Farmer loses appeal over time barred challenge of land transfer in family dispute
of proceeding in 2004, and that he could not both be an executor of his mother’s Will, and bring a challenge against it.
Further, under s.9(2)(b) of the Civil Liability Act 1961, the relevant limitation period for maintaining a cause of action which has survived against the estate of a deceased person “is that which first expires, the period of two years after the date of death, or, at most, a twelve year period from the 5th February, 1990”, the transfer date.
The High Court was satisfied that the plaintiff did not have standing to challenge the Deed of 5th February, 1990, and that the purported claims were not maintainable by reason of the efflux of time and in the face of the statutory period for the bringing of same.
Thus, the action was dismissed and the plaintiff was ordered to pay all costs. In May 2012 the plaintiff gave Notice of Appeal.
Delivering the judgment, Mr Justice William M. McKechnie noted that “although the discussion travelled far and wide as to what at this point in time the appellant’s real case is…the answer can again be found in an affidavit sworn by him…where he says:
“I say and believe and am so advised that the central and core issue of the plaintiff relates to the validity of the said Deed of Transfer and that the plaintiff accepts that he cannot make any case under s. 117 of the Succession Act as against the defendants herein and likewise that it is not appropriate to raise a case on estoppel or legitimate expectation against these defendants.”
The Judge found that the appeal could be determined without making any findings in relation to the disputed facts between the parties, and would be instead resolved by way of a simple issue: the asserted time bar contained in the Civil Liability Act 1961 and the Statute of Limitations 1957.
The Judge found that the “correct way of assessing and thus of approaching this case is to consider that the proceedings had been instituted in the plaintiff’s personal capacity, with the intention of recovering the lands in question for his sole use and benefit. Therefore, the most pertinent statutory provision must be s. 13 of the 1957 Act.”
Under the terms of that Act, any action would have to have been instituted within twelve years from the date when the right of action accrued.
It was noted that the Deed of Transfer was dated the 5th February 1990, and that the respondents became the registered owners on the 19th February 1991.
“Given that the Plenary Summons did not issue until the 4th March, 2004, it obviously follows that such proceedings were out of time in respect of the cause of action so construed. As there is no applicable provision by which the period may be extended, that statutory barrier of itself has the effect of preventing the appellant from continuing with the claim as so framed.”
Further, the Judge noted that “Even if, however, I should be incorrect in this regard, and that it could be said that the appellant was acting in either an executor capacity or some capacity equivalent or analogous to that, then quite evidently he could not as a matter of law act in effect as prosecutor and defender in the same cause of action.”
“Furthermore, and again notwithstanding what I have said, if the claim, despite the most unconventional and not altogether clearly understood manner of how it is pleaded, is to be regarded as one against the estate of the deceased person, then under the provisions of s. 9(2) of the 1961 Act, it is self evident that the same would be statute barred.”
Accordingly, the appeal was dismissed.
- by Rachel Killean for Irish Legal News