THE SUPREME COURT
[Appeal No. 125/2012]
Clarke J.
MacMenamin J.
Dunne J.
IN THE MATTER OF MICHAEL CAMPBELL DECEASED AND IN THE MATTER OF THE SUCCESSION ACT 1965
BETWEEN
CATHLEEN DOLAN
PLAINTIFF/RESPONDENT
AND
MARY CULLOO AND BRENDAN LOUGHREY
DEFENDANTS/APPELLANT
THE HIGH COURT
IN THE MATTER OF THE SUCCESSION ACT 1965
[Record No. 2012/362SP]
BETWEEN
BRENDAN LOUGHREY
PLAINTIFF
DEFENDANT
THE HIGH COURT
[Record No. 2012/363SP]
IN THE MATTER OF THE SUCCESSION ACT 1965
BETWEEN
BRENDAN LOUGHREY
PLAINTIFF
AND
McCLOUGHAN GUNN & CO.
DEFENDANT
Judgment of Ms. Justice Dunne delivered the 2nd day of June, 2016
This judgment involves some five appeals from various orders of the High Court made in a number of sets of proceedings which broadly speaking concern the administration of the estate of the late Michael Campbell Deceased (hereinafter referred to as “the Intestate”) otherwise known as Michael MacCollion. In order to understand the issues in the various appeals which were all heard at the same time it would be of assistance to describe the various proceedings, the orders made in the High Court and the appeals therefrom. The first appeal is in proceedings bearing High Court Record No. 2005/218SP -
IN THE MATTER OF MICHAEL CAMPBELL DECEASED AND IN THE MATTER OF THE SUCCESSION ACT 1965
BETWEEN
CATHLEEN DOLAN
PLAINTIFF
AND
MARY CULLOO AND BRENDAN LOUGHREY
DEFENDANTS
(hereinafter described as the “administration proceedings”). The order under appeal was an order made on the 14th July, 2008 (Laffoy J.) on foot of a motion on behalf of the Plaintiff, (hereinafter described as “Ms. Dolan”), setting aside a citation to lodge in court the letters of administration granted to Ms. Dolan in respect of the said estate, issued and served upon Ms. Dolan as the administrator appointed by the High Court in the estate of the Intestate. That order was appealed by the second named Defendant in those proceedings (hereinafter referred to as “Mr. Loughrey”) by notice of appeal dated the 25th August, 2008. The appeal number in respect of those proceedings is Supreme Court Appeal No. 309/2008.
Appeal No. 315/2008 is a cross-appeal in respect of the order of the High Court of the 14th July, 2008. The cross-appeal concerns the issue of costs in circumstances where counsel for Ms. Dolan had applied for the costs of the application to be paid out of Mr. Loughrey’s share of the estate. In the event, having heard submissions on that issue no order for costs was made.
The third appeal also relates to the administration proceedings and is appeal No. 125/2012. This is an appeal by Mr. Loughrey from an order of the High Court (Murphy J.) dated the 27th February, 2012 in which Mr. Loughrey sought an order by way of appeal from an order of the Master of the High Court made on the 29th March, 2012 refusing him leave to issue a citation and also sought an order extending the time in which to make that application. In essence, Mr. Loughrey was again seeking an order for the removal of Ms. Dolan as the administrator of the estate of the Intestate.
The fourth appeal arises in proceedings bearing the title -
THE HIGH COURT
IN THE MATTER OF THE SUCCESSION ACT 1965
[Record No. 2012/362SP]
BETWEEN
BRENDAN LOUGHREY
PLAINTIFF
DEFENDANT
In these proceedings, an application was brought by way of notice of motion dated the 19th October, 2012 on behalf of the Ms. Dolan, the defendant in the proceedings, seeking, inter alia, an order pursuant to Order 19, rule 28 of the Rules of the Superior Courts striking out the plaintiff’s proceedings on the grounds that they disclose no reasonable cause of action. An order was made on the 30th November, 2012 by the High Court (Laffoy J.) declaring that Mr. Loughrey’s proceedings were vexatious and should be dismissed. Further orders were made restraining the said Mr. Loughrey from bringing any further proceedings in relation to the estate of the Intestate without leave of the court and other related orders. Mr. Loughrey has appealed from that order. The appeal number is Appeal No. 599/2012.
The final appeal is in respect of a third set of proceedings in a matter entitled -
THE HIGH COURT
[Record No. 2012/363SP]
IN THE MATTER OF THE SUCCESSION ACT 1965
BETWEEN
BRENDAN LOUGHREY
PLAINTIFF
AND
McCLOUGHAN GUNN & CO.
DEFENDANT
In these proceedings a notice of motion was issued on behalf of the defendant (hereinafter referred to as “the Solicitors” or “Mr. Gunn”, as appropriate). An order was made restraining Mr. Loughrey from instituting any proceedings against Mr Gunn or in relation to the estate of the Intestate without the leave of the Court and from instituting any motion, application or procedure in the High Court in the administration proceedings or in any proceedings currently in being in relation to the estate of the Intestate except with the prior leave of the High Court. That appeal is Appeal No. 358/2013.
Background and Details of the Appeals
The history of the matter is somewhat complicated and is best described in the judgment of Laffoy J. of the 30th November, 2012. The proceedings in which she delivered that judgment were the proceedings, the subject of the fourth appeal, brought by Mr. Loughrey against Ms. Dolan claiming damages or more accurately “monetary retribution” against Ms. Dolan. The Intestate in these proceedings died on the 19th December, 2000, without making a will. Following the death of the Intestate an application was made by Ms. Dolan, who had been the solicitor of the Intestate, to the High Court on the 30th April, 2001 when it was ordered that Ms. Dolan should be at liberty to apply for a grant of letters of administration of the estate of the Intestate limited to the collection of all his property, giving discharges for all the debts which might have been due to his estate on payment of same and doing what further might be necessary for the preservation of the property and it was further limited to taking appropriate steps to ascertain the next of kin.
On the 29th April, 2004, a grant of administration intestate to the estate of the Intestate limited as aforesaid was granted to Ms. Dolan. By further order of the High Court made on the 26th July, 2004, it was ordered that the powers of Ms. Dolan under the order of 30th April, 2001 be extended to include the right to sell the lands of the Intestate and related matters. She then sold the lands of the Intestate and lodged the proceeds of the sales in a controlled trust account at AIB, Donegal, in the name of the Intestate. At that time the then current balance on the account was approximately €435,000. Ms. Dolan initiated the administration proceedings by way of special summons on the 3rd May, 2005 between Ms. Dolan, plaintiff, and Mary Culloo and Brendan Loughrey. The purpose of the proceedings was to ascertain the next of kin of the Intestate. This resulted in a long drawn-out process, the outcome of which was recorded in a perfected order made on the 11th June, 2007. Laffoy J., in her judgment of the 30th November, 2012, noted that there was a typographical error in the perfected order. The outcome of the order made on the 11th June, 2007 was that the Court declared that Ms. Dolan was entitled to distribute the estate of the Intestate to Brendan Loughrey, Leo Campbell and the estate of one Michael Campbell, all being first cousins of the Intestate. There has been no appeal against that order. Brendan Loughrey became entitled to a one-third share of the net estate of the Intestate by virtue of that order.
Further steps were taken by Mr. Loughrey in the course of the administration proceedings. On the 21st May, 2008, the Master made an order on foot of an ex parte application by Mr. Loughrey that Mr. Loughrey be at liberty to issue a citation for service upon Ms. Dolan to lodge in court the letters of administration to the estate of the Intestate. She then brought a motion seeking an order to set aside the citation which had issued. By order of the Court (Laffoy J.) made on the 14th July, 2008, it was ordered that the citation be set aside. Mr. Loughrey appealed that order to the Supreme Court (Appeal No. 309/2008), and this is one of the appeals which came on for hearing before this Court. As mentioned previously, to put it simply, Mr. Loughrey wanted to have Ms. Dolan replaced as the administrator of the estate.
Subsequently on the 29th March, 2011, Mr. Loughrey applied again to the Master ex parte seeking liberty to issue a citation. The Master refused the application. Mr. Loughrey then brought a motion to the Court to set aside the order of the Master. By order of the High Court (Murphy J.) made on 27th February, 2012, Mr. Loughrey’s application to the High Court was refused and the order of the Master was affirmed. That is the order under appeal to this Court as Appeal No. 125/2012.
The next appeal relates to the special summons issued by Mr. Loughrey against Ms. Dolan bearing the Record No. 2012/362 SP. The proceedings resulted in the judgment of Laffoy J. on the 30th November, 2012. Those proceedings mirror earlier proceedings issued by him by way of a separate special summons in 2010. The only difference between the two sets of proceedings was that in the 2012 proceedings, the “monetary retribution” sought by Mr. Loughrey against Ms. Dolan was €8m as opposed to €5m . The 2010 proceedings were struck out by the Master. The 2012 proceedings were issued on the 9th July, 2012 and a motion was brought by Ms. Dolan seeking orders striking out the proceedings pursuant to Order 19, rule 28 on the grounds that no reasonable cause of action was disclosed; pursuant to the inherent jurisdiction of the Court striking out the proceedings on the grounds that they were frivolous and/or vexatious and/or an abuse of the process of the Court; restraining Mr. Loughrey from instituting further proceedings against Ms. Dolan without leave of the Court and restraining Mr. Loughrey from instituting further motions in the administration suit (2005/218SP) without leave of the Court and restraining Mr. Loughrey from instituting any motions in any proceedings currently in being in relation to the estate of the Intestate without the leave of the Court. The High Court made orders on foot of the application of Ms. Dolan declaring that the proceedings brought by Mr. Loughrey were vexatious and should be dismissed. In addition, orders were made restraining Mr. Loughrey from instituting various proceedings and motions without prior leave of the Court. Mr. Loughrey has appealed from the judgment and order of the High Court made by Laffoy J. and that appeal is the subject of Appeal No. 599/2012.
The next appeal relates to proceedings commenced by Mr. Loughrey against the solicitors, McCloughan Gunn & Co. Those solicitors acted for Mr. Loughrey in the administration proceedings for some time. The form of relief sought by Mr. Loughrey in those proceedings against his former solicitors was similar to the relief sought against Ms. Dolan. In other words his claim was for “monetary retribution” in the sum of €8m. Although that special summons was issued on the 9th July, 2012, it does not appear to have been served until after judgment had been delivered by Laffoy J. in the proceedings against Ms. Dolan in November 2012. An appearance was entered by McCloughan Gunn & Co. on the 8th May, 2013 and a motion was then issued by the solicitors seeking an order striking out the proceedings on a number of grounds including the fact that no leave was obtained from the High Court to proceed with those proceedings in circumstances where it was contended that the proceedings against McCloughan Gunn & Co. were proceedings in relation to the estate of Mr. Campbell and had been issued without leave of the Court. Interestingly, the affidavit grounding the motion on behalf of McCloughan Gunn & Co. which was sworn by Seamus Gunn, pointed out that Mr. Loughrey had previously brought proceedings against Mr. Gunn personally in 2010 in which Mr. Loughrey had then sought “monetary retribution” of €4m. Those proceedings had been struck out by the Master of the High Court on the 2nd December, 2010. The notice of motion brought by the solicitors McCloughan Gunn & Co. came on for hearing in the High Court before Laffoy J. on the 8th July, 2013. An order was made on that date by Laffoy J. striking out the proceedings. That order is the subject of Appeal No. 358/2013. The order of the High Court records that the proceedings were dismissed on the basis that the claim as pleaded was bound to fail and was an abuse of process. A report of the judgment in that matter delivered on the 8th July, 2013 was provided by Laffoy J. She made it clear that she informed Mr. Loughrey that she was making a similar order in these proceedings for the same reasons as those set out in the proceedings against Ms. Dolan. Accordingly she made an order dismissing the plaintiff’s claim on the grounds that the claim as pleaded was bound to fail and also on the grounds that it was an abuse of process. She also made an Isaac Wunder order against Mr. Loughrey restraining him from instituting any proceedings against Seamus Gunn or McCloughan Gunn & Co. without the leave of the Court.
Finally, as mentioned previously, there is a cross-appeal by Ms. Dolan in relation to the citation proceedings where Laffoy J. did not make any order for costs in favour of Ms. Dolan. There are in total five appeals before this Court. There is a significant degree of overlap between the appeals in respect of the proceedings brought by Mr. Loughrey against Ms. Dolan and against McCloughan Gunn & Co. in which Mr. Loughrey commenced proceedings by way of special summons seeking “monetary retribution” against both parties which proceedings have been struck out on the basis that the proceedings were broadly speaking an abuse of process and/or vexatious and frivolous and also in relation to the citations sought in the administration proceedings.
One might wonder how Ms. Dolan became caught up in this matter. It appears that the whole saga commenced by virtue of the fact that she had been the solicitor for the Intestate. When he died in December 2000, he left livestock, land and some money in a bank account. Apparently, the Gardaí were contacted about the welfare of the animals and, in turn, they contacted Ms. Dolan who had acted for the Intestate since approximately 1984. It was in that context that she first made an application to the High Court in April 2001 and everything that has occurred by way of proceedings followed from that application.
It is relevant to note that Mr. Loughrey suffered a stroke in February 2009 and, as a result of his stroke, is suffering from dysphasia. This is referred to by Dr. Mullan, his general practitioner, in a letter of the 14th May, 2012 which formed part of the papers in Appeal No. 599/2012. Dr. Mullan, in the letter referred to, commented that Mr. Loughrey “has made an excellent recovery from this. He is independent in all activities of daily living with only occasional speech hesitancy. There is no evidence of any impaired cognitive function”. While it is clear that Mr. Loughrey has difficulties by virtue of his stroke and is very difficult to understand, Mr. Loughrey has furnished to the Court comprehensive written submissions. In addition he has set out his complaints in various documents, sometimes in the form of affidavits. His case was put comprehensively before the Court in documentary form. In addition, he made some oral submissions to the Court. There was obviously some difficulty in that regard for Mr. Loughrey but he had the assistance, and very able assistance it was, of his niece, Ms. McNally. It should be noted that Ms. McNally was allowed to address the Court solely for the purposes of enabling the Court to understand what Mr. Loughrey was saying rather than for the purposes of permitting her to make anything that could reasonably be considered to be submissions in the case. There is no doubt from observing what occurred in Court that Ms. McNally was in a position to assist and interpret and put forward the representations sought to be made by Mr. Loughrey in the course of the hearing.
Discussion
Leaving aside for the moment the cross-appeal in respect of the costs order made by Laffoy J. which is the subject of Appeal No. 315/2008, the appeals concern firstly the decisions in relation to the citations being that of Laffoy J. made on the 14th July, 2008 and that of Murphy J. made on the 27th February, 2012 and then the appeals in respect of the striking out of special summons proceedings against Ms. Dolan and against McCloughan Gunn & Co. Solicitors made on the 30th November, 2012 and the 8th July, 2013 respectively.
I propose to deal first of all with the decisions in relation to the citations. The first citation was issued pursuant to an order of the Master dated the 21st May, 2008. Ms. Dolan then made an application to the High Court to set aside the citation. In her report of judgment of the 14th July, 2008, Laffoy J. set out the history of the administration proceedings to date. She noted that by order of the 26th July, 2004, Kearns J. extended the power of the plaintiff (Ms. Dolan) to include the power to sell lands registered on certain Land Registry folios in County Donegal. The Intestate was registered as owner on some of the folios, but in the case of other folios his ancestors were still registered as owners. The title to the lands on those folios needed to be updated. The administration proceedings had been issued with a view to identifying the next of kin of the Intestate. Mrs. Mary Culloo and Mr. Loughrey were joined as representatives of the classes who might constitute the next of kin of the Intestate. Mr. Loughrey established that he was a first cousin of the Intestate whereas the first named defendant, Mrs. Culloo was a more remote relative of the Intestate. At that time it appeared that Mr. Loughrey was the sole next of kin of the Intestate. Clarke J. made an order in which he directed advertisements in various newspapers for persons claiming to be the next of kin of the Intestate. Mrs. Culloo ceased to be involved in the proceedings at that stage.
Advertisements were published following that order but there was no response to the advertisements. The matter was brought back to Court for orders as to the distribution of the estate of the Intestate. On the basis of the evidence then available, the Court made an order on the 31st July, 2006 that Mr. Loughrey was entitled to the entire estate of the Intestate.
It subsequently transpired that the advertisements were not in the form directed and that the name of a relation of the Intestate which should have been included was omitted from the advertisements. By order dated the 11th October, 2006 the Court directed that the advertisements be re-published as previously directed. As a result of the re-advertising, Michael Campbell and Leo Campbell both of whom resided in Northern Ireland claimed to be first cousins of the Intestate. The matter came back to Court and by order of the 11th June, 2007 the Court (Laffoy J.) discharged the order of 31st July, 2006 and ordered that the estate of the Intestate be divided equally between Mr. Loughrey, Michael Campbell and Leo Campbell. Provision was made for costs and there was an order in respect of the costs of Mrs. Culloo, and Mr. Loughrey. There was also an order made providing for Ms. Dolan’s costs of the proceedings. It was provided that costs be taxed in default of agreement. By the time the matter was before the Court on the 14th July, 2008, none of the costs had been taxed. Ms. Dolan’s file had been with her cost accountants for almost a year and had not been reached “because of pressure of work”. By that stage, Mr. Loughrey had parted company with his Solicitors who had acted for him since late 2001 in relation to the administration of the estate. At the hearing on the 14th July, 2008, counsel for Ms. Dolan informed the Court that she had been under “relentless bombardment” from Mr. Loughrey looking for affidavits which his former solicitor, Mr. Gunn, could have given him. He had also made complaints about her to the Gardaí and to the Law Society and his conduct was distressing Ms. Dolan. It was submitted that there was no basis for the issue of the citation. Following the submissions on behalf of Ms. Dolan, the learned trial judge asked Mr. Loughrey whether he wished to say anything. He produced a lengthy affidavit sworn on the 9th July, 2008 which was then read by the learned trial judge at lunchtime. The notice parties before the Court were also heard. They pointed out that since the final order of the Court made in 2007 there had been no progress. It was contended that Mr. Loughrey was delaying taxation of his former solicitors’ costs. There had been no appeal against the final order. The only remaining asset in the estate of the Intestate, which consisted of farmland, had been sold at that point in time.
Laffoy J. then stated:
“Having read the affidavit of the second defendant and the documents exhibited in it at lunchtime, I gave judgment at 2pm. I made an order setting aside the citation. However, I made it clear that it was not being set aside on the grounds that it was vexatious or an abuse of process, but on the grounds that it was not going to advance matters. I stated that the order made on 11th June, 2007 was a final order directing the distribution of the estate. I stated that it was desirable that the taxation of costs be completed as quickly as possible. I pointed out that the second defendant was partly responsible for the delay in not co-operating with the taxation of his former solicitor’s costs. It was in his interest to co-operate.”
Orders for costs were then made and that matter is now under appeal.
The notice of appeal filed by Mr. Loughrey in relation to this matter sets forth the following reasons for appeal:
(1) “Because Judge Laffoy made her decision before I had made my defence and by doing so I was denied by right to defend myself or challenge statements by prosecuting counsel for Cathleen Dolan that were untrue also (sic) my right to question was refused by Judge Laffoy’s premature decision and Judge Laffoy even refused my request to read my replying affidavit to the Court that she controlled. And awarding costs against me to the Campbells to be paid by myself was against all logic where I did not involve the Campbells in the appeal, See my exhibit N. It was Ms Dolan who brought them in for her own reasons and Ms Dolan should be made to pay the Campbells as they were there on her behalf and they also did not have a chance to read my affidavit and exhibits.
(2) My affidavit and exhibits filed on 10 July 2008.
(3) Ms Dolan ignored the rules of the 1965 Succession Act and the superior Court 1986 orders 15, 79 and 80 and the Criminal Justice Act (Theft and Fraud) 2001 section 6, 11, 24-28 and 31.
(4) Ms Dolan’s affidavit and exhibits used on 14 July 2008.
(5) This is only some of the queries I would like answered by Cathleen Dolan that I did not get to ask because Judge Laffory’s (sic) premature decision on 14 July 2008.
(6) Hope this will clarify my position regarding this citation and after 7½ years of mismanagement of Ms Dolan’s administration it is time to call a halt.”
Mr. Loughrey filed a further document with the notice of appeal in which many complaints were made about the dealings of Ms. Dolan in relation to the administration of the estate and complaining about the manner in which the hearing on the 14th July, 2008 was conducted. In particular he complained that he was not permitted to read out his affidavit and that he was entitled to question Ms. Dolan and he concluded that document by stating that the Court failed him by concluding:
“. . that the case could be dealt with without oral evidence and cross-examination of Ms Dolan and others”.
In essence, Mr. Loughrey in that document of the 20th July, 2008 accused Ms. Dolan of various kinds of mala fides and non-compliance with Succession Act requirements. He complained that he was precluded from dealing with these matters because of “Judge Laffory’s (sic) premature decision”. It should be borne in mind that Mr. Loughrey, if he had wished, could have served a notice of intention to cross-examine on foot of the affidavit of Ms. Dolan but did not do so.
In addition to the document of the 20th July, 2008, Mr. Loughrey furnished lengthy submissions in relation to Appeal Nos. 309/2008, 125/2012 and 599/2012 on the 27th September, 2013. In those submissions he complained that Ms. Dolan as a stranger to Mr. Campbell had not been entitled to take out letters of administration. He complained that:
“[S]he has no proper standing in relation to the estate of Michael Campbell, he did not instruct her to make a will and any solicitor client relationship would have ended with his death on 19/12/2000.”
It seems at this point that a major part of Mr. Loughrey’s complaint and the reason for seeking the citation in the first instance was Mr. Loughrey’s view that he, as a first cousin of the Testator, or as he describes himself “as the only surviving lawful first cousin” of the Intestate, was entitled to take out letters of administration to the estate and that he was deprived of his inheritance rights to the land and property of the Intestate.
It should be recalled that Ms. Dolan became involved in the matter originally as she had been the solicitor for the Intestate and had been contacted by the Gardaí following his death because of concerns as to the welfare of livestock on the land. Thereafter she took out a limited grant. Subsequently, every step taken by Ms. Dolan has been pursuant to various Court orders. Thus she obtained an order of the Court in April 2004 extending her powers to administer the estate and to take steps to ascertain the next of kin. Since November 2001, Mr. Loughrey had been aware of her role as is evidenced by the letter of the 1st November, 2001 from his then solicitor, Mr. Gunn, to Ms. Dolan notifying her:
“As we have been instructed to protect our clients (sic) interests, we would be obliged if you would let us have full details of the assets and liabilities of the deceased to include copy of the relevant Inland Revenue affidavit.”
A response was furnished by letter dated the 6th November, 2001. Matters proceeded thereafter and as pointed out by Laffoy J. in her report of judgment of the 14th July, 2008:
“. . . by order dated the 11th day of June, 2007, the Court (Laffoy J.) discharged the order of 31st July, 2006 and ordered that the estate of the Intestate be divided equally between the second defendant, Michael Campbell and Leo Campbell.”
Various costs orders had been made previously and those costs orders remained to be taxed in default of agreement, in particular, the costs of the second defendant up to the 31st July, 2006 were to be taxed in default of agreement. By the time the matter came back to the Court on the 14th July, 2008, those costs remained to be taxed. Laffoy J. said that having considered the matter, she made an order setting aside the citation. She pointed out that the order made on the 11th June, 2007 was a final order directing the distribution of the estate and stated that it was desirable that the taxation of costs be completed as quickly as possible. She pointed out that the second defendant, i.e. Mr. Loughrey was partly responsible for the delay in not co-operating with the taxation of his former solicitors’ costs and that it was in his interest to co-operate.
Accordingly, that was the final order in relation to the administration of the estate. All that remained thereafter was for the costs orders made in the course of the administration proceedings to be taxed in default of agreement.
The basis of the application for the citation was that Ms. Dolan had:
“. . . failed to provide an inventory as requested and has not completed the business of the estate even though seven years had passed and many pieces of communication from myself since Mr. Gunn withdrew from the case in 2007.”
It is clear from reading the papers herein together with the various documents provided by Mr. Loughrey that there were undoubtedly delays in dealing with the estate. Those delays were, in part, caused by the difficulty in ascertaining the next of kin. However, it is also clear that by 2007 a final order had been made directing the distribution of the estate in accordance with the order made by the High Court on the 11th June, 2007 and that the only matter at that stage holding up the distribution of the estate was the need to tax the costs arising from previous orders made in the course of the administration and that the delay in taxing the costs was due to Mr. Loughrey’s lack of co-operation in that regard.
One further point may be made in relation to that citation and it is this, that when the matter was before the Court for the purpose of considering the entitlement of Leo Campbell and Michael Campbell to a share in the distribution of the estate, Mr. Loughrey swore an affidavit of the 22nd March, 2007 in the course of which he referred to an issue in regard to the distribution of a share in the estate to Leo Campbell, another first cousin of the Intestate. He stated in that affidavit:
“I say however that, as outlined by the plaintiff in her affidavit, an issue remains with regard to whether Mr. Campbell’s application should be considered by the Court at all at this stage. I say that the order of Ms. Justice Laffoy in October 2006 was clearly directed at correcting an error in the wording of the original advertisement i.e., the omission of Maggie Burke only . . .
In the circumstances, it seems to me that no claimant having come forward who is connected with Maggie Burke that the final orders made in my favour in July 2006 stand and that same should now be perfected. Further or in the alternative, I would echo the plaintiff’s request for the Court’s direction on this issue.”
It is helpful to observe that bearing in mind that it was some six years since Ms. Dolan first became involved in acting on behalf of the estate and bearing in mind that he first made contact through his solicitors with Ms. Dolan in November 2001, clearly Mr. Loughrey had no issue with her conduct of the administration of the estate at that stage. It was only subsequently that he appeared to become dissatisfied with her and, indeed, with his own solicitors who were still on record for him at that point in time. Presumably, if he had been dissatisfied with her conduct of the matter prior to that date he could and would have made an application at an earlier stage to have her replaced as administrator. That, of course, presumes that there was a reason for doing so. In addition, there was nothing to stop him making such an application after the initial application for liberty to apply for a grant had been made by Ms. Dolan. He never did so. If there was any genuine complaint to be made against Ms. Dolan the only complaint that could have any basis would have related to delay in dealing with the matter. Having said that, it seems to me that Ms. Dolan was faced with a difficult situation that she was obliged in the first instance to deal with complicated title matters in circumstances where some of the property owned by the Intestate was not held in his name and it was necessary to get the title to the property in order before it could be sold. Also of relevance was the fact that she did not have any family member to assist her or to give her instructions in relation to the matter which might have shortened the process and may have made it unnecessary to carry out investigations or inquiries as to the identity of the next of kin. I can see no other possible complaint that could have been levelled at Ms. Dolan in relation to her conduct of the matter.
As a result of the orders made in 2007 directing how the estate should be distributed the only outstanding matter then would have been the taxation of costs. There then followed the series of proceedings initiated by Mr. Loughrey together with various applications and citations sought by him. Those matters have prevented the estate from being dealt with for what is now an excessive period of time. During the course of the hearing Mr. Loughrey furnished a further letter to the Court and one of the complaints he made at that stage was that Ms. Dolan knew of the existence of the other first cousins of Mr. Loughrey and the late Intestate. However he did not produce any evidence to support that contention and it is clear as I have already indicated that up to the time when they were identified, no suggestion of that kind had been made by Mr. Loughrey. Even if Ms. Dolan had some information as to possible beneficiaries, she still had to make sure that she could identify the appropriate beneficiaries and that was the purpose of the administration proceedings. Ms. Dolan at all times acted in accordance with the directions of the Court. He also complained that Judge Laffoy was aware of the fact that he was entitled to the grant of administration. It is difficult to understand how such an assertion can be made.
In the circumstances, I can see no reason why there was any error on the part of Laffoy J. in making the order setting aside the citation as she did in July 2008.
The second citation application
This is the appeal comprised in Appeal No. 125/2012. This is an appeal from the whole of the order of the High Court (Murphy J.) of the 27th February, 2012. Mr. Loughrey had sought a further order from the Master of the High Court for the issue of a citation. The Master refused leave to issue the citation and Mr. Loughrey appealed that order to the High Court. The matter came before Murphy J. on the 27th February, 2012 and the appeal was dismissed. A number of certificates of taxation were included in the documents relied on by Mr. Loughrey. By a letter of the 24th May, 2010 Mr. Loughrey wrote to Ms. Dolan querying why monies had not been paid out from the estate. A reply was furnished by letter of the 13th July, 2010 setting out a number of reasons why Ms. Dolan had not been in a position to distribute the remaining funds from the estate. They were as follows:
It appears from the certificates of taxation enclosed in Book B furnished by Mr. Loughrey in relation to this Appeal that the taxation process was completed on the 9th December, 2010 with the taxation of the costs of Ms. Dolan.
Mr. Loughrey also furnished an affidavit which was sworn on the 27th February, 2012 in relation to the matter. In that affidavit Mr. Loughrey complained in the starkest of terms as to Ms. Dolan’s conduct of the administration of the estate going back to 2001. He added that from the date of the final order made by the High Court (Laffoy J.) on the 11th June, 2007 that Ms. Dolan:
“Bluntly refused to adhere to the clear instructions of the [H]igh [C]ourt and failed to distribute as directed funds from the sales of land and property to the entitled parties. I therefore vehemently object to any and all further fees, costs and expenses incurred from the 31st July 2006 forward, as plainly ordered on that date from the [H]igh [C]ourt.”
A report was provided by Mr. Justice Murphy in relation to the hearing of the matter dated 23rd May, 2012 for the purpose of the appeal to this Court. Murphy J. in the course of the report indicated that he agreed with the note of Mr. O’Donnell, B.L. for Ms. Dolan:
“That I had difficulty understanding what the application was and that I agreed to read the papers over lunch.”
He agreed with Counsel’s submission that some of the issues in the matter had been dealt with previously in the High Court by Clarke J. and Laffoy J. He concluded in the circumstances that it was inappropriate for him to deal with the matte which had been dealt with already by the High Court and was subject to an appeal to the Supreme Court. Mr. O’Donnell’s note was appended to the report and is available to this Court and sets out in more detail what occurred during the course of the hearing. It is clear that the report of judgment of the 14th July, 2008 prepared by Laffoy J. for the Supreme Court in connection with the appeal from her order in respect of the citation she was dealing with was opened to the Court. Having heard from counsel for Ms. Dolan, Mr. O’Donnell, B.L. and having heard from Mr. Loughrey who was assisted at the hearing by his nephew, the judge indicated that he would read Mr. Loughrey’s papers over lunch and re-convene at 2 p.m. At two o’clock Mr. Justice Murphy indicated that the Court could not deal with the matter as it had already been dealt with by Judge Laffoy and was now under appeal. After some discussion Mr. Justice Murphy confirmed that he was refusing the appeal from the Master’s order of the refusal to give leave to Mr. Loughrey to issue a citation. It was confirmed that some monies had been paid out of the estate to Mr. Loughrey, namely “his tax free threshold”. Following an application in that regard an order for costs was made against Mr. Loughrey out of his share of the estate.
In the course of the submissions furnished by Mr. Loughrey in respect of this appeal, he again complains that he has been deprived of his inheritance.
It appears that by the time the application was made to the Master of the High Court in 2011 very little had changed with regard to the situation. The decision of Laffoy J. was still under appeal to the Supreme Court in relation to the first citation and the Master quite properly refused to give leave to issue a second citation. It is clear from the report of Murphy J. and from the note of the hearing provided by Mr. O’Donnell, B.L. that Murphy J. was provided with all the papers relied on by Mr. Loughrey, read them and concluded that it was not appropriate to issue a citation in circumstances where a citation had previously issued to Mr. Loughrey but had been set aside by order of the High Court (Laffoy J.) and that that order was subject to an appeal to the Supreme Court which, of course, is one of the appeals under consideration in this judgment. It does appear that some progress had been made in that the taxation of costs had concluded by the time the matter reached Murphy J. but given that there was still an outstanding appeal from the order of Laffoy J. in relation to the first citation, it is difficult to see what further steps could be taken by Ms. Dolan to finalise matters. In those circumstances I fail to see any basis upon which it would have been appropriate for Murphy J. to have allowed the appeal from the refusal of the Master of the High Court to issue a further citation and in those circumstances I would dismiss the appeal from the order of the High Court (Murphy J.) made on the 27th February, 2012.
I should refer at this point to Appeal No. 315/2008 which is Ms. Dolan’s appeal against the order of Laffoy J. made on the 14th July, 2008 setting aside the citation and refusing the costs of Ms. Dolan in respect of that application. The question of costs is always a matter for the discretion of the trial judge. While it is the case that costs, in general, follow the event, it is nonetheless a matter for the discretion of the Court. It is of note that the only order for costs made in the course of that application was an order made in favour of the notice parties to be paid out of the share of the estate of Mr. Loughrey. No other order as to costs was made. That is clearly a matter within the discretion of the trial court and in those circumstances I would not be inclined to interfere with the order of the Court in respect of costs and accordingly I would refuse to vary the order of the High Court.
The special summons proceedings
Mr. Loughrey then issued two special summonses, the first being a special summons bearing the Record No. 2012/362SP. The special summons was between Brendan Loughrey, plaintiff, and Cathleen Dolan, defendant. The special endorsement of claim on the special summons was in the following terms:
“The plaintiff’s claim in monetary retribution in the sum of €8,000,000 (Eight Million Euro).
IN THE MATTER OF ORDER 3(1), (2), (3), (4), (5), (6), (7), (8), (11), (18), (19), (20), (21), (22). Additionally, negligence, concealment and suppression of bank statements, concurrent wrongdoing over a period of 11 years and still ongoing.”
There was also an affidavit sworn in those proceedings by Mr. Loughrey on the 28th September, 2012. In the course of that affidavit, Mr. Loughrey accuses Ms. Dolan of deceit, fraud and perjury in connection with the application for the grant administration limited as it was in 2001 and in the conduct of the administration of the estate of the Intestate. Without setting out the allegations in the affidavit in detail, the complaints of Mr. Loughrey relate to the period between the time when Ms. Dolan first became involved in the matter of the estate of the Intestate and her conduct of the administration of the estate up to May 2006.
The second special summons proceedings were brought by Mr. Loughrey against his former solicitors, McCloughan, Gunn & Co. Solicitors. The special summons in that case was also issued in July 2012 with the Record No. 2012/363SP and was between Brendan Loughrey, plaintiff and McCloughan, Gunn & Co., defendant. The special endorsement of claim was in identical terms to that against Ms. Dolan with one exception, namely that the period over which the alleged wrongdoing was occurring was a period of ten years as opposed to eleven years. In that case there was also an affidavit sworn on the 17th April, 2013 and one of the matters stated at the outset of the affidavit related to a desire to have a trial by jury in relation to the proceedings. Many of his complaints in that letter concern the fact that:
“Mr. Gunn failed to inform Brendan Loughrey that he was entitled to extract a grant of administration in [the Intestate’s] estate in May 2002.”
Other complaints were made which concern to a large extent the conduct of the administration of the estate by Ms. Dolan. Reference was made to a number of items of correspondence between Mr. Gunn, and Ms. Dolan.
Ms. Dolan issued a notice of motion on the 19th October, 2012 which came on for hearing before the High Court (Laffoy J.) on the 23rd November, 2012. At the hearing of the motion Mr. Loughrey appeared in person and Ms. Dolan was represented by counsel. Orders were sought pursuant to Order 19, rule 28 of the RSC striking out Mr. Loughrey’s proceedings on the grounds;
(a) that no reasonable cause of action is disclosed;
(b) pursuant to the inherent jurisdiction of the Court striking out the proceedings on the grounds that they are frivolous and/or vexatious and/or an abuse of the process of the Court;
(c) restraining the plaintiff from instituting any further proceedings against the defendant without leave of the Court;
(d) restraining the plaintiff from instituting any further motions in proceedings bearing Record No. 2005/218SP without leave of the Court and restraining the plaintiff from instituting any motions in any proceedings currently in being in relation to the estate of Michael Campbell deceased without the leave of the Court.
As mentioned earlier in the course of this judgment, the High Court granted a declaration to the effect that the proceedings were vexatious and should be dismissed and then made a number of other orders restraining Mr. Loughrey from instituting any proceedings against Ms. Dolan or in relation to the estate of the Intestate without the leave of the Court and from instituting any motion, application or procedure in the High Court in the 2005/218SP proceedings or in any proceedings currently in being in relation to the estate of the Intestate (save in relation to the furthering of the Supreme Court appeal) except with the prior of the High Court such leave to be sought by application in writing addressed to the Principal Registrar of the High Court.
It should also be noted that the special summons in each case contained one unusual addendum and that was a paragraph which stated:
“This summons is required to be served not less than four days before the return day mentioned therein (exclusive of the day of service), and be served under the Succession Act, 1965 [No. 27] section 44 (jury trial).”
The notice of appeal in the case against Ms. Dolan is not very clear in that it simply states that Mr. Loughrey will apply by way of an appeal from the whole/part of the judgment and/or order of the High Court. It goes on to add that he requires “a jury trial”. Insofar as the grounds of appeal are referred to, Mr. Loughrey refers to his affidavit of the 28th September, 2012, the affidavit of Ms. Dolan of the 18th October, 2012 and two books which are described as being from 1 to 65 and from 1 to 62. He also refers to the special summons and submissions. The two books submitted by Mr. Loughrey contain a series of documents but do not of themselves provide grounds of appeal as such. Thus it is somewhat difficult to ascertain precisely the grounds upon which Mr. Loughrey states that the learned trial judge was in error. Nevertheless the Court has considered and read all of the documentation submitted by Mr. Loughrey together with the document which is headed “Submissions” and includes a number of other documents.
In her judgment, Laffoy J. stated that she was focusing primarily on whether the proceedings should be struck out on the ground that the proceedings were vexatious and an abuse of process either under Order 19, rule 28 of the RSC or the Court’s inherent jurisdiction. She quoted from the judgment of the High Court in Behan v. McGinley [2011] 1 IR 47 (at p. 66) in which Irvine J. explained the jurisdiction and how it should be exercised. Irvine J., in the passage quoted, referred to a number of indicators of proceedings which were potentially vexatious to be found in a helpful Canadian decision Re Lang, Michener and Fabian (1987) 37 D.L.R. (4th) 685 at p. 691, namely:
“(a) the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;
(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;
(f) where the respondent persistently takes unsuccessful appeals from judicial decisions.”
Laffoy J. identified a number of those indicators as being present in this matter, namely indicators (a), (b) and (c). She also observed that the proceedings were procedurally flawed in that an action for “monetary retribution” or “damages for negligence” cannot be brought by way of special summons. Further she pointed out that very serious allegations made against Ms. Dolan were not particularised. Finally she concluded that the request for a jury trial was “wholly misconceived”. As she said:
“No undecided question of fact remains in relation to the identification of the beneficiaries of the estate of the Intestate.”
Decision in respect of the Dolan Special Summons proceedings
It is very difficult to discern from the written submissions provided by Mr. Loughrey any basis for argument as to why the decision of Laffoy J. to dismiss the proceedings on the grounds that they were vexatious was in error. Mr. Loughrey reiterated his complaints about Ms. Dolan. Mr. Loughrey appears in his submissions to have focused on his right to have a jury trial. In that regard I should refer briefly to s. 44 of the Succession Act 1965. It provides for jury trials in certain circumstances and it as follows:
Clearly where there is no agreement between the parties to have a question of fact determined by a jury, it is a matter for the discretion of a court to decide whether or not to provide for a trial by jury in proceedings under the Succession Act 1965. Accordingly, it is impossible to disagree with the conclusion of Laffoy J. to the effect that the request for a trial by jury herein is wholly misconceived. The proceedings at issue are special summons proceedings in respect of which Mr. Loughrey has claimed “monetary retribution” in the sum of €8m. The basis of the claim appears to be an allegation that there has been “negligence, concealment and suppression of bank statements, concurrent wrongdoing” over a period of years. It is undoubtedly the case that the matters complained of by Mr. Loughrey arise out of the administration of the estate of the Intestate by Ms. Dolan but I cannot see how those proceedings could in any shape or form be described as proceedings under the Succession Act 1965. As formulated, the proceedings appear to be a claim for damages for negligence. Quite frankly, there is nothing in the special summons that could be described as giving rise to proceedings under the Succession Act 1965. Given that that is the position, the request for a jury trial is one that cannot succeed.
In addition, Laffoy J. was correct to point out that an action for “monetary retribution” or for “damages for negligence” or some form of related wrongdoing simply cannot be brought by way of special summons.
Finally, Laffoy J. considered the relevant law in relation to applications to dismiss proceedings on the grounds that they are vexatious and an abuse of process either under Order 19, Rule 28 or the Court’s inherent jurisdiction. I have quoted the passage cited by Laffoy J. from judgment of the High Court in Behan v McGinley [2011] 1 IR 47 which set out the principles to be applied. In my view, the identification of those principles and the application of those principles to the facts of this case by Laffoy J. was entirely correct.
In the circumstances, I would dismiss Mr. Loughrey’s appeal against the judgment and order of Ms. Justice Laffoy of the 30th November, 2012 as I can see no basis for deciding that she was in error in concluding that the proceedings should be dismissed on the grounds that they were vexatious or in making the other orders on the 30th November 2012.
I should add that I deprecate the manner in which serious allegations have been made by Mr. Loughrey against Ms. Dolan in circumstances where those allegations are not particularised or shown to have any basis. Ms. Dolan became involved in the administration proceedings in circumstances which have already been described. For a period of approximately six years until Mr. Loughrey parted company with his former solicitors, McCloughan Gunn & Co., no complaint or allegation of any kind of wrongdoing was made against Ms. Dolan. It is the case that there was difficulty for Ms. Dolan in dealing with the administration of the estate both in terms of ascertaining and perfecting the title to some of the land held by the Intestate and in identifying the next of kin of the Intestate. Within a relatively short period of time after she obtained a limited grant of administration, Ms. Dolan had been contacted by Mr. Loughrey’s then solicitors. It took considerably longer to ascertain the identity of the remaining next of kin and unfortunately they are now deceased. Thus the administration of the estate was not a straightforward one for her to deal with. Mr. Loughrey has complained at length in the course of the documentation as to the fact that he has been “deprived” of his rights to take out letters of administration to the estate and to have his share of the estate distributed. As is set out previously in the course of this judgment some of the delay in this matter can be directly attributed to his own conduct in relation to this matter. At various times in the course of the administration proceedings when difficulties arose or steps required to be taken, Ms. Dolan correctly and properly brought proceedings to court for the purpose of obtaining directions. It is difficult to see what else could have been done by her throughout the course of the proceedings. Ironically, one might observe, that by his conduct to date, Mr. Loughrey has prevented the completion of the distribution of the estate and his own entitlement to receive his share of the estate, (over and above the sum of his tax free threshold which he has received), has been delayed for a considerable number of years in circumstances which appear to me to be unjustifiable. In that regard he could only be described as his own worst enemy.
The final special summons proceedings
Mr. Loughrey also issued proceedings against his former solicitors, McCloughan Gunn & Co. as set out previously. Those proceedings were issued on the 9th July, 2012 but were returnable before the Master of the High Court on the 30th April, 2013 some months after Ms. Justice Laffoy had given her decision in the other special summons proceedings. These were not the first proceedings brought by Mr. Loughrey against his former solicitors. The claim in these proceedings mirrors, as I have already said, those brought against Ms. Dolan in that they claim monetary retribution in the sum of €8m. Mr. Loughrey also made reference in the proceedings to s. 44 of the Succession Act 1965. Mr. Loughrey swore an affidavit in those proceedings on the 17th April, 2013. His main complaint appears to be that Mr. Gunn, of McCloughan Gunn & Co., did not inform Mr. Loughrey that he was entitled to extract a grant of administration to the estate of the Intestate. He also made reference to some of the history of the issues that arose in the administration proceedings, for example, in relation to the claim made by Mrs. Culloo. An application was made to dismiss these proceedings and that application came before the High Court (Laffoy J.) and she dismissed the proceedings relying on the reasons given in respect of the proceedings related to Ms. Dolan. Laffoy J. provided a report of the judgment in these proceedings in which judgment was delivered on the 8th July, 2013. In the course of that report she noted that she had pointed out that the proceedings that he had initiated and revitalised against McCloughan Gunn & Co. were in exactly the same situation as the proceedings against Ms. Dolan. For the reasons set out in the Dolan judgment she was making a similar order in these proceedings. She noted that Mr. Loughrey handed in a bundle of documents in to Court and that she had seen those documents previously in the Dolan case. She then indicated to him in response to his statement to the Court that he wanted a jury trial that he was not entitled to a jury trial. She made an order pursuant to the inherent jurisdiction dismissing the plaintiff’s claim on the grounds that the claim as pleaded was bound to fail and also on the grounds that it was an abuse of process. She indicated that she also made an Isaac Wunder order against him restraining him from instituting any proceedings against Seamus M.A. Gunn or McCloughan Gunn & Co. without the leave of the Court.
The notice of appeal in this case was similar to that in relation to Ms. Dolan save that it did not make specific reference to a jury trial. He referred to an affidavit of the 17th April, 2013, the affidavit of Mr. Gunn, the ruling of Ms. Justice Laffoy of the 8th July, 2013 and the Books 1 and 2 which were furnished to the Court in relation to this matter.
I can see no reason for coming to any different view in relation to the appeal in respect of this matter than has been reached in relation to the Dolan proceedings. Despite the volume of documentation presented to the Court in this matter, Mr. Loughrey has not demonstrated any error on the part of Laffoy J. in dismissing the proceedings. The proceedings are vexatious, are bound to fail and are misconceived. Insofar as Mr. Loughrey has sought a jury trial, that is a misunderstanding on his part of the provisions of s. 44 of the Succession Act 1965 for the reasons previously explained. I can see no alternative but to dismiss this appeal and I would do so.
Conclusion
Mr. Loughrey was one of a number of beneficiaries under the estate of the late Michael Campbell. Ms. Dolan became involved originally at the request of the Gardaí given that Mr. Campbell was a former client of hers. It emerged that, unfortunately, following the death of the Intestate he was “waked” by his neighbours. Apparently, no members of his family were aware of his demise. Mr. Loughrey became aware sometime later in that year of the Intestate’s death and as has previously been indicated his solicitors were in touch with Ms. Dolan towards the end of 2001. No complaint was made at all by Mr. Loughrey as to the conduct of the matter by Ms. Dolan until long after she had taken out the grant of administration. It appears that while there was an issue in relation to the entitlement of a second cousin to an interest in the estate, Mrs. Culloo, Mr. Loughrey does not appear to have advised Ms. Dolan as to the existence of Michael and Leo Campbell who were also first cousins of the Intestate. Had this information been provided at an earlier stage by Mr. Loughrey, who clearly was aware of their existence, it would have saved a great deal of time. One wonders what might have happened if in fact Mr. Loughrey had obtained letters of administration to the estate of his late cousin and whether or not he would have had regard to the rights or interests of other potential beneficiaries to the estate. As it is, he has embarked on very expensive litigation which has effectively deprived those cousins of their entitlement to a share in the estate of the Intestate. They are now both deceased. Their families may stand to benefit at the end of the day but it is noteworthy that one of the personal representatives of the cousins died on the Friday before the case was due to be heard in this Court. The appeals continued notwithstanding that on the basis that if required by the personal representative of that notice party, the matter could be re-listed for hearing before the Court to hear any argument from that party. That necessitated that representation to the estate of that party had to be taken out in order to deal with the matter. That was subsequently done and it was indicated to the Court that no further issue required to be argued on behalf of that person’s estate. Unfortunately, the requirement to ascertain the position of the personal representative of the parties entitled to share in the estate led to a further delay in bringing this matter to a conclusion.
I have referred earlier to the fact that Mr. Loughrey suffers from some limitations in the form of dysphasia by virtue of his stroke. This has not inhibited him in any way in putting documents before the Court and in bringing proceedings before the Court and in making applications of various kinds. He has had the assistance of his niece before this Court and it has to be said that she was very helpful and courteous to the Court and the Court wishes to acknowledge its gratitude to her for her assistance. The same cannot be said of Mr. Loughrey.
For the reasons outlined above I would dismiss all of the appeals brought by Mr. Loughrey. I would express the hope that this will now bring the matter to a conclusion and that the fact that these proceedings are now at an end should enable Ms. Dolan to complete the administration of the estate and to distribute what remains of the estate to those who are entitled to receive it including Mr. Loughrey. This should be done as a matter of urgency given that the matter has been delayed for so long.
