Theo Byrne and certainly by the late summer of 2000 reached a stage where it was no longer reasonable to expect the plaintiff to exercise the right of residence. For the reasons set out above I have also come to the view that while responsibility for that situation rested upon both the plaintiff and the first named defendant the preponderance of that responsibility rests on the first named defendant. I am therefore satisfied with the tests which I have identified above for establishing an entitlement to the have the rights converted into money have been met by the plaintiff.
Before leaving the liability issues under this heading I should add that I have given some consideration to the fact that s. 81 of the Registration of Title Act, 1964 relates only to rights of residence and not to rights of maintenance and support. However on the facts of this case it does not seem to me to be practical to require the exercise of a right of maintenance and support without also requiring the exercise of the right of residence. That might not always be the case. However on the facts of this case it seems to me that the same result must follow in respect of the rights of maintenance and support as apply to the right of residence.
For reasons which will be clear in the course of analysing the financial value of those rights there does not seem to me to be any basis on the facts of this case for taking the view adopted by Lavan J. in Johnson to the effect that that the conversion of the rights to money would be impractical. It seems to me, therefore, that it is necessary to assess the value of those rights and direct that the plaintiff be paid that value together with a suitable sum to compensate her for her exclusion from the enjoyment of those rights to date.
The agreement in respect of the site
The final liability issue concerns the plaintiff’s alternative claim to the effect that she is entitled to have that agreement enforced as against the first named defendant in her capacity as the personal representative of Theo Byrne the registered owner of the site in respect of which the agreement existed. While I am satisfied, for the reasons indicated above, that the arrangements between the parties did involve an agreement to transfer such a site I am not satisfied that that agreement is legally enforceable.
There is no consideration so as to give rise to a contract.
There is, in any event, no note or memorandum so as to satisfy the statute of frauds. Counsel for the plaintiff places reliance on McCarron v. McCarron (unreported Supreme Court judgment of Murphy J. 13th February, 1997). Part of the case advanced by the plaintiff in that case was based on the doctrine of proprietary estoppel. In considering that aspect of the case Murphy J. cited with approval Plimmer v. Wellington Corporation 1884 9 App Cas 699 where it was stated:-
“Where an owner of land has invited or expressly encouraged another to expend money on part of his land on the faith of an assurance or promise that that part of the land will be made over to the person so expending his money the Court of Equity will prima facie require the owner by appropriate conveyance to fulfil his obligation and when, for example, for reasons of title, no such conveyance can effectively be made, or a Court of Equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended”.
Murphy J. went on to note that he saw no reason why the doctrine should be confined to the expenditure of money or the erection of premises on the lands of another. He noted that it might well be argued that where a plaintiff suffers a severe a loss or detriment by providing his own labours or services in relation to the lands of another he might equally qualify for recognition in equity.
However the only detriment suffered here was the making of a planning application and some brief discussions with a builder. I am not satisfied that any sufficient detriment was incurred such as would require a Court of Equity in reliance on the doctrine of proprietary estoppel to require a conveyance of the lands.
The plaintiff’s relief is, therefore, confined to payment in respect of the right of residence and the right of maintenance and support.
Quantum
While expert evidence was called by both sides in respect of the valuation of the right of residence and, indeed, the evidence of the plaintiff based such valuation on two alternative approaches, by the close of the evidence the plaintiff accepted that the valuation placed upon such right of residence by the defendants’ valuer was correct. It seems to me, therefore, that there is no dispute but that the value, as of today, of the right of residence is €145,000. It should be noted in that context that the house itself is worth upwards of €340,000 while the farm (including its milk quota) appears to be worth not too far short of €1 million. There was uncontested evidence that the appropriate multiplier for a person of the plaintiff’s age and gender by reference to which the right of maintenance and support should be valued was 861 times the relevant weekly payment. The plaintiff gave evidence that she was currently sharing a house in Dublin and that her grocery and utility bills came to something between €100 and €120 per week. However it does not seem to me that in practice the weekly value of the right of maintenance comes to quite that sum. Firstly even when the plaintiff enjoyed the right of support without any hindrance or difficulty she did not exercise it at all times. Secondly some regard has to be had to the fact that a right of support and maintenance derives from the profitability of the lands out of which the right of support and maintenance is to be met. I had the uncontested evidence of the second named defendant to the effect that his earnings from the relevant farm (that is to say the farm over which the right of maintenance and support lies) permitted drawings of approximately €300 per week. In all the circumstances it seems to be appropriate to place a current value on the right of maintenance and support at €70 per week thus giving a capital value into the future of €60,270.
While the precise time at which it became unreasonable to require the plaintiff to directly exercise her rights cannot be established with absolute precision I believe it is appropriate to regard that time as having arisen in the latter part of 2000 and thus to calculate her losses to date on the basis of 225 weeks.
There was little real evidence as to the weekly value of the right of residence. While the plaintiff gave evidence that she currently had the use of two rooms with the use of a kitchen and bathroom in Dublin (being a share of a house) in respect of which she had to contribute €500 per month together with expenses, it is difficult to see that there would be any comparability between that sum and the value of a right of residence in a rural area. Doing the best I can it seems to me that I should award a sum of €15,000 for the loss of the right of residence to date. On the basis of the above period of 225 weeks and a cost of maintenance and support of €70 the loss of that right to date comes out at €15,750.
The total sum to be awarded is therefore:-
Future value of the right of residence €145,000
Future value of the right of maintenance and support €60,270
Value of right of residence to date €15,000
Value of maintenance and support to date €15,750
Total €236,020
I would therefore propose awarding the plaintiff that sum and making no order in respect of any of the other reliefs sought. The sums awarded in respect of loss of the right of residence (i.e. €160,000) are as against the first named defendant. The sums awarded in respect of loss of the right of maintenance and support (i.e. €76,020) are as against the second named defendant.
McDonagh v Denton
unreported, High Court, O’Sullivan J., April 15, 2005JUDGMENT of O’Sullivan J. delivered the 15th day of April, 2005
Introduction
By deed dated 28th August, 1981, the plaintiff purchased from the late Margaret L. Stewart a plot of ground (hereinafter “the disputed plot”) situated behind the back gardens of Nos. 57-61 Cowper Road and those of Nos. 1-6 Fortfield Gardens in Rathmines, County Dublin. The disputed plot was accessed by a laneway from Fortfield Gardens and surrounded by a circulation laneway for the use of approximately ten garages giving onto these laneways.
The late Margaret L. Stewart died on 21st July, 1984 and her cousin James Stewart was appointed her personal representative.
By deed of 5th September, 1986, James Stewart conveyed to the defendants a property which I shall refer to as Fortfield House (which lies at the corner of Cowper Road and Fortfield Gardens).
Fortfield House was conveyed by assignment of a leasehold interest comprised in an indenture of lease dated 24th March, 1934. This lease comprised not only the dwelling house known as Fortfield House but a number of ground rents from properties adjoining it, and, the disputed plot.
The deed of 28th August, 1981 to the plaintiff carved the disputed plot out of the take comprised in the 1934 lease.
The deed of assignment to the defendants was registered at 10.10 a.m. on the 10th October, 1986 in the Registry of Deeds.
The plaintiff’s deed was registered on 23rd October, 1987 in the Registry of Deeds.
In January, 2001 notices were sent by the Derelict Sites Section of Dublin Corporation to both the plaintiff and the defendants. The notices stated that there had been complaints about the disputed site saying that it was neglected, derelict, and in an unsightly condition and required the recipients to remove all rubbish, cut back and remove all overgrowth, fence and secure the site against illegal access and dumping and inform the Section of their future proposals for the site.
The notice to the plaintiff was addressed to his then previous home in Greystones, County Wicklow and he did not receive it until several months later.
Shortly after receipt of their notice, at the beginning of February, 2001, the defendants carried out substantial works at the disputed site which included removing trees, shrubs and soil, surrounding the site with a fence, and securing it with a padlocked gate.
The plaintiffs commenced these proceedings by plenary summons dated 12th December, 2001 seeking injunctions against the defendants, damages for trespass, and a declaration that the defendants are estopped by their conduct from asserting that the disputed plot is included in their deed.
Issues
Prima facie in the above circumstances by s. 5 of the Registration of Deeds Act, 1707, the plaintiff’s deed “…shall be deemed and adjudged as fraudulent and void…” as against the defendants’ prior registered deed.
The plaintiff submits, however, that s. 5 of the 1707 Act should not avail the defendants in the present case for a number of reasons, as follows:-
1. The defendants’ deed did not contain the disputed plot because it had already been conveyed to the plaintiff;
2. The defendants did not agree to buy the disputed plot;
3. The court should treat the status quo ante as being the situation immediately before the defendants moved in to secure the disputed plot in February, 2001 and on that basis conclude that the defendants would never have been granted an injunction prohibiting the plaintiff’s access to the plot if only by reason of laches;
4. The first named defendant is estopped by his conduct from asserting his prior registered deed against the plaintiff’s.
Was the disputed plot included in the conveyance to the defendants?
Mr. Dwyer S.C. for the plaintiff submits that prior registration of a subsequent deed can do no more than secure priority: specifically, it cannot enlarge the interest conveyed by the deed so as, in this case, to include in it the disputed plot which had already been conveyed to the plaintiff.
There is no question but that the late Margaret L. Stewart intended to and did convey the disputed plot to the plaintiff. That being so, her personal representative simply did not have an interest in the disputed plot to convey to the defendants. Whatever was registered by the defendants it did not include an interest in the disputed plot for this reason.
Mr. O’Donnell S.C., counsel for the defendants, submits that this argument would defeat the entire purpose of the Act of 1707.
It is clear on the evidence that the disputed plot was the subject of an unambiguous agreement between the late Margaret L. Stewart and the defendants. It is equally clear that the disputed plot was conveyed in the plaintiff’s deed of August, 1981 (there is a collateral issue in relation to the transfer of the laneway access into it which is irrelevant to this point).
So far as the conveyance to the defendants is concerned, and subject to the next point which deals with the issue of whether the defendants actually agreed and intended to purchase the disputed plot and whether the late Mr. White of Adams Auctioneers actually agreed and intended to sell it to him, it is equally clear, in my view, that the conveyance to the defendants included the disputed plot.
That being the case, it seems to me that the plaintiff’s deed is indeed captured by s. 5 of the Act of 1707 and must, as against the deed of the defendants, so far as this point goes, be deemed and adjudged as fraudulent and void.
Did the defendants agree to buy the disputed plot?
This submission is made against the background of evidence which shows a probability that the brochure advertising Fortfield House for sale by auction in 1986 referred to an area of land too small to include the area of the disputed plot and did not, it seems, make any reference to a plot separate from the immediate curtilage of Fortfield House itself; and the evidence in the case of the plaintiff’s wife and her neighbour Catriona Warfield that they attended at a pre-auction viewing where they were given a brochure but where the auctioneer’s representative made no mention of a small plot separate from the house curtilage.
Furthermore, requisitions on title and answers thereto, it is submitted, were consistent only with an intention to deal with the house and curtilage as excluding a separate plot. Replies indicating that there was no separate land were accepted on behalf of the defendants’ solicitor, Mr. D’Arcy of Finbar J. Crowley and Co. solicitors. Moreover a search against the land on behalf of the purchasing defendants failed to reveal the fact that the plaintiff had applied for and been refused planning permission to build a house on the disputed plot shortly after they acquired it in 1981. This, it is submitted, shows that the mind of the defendants’ agent was addressed only to Fortfield House and the immediate surrounds, and no separate search was made against the disputed plot. A further point made in this context is that when the plaintiff purchased the disputed plot in 1981 it became apparent to his lawyers, albeit subsequently, that the deed to the plaintiff did not include the access laneway which was held under a separate lease of 1932. This matter was cleared up and a separate conveyance provided. It is submitted that had the defendants truly intended to purchase the disputed plot their lawyers would, in turn, have discovered this defect and had it rectified. They did not do so because, the plaintiff argues, no one concerned with the later transaction was in fact intending to deal with the disputed plot.
In response, the first named defendant has given evidence that he did not attend the auction or indeed know about it at the time at all. He first sighted Fortfield House when he was passing it and noticed a sign advertising it for sale. He went immediately to the late Ben White of Adams Auctioneers and was shown over the house, the relatively small garden and was taken around via Fortfield Gardens and the laneway into the disputed plot. He said the late Mr. White was interested in architecture and discussed architectural aspects of the property with him and, in particular, how the site was squared off, and how it included the disputed plot and also a number of garages on the eastern side. Mr. White made no reference to a prior sale of the disputed plot. Mr. Denton said that the same day he went to Mr. White’s office and paid a deposit. Some six weeks later he attended at the office of his solicitor, Mr. D’Arcy, who explained to him about the leasehold interest that he was buying by reference to the original map attached to the 1934 lease. This map did not show a dividing line between Fortfield House and the disputed plot, indicated only building lines (which were different to the actual boundaries of the houses actually built), and showed the area including the area of the disputed plot as a yellow square all contained within a red line bounding the take under that lease. The balance of the take was coloured green.
Evidence was given by Karl Hayes of Messrs. Gore & Grimes solicitors who was the individual partner in that firm who acted in the transaction conveying Fortfield House to the defendants. Mr. Hayes was not aware of the prior sale of the disputed plot to the plaintiff. This had been carried out by his partner, Louis Healy of the same firm who at the time dealt with Mr. O’Brien-Kenney acting for the plaintiff as purchasers.
Karl Hayes’ evidence was unambiguous; his understanding and intention was that the conveyance to the defendants included the disputed plot. He was dealing with Mr. D’Arcy of Finbar J. Crowley solicitors acting for the defendants as purchasers and his view was that it was also Mr. D’Arcy’s intention and understanding that he was purchasing an interest which included the disputed plot on behalf of the defendants. Neither of them had any inkling of a previous transaction affecting the disputed plot. A draft deed which he offered to Mr. D’Arcy included the disputed plot. He never actually saw the property himself. He attended the closing which was a “three-way closing” in that he was present for the vendor, Mr. D’Arcy was present for the purchaser, and Mr. David Anderson (as he then was) of Messrs. Gerard Scallan and O’Brien solicitors was present on behalf of Hill Samuel who were providing money to the defendants for the purchase of the property and who in fact registered the defendants’ deed on 10th October of the same year.
Gerard D’Arcy, legal executive now retired, also gave evidence that at the time he was working with Messrs. Finbar J. Crowley solicitors, who were acting on behalf of the defendants, and that he was the individual who looked after the defendants’ business. It was his understanding and intention, also, that the conveyance to the defendants included the disputed plot. He was not aware that it was a separate plot from the curtilage of Fortfield House and the reference to the map in the 1934 lease would not have alerted him to this fact. He was not aware of the deed of 1981 conveying the plot to the plaintiff. Nothing alerted him to the separate existence of the disputed plot and this explains why he was satisfied with replies to requisitions which did not alert him to a parcel of land that was separate from and independent of Fortfield House and its curtilage, and why no search was made against such an independent plot which would have revealed a prior planning application by the plaintiff. When he showed Mr. Denton the 1934 leasehold map and asked him if the house and plot shown thereon were included, Mr. Denton said they were.
My conclusion on this aspect of the case is that the defendants did indeed intend to purchase the disputed plot as part of Fortfield House, that this was the understanding reached between the late Mr. White of Adams Auctioneers and Mr. Denton and that this understanding was conveyed by these principals to their respective lawyers who also had a clear understanding to the same effect.
At the end of the plaintiff’s case, Mr. O’Donnell S.C. asked me to non-suit the plaintiff. I refused and in giving my ruling indicated that the plaintiff had made out a prima facie case that the defendants had not intended to purchase the disputed plot. That prima facie case, was established, in my view, by reference to the apparent non-inclusion of the disputed plot in the brochure, some aspects of the replies to requisitions and the result of the searches, and the evidence of the plaintiff’s wife and Catriona Warfield.
That was a prima facie case only, however, and in my opinion the evidence summarised above clearly establishes that the intentions of the defendants and the relevant lawyers was that the disputed plot was included in the sale to them.
The defendants query their title
Before moving on to consider the next of the four issues dealing with the status quo, I wish at this point to deal with a letter written on behalf of the defendants to Messrs. Gore & Grimes on 19th November, 1986. I turn to it specifically because it was relied on in the submissions made at the conclusion of the plaintiff’s case to suggest that the defendants must be treated as having had notice of the plaintiff’s deed of 1981 at the time that they contracted to purchase the disputed plot and at the time that their deed was registered, namely on 10th August, 1986 and accordingly that they cannot rely on the prior registration of their deed.
The letter was written on 19th November, 1986 by Gerard D’Arcy on behalf of Finbarr J. Crowley and Co. to Messrs. Gore and Grimes. It refers to the sale of Fortfield House by James Stewart on behalf of Margaret Stewart, deceased, to Kenneth and Ann Denton and reads as follows:
“Dear Sirs,
With further reference to the above we are requested by our client to seek clarification from you with regard to the inclusion or otherwise of the plot of ground at the rear of Fortfield House.
Apparently there is a small field at the rear of Fortfield House and although our clients understood that this plot was included in the sale to them, they are now not quite sure.
As you are aware the Title Documents to the property are with Gerard Scallan and O’Brien and before putting our clients to the expense of taking same up on accountable receipt we would be obliged for any information you can give us.”
The background to that letter was provided by Mr. Denton as follows. He said that shortly after he moved into Fortfield House, his next door neighbour, one Richard Evans, came round to welcome him to the area. Mr. Denton jokingly referred to the fact that he was Mr. Evans’ landlord and then Mr. Evans made reference to the fact that he had heard a rumour that the plot at the rear had been sold beforehand.
Mr. Denton said that he immediately contacted Mr. D’Arcy because he thought that his title should be checked. Mr. D’Arcy in turn said that it was his practice within a day or two to act on these instructions and accordingly it is likely that the conversation between Richard Evans and Kenneth Denton occurred within a day or two prior to 19th November, 1986, the date of Mr. D’Arcy’s letter.
The importance of these dates is that they exclude the possibility that Kenneth Denton became aware before the middle of November of any suspicion or question relating to his title to the disputed plot. This in turn rules out the suggestion made by the plaintiff that the Dentons were so aware and therefore must be fixed with knowledge of the plaintiff’s conveyance at a time when they agreed to purchase Fortfield House or indeed at a time when their deed was registered, namely on 10th October, 1986.
In light of the evidence which I have summarised in the immediate foregoing, it is clear that there is no evidence to show that either of the defendants were aware of the plaintiff’s prior purchase in circumstances which would have put them under an obligation to inform themselves further. Their deed was well registered before there was any suggestion made to Kenneth Denton suggesting a prior purchase of the disputed plot.
Mr. D’Arcy’s letter of 19th November, 1986 was ultimately replied to in a letter from Karl Hayes of Messrs. Gore & Grimes, dated 14th July, 1987, and reads as follows:
“Further to your letter of 19th November, 1986, concerning a Plot of Ground at the rear of Fortfield House, we are now in a position to confirm to you that this Plot is not included in the property purchased by your client. It was sold by Mrs. Stewart during her lifetime, in 1979, to a Mr. Patrick McDonagh.”
At this point in my judgment I am dealing only with the suggestion made by the plaintiff that the defendants had notice of the plaintiff’s prior purchase of the disputed plot. This reply and the defendants’ response to it will fall to be considered at a later point when I am dealing with the issue of estoppel.
So far as I am now concerned, however, my view is that neither of the defendants had anything approaching notice of the plaintiff’s prior purchase of the disputed plot before their own deed was registered on 10th October, 1986.
The status quo ante
In these proceedings the plaintiff seeks an injunction requiring the defendants to leave the disputed plot and restore it to its undisturbed condition (so far as possible).
The defendants have been in possession of the disputed plot since February, 2001. Their action at that time was taken in response to the notice sent to them by the Derelict Sites Section of Dublin Corporation. Mr. Denton, in response to a question as to what he would have done had the notice to the plaintiff been actually received by the plaintiff at that time, said that he would have taken legal advice. I have no doubt but that so would the plaintiff. I intend to treat this aspect of the case upon the basis that they would have received competent and proper advice which, in my opinion, would have included some temporary arrangement whereby the corporation would have been satisfied pending clarification of the conflicting legal claims of the parties. In this way the court would have come to deal with the issues now before it in these proceedings.
I agree with the submission of the plaintiff in this matter in relation to the status quo and take the reply indicated above of Mr. Kenneth Denton to show that he too would have approached the problem raised by the corporation’s notice in a manner intended to get to the bottom of the legal conundrum facing the parties rather than to exercise a “might is right” policy. In the circumstances, however, I do not think that the action taken in February, 2001 in clearing the site and making it secure can fairly be described as a policy of “might is right” without further qualification. This qualification includes the fact that the defendants were not aware at the time that such a notice had been served by the corporation on the plaintiff (the plaintiff himself was not so aware for a considerable time); they were under threat that the corporation had compulsory acquisition powers unless there was an appropriate response and they had been made aware that there were complaints about the state of the disputed plot, which Mr. Denton in evidence accepted, saying that he was not surprised by the notice as the site had become very overgrown.
Injunction?
I now turn to consider, briefly, the evidence from both sides in relation to what they did or did not do in regard to their claimed ownership of the disputed plot over the period since each claimed to have acquired it.
Plaintiff’s evidence
The plaintiff himself said that initially he agreed to purchase the disputed plot subject to planning permission. He applied for planning permission for a house and when he was refused he decided to purchase it anyway. He decided to maintain the plot bearing in mind the interests of their neighbours. Mr. Louis Healy of Messrs. Gore & Grimes solicitors who had acted for the late Margaret L. Stewart in conveying the disputed plot to the plaintiff said that part of her reason for selling it was it had become semi-derelict and she could not afford to keep it maintained. That was a description of the disputed plot in 1979; this description was the subject of strong disagreement from Mr. Thomas Cosgrove who lived at all relevant times at No. 61 Cowper Road, which is beside Fortfield House, and whilst he would have agreed that the site was overgrown, he would not have agreed at all that it was semi-derelict. On the contrary, it was a popular green area containing shrubs, trees and birds and in his view, there never was a problem about dumping. A photograph was produced in court taken from the air in 1986 which shows a considerable amount of overgrown hedging and bushes and so on surrounding the disputed plot and Mr. Denton’s evidence at one point was that one could have concealed a small herd of elephants in it.
Mr. McDonagh said that he visited the plot on average once every two months over the period but acknowledged that there would have been longer periods in between and it emerged that the plaintiff and his wife were living in Germany between 1989 and 1991 albeit that Mr. McDonagh returned for business purposes frequently during that period. Mr. McDonagh instanced a handful of occasions when he dealt with third parties who were attempting to exercise rights over the disputed plot. In 1981, a Mr. O’Connell was growing vegetables on it and Mr. McDonagh came to an agreement that Mr. O’Connell would leave after he had harvested his crops. Subsequently, in 1998, a Mr. Kelly was using the disputed plot for building materials and once again Mr. McDonagh exercised his claims to ownership so as to have Mr. Kelly bring an end to this activity. A third incident involved Judge Connellan who was carrying out work adjoining the laneway system and Mr. McDonagh considered that this work might be intruding on his legal interests. This matter was sorted out between them by Mr. O’Brien-Kenney who at the time was Mr. McDonagh’s solicitor.
Apart from the foregoing specific instances, Mr. McDonagh gave evidence of visiting the site regularly, responding to complaints about dumping and rubbish, and on one occasion arranging for the removal of a skip from the laneway adjoining the disputed plot. He also gave evidence that he was aware that “things got done” by the immediate neighbours and he mentioned in this context, a Mr. Hurley as being particularly “proactive”.
Mr. McDonagh and his wife, Angeline McDonagh, gave evidence that they used one of the garages adjoining the laneway for storing household goods and, in particular, bicycles that their children had outgrown. The area was particularly known to Angeline McDonagh because her parents had lived in No. 57 Cowper Road. Her father died in 1984 and her mother had been in a nursing home for four years before she died in 1992 but the house was kept until that year as it had been divided with some people still living upstairs. One of their children continued to live in the house in Cowper Road while the plaintiff and his wife lived in Germany between 1989 and 1991. She visited the site occasionally; she had no idea how often but because they owned it they always took an interest in the site. Nobody ever said to her that there was a problem about the condition of the inside of the disputed plot but only with dumping on the laneway outside. When there was dumping there, she and her husband arranged to have it cleared away.
Mr. McDonagh acknowledged that during the past few years he has been retired and he has been out of Dublin more than in previous years and that his involvement with the disputed plot has become somewhat less. He did say, however, that he had put notices up at the disputed plot saying “private property – no trespassing” and “no dumping”. The latter was because there was a problem about dumping which he had himself, on occasion, to sort out.
He also insisted that there was a fence surrounding the disputed plot at all times since he acquired it in 1981 notwithstanding that the hedges may have become somewhat overgrown.
Defendant’s evidence
Mr. Denton said that when he inspected the disputed plot with the late Mr. White there was no sign of any fence and certainly there were no signs. He said the hedge was very overgrown. In response to this specific point, Mr. McDonagh insisted that there was a fence but acknowledged that he could not say with certainty in relation to 1986 whether or not there were signs there.
Mr. Denton said that he visited the plot frequently often with his children, occasionally with his wife and sometimes without her. The dumping was not an acute problem but there were empty cider cans and drinking bottles which he would clear up and dispose of. On one occasion there was a skip there and he arranged for its removal by contacting the company – named Access Waste – whose telephone number was on the side of the skip. He said that between 1986 and 1996 he did not carry out any work and he did not know the plaintiff during this period. In fact neither the plaintiff nor the first defendant knew each other until the court proceedings. Mr. Denton said that occasionally neighbours would cut branches which were obstructing the laneway especially in the north west and north east corners. They often added their own waste to waste for collection.
The foregoing is a summary of the evidence in relation to the physical acts of ownership done by the parties.
Laches, acquiescence and injunction
Mr. Dwyer S.C. submitted, on behalf of the plaintiff, that once it was accepted by the court that the status quo ante is the situation as it existed immediately before the defendants took over the site in February, 2001 it becomes apparent that no court would have granted the defendant an injunction permanently to remove the plaintiff from the site, if only by reason of laches.
This submission was not elaborated to any extent nor was it responded to by Mr. O’Donnell S.C. in any great detail.
I will therefore consider the submission on the basis of first principles and in the light of the findings reached in the immediately preceding portion of this judgment.
Whilst it may be remarkable, the evidence is that neither the plaintiff nor the defendants knew each other or of each other until they appeared in court. Mr. Denton accepted that he did no work at the site in the ten years from 1986 to 1996; Mr. McDonagh did some work but it is clear that the site was permitted to continue in such an overgrown state that it attracted the attentions of the Derelict Sites Section of Dublin Corporation. Clearly any amount of work done at the site was minimal. My impression is that perhaps more work was done on the laneway immediately surrounding the site than inside it although some work of the latter description by way of clearing dumped rubbish seems also to have occurred. Mr. McDonagh gave evidence that persons contacted him through his solicitor although he does not know how they were aware of his relationship with the site. He arranged to have notices put up but they did not disclose his identity or any contact information.
In these circumstances it is possible, no matter how surprising, that the parties did not in fact come to know each other or of each others existence until they met in court. Accordingly I propose to deal with the submission that no court would have granted the defendants a permanent injunction removing the plaintiff from the site given the situation and history as it existed in, say, January, 2001 upon the basis that the parties did not know each other or of each others existence.
In those circumstances it seems to me quite unlikely that a court would have refused the defendants an injunction merely on the grounds of laches, let alone acquiescence. If laches is a defence to an application for a permanent injunction at all in Irish Law (and there is doubt about this: see discussion in “Equity and the Law of Trusts in the Republic of Ireland” by Mr. Justice Ronan Keane (as he then was) at paras. 3.11 and 15.09), it seems that it will apply only if it can be shown that the applicant (in this case the defendants) for the injunction knew of the circumstances giving rise to his claim for an injunction against the respondent (in this case the plaintiff) for a considerable period before applying for relief, such that it would be inequitable to grant it.
The evidence would have shown that by letter of 14th July, 1987 Mr. Karl Hayes of Messrs. Gore & Grimes had confirmed that the disputed plot had been purchased by a Mr. Patrick McDonagh. This would not have established, however, that the defendants knew of Mr. Patrick McDonagh’s activities in relation to the site any more than Mr. Patrick McDonagh knew of the defendants’, albeit the latter were limited effectively to arranging the removal of a skip and frequent visits. The evidence would also have shown that the defendants’ deed was registered prior to the registration of the plaintiff’s deed.
In these circumstances I very much doubt that a court would have been satisfied to determine the issue conclusively between the parties on the basis of the defendants’ alleged laches, let alone acquiescence. The court would also have learned of the correspondence between the solicitors acting for the parties in 1996 and in my view would have moved to consider that aspect of the case rather than simply dismiss the defendants’ prior registered claim out of hand, so to speak, on the grounds of the defendants’ laches. In the circumstances I too am not prepared to deal with this case on such a narrow basis and I intend, accordingly, to proceed to consider the correspondence which passed between the solicitors acting for the parties both in the years 1986/7 and in 1996 in the context of the submissions concerning estoppel by representation.
Estoppel by representation
I now turn to deal with issues arising out of correspondence, in the first instance, between the defendants’ solicitor and the solicitor for the vendor to him and, in the second instance, between the plaintiff’s solicitors and the defendants’ solicitors.
The first piece of correspondence comprises Mr. D’Arcy’s letter to Messrs. Gore & Grimes of 19th November, 1986 and the reply from Karl Hayes of the latter firm dated 14th July, 1987, already quoted above.
The first named defendant did not become aware of any suggestion that a third party had bought the disputed plot until his conversation with his neighbour, Richard Evans, which conversation occurred a few days at most before Gerard D’Arcy’s letter of 19th November, 1986.
I turn now to consider this correspondence in the broader context of the plaintiff’s submission that the first named defendant is estopped by his conduct from relying on his prior registered deed as against the plaintiffs.
The first named defendant’s evidence was that the disputed plot was very important to him and that his price of £76,000 was calculated by reference not only to Fortfield House itself but also the disputed plot. There was no ambiguity about his agreement with the late Mr. White of Adams Auctioneers to the effect that the disputed plot was included and he only became aware of the possibility of a prior purchase and the need to have his title checked out days before Mr. D’Arcy’s letter of 19th November, 1986.
Mr. D’Arcy in evidence said that he did not specifically remember his instructions from the defendants which gave rise to his letter of 19th November, 1986 but accepted that he would not have written it in the way he had (where he refers to seeking clarification and his clients’ understanding that the plot had been included in the sale to them but that they were now not quite sure) if those instructions had expressed a high degree of concern or anxiety on the part of Mr. Denton. He said that he first became aware that the disputed plot was separate from Fortfield House and its curtilage at the time he wrote this letter in November, 1986. He also said that if Mr. Denton had been very concerned at the time he probably would have remembered it. He said that Mr. Denton did not get onto him again after the letter until it was eventually replied to on 14th July, 1987 and indeed this tallies with Mr. Denton’s own evidence to like effect.
Mr. D’Arcy said that when he received the reply of 14th July, 1987, to the effect that the disputed plot was not included in Mr. Denton’s purchase because it was sold by Mrs. Stewart during her lifetime in 1979 to a Mr. Patrick McDonagh, he simply forwarded a copy of that letter to Mr. Denton without taking any further step. He did not furnish advices to Mr. Denton and he did not hear from Mr. Denton subsequently. Sometime later he left Messrs. Finbar J. Crowley & Co. and had no further dealings with Mr. Denton.
Mr. Denton was asked why he did not respond in anyway to the letter indicating that he did not have title to the disputed plot and he said that he was under pressure from his business which was troublesome at the time and he had a lot of things happening which were much more pressing. He had young children to take to and from school and he was concerned with their sporting activities. He said he did not take it from this letter that Mr. McDonagh owned the plot. He was confused; he owned it and how could Mr. McDonagh own it. His troublesome business required a huge amount of attention at the time.
In fact, shortly after this, Mr. Denton gave up his business which was a printing business, in favour of dealing in property. In this latter context he attended lectures given by the institute of auctioneers and in particular he recalls lectures by Mr. Paul Goode which would have included some appreciation of the effect of the Registration of Deeds Act, 1707. Mr. Denton thinks that he would have become aware, initially, of this Act in 1996 or 1997.
In 1986, ten years earlier, he would not have had an appreciation of the effect of registering his deed and in fact did not become aware that the deed had been registered in October, 1986 until much later. Nor was Mr. D’Arcy made aware of it: the deed was registered by the solicitors acting for the company, Messrs. Hill Samuel, who advanced money to the defendants to buy Fortfield House.
This absence of factual and legal awareness on the part of the defendants may, indeed, explain the relatively casual instructions lying behind Mr. D’Arcy’s letter of 19th November, 1986. Even granted that the acquisition of the disputed plot was very important to Mr. Denton, he was, at the time, dealing with what his neighbour Richard Evans described as a rumour that it had been sold before he bought it and this was confusing to Mr. Denton and he required an explanation. He had legal professionals acting for him and this might well explain the relatively casual instructions and the relatively casual attitude to the long delay before a reply was given.
What is more difficult to understand, however, is the complete failure of Mr. Denton to react to the unambiguous reply from Messrs. Gore & Grimes in their letter of 14th July, 1987. He says he was under pressure at work and busy with his family. It seems to be the case that his printing business was causing problems and he was becoming interested in property in South Africa, where he had visited first in 1992 and subsequently in 1998 when he bought a house there. Also he has become interested in investment property since around that time.
Despite taking all these considerations into account, I have to say I find it quite difficult to understand why a person, to whom the acquisition of the disputed plot was very important and who had received an unambiguous assertion from the solicitors who sold it to him that the sale did not include the plot because it had been sold in 1979 (later corrected to 1981) to a Mr. Patrick McDonagh, did not lift the phone to his legal advisors and start asking questions. The initial rumour communicated to him by his neighbour was sufficient in his mind to make an inquiry about his title. One can understand that he may not at that stage have experienced any great degree of anxiety. What I do not understand, however, is why this relatively relaxed attitude, if such it was, was not completely upended on receipt of the letter of 14th July, 1987 from Messrs. Gore and Grimes. If a rumour from the mouth of a neighbour merited investigation in November, 1986, a categorical confirmation from the vendor’s solicitors in July, 1987 merited a much more concerned reaction rather than simply no response at all.
Whilst I accept that Mr. Denton may have been under considerable pressure from his business and as a parent, which may well have included financial pressure, I simply cannot understand how he can have been too busy and too preoccupied to raise the issue as a matter of priority with his legal advisors.
I note also, in this context, however, that none of this information would at the time have been communicated to the plaintiff or his lawyers, so that there is no question that the defendants by their silence, inactivity or apparent acceptance (if that is what it was) in July of 1987 amounted to a representation to the plaintiff for the purposes of the doctrine of estoppel. The plaintiff at the time simply knew nothing about all of this correspondence.
The later correspondence
It was different ten years later when Mr. Brian O’Brien-Kenney wrote a letter on behalf of the plaintiff to Mr. Douglas Heather of Lennon Heather & Co., solicitors then acting for the defendants. This letter confirmed an earlier telephone conversation. The correspondence which followed is important and therefore I will quote it. The letter of 3rd October, 1996 after giving the references reads as follows:
“I refer to your telephone conversation this morning and would be grateful if you could let me have, as soon as possible please, a Certified Copy of the Deed of Assignment dated 5th September, 1986, James Stewart (as legal personal representative of Margaret Louise Stewart) to Kenneth Denton and Ann Denton; in particular please make sure that the map attached to the deed is fully completed, including colouring.
He then confirms that he will discharge scrivenery fees.”
On the same date Douglas Heather wrote to the first defendant seeking instructions as follows:
“Brian Kenny, solicitor for Pat McDonagh contacted me in connection with (Fortfield House). He wants to obtain a copy of the Assignment whereby yourself and Ann purchased Fortfield House from the Stewarts in 1986. Apparently, his client Pat McDonagh purchased a plot of ground from the Stewarts prior to 1986 and, as the Deed was lost for some years, it was not registered until 1987. He is anxious to clarify that the lands sold to you by the Stewarts did not include the lands which his client had purchased back in 1980/81. If you are agreeable to me dealing with his query, I will need to get the original title documents to Fortfield House. I think initially it is best if you contact me and let me know what your views are in relation to this matter. I am sure that you are fully aware of Mr. McDonagh and I do not know whether you wish to assist him or not.”
This letter was produced in court and Mr. Denton referred to a manuscript note on his copy which reads as follows:
“7.10.96 Spoke to Sandra Kerns – asked if title could be checked.”
Mr. Denton said that this reflected his response which was to have his own title checked. Just over a week later Mr. Brian O’Brien-Kenney wrote direct to Mr. Louis Healy of Messrs. Gore & Grimes on the same subject matter. His letter said:
“I refer to our telephone conversation last Wednesday morning and note that you will kindly let me have a Certificate from your Firm to the effect that the premises comprised in the Deed of Assignment dated 5th September, 1986 between James Stewart, as legal personal representative of Margaret Louise Stewart deceased, and Kenneth Denton and Ann Denton did not include any portion of the property comprised in the Deed of Assignment dated 28th August, 1981, Margaret L. Stewart to Patrick McDonagh.
I note that you will also let me have copies of the letter from Finbar Crowley, solicitor, and your reply dated 14th July, 1987 in relation to the said matter. If you could forward me the foregoing as soon as possible I would be much obliged.”
On 17th October, 1996 Mr. Louis Healy replied to Mr. O’Brien-Kenney’s letter of 11th October as follows:
“With reference to the above matter, we hereby confirm that the property comprised in the Deed of Assignment dated the 5th day of September, 1986, between James Stewart as legal personal representative of Margaret Louise Stewart deceased and Kenneth Denton and Ann Denton did not include any portion of the property comprised in the Deed of Assignment dated 28th August, 1981, between Margaret Louise Stewart and Patrick McDonagh.
As requested, we enclose herewith, for your attention, copy letter from Messrs. Crowley Miller & Co., solicitors, raising the initial query, dated 19th November, 1986, and our reply thereto dated 14th July, 1987. You will note in our reply, that we erroneously referred to the Deed of Assignment to Mr. McDonagh as being effected in 1979.”
With that letter, presumably, were enclosed the letter from Gerard D’Arcy of Finbar J. Crowley & Co. to Gore & Grimes of 19th November, 1986 and a copy of the reply from Karl Hayes of Gore & Grimes dated 14th July, 1987.
Following this Brian O’Brien-Kenney wrote to Douglas Heather again on 21st October, 1996 saying that he no longer needed the Deed of 5th September, 1986;
“…as I have now received from Gore & Grimes, solicitors, an appropriate Certificate which confirms the information which I had been seeking viz. that no part of the property which my client had previously purchased from Ms. Stewart, during her lifetime, was included in the sale by her legal personal representative to your client.”
Finally there was a last letter from Brian O’Brien-Kenney to Douglas Heather dated 11th November, 1996 repeating his first request from 3rd October, 1996 with emphasis on the map fully and correctly coloured in and confirming a discharge of the scrivenery fee.
I now turn to consider what was said in evidence by Mr. Heather and by Mr. O’Brien-Kenney and their respective clients about this correspondence.
Defendants’ solicitor’s evidence
Douglas Heather said he wrote to Kenneth Denton (I have already quoted this letter) and they had a conversation and in which he told Kenneth Denton that he had looked at the request and at his lease and asked him was the plot part of the demised area. He said that Mr. Denton said it was and that he advised that in those circumstances Mr. Denton had bought all of the lease. When asked for his advice, he said that he thought Mr. O’Brien-Kenney’s approach was peculiar where he had not been given a copy of the deed under which Mr. McDonagh claimed title nor had he been given a copy of the Certificate from Messrs. Gore & Grimes. He advised Mr. Denton that from the documents in front of him Mr. Denton owned the plot of ground and he had no evidence that anyone else had title. He said he did not do a search in the Registry of Deeds and that it would not have benefited him because there are no maps in the Registry of Deeds. He had no recollection of being told by Mr. Denton of the letter from Messrs. Gore & Grimes of July, 1987. He did not think if he had, his advice would have changed, because he had a deed in front of him. If a portion of Mr. McDonagh’s deed had been assigned and registered ahead of Mr. Denton’s, he said that would mean the 1981 deed took precedence and that Mr. Denton would have an issue with the vendor of the land to him. He confirmed that his advice was given in ignorance of the existence of the letter of July, 1987. At the conclusion of his evidence he said to me that he assured Mr. Denton that he had purchased the property. He had no countermanding evidence, no document of a legal import, for example, a title document, to suggest otherwise and he thought that Mr. O’Brien-Kenney was “flying a kite” to use a term in his letter. It also transpired that he was not familiar with the letter of 14th July, 1987 from Messrs. Gore & Grimes and when he read it and considered it he indicated that it would be inappropriate for him to try and recount how he would have advised his client nine years before in light of the letter.
Plaintiff’s solicitor’s evidence
Mr. O’Brien-Kenney gave evidence in relation to this correspondence.
In the first place he pointed out that his letter asserted specifically that the site was not included in the sale to Mr. and Mrs. Denton and said he had put that information in the letter for a very good and specific reason, namely, that if Mr. Heather had any idea or suggestion that that was untrue that he must inevitably come back to him straight away with an objection. He described his letter as an invitation to a competent and experienced solicitor to indicate to him if he had any idea that he was making an incorrect statement in his letter. He said that, as an experienced conveyancing solicitor himself, if he received such a letter, he would be aghast if he thought that his client was the owner of the property in question; he would immediately send a copy to his client and ask him what they were going to do about it.
Later, however, he acknowledged that his letter was merely a request for a certified copy of a deed and not a request for anything else. He said that if there was no reply to his letter (asserting his client’s title) that this non-response would be persuasive evidence for a purchaser’s solicitor in regard to Mr. McDonagh’s title. He accepted that a solicitor taking his clients instructions in these circumstances would be perfectly within his rights to ignore the letter and not to respond if his client had received advice that he held title to the property.
He was then asked why he again sought the deed from Messrs. Lennon Heather on 11th November, 1996 and said that he already had a copy of the memorial of that deed and that, notwithstanding his earlier letter saying he did not need the deed he felt it would be beneficial to have a copy of the deed because a purchaser’s solicitor might well prefer to have a copy of the actual deed rather than merely a copy of the memorial of the deed. The purchaser’s solicitor would have the letter (described by Mr. O’Brien-Kenney as a Certificate) from Messrs. Gore & Grimes saying the property was not included in the take plus the correspondence of 1986 and 1987 which he was advised was of tremendous relevance and he said that that, combined with the documents and letter to Messrs. Lennon and Heather, was, he was advised, very persuasive for a purchaser’s solicitor.
When he was asked why, having cancelled his first request following the letter from Messrs. Gore & Grimes he reiterated it, he said:
“Because I felt that if a copy was forthcoming, it would be beneficial in terms of providing it to a prospective purchaser’s solicitor, in addition to the copy memorial of that deed, but when I got no further reply to that letter either, I said to myself, well, I have to work with what I have got.”
Later he said:
“It was not necessary to follow it through because the memorial of the Deed of Assignment to Mr. and Mrs. Denton contained, if you like, the critical words. I was only looking for a copy of the deed as a supplementary piece of evidence, but it was not crucial, and the solicitor acting for the prospective purchaser indicated to me that he was not concerned about the absence of a copy of the deed. That he was satisfied that a copy of the memorial of the deed of assignment to Mr. and Mrs. Denton was in itself perfectly adequate evidence.”
He also, later, said that sending his letter to Douglas Heather, explaining that Messrs. Gore & Grimes had told him that the plot was not included in the sale to Mr. and Mrs. Denton, was in itself a very risky move because it was clearly inviting Mr. and Mrs. Denton to contradict immediately, “…which is what I would do if I were in their shoes.” He acknowledged, however, that they were perfectly entitled to do what they did which was to ignore the assertion made in his letter. He further acknowledged that they never admitted to him through their solicitors or otherwise that Mr. McDonagh had title to this property. He also accepted that he never communicated to Mr. Denton or his solicitor the claim of title which Mr. McDonagh had over the property until November of 1996.
Plaintiff’s evidence
The plaintiff said that in the latter half of the 1990’s it became clear that people were interested in purchasing the disputed plot and he got his solicitors to check out the title and only then became aware that another title had been registered ahead of his. He himself gave no thought to the registration of his deed and he did not communicate with his solicitor regarding his title until 1996 nor did he do so with Messrs. Gore & Grimes and never with Messrs. Lennon Heather until 1996. He did not instruct his solicitors to communicate with the defendants or their solicitors prior to that time. He acknowledged that Messrs. Gore & Grimes communicated his claim to title to the defendants’ solicitors in July of 1987.
He was not asked about how did he give any account of the advices he may or may not have received from Brian O’Brien-Kenney in relation to the correspondence between his solicitor and Mr. Heather in November, 1996.
Defendant’s evidence
In relation to this correspondence, Mr. Denton said that he had previously instructed his solicitors to take up his title deeds when Messrs. Hill Samuel had decided to cease doing business in this country and a replacement loan was procured from the Bank of Scotland. When Mr. Heather wrote to him, he spoke to Sandra Kearns. He thought the disputed plot was part of his property but he felt the title should be checked. Mr. Heather confirmed that it was part of his property and that he had no need to be concerned and this reassured him. He did not want to engage in the expense of proving his title and his instructions were not to respond further to Mr. O’Brien-Kenney’s request. He accepted that Douglas Heather’s letter to him of 3rd October, 1996 called to mind the previous letter of July, 1987 from Messrs. Gore & Grimes when he was told he had not purchased the disputed plot. He felt anxiety when he got the letter and that he needed clarification and so he asked Sandra Kearns to have his title checked. The result was that Douglas Heather assured him that the plot formed part of his ownership. He did not know whether he told Mr. Heather of the July, 1987 letter. He had kept a copy of it. On getting Douglas Heather’s advice, he saw no need to incur further fees. It was put to him that Mr. McDonagh was entitled to assume that he was not challenging his title when Mr. O’Brien-Kenney’s assertion of it to his solicitor evoked no response. He said he was a layman not a legal professional and that he had bought the plot and house and understood clearly that he owned the plot despite the letter from Messrs. Gore & Grimes in July, 1987. He was satisfied on the advice of Douglas Heather that he owned the plot and that there was no need to respond to Mr. O’Brien-Kenney’s correspondence.
He said he had kept the letter of 14th July, 1987 from Messrs. Gore & Grimes but was not sure whether he had told Douglas Heather about it at the time of Mr. O’Brien-Kenney’s letter of November, 1996. Douglas Heather, had no recollection of hearing about that earlier letter and accepted that his advices were given without knowledge of it. The probability, in my opinion, is that Mr. Denton did not disclose the earlier letter of which he had kept a copy to Mr. Heather because the latter would surely have recalled and probably retained that copy had this happened. Mr. Denton simply was not sure on this point, which I find difficult to understand, given that he had kept a copy of the earlier letter and said at an earlier point in his evidence that he had an open relationship with his solicitor. My view of the evidence is that, for whatever reason, Mr. Denton did not furnish a copy of the earlier letter to Mr. Heather in 1996 or tell him about it. Accordingly the advices given to him by Mr. Heather were given in light of the most recent correspondence of 1996 only and without the benefit of the information contained in the earlier correspondence.
The respective positions of the parties’ solicitors
This has significance for a number of reasons. Mr. Heather in evidence said that he thought that Mr. O’Brien-Kenney was “flying a kite” in his November, 1996 correspondence. That reaction is not difficult to understand when one remembers that the correspondence came to him out of the blue – that is, not in any particular context. Specifically it was not in the context of a discussion about a plot at the rear of Fortfield House – it merely sought a copy of the relevant deed of assignment with particular attention to be paid to the map. The next thing Mr. Heather knew was that the request was cancelled because of a “Certificate” from Messrs. Gore & Grimes confirming the information being sought, namely, that no part of the property which Mr. O’Brien-Kenney’s clients had previously purchased was included in the sale to Mr. Heather’s clients. This letter did not enclose the “Certificate” or a deed or make any specific reference to a title or the location or characteristics of the particular portion of the property which was causing concern to Mr. O’Brien-Kenney. Again, no context. The last thing that Mr. Heather would have known was the repeated request, despite prior cancellation, for a copy of the deed with particular attention to the map, but no further details were given so that, yet again, the request remained without any specific context other than that the respective clients of these two solicitors had purchased property from the same vendor. Side by side with this information Mr. Heather had before him the clear documents of title which were unambiguous and his client’s instructions (which excluded reference to the correspondence a decade earlier) not to engage in unnecessary expense.
This picture would have looked very different, I think, if Mr. Heather had, at the time, been given a copy of the 1986/87 correspondence by his client. This would have revealed, first, that the piece of ground in question was a plot at the rear of Fortfield House, second, that in November, 1986 his client was “now not quite sure” whether he had bought it despite originally thinking that he had, third, that the solicitors for the vendor unambiguously asserted in July, 1987 that his client had not bought this plot because it had been sold to a Mr. Patrick McDonagh (the same purchaser referred to in the November, 1996 correspondence), and fourth, that this sale had occurred in 1979 (an error for 1981).
As a result of this information, Mr. Heather would have been aware that, from Mr. McDonagh’s point of view, he had owned the plot for more than a decade and a half and that, so far from his solicitor’s letter of November, 1996 being an exercise in kite flying, his claim was actually backed by the solicitors for the vendors and their attitude had been communicated to his (Mr. Heather’s) client in July, 1987.
In this context the significance of the request for the map would have come into sharp focus together with the fact that he knew, as he said in evidence, that the memorial registered in the registry of deeds did not include a map.
Here, now, was a formal solicitor to solicitor request, the response to which might well have implications no matter what that response was, and indeed in my view, no matter how peculiar was the approach of Mr. O’Brien-Kenney. All this, of course, is hypothetical because Mr. Denton did not furnish Mr. Heather with the earlier correspondence.
Mr. O’Brien-Kenney’s approach to Mr. Heather was, it is true, tentative rather than assertive. He merely requested a copy of the relevant deed with a properly coloured in map. He did not reveal the specific context in which this request was being made, and, in particular, did not indicate specifically the importance of a properly coloured map. When cancelling his initial request, whilst he gave as his reason the receipt of a Certificate from Messrs. Gore & Grimes, he did not specifically refer to a map attached to the Certificate or give any further explanation beyond saying that it confirmed that no part of the property purchased by his client had been sold to Mr. Heather’s client.
The foregoing considerations must be tempered, at the least, by the fact that Mr. O’Brien-Kenney had received from Mr. Healy of Messrs. Gore & Grimes, by letter of 17th October, 1996, a copy of the 1986/1987 correspondence – correspondence which he was entitled to assume was also available to Mr. Heather because it comprised a query and response raised by Mr. Denton’s then solicitors. It should also be remembered, of course, that Mr. O’Brien-Kenney must have been aware that the deed to the Dentons had been registered whereas the deed to his own client had not.
I have read and re-read my own notes and the professional transcript of the relevant portion of Mr. O’Brien-Kenney’s evidence and I am satisfied that he relied on the fact that there was no response to his letter asserting the plaintiff’s title indicating a disagreement with that view. There are internal tensions, not to say contradictions, in the evidence of Mr. O’Brien-Kenney – particularly in relation to whether Mr. Heather was or was not entitled to respond to the assertion of the plaintiff’s title – but one thing is clear and it is that Mr. O’Brien-Kenney relied on the absence of a challenge to his assertion of the plaintiff’s title in his letter of November, 1996 as part of his argument to convince the purchaser’s solicitor of his client’s title to the property. Another portion of this argument, which he regarded as “of tremendous relevance”, was the correspondence of 1986 and 1987 between Finbar J. Crowley and Co. and Messrs. Gore & Grimes solicitors.
Under cross-examination Mr. O’Brien-Kenney accepted that a solicitor receiving such a letter was perfectly within his rights not to reply to it but it is clear, notwithstanding, that, so far as he was concerned, the absence of a reply was significant.
Subsequently the plaintiff entered negotiations with one Mr. Cormac MacCartaigh and ultimately in September, 1999, agreed to sell the disputed plot to him. Mr. MacCartaigh has taken specific performance proceedings against the plaintiff which are fully defended but which I am told are in abeyance pending the outcome of this case.
Conclusion on representation
In my view, the fact that Mr. Heather did not reply to Mr. O’Brien-Kenney’s assertion of the plaintiff’s title in his letter of 21st October, 1996 amounted, in the circumstances, to a representation on behalf of the defendants that there was no disagreement with that assertion.
I have come to this conclusion because I think that letter must be seen in the context created by the correspondence of a decade beforehand between Messrs. Crowley and Gore & Grimes solicitors. The fact that Mr. Heather was not aware of such a context arose because his client did not furnish him with that earlier correspondence; if he had my view is that it would have been incumbent on Mr. Heather to have challenged Mr. O’Brien-Kenney’s assertion of the plaintiff’s title at that point in time.
It is obvious that, had such a challenge been made, the plaintiff would not have agreed to sell the disputed plot to Mr. MacCartaigh before the issue had been clarified. In my view, the plaintiff relied on the defendants’ representation indicating that he was not challenging the plaintiff’s title as an important element in establishing his own title to sell to Mr. MacCartaigh.
I have also had to consider whether it was necessary that Mr. Denton, either by himself or through his solicitor, should have become consciously aware that the plaintiff was proposing, in reliance on the representation made, to sell the disputed plot to Mr. MacCartaigh or anyone else. There is no evidence that the defendant or his solicitor were made so aware.
It seems, to me, common sense that where one solicitor formally raises with another the question of his client’s title and subsequently asserts his client’s title to that other solicitor, both must be aware that this is not simply an academic exercise but that it is being engaged in for the purpose of relying on that title for whatever reason.
This approach seems to accord with principle. In the thirteenth (2000) edition of Snell’s equity at p. 640 the following appears:
“Once it is shown that O gave assurances or other encouragement to A, and A suffers detriment, it will readily be inferred that the detriment was suffered as a result of the encouragement: the burden of proof is on O to show that A’s conduct was not induced by the assurances.”
This proposition is supported by a number of authorities the primary one of which is Greasley v. Cooke (Court of Appeal) [1980] 1 W.L.R. 1306.
In that case Lord Denning M.R. said at p. 1311:
“The first point is on the burden of proof. Mr. Weeks referred us to…Brikom Investments Limited v. Carr [1979] Q.B. 467, 482 – 483 where I said that, when a person makes a representation intending that another should act on it:
It is no answer for the maker to say: ‘You would have gone on with the transaction anyway’. That must be mere speculation. No one can be sure what he would, or would not, have done in a hypothetical state of affairs which never took place….Once it is shown that a representation was calculated to influence the judgment of a reasonable man, the presumption is that he was so influenced.
So here. These statements to Ms. Cooke were calculated to influence her so as to put her mind at rest, so that she should not worry about being turned out. No one can say what she would have done if Kenneth and Hedley had not made those statements…”
A little later, dealing with detriment, he said:
“It so happens that in many of these cases of proprietary estoppel there has been expenditure of money. But that is not a necessary element. I see that in Snell’ on Equity, 27th Ed. (1973), p. 565, it is said:
”A’ must have incurred expenditure or otherwise have prejudiced himself.’
But I do not think that is necessary. It is sufficient if the party, to whom the assurance is given, acts on the faith of it, in such circumstances that it would be unjust and inequitable for the party making the assurance to go back on it: see Moorgate Mercantile Company Limited v. Twitchings [1976] 1 Q.B. 225 and Crabb v. Arun District Council [1976] 1 Ch. 179, 188.”
Detriment
This aspect of the case can be dealt with under two headings, namely works on site and the contract with Mr. MacCartaigh.
Mr. O’Donnell has submitted that the works carried out by the plaintiff at the disputed plot were so low level as not to amount to detriment in the law of estoppel. I have summarised those works in the foregoing and it is my distinct impression that the condition of the site remained more or less the same between August, 1981 when the plaintiff acquired his title and February, 2001 when the defendants moved in to clear and secure the plot. The plaintiff did carry out individual acts of ownership and maintenance, one of them being in 1998 (that is after the representation comprised in the November, 1996 correspondence) involving a Mr. Kelly who was using the disputed plot for storing building materials. I am not aware, however, what all this cost the plaintiff; it cannot have been very substantial. On this aspect of detriment I agree with Mr. O’Donnell that such works of maintenance and expenditure of outlay on the disputed plot as followed November, 1996 (when the defendants’ representation was made) were no different in character than those which preceded the representation made at that time and would not have amounted to detriment for the purposes of the doctrine of estoppel, even if it could be shown – which I do not think it has been – that they were carried out in reliance on that representation.
As I understood the plaintiff’s case this aspect of detriment was gently cast aside, if not abandoned, following my ruling on the defendants’ application for a non- suit.
The second aspect of detriment, namely the plaintiff’s contract to sell the disputed plot to Mr. MacCartaigh, is however, unambiguously relied upon by the plaintiff. In response, Mr. O’Donnell submits that, because in his defence to Mr. MacCartaigh’s specific performance proceedings the plaintiff denies the existence of the contract, he cannot assert its existence in the present case in the context of detriment. Moreover he has pleaded loss of opportunity to market and sell the disputed plot by reason of the defendants’ assertion of title but there is no evidence, submits Mr. O’Donnell, that the plaintiff went to the market or attempted to sell the plot at all.
In my opinion, however, being involved as a defendant in specific performance proceedings is in itself a substantial detriment. I do not know what the outcome of those proceedings will be and probably the less I say about them the better. Apart from the consumption of time, the worry of litigation, the exposure to a claim for damages and the payment or exposure to payment of lawyers there is the uncertainty of outcome and the on-going delay in having the plaintiff’s title to the disputed plot – such as it is – clarified as between him and Mr. MacCartaigh.
Neither do I accept the point that simply because the plaintiff has asserted in his defence that no agreement exists between himself and Mr. MacCartaigh that he is thereby disentitled to rely on the agreement and on those proceedings as constituting detriment in the present case. Denials and assertions in pleadings are there for a particular purpose namely to identify issues and clarify to one’s opponent what is required to be proved. They are not evidence of what is asserted or denied and indicate no more than the stance being adopted by the plaintiff in defending the specific performance proceedings.
The law
The following extract from the judgment of Blayney J. in Haughan v. Rutledge [1988] I.R. 295, at p. 300 sets out the broad principles of the relevant law in a convenient form:-
“I was referred to Snell’s Equity (28th Edition 1982) at p. 559 where the four conditions which need to be satisfied for such an estoppel (i.e. proprietary estoppel) to arise are set out…
These four conditions are as follows:-
1. Detriment.
‘There is no doubt that for proprietary estoppel to arise the person claiming must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment.’
2. Expectation or Belief.
‘A must have acted in the belief either that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest.’
3. Encouragement.
‘A’s belief must have been encouraged by ‘O’ or his agent or predecessor in title.’
4. No bar to the equity.
‘No equity will arise if to enforce the right the claim would contravene some statute, or prevent the exercise of a statutory discretion or prevent or excuse the performance of a statutory duty.’
In my opinion, it is a correct statement of the law that if these four conditions are satisfied then an equity will arise which can be enforced against the owner of the land, and this was not disputed by counsel for the defendant.”
I have already indicated that the plaintiff has prejudiced himself or acted to his detriment in the sense indicated in contracting to sell the disputed plot to Mr. MacCartaigh thereby exposing himself to specific performance proceedings.
It is also clear that the plaintiff in agreeing to sell the disputed plot to Mr. MacCartaigh acted in the belief that he already owned a clear and transferable interest in the property namely by reason of the conveyance to him in August, 1981.
He was, further, in my view encouraged in the foregoing belief by the silence of the defendants’ solicitor when confronted with an assertion of the plaintiff’s title in his solicitor’s letter of November, 1996.
Fourthly, it has not been suggested that there is a bar to the equity and in those circumstances an equity arises in this case which can be enforced by the plaintiff against the defendants.
Satisfaction of the equity
Because, in my view, it would be unjust and inequitable if the defendants were able to assert their prior registered title to the disputed plot as against the plaintiff, there should be appropriate orders restraining the defendants from interfering with the plaintiff’s beneficial ownership, occupation, possession and enjoyment of the disputed plot and, I think, an order directing the defendants to surrender the relevant keys to the plaintiff.
On the other hand, the defendants have carried out works to the disputed plot which, despite the criticism made in relation to them by the plaintiff during the trial, were to the advantage of the owner of the plot. The corporation has done nothing and is apparently satisfied with the response to its derelict site notices and the plot has been cleared and fenced and secured. Mr. Denton gave evidence that he engaged a Mr. Nally to carry out work in February, 2001 and that this cost him £7,550. He is entitled in principle to be repaid this sum.
I will discuss with counsel the terms of the orders that should be made.
Approved: Philip O’Sullivan
15th April 2005
Felix Smyth v John Joseph Halpin and Regina Stokes
994 No. 3136 P
High Court
20 December 1996
[1997] 2 I.L.R.M. 38
(Geoghegan J)
GEOGHEGAN J
delivered his judgment on 20 December 1996 saying: The plaintiff was brought up in a house and farm situated at Mill Road, Knock, Castletown, Co. Meath. In 1987, the plaintiff decided to marry one Patricia Fox. The plaintiff intended, if he could obtain a suitable site that he could afford, to build a dwelling house for himself and his new wife. He requested his father to provide him with a site on the father’s land. According to the plaintiff’s own account (which I accept) his father’s response was in words to the following effect:
This place is yours after your mother’s day — what would you be doing with two places?
The father suggested that the plaintiff build an extension to the family home. The reference to the plaintiff being left the place after his mother’s day did not take the plaintiff by surprise because in 1983 he had had an earlier discussion with his father in the kitchen of the house during which the father asked him did he want the place and he said he did. I accept that this conversation took place also.
For the purpose of constructing the extension to the house, the services of an architect, Mr O’Daly were retained and his designs were done in the context that the entire house would ultimately become the plaintiff’s. In order to build the extension, the plaintiff had to apply for a loan from the First National Building Society but that society needed security. Accordingly, the site had to be transferred to the plaintiff and this was done. What emerged was in no real sense a separate house but rather a self-contained section of a house. Even if nobody knew of any conversations between father and son, I think that any reasonable person with knowledge of the family such as a friend or relation would have assumed that the intention at all material times was that the entire house would become the property of the plaintiff upon the deaths of his parents. I find it difficult to conceive that the plaintiff would ever have adopted his father’s suggestion in relation to the extension to the house if it was not understood that he was to become the ultimate owner of the entire house.
The plaintiff’s father who is now deceased made a number of wills. The earliest will that can be traced was one dated as far back as 20 April 1966. That will contained the following bequest:
I give, devise and bequeath my cottage with plot of land attached at Knock aforesaid and also my farm of land in the townland of Knock to my wife, Mary Anne Smyth for her life or until she remarries and on her death or remarriage to my son, Ian Smyth absolutely subject at all times to the rights of my children *41 to reside in the cottage until they shall respectively attain the age of 25 years or marry.
The Ian Smyth referred to in that devise and bequest is a brother of the plaintiff. Under the father’s next will, however, dated 13 February 1976 which again predated the relevant conversations, he made the following devise and bequest:
I give, devise and bequeath my cottage with plot of land attached at Knock aforesaid and also my farm of land in the townland of Knock to my wife, Mary Anne Smyth for her life or until she remarries and on her death or remarriage to my son, Felix Gerard Smyth absolutely subject at all times to the rights of my children to reside in the cottage until they shall respectively attain the age of 25 years or marry.
It is to be noted therefore that as early as 1976 it was the testator’s intention that the plaintiff should ultimately receive both the house and the farm.
The next will was dated 21 October 1986. This will post-dated the original conversation but predated the discussions at the time of the engagement. The relevant devise and bequest under this will is slightly altered and reads as follows:
I give, devise and bequeath my lands together with my dwelling house at Knock, Castletown, to my wife, Mary Anne for her life and thereafter to my son, Felix Gerard but subject to the right of my daughters, Ann and Regina to have the option to choose a half-acre site each off my lands for the purpose of erecting a dwelling house thereon. Ann and Regina are to have the option for a period of four years from the date of my death.
The ‘Regina’ referred to is the second named defendant in this action. It is to be noted that under the 1986 will also subject to the option in relation to the sites, the plaintiff was to get the house and lands after his mother’s death. The next will which was the second last will of the deceased is dated 25 June 1991 and is of considerable interest. Under that will, the lands at Knock were devised and bequeathed to the plaintiff’s mother for her life and thereafter to the plaintiff absolutely. The dwelling house at Knock was bequeathed to the plaintiff’s mother for her life and thereafter to the second named defendant absolutely. It is clear that at that stage the deceased changed his mind in relation to the dwelling house. Finally, under the last will dated 23 July 1992, the plaintiff appointed the first named defendant and one Thomas Smyth (now deceased) to be executors of the will and he devised and bequeathed the lands at Knock to his wife Mary Anne for her life and thereafter to the plaintiff absolutely. But he also devised and bequeathed the dwelling house at Knock to his wife for life and thereafter *42 to the second named defendant, that is his daughter Regina absolutely. Various pecuniary legacies were given to other children and the will then contained the following devise and bequest which is also of some controversy in these proceedings:
I give, devise and bequeath to my son, Felix Gerard the right of way currently used by him for the benefit of his property over the lands surrounding my dwelling house at Knock, Castletown absolutely.
The plaintiff of course knew nothing of the father’s change of mind in relation to the house and only learnt that when the will was read out after the death. These proceedings have now been instituted by him seeking a declaration that he is entitled to the reversionary interest in the dwelling house expectant after the lifetime of Mary Anne Smyth. He is also seeking an order by the court directing that the first named defendant do transfer to the plaintiff the interest to which the plaintiff is entitled to. Alternatively, the plaintiff is seeking to recover the monies expended on the house and he is also seeking to establish that the right of way given to him under the last will is a right of way across the garden attached to the deceased’s dwelling house to the rear of the dwelling and not the alternative right of way as apparently suggested by his mother and the second named defendant.
The plaintiff does not and indeed cannot ground his action upon contract. He does not suggest that there was any agreement on his part to confer any benefit on his father in return for making over the dwelling house. The fact that the plaintiff has not tried to make that very convenient case is to his overall credit in my view when assessing the credibility of his evidence. It might have been easy for him to have suggested that the father indicated that it would suit him if the plaintiff could look after him and his wife in their old age and that in return for that he would allow him build an extension to the house for immediate living in and give him the entire house in due course along with the land. Although such an agreement would not have been in writing or indeed evidenced by writing, it might have been quite a simple matter to establish it through acts of part performance. However, none of that arises. The plaintiff does not suggest that there was a contract. His claim to have the reversionary interest transferred to him is an equitable claim based on the principle of proprietary estoppel. The question I have had to consider therefore is whether in the light of the authorities on proprietary estoppel the facts of this case give rise to a proper recourse to that principle and if so, whether the application of the principle of proprietary estoppel in this case actually requires that this Court make an order directing a transfer of the reversionary interest. The granting of the latter remedy would effectively involve permitting the estoppel to be used as a sword and not merely a shield and would also be an exceptional inroad into the well established *43 principle that equity will not complete an uncompleted gift.
The kind of proprietary estoppel invoked in this case has its origins in Dillwyn v. Llewelyn (1862) 4 De GF & J 517. In that case a father had placed a son in possession of land and at the same time signed a document which was intended to be a conveyance of the land to him but proved not to be sufficient for the purpose. The son, with the full approval of the father, built a house on the land and occupied it as his own residence. After the father’s death, he claimed and obtained a court declaration that he was beneficially entitled to the land and an order requiring the trustee to whom the father had devised the land under his will to convey it to him. Two important principles emerged from that case. First of all the extent of the estate to be handed over was determined not by what was in the document but by the nature of the transaction and the entitlement then to that estate arose by reason of the expenditure acquiescence. The same principle has been applied in a number of other English cases. In Inwards v. Baker [1965] 1 All ER 446, for instance, the Court of Appeal held that in a case where a father had suggested to his son that he build on his land which the son then did largely at his own expense, the son had an equity to remain in the house for the rest of his life notwithstanding that the father in fact left all his property to a lady with whom he had lived for some years and the two children he had by her. The son who lived in the house in that case was unmarried and the court took the view that a life interest was sufficient. The following passage from the judgment of Lord Denning MR at p. 449 illustrates the position:
In this case, it is quite plain that the father allowed an expectation to be created in the defendant’s mind that this bungalow was to be his home. It was to be his home for his life or, at all events, his home as long as he wished it to remain his home. It seems to me that, in the light of that equity, the father could not in 1932 have turned to the defendant and said ‘you’re to go, it is my land and my house’. Nor could he at any time thereafter so long as the defendant wanted it as his home.
Counsel for the plaintiffs put the case of a purchaser. He suggested that the father could sell the land to a purchaser who would get the defendant out but I think that any purchaser who took with notice would clearly be bound by the equity. So here, too, the plaintiffs, the successors in title of the father, are clearly themselves bound by this equity. It is an equity well recognised in law. It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that, as a result of that expenditure he will be allowed to remain there. It is for the court to say in what way the equity can be satisfied. I am quite clear in this case that it can be satisfied by holding that the defendant can remain there as long as he desires to use it as his home.
The important sentence in that passage is:
It is for the court to say in what way the equity can be satisfied.
As I understand the authorities, the court is at large as to how best it will protect the equity and of course it has to consider what the equity is. In this case the clear expectation on the part of Mr Smyth was that he would have a fee simple in the entire house. The protection of the equity arising from the expenditure therefore requires in this case that an order be made by this Court directing a conveyance of that interest to him. The same principle is well enunciated in the judgment of Cumming-Bruce LJ in Pascoe v. Turner [1979] 2 All ER 945 at p. 950 where the following passage appears:
So the principle to be applied is that the court should consider all the circumstances and the counter-claimant having at law no perfected gift or licence other than a licence revocable at will, the court must decide what is the minimum equity to do justice to her, having regard to the way in which she changed her position for the worse, by reason of the acquiescence and encouragement of the legal owner. The defendant submits that the only appropriate way in which the equity can here be satisfied is by perfecting the imperfect gift as was done in Dillwyn v. Llewelyn.
Later on in the judgment at p. 951, Cumming-Bruce LJ had this to say:
We are satisfied that the problem of remedy on the facts resolves itself into a choice between two alternatives; should the equity be satisfied by a licence to the defendant to occupy the house for her lifetime or should there be a transfer to her of the fee simple?
The main consideration pointing to a licence for her lifetime is that she did not, by her case at the hearing, seek to establish that she had spent more money or done more work in the house than she would have done had she believed that she had only a licence to live there for her lifetime. But the court must be cautious about drawing any inference from what she did not give in evidence as the hypothesis put is one that manifestly never occurred to her. Then it may be reasonably held that her expenditure and effort can hardly be regarded as comparable to the change of position of those who have constructed buildings on land over which they had no legal rights.
The court went on to take the view that the equity established in that case could only be satisfied by granting a remedy which ensured to the defendants security of tenure and quiet enjoyment. The court therefore ordered that the gift be perfected by the execution of the appropriate conveyance.
In my view, the plaintiff has clearly established that he falls within these principles. The only remaining question to be considered is the right of way. I am entirely satisfied that having regard to all the surrounding circumstances of *45 the case, the right of way being referred to in the will is the way which has been used by the plaintiff close to the house. It is unfortunate that there is now bad feeling between the plaintiff on the one hand and his mother and sister on the other hand who are occupying the original part of the house. I would hope therefore that the plaintiff would be as considerate and tactful as he can in the use of the right of way but I will declare his entitlement to it as I do not find it credible that the way referred to in the will is the other right of way for the benefit of the farm.
I will direct that an appropriate deed or instrument be executed to effect the vesting of the remainder interest in the house in the plaintiff and I will discuss further with counsel as to the nature of that document and as to who are to be the parties to it.
Re JR
[1993] ILRM 657
Costello J: Since 1990 the ward has been living in a psychiatric hospital, unable to manage his own affairs. The ward s committee now wants to sell the dwellinghouse in which he formerly lived because it has fallen into a dilapidated state. The ward is unmarried but his committee has ascertained that since 1978 he had been living in the dwellinghouse with a lady who still resides in it and who now claims rights in relation to it. This lady has been named as the respondent to this motion, a motion seeking an order for sale. As will appear later, it is obviously in the interests of the proper management of the ward s estate that this be done, but the court is of course bound by any rights affecting the property and the court s power of sale may be restricted by rights which may have been created by the ward. The issues now for determination are the nature of the rights, if any, to which the respondent is entitled in the property, and the proper order to be made in the circumstances.
The ward is now aged 73 years. He was admitted to a psychiatric hospital in Dublin on 19 July 1990 for investigation of a depressed mood, weight loss and inability to take care of himself. He was then depressed and disorientated, with decreased concentration and some short term and some long term loss of memory. It was established on assessment that he could not live on his own and that he required help with dressing, bathing, toileting and even with sorting out his own possessions. A diagnosis of multiple infarct dementia having been made he was transferred to a psycho-geriatric unit. Since then his mood has fluctuated and at times he is regarded as a suicide risk. In February of this year he became very agitated but a change in medication seemed to bring about an improvement for a limited time. His cognitive functions cannot improve but there is a possibility, but it is only a possibility, that his depression may improve. His life expectation is quite good, but he will need full-time institutional care for the rest of his life. I am quite satisfied that he will never be able to return to live in his former dwellinghouse. He made a will in 1988 and I think it is extremely unlikely that he will ever be capable of making another will.
When taken into wardship on 8 October 1990 the General Solicitor was appointed committee of his person and his estate. There is presently standing to the credit of his account the sum of 39,205.61. In addition he is the owner of a dwelling house the subject of these proceedings. The respondent to this motion was born on 2 November 1944 so that she is now nearly 48 years of age. She married in 1965 but her husband left her in September 1971 and she has not heard from him since. There were two children of the marriage, a son born in July 1968 and a daughter born in February 1970 but as the respondent was unable to look after them they were brought up by her mother. In 1968 she suffered a brain tumour. The operation to remove it was successful and thereafter for some years she was able to work as a tailoress. But in 1977 a second brain tumour developed and although it was successfully removed she has since been disabled; her leg is permanently weakened so that she has to use a stick, and one of her arms is almost powerless. She has been unable to work and has had only a small disability pension on which to live. She has suffered from depression. This was so severe that in 1978 she required hospitalisation in a Dublin hospital. There she met the ward. He too was undergoing psychiatric treatment. They struck up a friendship which developed into a deeper relationship and resulted in his asking her to go to live with him in the dwelling which is the subject of these proceedings. They lived together as man and wife until 1990 when the ward had to be taken into hospital because of the illnesses to which I have referred. When they lived together the ward maintained the respondent out of his resources, and in addition gave her a small allowance to augment her disability pension.
The respondent s claim to a legal interest in the ward s dwelling is based on the following facts. She says that when she went to live with him that he represented to her that he would look after her, and that she would be sure of a home for the rest of her life. She says that he continued to make these representations to her and she acted on them. Furthermore, on 2nd November 1988 the ward made a will. By it he bequeathed
all my property of every nature and kind whatsoever both real and personal including my residence at … to my great friend … [the respondent] for her own use and benefit absolutely …
and he appointed the respondent executrix of his will. The evidence establishes that the will was validly executed, and that the ward was of sound mind, memory and understanding when he executed it. 2nd November was the respondent s birthday. On that day he handed her a folder which contained his will and said to her, it s not my house now, it s our house and eventually it will be your house . It will be recalled that the ward was then 69 years of age, and that the respondent was 44.
The ward s dwelling is now in a very dilapidated state, as appears from an architect s report of 31 July 1991. Urgent repairs are needed to the roof and the rear wall, the house timbers need to be checked and because of damp penetration their replacement may be necessary. The cost of making the house structurally sound is estimated at 34,000. The ward s only money is a sum of 39,205 and out of this, liabilities will have to be discharged including (a) such sums that may be due to the hospital, (b) the cost of future maintenance, (c) costs of the committee (past and future), (d) the possibility of future specialist nursing for the ward and (e) eventually his funeral expenses. The respondent agrees that the dwelling is in need of repairs but has obtained a contractor s estimate that urgent repairs could be carried out at a cost of 3,000.
The claims advanced on behalf of the respondent are based (a) on the representations made to her at the time she went to live with the ward and subsequently and (b) the representations made on 2 November 1988. She relies on the principles of the law of estoppel. For present purposes I will use the classification which is now generally accepted (see Snell s Principles of Equity, 28th ed, p 554 and Halsbury s Laws of England (4th ed), Vol 16, 1071, 1072) and refer to (i) promissory estoppel and (ii) proprietary estoppel. A promissory estoppel will arise where by words or conduct a person makes an unambiguous representation as to his future conduct, intending that the representation will be relied on, and to affect the legal relations between the parties and the representee acts on it or alters his or her position to his or her detriment the representor will not be permitted to act inconsistently with it (see Snell s Principles of Equity, 28th ed, 556). If the subject matter of the representation is land, no right or interest in the land results from this estoppel — a personal right is vested in the representee which will preclude the representor from enforcing a title to the land. A proprietary estoppel is different in a number of ways. When it relates to land it may result in the creation of rights in or over the land. It has been explained as follows.
Where one person (A) has acted to his detriment on the faith of a belief, which was known to and encouraged by another person (B), that he either has or is going to be given a right in or over B s property, B cannot insist on his strict legal rights if to do so would be inconsistent with A s belief. (See In re Basham [1987] 1 All ER 405 at 410).
Maharaj v Chand [1986] AC 898 illustrates the operation of the law relating to promissory estoppel. This was a case which originated in Fiji and was eventually decided by the Privy Council. The plaintiff and the defendant were living as man and wife (but unmarried) when the plaintiff applied to the housing authority for a lease to enable him to build a house. With the approval of the Native Land Trust Board he obtained a sub-lease and erected a house on the land demised to him. In reliance on a representation made by the plaintiff to her that it would be a permanent home for her and her children the defendant left her flat and went to live with the plaintiff. Their relationship later broke down. The plaintiff left the house, giving the defendant permission to remain in it. Later he revoked the permission and instituted ejectment proceedings against her. The trial judge dismissed the claim on the ground that the plaintiff was estopped from evicting her. On appeal the plaintiff succeeded on the ground that the licence he gave the defendant was an unlawful dealing within the meaning of s 12 of the Native Land Trust Act. The Privy Council allowed the defendant s appeal and restored the order of the trial judge.
In reaching its conclusions the Privy Council firstly held that s 12 did not apply as the right on which the defendant relied was a purely personal right and no dealing with the land in breach of the section had occurred. Its opinion was that it might have been possible, but for the provisions of that section, to have made out an entitlement to an equitable interest in the land but this had not been claimed. The claim advanced was a more modest one, namely that the requirements of a promissory estoppel existed. It was pointed out that the plaintiff had represented to the defendant that the house would be a permanent home for herself and her children, that in reasonable reliance on this representation she acted to her detriment by giving up her flat, that it was not possible to restore her to her former position. In these circumstances it would be plainly inequitable the court concluded for the plaintiff to evict her and held that she had permission to reside permanently in the house, that this was a personal right which did not amount to a property interest diminishing the right of the plaintiff s lessor or mortgagee.
Greasley v Cooke [1980] 1 WLR 1306 is an example of proprietary estoppel. It was a case in which the owners by inheritance of a dwelling house took ejectment proceedings against an occupier whose defence was that she had reasonably believed and was encouraged by members of the family of the deceased owner so to believe that she could regard the property as her home for the rest of her life and that she was entitled to a declaration to that effect. The evidence established that in 1938 at the age of 16 she went to the house as a maid servant of the deceased, that from 1946 she had co-habited in it with one of the deceased s sons, that after the owner s death she remained in the house and looked after it and also cared for the deceased s mentally ill daughter, that she received no payment, that she had been assured by members of the family that she could regard the house as her home for the rest of her life. It was held by the Court of Appeal that once it was shown that the defendant had relied on the assurances given to her then the burden of proving that she had acted to her detriment in staying on to look after the house without payment did not rest on her and that in the absence of proof to the contrary the court could infer that her conduct was induced by the assurances given to her, that expenditure of money was not a necessary element to establish proprietary estoppel, and that it was for the courts to decide in what way the equity established by the evidence should be satisfied.
Another example of the operation of the doctrine of proprietary estoppel is to be found in In re Basham [1987] 1 All ER 405. The plaintiff s mother married a second time when the plaintiff was aged 15. The plaintiff worked for her stepfather without payment for many years, helping him to run various public houses and a service station. After she had herself married she considered moving elsewhere but she was dissuaded by her stepfather from doing so. After the death of her mother she looked after her stepfather. He owned a cottage and on many occasions he indicated to her that she would get the cottage on his death in return for what she had been doing for him and also his estate. But he died intestate and two nieces were his next of kin. The plaintiff instituted these proceedings claiming a declaration that she was entitled to the deceased s entire estate because the deceased had induced and encouraged in her the expectation or belief that she would receive the estate on his death and because she had acted to her detriment in reliance on that expectation a proprietary estoppel arose in her favour. She succeeded in her claim.
Having stated the principle of proprietary estoppel already quoted, the court pointed out that although the principle is commonly known as proprietary estoppel where the belief is that A is going to be given a right in the future it may properly be regarded as giving rise to a species of constructive trust, the concept employed by a court of equity to prevent a person from relying on his legal rights when it would be unconscionable for him to do so. The court held that a proprietary estoppel could be raised when an expectation exists that future rights would be given over a person s residuary estate. As the plaintiff s belief that she would inherit the estate had been encouraged by the deceased and as the plaintiff had acted to her detriment in subordinating her own interests to the wishes of the deceased in reliance on her belief that she would inherit, she had established a proprietary estoppel and was entitled to the estate. The court considered how effect should be given to the equity which had arisen in the plaintiff s favour. It held that the extent of the equity was to have made good, as far as could fairly be done between the parties, the expectations which the deceased had encouraged. It followed from this that the plaintiff was entitled to a declaration that the personal representatives held the whole of the net estate in trust for the plaintiff.
Conclusions
In the light of the facts and the applicable legal principles, I have come to the following conclusions:
(1)The uncontradicted evidence is that at the time that the respondent went to live with the ward and thereafter he represented to her that he would look after her and that she could be sure of a home in his dwellinghouse for the rest of her life. I think the respondent acted on this representation and that she did so to her detriment. The law relating to the nature of detriment suffered by a representee has been clarified by a number of recent cases. As was shown in Maharaj v Chand detriment may exist when a representee leaves a permanent home on the faith of a representation that another will be offered in its place. Whilst I have no evidence of where the respondent was living in 1978 I think I am entitled to assume that she had a house or a flat which she gave up to go live with the respondent and that accordingly she has made out a case of promissory estoppel as she acted on the representation made to her. It would be plainly inequitable for the ward now to deny that she has a right to live in his house and it seems to me that she has an equity which entitles her to stay in the house rent free for as long as she wishes to which the court must give effect.
(2)I do not think that any further or additional rights were conferred by the events of 2 November 1988. When on 2 November 1988 the ward handed the respondent a folder and said it s not my house now, it s our house and eventually will be yours I think he was intending by those words to give a gift of an interest in the house to the respondent. But the respondent cannot claim any enforceable rights from this fact, because the gift was an imperfect one which the courts cannot enforce. I do not think that by using those words and handing her the executed will the ward thereby conferred on the respondent an immediate beneficial interest under a constructive trust – the ward intended that she would have (a) a right to reside in the house during his life and (b) ownership of it after his death, but he did not intend that she would have an immediate beneficial interest in it – if he had so intended he would have arranged to transfer the property either to her alone or jointly with him. And the respondent cannot rely on the doctrine of estoppel because she cannot show that she acted in any way to her detriment arising from the representation which was made to her on 2 November.
In cases such as this the court must (a) ascertain the nature of the equity to which a representee is entitled and (b) decide in what way the equity may be satisfied (see Denning MR in Greasley v Cooke, op cit, p 1312). The equity which the respondent has been able to establish is a right to reside in the ward s dwellinghouse for her life and normally such a right would be satisfied by an order refusing to evict the representee or where the representor is a ward of court refusing to sell the dwellinghouse. But there are special circumstances in this case. The house is in a very serious state of dilapidation. Major work needs to be done on it. There has been severe damp penetration which has caused the timbers to rot. There is rising damp in the basement walls, the plumbing and electrical wiring needs to be replaced. The cost of doing the work was estimated last year as being 34,000 approximately. It is quite a large three storey house and the respondent no longer uses the basement. It is not reasonable to spend the ward s limited resources in attempting to repair it and the respondent herself has no money to do so and no doubt it is declining in value all the time. The respondent s equity can be satisfied by selling the house and buying another smaller one suitable for the respondent s needs. It should be bought in the ward s name but I will declare that the respondent has a right to reside in it for as long as she wishes. This will not of course prejudice in any way the rights she will have should the ward predecease her (as would normally be expected) and should he not revoke his will (a most remote eventuality).
In order to satisfy the equity the new house should meet the respondent s reasonable needs for accommodation as a single person. It should be purchased in consultation with the respondent and should any difference arise this motion can be re-entered. The committee should take expert advice as to when to sell and when to purchase the new property.
I will therefore order that the premises be sold provided that there is made available to the respondent suitable alternative accommodation in a dwelling to be purchased in the ward s name, and I will declare that the respondent has a right to live in the newly acquired dwelling for as long as she may wish.
JC v WC
[2004] 2 I.R. 312
This matter comes by way of rehearing to the High Court on an ejectment civil bill claiming an injunction restraining the defendant from attending at the plaintiff (his father)’s house and lands and an order restraining him from intimidating the plaintiff and any other person the plaintiff desires to bring on the premises. That ejectment civil bill was filed in the Circuit Court on the 23rd November, 2001. The defence and counterclaim, delivered on the 22nd January, 2002, denied the intimidation and interference with the peaceful enjoyment or occupation of the premises. It was further denied that lawful demands had been made of him to vacate. He pleaded estoppel by reason of the conduct and actions of the plaintiff. Further, by reason of representations made to him and by reason of the plaintiff’s conduct, he relied on the doctrine of legitimate expectation.
Both parties sought interlocutory relief. The defendant had counterclaimed that he had worked extensively on and for the benefit of the family farm from a date prior to his thirteenth birthday when he was withdrawn from school initially and permanently from the age of fifteen. From that time until 1999 approximately, he believed that the farm would be his home and his living throughout his life and that he would inherit the farm in its entirety on the death of the plaintiff. This belief, he said, was encouraged by the plaintiff and other members of the family. When, in 1997 approximately, the plaintiff had reservations about the succession, this was not communicated to him. He said that instructions given on behalf of the plaintiff recorded his intention to transfer the entire of his interest to the defendant. He had relied on this expectation and had worked on the farm for in excess of 25 years, having received what he alleged was a pittance and having taken on debts.
The defendant had claimed that a person who is promised or encouraged to expect an interest in property thereby becomes entitled by way of estoppel to that interest. He referred to Dillwyn v. Llewelyn (1862) 4 De Gex F. & J. 517, Ramsden v. Dyson (1866) L.R. 1 H.L. 129 and Inwards v. Baker [1965] 2 Q.B. 29 where, at pp. 36 to 37, the doctrine was stated by Lord Denning in the following terms:-
“It is quite plain from those authorities that if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay.”
He also relied on Crabb v. Arun District Council [1976] Ch. 179 in relation to a right of way; and to Pascoe v. Turner [1979] 1 W.L.R. 431 where a lifelong partner, though not married, was entitled to security of tenure by way of a transfer of the fee simple in the home. In re Basham [1986] 1 W.L.R. 1498 dealt with the expectation to succession to an estate where the promisor had died, where it was held that the correct classification of cases of proprietary estoppel were as a form of constructive trust, the equity being raised by the promisee’s alteration of his position on the faith of the understanding. The claim in relation to a trust was not pursued.
The defendant also referred to Smyth v. Halpin [1997] 2 I.L.R.M. 38 where Geoghegan J. considered the court’s power in the case of proprietary estoppel and the necessity to make an order such as was necessary for the protection of the equity.
In McCabe v. McCabe (Unreported, Circuit Court, Judge O’Leary) it was held that, notwithstanding the lack of any specific form of words giving rise to the expectation of inheritance, “the complete course of the plaintiff’s life had been dominated by this earlier decision made for him by his parents that he be taken from school and put to work on the family farm”. The judge ordered that the farm be held on trust for the plaintiff in remainder and prohibited acts which would affect the farm for more than nine months after his parents’ death. In the meantime the plaintiff’s right to reside in the farm was upheld.
The defendant submitted that McCabe v. McCabe (Unreported, Circuit Court, Judge O’Leary) is closest to his circumstances. In that case the Circuit Court Judge accepted that the promise was made and that the plaintiff acted to his detriment (p. 5 of the note of the judgment). It had also been found that the benefits received were far short of what was necessary to pay the plaintiff. No such findings were made in relation to the present case.
In McCarron v. McCarron (Unreported, Supreme Court, 13th February, 1997) Murphy J., with whom Hamilton C.J. and Keane J. agreed, upheld the High Court decision to grant an order for specific performance on the basis of a contract made between the plaintiff and the deceased. The plaintiff had worked extensively for the deceased for sixteen years – for long hours – without reward. The deceased had said to him that he supposed that the plaintiff was wondering about some compensation for his work and told him that he would “be a rich man after my day”. In addition, the deceased told him that “I want you to look after me and take your father up and we will draw up some class of agreement”. There was no change of mind.
The facts in the present case differ substantially and, of course, the defendant seeks a declaration of present entitlement.
Similar circumstances arose in Byrne v. Byrne (Unreported, Ex tempore,High Court, Gilligan J., 11th December, 2003). There the appellant was told by his father that “the house is yours when I die” and in respect of the storm damaged house: “this is coming to you on my death, would you consider putting it in good condition?” The appellant paid a total of IR£23,000.
The deceased consulted his solicitor for the purpose of signing over the dwelling house and was advised that it was easier and cheaper to do it by will.
The court held that it would be unconscionable not to give effect to the agreement which gave rise to a species of constructive trust. A declaration was sought that the defendant held the premises in trust for the plaintiff appellant.
In Jones v. Padavatton [1969] 1 W.L.R. 328, the plaintiff gave up a good job and prospects in the United States in response to a request to return and a promise to inherit. There is no evidence in this case that the defendant gave up a job or prospects elsewhere.
In Cameron v. Cameron (1892) 11 N.Z.L.R. 642, a lease and subsequent agreement to pay a father £25 for a promise to leave land to the plaintiff in his will was upheld as a contract. The evidence in the present case does not go as far as payment much less a promise to leave land in consideration of payment.
The defendant sought a declaration as to the entire legal and beneficial interest in the property and, indeed, an order of specific performance of an agreement partly performed by him. The primary claim for a declaration that the lands were held by the plaintiff on trust for the defendant was not proceeded with.
In relation to the application for a specific performance on the basis of an agreement partly performed it is, of course, necessary to prove an
agreement. Having carefully considered the oral and documentary evidence adduced at the hearing of this action, it does not appear that there was, at its height, any evidence other than a desire on the part of both the plaintiff and his wife that the defendant would succeed and, with greater certainty, be looked after. As time went on this desire that he succeed became less certain. Indeed, at the earlier stages it was, in my view, taking it as its height, clearly unenforceable by reason of the absence of consideration. As time went on and evidence of part performance became more stateable, the more uncertain the desire became. This became abundantly clear from a letter written by the plaintiff and his wife to all of their children:-
“We insist that everyone mind their own business from now on.
[The parents’] business was divided from [the defendant], at the request of [the defendant]. It must be truly separated for it to work correctly which means everyone pays their own bills and collects their own income and cannot use the others’ workman without fully paying him. There was an agreement between both parties for hire of tractors, made in March and considered fair by all but if that does not suit either party they can both hire elsewhere.
In relation to [the house and lands] we will not be bullied, charmed or forced by anyone.
It is not up for general discussion. We have raised all of you and nourished and supported you to the best of our ability. We would now expect to be treated with respect in our later years. No one person will get [the house and lands] outright, no one person disinherited. All will be as fairly treated as possible and taking into account all previous years but it will be our decision.
At this point everyone has their own work to get on with and lives to live. And we insist that we are left alone to do the same and concentrate on our health, on this we must insist and anyone not complying will have to be dealt with.
Until February, 2001
J.C. (Daddy)
K.C. (Mammy).”
In relation to part performance, Lord Reid explained in Steadman v. Steadman [1976] A.C. 536 at p. 540:-
“If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn round and assert that the agreement is unenforceable.”
It is stressing the obvious to say that an application for specific performance requires an agreement involving definite terms of offer and acceptance in addition to consideration. If there was an agreement then the lack of formality requiring the contract to be in writing to satisfy the Statute of Frauds, would in the circumstances not be necessary.
For a plaintiff to get as far as relying on part performance there must be a concluded contract. If there is not then the question of part performance does not arise: see McQuaid v. Lynam [1965] I.R. 564 at p. 574.
Farrell on Irish Law of Specific Performance (1994) summarises the older cases involving questions of part performance. The terms of the contract must be made out satisfactorily to the court and must be shown “plainly and distinctly”. Plaintiffs seeking specific performance against estates of deceased persons should be treated with great caution. Where the onus of proof remains on the balance of probabilities, Keane J. held in Silver Wraith Ltd. v. Siúcra Éireann cpt (Unreported, High Court, Keane J., 8th June, 1989) at p. 12, that the acts of part performance should be”unequivocally referable to the type of contract alleged”.
It does not seem to me that the evidence in this case supports any concluded agreement of the nature contended. Moreover, the plaintiff did transfer a dwelling house and lands to the defendant. It is clear that, while this was undoubtedly done to enable the defendant to raise money and to qualify for grants, the open market value was in excess of the borrowing assumed by the defendant and the equity has substantially increased in value. The defendant had been paid for work he had done on the plaintiff’s farm and was maintained from the profits of that farm. He was also in receipt of the rent from the dwelling house transferred to him.
It is, of course, significant that the defendant worked outside the farm, particularly in relation to the years in which he was employed as a sub-contractor on the national roads network.
Accounts in relation to the plaintiff’s farm and the defendant’s farm were prepared by a sister of the defendant. While these were not adduced in evidence, it is common case that they were signed by both parties for the purpose of the Revenue Commissioners. I am satisfied in relation to the abstracts prepared by both parties that payments made by the defendant to the plaintiff’s account were in respect of repayment of loans and hire of the plaintiff’s machinery and not otherwise. It seems to follow from the evidence that each party was trading separately and that this separate trading was not a mere device to maximise on farm grants.
In relation to work which the defendant says he did for the benefit of the plaintiff I make the following findings. There was some evidence of work done for which no formal payment was made during the early years. I accept that the plaintiff and his wife did give money to the defendant in addition to his maintenance. It seems to me that no case can be made, especially in those earlier years of financial difficulties, that this constituted part performance. The evidence in relation to a second stage was that the defendant was paid formally in respect of the days he worked and the machinery he employed on the plaintiff’s farm. A third, overlapping, stage was reached when the defendant was in business on his own where he leased land from the plaintiff (in addition to the lands conveyed to him) and paid the plaintiff for the hire of machinery which he used on the road projects.
The only evidence in relation to work on the plaintiff’s farm was the building of the gateway, in which the defendant was involved. I do not think that this amounts to part performance in relation to any promise made.
It does not seem to me that there is any basis to establish part performance even if there was an agreement in relation to the devolution of land after the death of the plaintiff.
Indeed, it is clear from the letter of the plaintiff and his wife to their children that the plaintiff had a separate business to the children and would not be influenced in regard to the devolution of their assets but would make provision for each of them. While it may seem unfair that the bulk of the assets would go to one or other of the sons rather than to the sons and daughters, there was nothing unusual in such a putative arrangement.
The defendant claims a declaration to a present entitlement. The cases cited distinguish between such an entitlement and a right to inherit after the death of the owner.
If there had been a contractual basis then specific performance could be ordered. As found by the court, there is not sufficient evidence of a concluded contract. Specific performance does not arise. There can be no declaration of a present entitlement.
The right to inherit can only arise as against the personal representative as a claim against the estate. Indeed, much of the caselaw relied on refers to such claims.
Parents have a right to the quiet enjoyment of their home and lands. There is no legal obligation to provide for their adult children during their lifetime. Parents are also entitled to exercise their discretion with regard to testamentary provision subject to the provisions of the Succession Act 1965.
It was unfortunate that when the plaintiff indicated his decision to favour the younger brother with regard to the succession to the farm, the defendant sought to restrain the plaintiff from harvesting his crops and allegedly incited others to interfere with his enjoyment of his lands. It was unfortunate that this matter led to the injunctive proceedings and to these proceedings which, apart from adversely affecting the relationship between family members, has had the effect of incurring substantial legal costs.
It was also unfortunate that this dispute commenced at a time when the plaintiff’s wife, the defendant’s mother, was in ill-health.
There needs to be some finality with regard to the dispute between the parties so that relationships can be put on a proper footing.
The plaintiff is entitled to an injunction restraining the defendant from attending the plaintiff’s house and lands in terms of the endorsement of claim herewith. The court dismisses the counterclaim.