Court of Appeal dismisses appeal where respondents' use of a similar name death certificate was deemed a mistake, not fraud.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 118

Record number 2014\367

Hogan J.

Whelan J.

Gilligan J.

BETWEEN

MAUREEN MOORE AND

(BY ORDER OF THE COURT), PEGGY SARSFIELD, (AS LEGAL PERSONAL REPRESENTATIVE OF MAUREEN MOORE, DECEASED)

APPLICANT/

APPELLANT

AND

JOHN MOORE, MARIA MOORE AND NADINE CHETTY

DEFENDANTS/

RESPONDENTS

JUDGMENT of the Court delivered by Ms. Justice Máire Whelan on the 26th day of April, 2018.

1. This is an appeal by the estate of the appellant, Maureen Moore, (who died on 16th October 2010), from the judgement dated 10th

December 2010 of Mr. Justice Roderick Murphy in the High Court and consequent orders. The appellant contests the determination of

the trial judge that the conduct of the first and second named respondents in relying on a death certificate of a person bearing an

identical name to that of the appellant for the purposes of selling the premises 100, Mount Tallant Avenue, Harold’s Cross in Dublin

constituted a mistake rather than fraud. The appellant further appeals against the finding that the third named respondent was a

bona fide purchaser for value without notice and an order for costs made in favour of the third-named respondent.

Background Facts

2. The appellant was born Maureen Dawson on 28th February 1939. She resided with her family at Craven Terrace, North Road,

Drogheda, Co. Louth.

3. Subsequently, the family resided at number 5 Laburnum Square, Drogheda, Co Louth. On 14th May 1960, she entered into a

ceremony of marriage with one Edward Russell of Killester, Dublin. She was then aged 21 years. It appears that she resided in Dublin

for a time and also in the United Kingdom. That marriage was subsequently dissolved. On 22nd July 1968 the Decree Nisi of divorce

issued in Liverpool. On 23rd October 1968 a Decree Absolute of divorce issued. Documentation suggests that at that time she was

domiciled in the Isle of Man. Subsequently, she returned to reside in Ireland.

4. John Gabriel Moore (hereinafter “the husband”), was born circa 1939. His first wife died shortly after the birth of their second child,

the second named respondent Maria Moore on 16th April 1969. The older child, John Moore, the first named respondent to this appeal,

was born on 27th May 1967. The first named respondent is a carpenter and the second named respondent is a hairdresser.

5. In or about the month of October 1970 when he was aged about 31, he came into contact with the now deceased appellant in

circumstances where he had advertised seeking a childminder for his two infant children. The appellant who was then also aged 31

took up the position. The children, being the first and second named respondents, were aged three and one years old respectively.

6. A relationship developed between the husband and the appellant. Seven months after she commenced work as a childminder she

married the husband on 28th May 1971 and came to reside permanently in the Moore household in Dublin. Thus, at the

commencement of the appellant’s marriage the first named respondent John Moore was aged four, and the second named respondent

Maria Moore was aged two.

7. Subsequently, the husband and the appellant purchased the property 100 Mount Tallant Avenue, Harold’s Cross in Dublin (“the

property”). They were registered as full owners of that property in Land Registry Folio 30984L on 20th February 1978. They held the

property as joint tenants.

8. The marriage was not a happy one. There was a dispute at the trial of the action as to the basis for the domestic discord. There

was a conflict of evidence before the trial judge with regard to the extent to which the appellant was violent towards her husband or

cruel towards her stepchildren – the first and second named respondents to this appeal – or they towards her.

9. The apportionment of blame for the disharmony amounts to little more than recondite speculation at this remove in time. It is not

of assistance in determining the matters in issue in this appeal.

10. At all events, the appellant departed the property on about 2nd July 1982. The first named respondent was aged 15 years and

the second named respondent was aged 13.

11. There was some initial cursory contact in about the year 1982 in connection with an application by the appellant for a social

welfare payment of deserted wives allowance. It is clear that from 1982 forward the appellant disengaged completely, did not divulge

her whereabouts and withdrew all contact with the first and second named respondents and their father, her husband.

1982 – 5th January 1996

12. It would appear that the appellant was acquainted with William A. James a solicitor who was admitted to the Rolls in 1968 and

worked in the firm of B. Vincent Hoey of Drogheda. He became a partner in that firm.

13. In cross examination at the hearing the appellant denied ever having communicated with the said Mr. William A. James and

asserted that he was “unqualified”.

14. With regard to the said solicitor the appellant stated “He lived in our house.”

15. A letter written by the said firm of solicitors and dated 25th November 1983 addressed to the husband at the property was found

by the trial judge to be of relevance in connection with the subsequent conduct of the first and second named respondents and

speaks to the central issue as to whether the said respondents in their conduct were reckless in executing the statutory declaration

of 3rd May 2002.

16. The said letter stated;

“We have been consulted by your wife, Mrs. Maureen Moore, in connection with her interest in the property at 100 Mount

Tallant Avenue, Terenure. Our client is now anxious to realise her share in the property and we would be obliged for your

suggestions as to how this might be achieved.”

The letter was never responded to.

17. Over 12 years elapsed between the writing of that letter in November 1983 and the death intestate of the husband on 5th

January 1996. In the intervening years the appellant had maintained no contact with her stepchildren. Nor, would it appear, apart

from the aforementioned letter of November 1983 did she ever contact the husband over the remainder of his life.

18. It appears that she went to reside in the city of Antwerp in Belgium for many years. She did not at any time disclose her

whereabouts to her husband or stepchildren. It was not in dispute that the first and second named respondents had no knowledge as

to her whereabouts or whether she was living or deceased as at the date of death of their father in January 1996.

19. Notwithstanding that her original connection with the children was in a capacity as their childminder she maintained no contact

with either of them, and indeed the evidence was that she had a profoundly negative and hostile relationship with her stepson, the

first named respondent.

20. Those relationships, and the unrevealed grievances which defined them, are not relevant to the central issues in this case,

however. Maureen Moore did not attend her husband’s funeral. It would appear that that she may not have been resident in the state

at the time of the death.

21. The period of time between the letter of November 1983 and the date of the husband’s death was more than 12 years, during

which she refrained from all contact with the family. This fact is significant in and of itself.

5th January 1996 and 3rd May 2002

22. The trial judge considered the events which unfolded from the death of the husband in January 1996 up to the execution of the

statutory declaration over six years later. He analysed the acts and steps taken by the first and second respondents in evaluating

whether their admitted conduct in executing a statutory declaration in May 2002 exhibiting a valid death certificate of an identically

named deceased woman to that of the appellant in the context of the sale of the property constituted a fraudulent act.

Death Certificate of Husband

23. Firstly, in the context of the death certificate exhibited, it is noteworthy that the husband is described therein as a “widower”.

The first named respondent John Moore under cross examination stated that at the time of his father’s death “I was asked questions

about whether my mother was alive or dead, and I said my mother was dead.”

24. In my view the trial judge was entitled to find that that was a reasonable explanation for what transpired. The first named

respondent also stated in his evidence:

“… to be honest with you, I wasn’t thinking. I must have been – I had grief that my father had just passed away.”

25. At the time of the death of their father, John Moore was aged 28 and his sister was aged 26 years.

26. Secondly, following the death of their father the respondents attended the solicitors PC Moore. On 9th May 1996, a letter was

written by that firm of solicitors to B. Vincent Hoey and company the firm which had acted for the appellant and had written a letter

on her behalf in November 1983.

It provided;

“We are instructed by John and Marie Moore of the above-named address, surviving children of the late John Moore.”

The letter further states;

“we are now having difficulty locating Mrs. Maureen Moore. I would be grateful if you can advise us if you have contact.”

27. In my view the trial judge was entitled to rely on that letter as evidence that efforts were being made to trace the whereabouts

of the appellant. It was of relevance to the trial judge in determining the state of mind of these respondents and in particular he was

entitled to rely upon it, when combined with the other evidence and the demeanour of these witnesses (the first and second named

respondents), as being inconsistent with an intention to fraudulently assert that Maureen Moore was deceased, or that she was not

alive or that she had not survived her husband.

28. Thirdly, there was evidence from the cross examination of John Moore to the effect that letters had been written to St John of

God’s hospital in the belief that the appellant may have been either an in-patient or employed there.

29. Letters were written to a number of addresses, including St Loman’s Hospital seeking to locate the appellant. The first named

respondent stated in his evidence that:

“Information we were given was that she could be working there and that she might be a patient.”

30. Fourthly, an important step was taken when the respondents proceeded to check the PRSI number of the appellant. That

occurred in about the year 2000;

Q. “What did the agency authority tell you in relation to her status?

A. “Well, the information that I got back from them was that the PRSI number was not being used. It was dormant.”

31. Fifthly, it would appear that the first named respondent John Moore engaged his accountant to make enquiries in an effort to

trace the appellant.

32. Sixthly, there is evidence that a private investigator was retained in about the year 2000 to endeavour to trace the whereabouts

of the appellant.

33. Under cross examination, John Moore indicated that at one stage they had searched for Maureen Moore in the Drogheda area

telephone directory without success.

There was nothing furtive about any this activity.

34. It is also clear, and the trial judge so found, that a letter was written to the address of the appellant in Drogheda which was not

responded to.

“The first named defendant gave evidence of having made enquiries about the whereabouts of the plaintiff. Those

enquiries included writing a letter to the plaintiff’s original family home in Drogheda.” (judgment of the High Court, p.1)

35. After some years of endeavouring to trace her whereabouts efforts moved to searching for a death certificate.

Death Certificate of Maureen Moore

36. After several unsuccessful attempts over the years to trace the whereabouts of the appellant, in the month of February 2000,

four years following the death of the husband, the second named respondent found what according to her evidence she believed to

be the death certificate of the appellant in the Register of Births, Deaths and Marriages in Dublin. There was clear evidence from the

first and second named respondents before the trial judge that they believed the death certificate to be that of their stepmother, the

appellant. The trial judge had the opportunity to observe them both at length in the witness box and being vigorously cross examined.

He accepted that evidence.

37. Thereafter they extracted a grant of Letters of Administration Intestate and proceeded to administer their father’s estate on the

basis that he was entitled to the property at the date of his death by right of survivorship, the appellant having predeceased him.

38. The death certificate in question was obtained by the second named respondent. Two years later it was relied on and exhibited in

a statutory declaration to facilitate the open market sale and transfer of the property to the third named respondent. As has now

transpired, the relevant clause in the statutory declaration was not accurate. The death certificate of Maureen Moore annexed,

though an authentic document, did not pertain to the appellant but rather to a wholly unconnected person with an identical name to

that of the appellant. The question is whether the declaration constituted a fraudulent misrepresentation.

39. The trial judge had to determine on the evidence whether the statutory declaration was executed dishonestly, without an honest

belief that the statements it contained were true, and with the intention that Nadine Chetty, the purchaser (the third-named

respondent), should act on it for the purposes of purchasing the property. The trial judge found that there was mistake but not fraud.

Coeval

40. The death certificate in question describes the deceased as a “secretary”. The appellant acknowledged in evidence that she had

been described as a secretary in her career, at p. 42 of the transcript.

41. The age of the deceased “Maureen Moore” appeared on the death certificate as 57 years old which was not the age of the

appellant as at 21st January 1995. However, the appellant reached her 57th birthday the following year. Hence, the appellant was

close in age to the deceased and might reasonably be considered her coeval.

42. It must be noted that a death certificate does not specify the actual date of birth of the deceased. Perforce therefore it is a

mere approximation of the age of a deceased.

43. Their father had died over six years previously. By the time the declaration came to be executed, the appellant had made no

contact with them whatsoever for almost 20 years.

44. At the date of execution of the statutory declaration in May 2002 the appellant had been absent without trace from the lives of

the first and second named respondents for upwards of two decades and was living out her life serenely ignorant as to her own

widowhood of six years standing.

45. With regard to the proposition advanced on behalf of the appellant that the said respondents should have known that Maureen

Moore was not deceased, regard must be had to the fact that in the case of these respondents their mother had died in her late 20s

or early 30s. Their father had died in his mid-50s.

46. Hence, the trial judge was entitled to have regard to the lived experience of these particular respondents in evaluating whether

what occurred emanated from a fraudulent state of mind and in concluding that it had not. The impact of her continued

disappearance and sustained absence cannot be under-estimated.

The Pleading of Fraud

47. On Tuesday, 13th July 2010 at the opening of the case in the High Court, counsel for the appellant opened the Registration of

Title Act, 1964 to the Court

48. A recurring theme throughout this appeal was the importance to the appellant of procuring a court order with a finding of fraud as

against the first and second named respondents for the purposes of facilitating a recovery of damages pursuant to section 120 (1)(c)

of the Registration of Title Act, 1964.

49. The section in question provides for compensation for error, forgery or fraud in relation to registration in certain circumstances.

The within proceedings were instituted on 2nd November 2007. It was two and half years later before the appellant first decided to

frame this claim in fraud also as against the said respondents.

50. The notice of trial was served on 26th March 2009. Fraud was first introduced after service of the notice of trial and when a date

for hearing was fixed. In my view this is a significant fact.

51. It was over a year later on 10th May 2010 that the appellants obtained from the High Court an order granting liberty to deliver an

amended pleading.

52. In an affidavit sworn on 7th March 2010, Noel Malone, solicitor for the first and second named respondents, deposed that the

allegations of fraud were strongly refuted and the proposed amendments were;

“… clearly trying to circumvent the plaintiff’s reply to the defence of my clients by attempting to effect the introduction

of a whole new cause of action.”

53. In particular an objection was raised that the claim of fraud was first raised over two years after the institution of the

proceedings.

54. It was contended by the appellant in support of the claim of fraud that; the first and second named respondents failed to make

proper enquiries as to whether the death certificate related to the appellant, they were aware of the location of the appellant’s family

home (as they had visited it as children), they had made no enquiries about the welfare of the appellant and whether she was one

and the same as the woman whose death certificate. The appellant further asserted;

“It would be expected that if anyone was making enquiries about a person in her 50s, as the plaintiff was, the

presumption would be that she was alive and is not dead. At least the defendant should have carried out further enquiries

before relying on the death certificate.”

55. This position I find unpersuasive. It disregards the fact that the death certificate is authentic and not a forged document and

pertains to a coeval namesake who was also a secretary resident in Dublin. The appellant’s arguments acquire a misleading clarity in

retrospect.

56. It is noteworthy that the focus of attention is pre-eminently on alleged omissions on the part of the first and second named

respondents. The amended statement of claim alleging fraud, was first delivered on 12th May 2010, two and a half years post the

institution of the proceedings, almost 28 years after the appellant departed the property and over 14 years after the death of the

deceased. The within proceedings were instituted on 2nd November 2007 over a quarter of a century after the appellant ceased

contact with her stepchildren and her husband.

Findings of Trial Judge

57. The trial judge, Mr. Justice Roderick Murphy, who delivered his judgement on 10th December 2010, found that the first named

respondent had made enquiries about the whereabouts of the appellant. “Those enquiries included writing a letter to the plaintiffs’

original family home in Drogheda.”

58. At p.12 of the judgement the trial judge found as follows;

“The court agrees that the plaintiff’s cause of action was not based on the fraud of the defendants. Moreover, the cause

of action was not concealed by the fraud of any such person. The plaintiff could, at any time, by using any reasonable

diligence have ascertained years earlier that the said John Moore was dead.”

59. An important finding of primary fact by the trial judge having heard the witness is to be found at pp. 12/13 of the judgment;

“I am satisfied from the evidence that they did attempt to ascertain the whereabouts of the plaintiff. They may have

been less than thorough in identifying the Maureen Moore who died a year before their father with the plaintiff, their

foster mother. Notwithstanding, there was no evidence of fraud or concealment. The fraud alleged, which is against the

first and second named defendants in relation to the procurement of the death certificate of the Maureen Moore, who

died on the 21 January 1995, is accordingly, not established.”

60. At p. 15 of the judgement he continues;

“While there was no evidence of fraud or concealment there was clearly a mistake as to the identity of the Maureen

Moore, who died the year before their father. The Court is satisfied that within a year after the plaintiff became aware of

her husband’s death, when she was so informed by his brother in 2006, she commenced proceedings. It is then

necessary, absent fraud or concealment, to examine the effects of the first and second named defendants’ mistake.”

61. Key findings of fact by the trial judge include the following;

“While fraud has been alleged, it has to be examined in terms of two letters in 1996, from the first and second named

defendants’ solicitors to Vincent Hoey and P C Moore seeking the address of the plaintiff. Furthermore, there was a letter

to nursing homes and to whom the first and second named defendants made enquiries.” (at p. 12 of the judgement)

62. In considering the proceedings as originally instituted the Court noted;

“The Court agrees that the plaintiffs cause of action was not based on the fraud of the defendants. Moreover, the cause

of action was not concealed by the fraud of any person. The plaintiff could, at any time, by using any reasonable

diligence have ascertained years earlier that the said John Moore was dead.” (at p. 12 of the judgement)

“I am satisfied from the evidence that they did attempt to ascertain the whereabouts of the plaintiff. They may have

been less than thorough in identifying the Maureen Moore, who died the year before their father with the plaintiff, the

foster mother. Notwithstanding, there was no evidence of fraud or concealment.” (at pp. 12/13 of the judgement).

63. As regards the title of Maureen Moore to the property 100, Mount Tallant Avenue, Harold’s Cross the trial judge found:

“In the present case the plaintiff was a joint tenant. The husband could not have been in adverse possession to her legal

entitlement.” (at p. 15 of the judgment).

In the absence of fraud or concealment the trial judge proceeded “to examine the effects of the first and second named defendants’

mistake”.

64. At p. 17 of the judgement the trial judge finds

“a consequence of the first and second defendants’ mistake was that the plaintiff was not located and contacted on her

husband’s death. The first and second named defendants acknowledge in the Inland Revenue affidavit (sworn on 12

March 2001) that the plaintiff was his spouse. However, in pleadings they refer to her “alleged widowhood” and stated

that they do not admit that she was his widow and that they require proof of same. If those defendants had not made

the mistake in relation to the death certificate, and had located the plaintiff, she would have been able to attempt to

assert a right at that stage.”

65. The trial judge stated at p. 17;

“the court is satisfied that the joint tenancy was not severed by the time Mr. Moore died, twelve years have not passed

from the date of his death because time has ceased to run on the 11th year with the issuing of the summons.”

66. The trial judge continued:

“there were two consequences of the mistake: the Folio as amended, and the plaintiff was not told about her estranged

husband’s death.”

67. With regard to the third named respondent, who was the purchaser of the property, the trial judge found at p. 18 of the judgment

that there was no estoppel arising against her and that she was entitled to rely upon the Statute of Limitations, 1957.

68. “Moreover, the register is conclusive evidence of title.” ( at p. 19 of judgement)

69. The trial judge proceeded to find at p. 19 of the judgment;

“The plaintiff is not entitled to any order under s. 31 of the Registration of Title Act, 1964, rectifying the register in

circumstances where the third named defendant was a bona fide purchaser for value without notice of the alleged fraud.

Moreover, the present registered charge holder, Ulster Bank Ireland Limited, is also a bona fide purchaser for value

without notice of the alleged fraud”. (at p. 19 of the judgment)

“The court is satisfied that estoppel cannot apply, particularly in relation to the third named defendant, but also in

relation to the first and second-named defendants as the plaintiff is a stranger to the estoppel in that no communication

was made to her.”

“The court refuses the plaintiff’s claim as against the third named defendant, the ultimate purchaser of the property.”

“The court will hear the parties regarding the issue of damages resulting from the mistake which deprive the plaintiff of

interest.”

Consequential Orders

70. A consequence of the determinations of the trial judge was that the issue of the assessment of damages against the second and

third defendants fell to be determined by the High Court arising from the mistaken conduct of the said defendants against which of

the first and second defendants have not appealed.

71. That aspect of the case was dealt with in the High Court in 2011.

72. Further, there was a formal order that the action be dismissed as against the third-named respondent and that she recover her

costs against the appellant.

73. The assessment of the plaintiff’s/appellant’s damages was heard ultimately before Laffoy J in the High Court on 25th November

2011, when an Order was made in favour of the appellant granting judgment as against the first and second named respondents in

the sum of €225,000.

74. The first and second named respondents did not appeal that order.

Notice of Appeal

75. The notice of appeal is dated 9th February 2012. It is pursued by the appellant’s legal personal representative.

76. It contends as follows;

(i.) The trial judge erred in holding that the first and second named defendants had (not) knowingly and fraudulently relied

on the death certificate to convert the title deeds of the property to their own use.

(ii.) The trial judge erred in holding that use by the first and second defendants of the death certificate was simply a

mistake rather than fraud.

(iii.) The trial judge erred in refusing to make an order under section 31 of the Registration of Title Act, 1964 to rectify

the register and further in finding that the third named defendant was a bona fide purchaser without notice.

Submissions of Appellant

77. In the submissions before this Court counsel for the appellant indicated that the primary focus of the appeal concerned three

elements;

• firstly, the trial judge’s finding that the use of the death certificate by the first and second defendants was not an act

of fraud, but rather mistake,

• secondly, the finding of the trial judge that the third defendant was a bona fide purchaser for value without notice.

• thirdly, they appeal the order for costs made against the appellant for the benefit of the third named defendant.

78. In the written submissions of the appellant there is the following statement;

“The appeal is primarily concerned with the finding of Mr. Justice Murphy that the use of the Death Certificate was not

fraud but mistake. There is an important distinction as a finding of fraud provides a remedy to either the appellant or the

Third Named Defendant under section 120 of the Registration of Title Act, 1964, as amended.”

79. The necessary inference is that the appellant requires a finding of fraud against these respondents primarily to gain access to the

state compensation fund which operates under the 1964 Act lest the first and second named respondents prove impecunious and

unable to discharge the decree which issued against them in damages for mistake in the sum of 225,000 on 25th November 2011.

The Statutory Declaration

80. In the instant case at issue are certain representations made by the first and second named respondents in the statutory

declaration executed on 3rd May 2002 exhibiting the death certificate which purported to be that of the appellant.

81. Maria Moore executed the said declaration in her capacity as one of the legal personal representatives of her father John Gabriel

Moore who died on 5th January 1996.

82. The relevant representation contained in the statutory declaration, which was sworn for the purposes of effecting the sale of the

premises on the open market to the third named respondent was required for compliance with the provisions of the Family Home

Protection Act, 1976 and other relevant family law legislation.

83. At paragraph 2 of the statutory declaration it provided;

“The Property is a family home within the meaning of that term in the Family Home Protection Act, 1976 as amended by

the Family Law Act, 1995 of any person. No married couple has ordinarily resided therein since the death of John Moore

and Maureen Moore deceased the registered owners apart from my Brother, John Moore and his spouse Sylvia Moore.

I refer to a copy of the death certificates of John Moore and Maureen Moore husband pinned together and attached

hereto.”

84. The final clause in the declaration provides;

“I make this solemn Declaration conscientiously believing the same to be true from facts within our own knowledge for the

purposes of the Family Home Protection Act, 1976, the 1991 Act, the 1989 Act, the 1995 Act and the 1996 Act, and by

virtue of the Statutory Declarations Act 1938 and for the benefit of Nadine Chetty who is purchasing the said property.”

85. It came to light in 2007 that at the date of execution of this statutory declaration, Mrs. Maureen Moore, the appellant, was alive.

The death certificate exhibited pertained to an unconnected person with an identical name.

86. Accordingly, the relevant provision in the statutory declaration was not correct. The trial judge found it to be a

misrepresentation. The appellant contends it was a fraud.

The task of an appellate Court where fraudulent intent is alleged

87. The case of Northern Bank Finance Corporation Limited v. Charlton and Others [1979] I.R. 149 in that case, Chief Justice

O’Higgins considered the position of an appellate court with regard to findings of fact when the finding of the trial judge on the issue

of fraud is raised on appeal. He cited with approval The S.S. Gairloch [1899] 2 I.R. 1 where, at p. 18 of that judgement, Holmes L.J.

had said:

“When a judge after trying a case up on viva voce evidence comes to a conclusion regarding a specific and definite

matter of fact, his finding ought not to be reversed by a court that has not the same opportunity of seeing and hearing

the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice. The

same rule does not apply, at least in the same degree when the conclusion is an inference of fact. It often happens, as in

the present instance, that the decisive finding is a deduction from the facts hardly disputed or easily ascertained. In such

a case the appellate tribunal is in as good a position for arriving at a correct conclusion as the Judge appealed from, and

it would be an undue restriction of the functions of the former if it were to hold itself bound by what has been found by

the latter. Of course the view of the Judge who tried the case is of the greatest weight, and for my own part I would

only depart from it with much hesitation when, as here, we have not been furnished with a report or note of the judgment

appealed from.”

88. O’Higgins C. J. considered also the case of Coghlan v. Cumberland [1898] 1 Ch. 704 which he cited with approval and where

Lindley M.R. had said at pp. 704-705:

“The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and

considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the

judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined

and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing

them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and

when the question arises which witness is to be believed rather than another, and that question turns on manner and

demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the

witnesses.”

89. O’Higgins CJ then reviewed the jurisprudence stating at p. 179;

“However, a definite limit or barrier to such reconsideration or review was always recognised. This was on the question of

credibility which depends on the assessment of witnesses by a judge who sees and hears them. This is recognised in both

the passages which I have quoted from the decisions in The S.S. Gairloch and Coghlan v. Cumberland.”

90. At p. 180 the Chief Justice continued:

“In my view these cases show a consistent line of thinking. A judge’s findings on fact can and will be reviewed on appeal.

Such findings will be subjected to the normal tests as to whether they are supported by the evidence given at the trial. If

such findings are firmly based on the sworn testimony of witnesses seen and heard and accepted by the judge, then the

court of appeal, recognising this to be the area of credibility, will not interfere. However, if the finding in question depends

on the judge’s view of the evidence or on inferences he draws from such evidence, then the court of appeal, while

respecting this view, will nevertheless disagree if another view or a different inference be the proper one.

This distinction was recognised in a different form by Viscount Simonds in Benmax v. Austin Motor Co. Ltd. [1955] AC 370

when he adopted the terms “perception” and “evaluation” as used by Professor Goodhart in writing on Appeals on

Questions of Fact: (1955) 71 L.Q.R. 402. At p. 373 of the report, having referred to the relevant rules, which are similar

to our rules, he said:

“This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of

fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a

witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the

finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has

sometimes been said, between the perception and evaluation of facts.”

91. Chief Justice O’Higgins further stated at pp.180-181:

“In my view, these observations correctly describe the proper role of this Court as a court of appeal in relation to appeals

from a judge on a question or finding of fact. In my view it would be not only contrary to accepted practice but also a

manifest injustice if a court, which neither saw nor heard the witness, pronounced on his credibility. There may be

circumstances in which the acceptance or rejection of particular evidence by a judge was so obviously and clearly wrong

as to be unreasonable and unjust. Such instances have been extremely infrequent and one can say hopefully that they

will continue to be so. In the normal case, however, in so far as the judge’s findings of fact are based directly on

evidence which he heard and believed, it being open to him to accept such evidence or to reject it, such findings cannot

be interfered with by this Court in my view.”

92. O’Higgins CJ concluded stating, at page 181;

“The task of this Court is not to look at and consider all the evidence for the purpose of deciding whether a judge ought

to have accepted the particular evidence which he did accept: rather it is to consider whether such evidence is credible

and supports fairly and properly the judge’s findings, and whether such inferences as he drew were fairly and properly

drawn. Further than this, in my view, this court ought not and cannot go in reviewing questions of fact.”

Credibility

93. In a separate judgement within the same case, Henchy J emphasised that a court on appeal cannot put itself in the position of

the trial judge who had the opportunity of judicial assessment that is denied to the court on appeal.

94. Henchy J. cautioned that the transcript was necessarily an imperfect record of the oral hearing because what was adduced viva

voce in the sight and hearing of the trial judge and had to be converted into a written transcript.

95. He continued stating that:

“…it cannot recapture the mood of the trial, the demeanour of the witnesses, the essential nuances of particular

responses, and many other features of the trial which, although they may have been crucially determinative in the judicial

ascertainment of the facts, may have become blurred lost when the oral evidence was reduced to writing.”

96. Henchy J. at page 194 continued;

“This case therefore, as to this ground of appeal, falls into the category of cases where the issue under appeal has been

resolved in the court of trial by a choice of alternatives presented by conflicting oral testimony. The trial judge’s choice of

versions cannot be disturbed in this Court unless the evidence, viewed in all its aspects, points to the invalidity of that

choice.

Therefore, counsel for the bank have grounded their argument on various matters arising out of the evidence, both

documentary and oral, which they rely on as showing unlikelihoods, contradictions, uncertainties and other kinds of

implausibilities in the versions of events which the judge found credible. Making due allowance for all such matters, and

bearing in mind that no less cogent objections have been taken by counsel for the defendants against the contrary

versions of events, I find no fixity of facts in the non-oral testimony or the other testimony generally, which would make

the judge’s conclusions untenable. This Court cannot assimilate its fact-finding competence to that of a trial judge when

it comes to appraising the truthfulness or reliability of oral witnesses; it can but reject his conclusions when they are

shown to be incorrect by reference to the totality of the evidence. This is not such a case. So, in my view, the finding on

the issue of fraud should stand.

In reaching this conclusion I am not to be taken as implying that, if I had been the trial judge, I would necessarily have

found that Mr. T … and Mr. T …. made fraudulent representations on the occasions in question. Not having heard or seen

the witnesses, I cannot say whether I would or not.”

Henchy J. continued;

“Therefore, my opinion does not amount to a positive affirmation of the correctness of the trial judge’s conclusions. It is

simply a recognition of the fact that his conclusions, having been reached after a due appraisal of the relevant

controversies in the oral testimony, and not being discernibly untenable in the context of the evidence as a whole, must

be held to withstand appeal in this Court.”

97. This judgment is important for setting out the correct approach of and limitations and constraints on an appellate court where a

determination as to the presence or absence of fraud and/or deceit is appealed against.

Historical Background

98. The approach of the courts, including appellate courts, to claims grounded in fraud has been framed by a number of central

decisions.

99. The decision in Pasley v. Freeman (1789) 3 Term Rep. 51, provided the cornerstone for the House of Lords in their decision a

century later, in Derry v. Peek (1889) 14 App. Cas. 337. Pasley is authority for the proposition that “every deceit comprehends a lie,

but the deceit is more than a lie” (at p. 56 of the judgment).

100. Hence in law there cannot be a fraudulent misrepresentation which is not false. But there can be a misrepresentation which is

not fraudulent except when the fact represented is the state of mind of the representor, where falsity is coterminous with fraud and

truth with innocence.

101. As Derry v. Peek makes clear in an action based on fraud, the plaintiff must prove actual fraud. Fraud is proved when it is shown

that a false representation has been made knowingly, without belief in its truth, or recklessly, without caring whether it be true or

false.

102. A false statement, made through carelessness and without a reasonable ground for believing it to be true, may be evidence of

fraud, but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and

does not render the person making it liable to an action in deceit.

103. Lord Herschell at p. 369 of the judgment in Derry v. Peek states;

“I think there is here some confusion between that which is evidence of fraud, and that which constitutes it. A

consideration of the grounds of belief is no doubt an important aid in ascertaining whether the belief was really

entertained. A man’s mere assertion that he believed the statement he made to be true is not accepted as conclusive

proof that he did so. There may be such an absence of reasonable ground for his belief as, in spite of his assertion, to

carry conviction to the mind that he had not really the belief which he alleges. If the learned Lord intended to go further,

as apparently he did, and to say that though the belief was really entertained, yet if there were no reasonable grounds

for it, the person making the statement was guilty of fraud in the same way as if he had known what he stated to be

false, I say, with all respect, that the previous authorities afford no warrant for the view that an action of deceit would

lie under such circumstances. A man who forms his belief carelessly, or is unreasonably credulous, may be blameworthy

when he makes a representation on which another is to act, but he is not, in my opinion, fraudulent in the sense in which

that word was used in all the cases from Pasley v. Freeman down to that with which I am now dealing. Even when the

expression “fraud in law” has been employed, there has always been present, and regarded as an essential element, that

the deception was wilful either because the untrue statement was known to be untrue, or because belief in it was

asserted without such belief existing.”

104. An issue for this Court accordingly is whether there was evidence before the trial judge in July 2010 which he could not

reasonably have disregarded that proved the absence of an honest belief on the part of John Moore and Maria Moore that the key

statement in the statutory declaration was true.

The Law

105. Fraud is a question of fact and the burden of establishing it is on the party alleging same. The constituent elements of fraud, as

applied to a representation, are a question of law.

106. The question arises, accordingly whether there was evidence before the trial judge either;

(a) That the first and second respondents knew that the recital in the statutory declaration was false or

(b) That at the time of execution they believed it to be false or

(c) That the Statutory Declaration was executed in circumstances where they did not know or believe the representation

to be true.

(d) That it was made with reckless indifference as to its truth or falsity.

107. The exact dictum of Lord Hershell in Derry v. Peek at p. 374 warrants recollection;

“I think the authorities establish the following propositions: first, in order to sustain an action of deceit, there must be

proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false

representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be

true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the

second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states.

To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this

probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief.

Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention

to cheat or injure the person to whom the statement was made.”

The key findings of fact

108. In the instant case the trial judge’s findings from which the appellant appeals were based on positive evidence given by the

respondents Maria Moore and John Moore whom the trial judge observed and heard first hand in direct evidence and under extensive

and rigorous cross examination. The core issue throughout this case was one of credibility; whether at the date of execution of the

statutory declaration Maria Moore and John Moore knew or ought reasonably to have known that Mrs. Maureen Moore was alive;

whether they knew or ought reasonably to have known that the death certificate exhibited in the statutory declaration pertained to a

perfect stranger who happened to bear the name “Maureen Moore” and not the estranged wife of their late father.

109. Insofar as the trial judge’s finding that there was no fraud on the part of the respondents was based on affirmative positive

evidence adduced before the High Court, I am satisfied that the trial judge was entitled to rely upon same.

110. Insofar as the trial judge’s findings of fact consisted of inferences they were on balance reasonably and properly drawn.

Reckless Indifference

111. The question arises, did the appellant satisfy the trial judge on the balance of probabilities that at the time of execution of the

statutory declaration on 3rd May 2002 that John Moore and Marie Moore were or ought to have been aware that Maureen Moore was

not deceased and/or that the death certificate being exhibited did not pertain to her?

112. If the trial judge had before him no cogent evidence on which he could rely that John and Maria Moore had an honest belief in

the truth of what the declaration stated then potentially it is open to this Court to intervene. However, the burden rests with the

plaintiff/appellant to establish “reckless indifference”

113. It is appropriate for this Court which is being asked to carry out a review of the determination of the High Court to have regard

to the appellant’s pleadings and the evidence adduced to evaluate whether such a sufficient foundation for a charge of fraud against

John Moore and Maria Moore was established by the appellant in the first instance.

114. In my view, the state of mind of the party making the representation in question is of central importance in determining whether

fraud in this context is established or not.

115. The Court in the first instance must have regard to the state of mind of the representor at the actual time that the

representation was made. As is stated in “Actionable Misrepresentations”, Spencer Bower, Turner and Handley, Fifth Edition, para.

5.04 (p. 61):

“proof of fraud involves an examination of the representation in the sense in which the representor honestly understood

it.”

116. What the trial judge has to determine is the state of mind of the representor. In that regard it is significant that the third named

respondent who was found by the High Court to be a bona fide purchaser for value without notice did not assert fraud against the

first and second named respondents who were vendors of the property to her.

117. Reckless indifference would arise where there is a conscious decision not to enquire into the existence of a fact.

118. The case law demonstrates that the motive of the representor is irrelevant. Lord Herschell in Derry v. Peek at p. 374 stated

“… If fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to

cheat or injure the person to whom the statement was made”.

119. It is the existence and genuineness of the representor’s belief which determines his or her moral qualification to be free of the

implication of fraud. The mental processes by which the defendant arrives at the conclusion have no relevance.

Recklessly Careless

120. Recklessness in the sense in which that term is used in Derry v Peek, namely carelessness as to whether a statement be true or

false does requires a plaintiff to prove something more or greater then carelessness in the context of the tort of negligence.

121. In reviewing the trial judge’s approach it is worthwhile recalling the judgment of Finlay Geoghegan J. in McAleenan v. AIG

(Europe) Ltd [2010] IEHC 128, at paragraph 123;

“It is clear that “careless “for this purpose is not the same as when used in relation to the tort of negligence. The

carelessness must be something greater to constitute recklessness for the purpose of fraud.”

122. The decision of Finlay Geoghegan J. is noteworthy. She quoted Lord Herschell in Derry v. Peek with approval as cited at para.

107 above . She further stated at paragraph 123 of the judgment;

“However, in accordance with the principles set out above, neither of the above findings precludes a finding of fraud in

the making of the false statement if the untrue statement was made “recklessly”, in the sense that the term was used in

Derry v. Peek, i.e. careless as to whether the statement be true or false. It is clear that “careless” for this purpose is not

the same as when used in relation to the tort of negligence. The carelessness must be something greater to constitute

recklessness for the purposes of fraud. As pointed out by Lord Herschell in the extract from his speech referred to above,

a statement may be considered as made recklessly where the circumstances are such that the Court considers the maker

can have no real belief in the truth of what he states. It appears to require an objective consideration by the Court as to

whether the circumstances in which the plaintiff signed the Proposal Form (and, by doing so, made the representations or

statements contained therein) were so careless as to whether the statements were true or false that the Court must

conclude that she could have had no real belief in the truth of the statements contained in the Proposal Form.”

123. In my view that statement represents the current state of the law in this jurisdiction.

124. On behalf of the appellant it was contended that the trial judge’s analysis was flawed in regard to fraud and that he failed to

address the case that had been made by the appellant (that the respondents had fraudulently relied on the wrong death certificate in

the sense in which the term was defined in Derry v. Peek) and instead made a finding that there was no fraud because the cause of

action had not been concealed from the appellant.

125. However, a careful perusal of the judgment demonstrates that the trial judge carried out a separate evaluation as to whether

these respondents acted recklessly in regard to user of the death certificate and he found that they did not.

126. In deciding whether the representation was fraudulent, the question is not whether the representor honestly believed it to be

true in the sense assigned to it by the Court, or an objective consideration of its truth or falsity, but whether they honestly believed

it to be true in the sense in which they understood it when they executed the statutory declaration.

127. In all the circumstances having due regard to the hinterland of material facts available to him and the evidence adduced I am

satisfied that the trial judge acted within his discretion in determining that the respondents were mistaken and that the conduct did

not amount to fraud in law. I am satisfied it is a determination not to be disturbed.

Appellate Approach to Fraud

128. A finding that there was no fraudulent misrepresentation is a finding of primary fact by the trial judge and the appellant has to

surmount the well-known hurdles in respect of an appeal from such a determination since where a trial judge has reached a conclusion

on the primary facts, it is only in a rare case, such as where that conclusion was one;

(i) which there was no evidence to support,

(ii) which was based on a misunderstanding of the evidence, or

(iii) which no reasonable judge could have reached,

that an appellate tribunal will interfere with it.

129. As Lord Hoffmann stated in Biogen Inc. v. Medeva plc [1997] RPC 1, the need for appellate caution is;

“based upon much more solid grounds than professional courtesy”. Specific findings of fact are;-

inherently an incomplete statement of the impression which was made on him by the primary evidence. His expressed

findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and

nuance …”

130. The determination of the trial judge that the first and second respondents were not fraudulent but rather mistaken in making the

representations contained in the statutory declaration was dealt with at the trial as a question of inferential (rather than primary)

fact but, in a case where the judge had seen and heard them both at length and their relevant witnesses.

131. In my view this Court ought to hesitate long before concluding that the judge’s decision was wrong. This Court would have to be

convinced that the trial judge either erred in the manner adumbrated in Hay v. O’Grady [1992] I.R. 210 by McCarthy J. or failed

properly to use the inestimable advantage enjoyed by him of hearing the witnesses give their evidence and assessing that evidence

as it was being given. A perusal of the transcript of the hearing disclose no such omission.

132. The trial judge having heard the witnesses over a number of days absolved the respondents of all fraudulent intent. This Court

should only reverse a judge at first instance in an allegation of fraud in circumstances where clear, unequivocal and cogent evidence

has been shown to have been disregarded by the trial judge.

133. The approach in House of Spring Gardens Ltd. v. Point Blank Ltd. [1984] I.R. 611 is worthy of note where it was acknowledged

that the trial judge’s findings;

“depend[ed] to a large degree on the credibility which he attached to the witnesses and on the evidence which he

accepted. It was largely his perception of what was right and of what was wrong in the evidence before him which led to

the conclusions he reached. While there was some degree of evaluation I cannot find that it could be faulted in any way.

The learned trial judge was well aware of the crucial nature of the issue he had to try. His findings are fully supported by

the evidence and any inferences he drew were, in my view, reasonably and properly drawn. Applying the principles laid

down by this Court in Northern Bank v. Charlton I cannot see any way in which these findings can be successfully

challenged. For that reason, in my view, this appeal, in so far as breach of contract is concerned, fails” per O’Higgins C.J.

at p. 695.

134. Having regard to the gravity of an allegation of fraud, deceit or misrepresentation where a defendant has been acquitted or

absolved of such an allegation in civil proceedings in a court of first instance the decision in his favour should not be displaced on

appeal except on the clearest grounds.

135. The threshold for such an adverse determination at the level of appeal has not been met in the instant case.

The third respondent – the purchaser

136. In the application for directions before this Court on 17th May 2017 the appellant indicated that the following order was sought

against the third respondent;

“A declaration that Nadine Chetty holds the property upon trust for the Plaintiff/Appellant, the Plaintiff/Appellant being

entitled to possession thereof and to the rents and profits from same”.

137. It is acknowledged by the appellant that the third named respondent, Nadine Chetty, “was in all probability, unaware of the

fraud.” They assert, however, that there was sufficient documentation available and had the documentation been properly are

adequately scrutinised it would have put the purchaser on notice of the fact that the claims being made by the first and second

named respondents were incorrect and fraudulent.

138 In submissions filed by the appellant it is provided “…the Plaintiff seeks to appeal the finding of the Learned Trial Judge that the

third named defendant was a bona fide purchaser for value without notice.”

139. It is asserted that Nadine Chetty and her solicitor did not take adequate steps to satisfy themselves regarding the entitlement of

the vendors to sell.

140. However, the evidence adduced at trial is not consistent with this contention.

141. It is demonstrable that the third named respondent was a bona fide purchaser for value without notice. Further, this

conveyancing transaction took place in the course of the administration of an estate. The claims made against the purchaser in this

regard must also be viewed in the context of the evidence adduced at the trial and also the statutory protections enjoyed by

purchasers from personal representatives.

142. These protections include section 61 of the Succession Act, 1965 which provides “a purchaser from personal representatives

shall be entitled to assume that the personal representatives are acting correctly and within their powers.”

143. Having due regard to the provisions of the Registration of Title Act 1964, as amended, and the statutory protections afforded by

the Succession Act of 1965, there was no valid basis on the evidence before the trial judge whereby he could disturb the registration

of the third named respondent as full owner of the property comprised in Folio 30984L.

144. The register is conclusive evidence of the title of the owner of the property as appearing on the register pursuant to section 31

of the Registration of Title Act 1964.

145. Further, I am satisfied with regard to the findings made by the trial judge in regard to the third named respondent, as with the

first and second named respondents that it is appropriate to have regard to the decision in Hay v. O’Grady, [1992] 1 I.R. 210 at 217

in particular where McCarthy J. stated;

“if the findings of fact made by the trial judge are supported by credible evidence, this court is bound by those findings,

however voluminous and apparently weighty the testimony against them.”

146. The trial judge heard clear and detailed evidence from a professional witness, who was an officer of the Court, Mr. Brian Purcell.

The judge accepted his evidence that this is a clear-cut conveyancing transaction, and that there was “… nothing to indicate

otherwise.”

147. No aspect of the grounds of appeal against the third named respondent have been made out and there is no basis for disturbing

the findings of the learned trial judge in that regard, including the order for costs made by the High Court judge.

148. The findings of the trial judge with regard to the third named respondent are unimpeachable in law. The sale was effected by

parties who were the legal personal representatives of the husband. The solicitor gave detailed evidence at trial of the manner in

which this conveyance was conducted. It was in accordance with normal and standard procedure in connection with a registered

title. The third named respondent was a bona fide purchaser for value without notice. It is clear that she placed the transaction of

the purchase in the hands of a solicitor and he did carry out sufficient enquiries. The standard contended for on behalf of the

appellant is not supported by any independent professional evidence and is disproportionate. Further, the respondent enjoys the

protection of the Registration of Title Act 1964, as amended, and section 61 of the Succession Act 1965. No valid basis has been

advanced to this Court as to why the findings of the trial judge including the order for costs might be disturbed.

Conclusions

149. I am satisfied with regard to the first and second named respondents that there was sufficient evidence before the trial judge

having regard to the conduct of these particular respondents that they had taken reasonable steps over time, initially to find the

appellant and ascertain her whereabouts and whether she be living or deceased in the years following the death of their father in

1996.

150. Those enquiries, as the trial judge found as a fact included writing a letter to her original family home in Drogheda.

151. Furthermore it is clear that efforts were made to trace her whereabouts via the local Drogheda telephone directory.

152. They ascertained her PPS number and established that it was dormant.

153. They wrote to institutions when they were advised it was likely she might have had some nexus with same.

154. They wrote to a solicitor who had acted for her and who apparently resided in a property belonging to her or her family.

155. It was within the discretion of the trial judge, having observed the witnesses and each of them, particularly the first and second

named respondents, to reach the view which he did that the appellant had not discharged the onus of proof that remained upon her

to establish their alleged dishonesty, namely the lack of honest belief in the truth of the contents of the statutory declaration in

question.

156. As has been stated by Finlay Geoghegan J in her judgement in McAleenan v. AIG (Europe) Ltd. at paragraph 82;

“the standard of proof is the civil one; the proof must be on the balance of probabilities. Nevertheless, in applying this

test, a court will take into account the gravity of the allegation. In considering what evidence is sufficient to discharge

the burden of proof.”

157. I am satisfied that when there is an issue at the heart of a claim of deceit or fraud, namely the state of mind of the party

making the representation, the Court rightly takes a more cautious approach.

158. Further, of note is the following extract from Cartwright Misrepresentation, Mistake and Non-Disclosure. 4th edition, 2007 at

para. 5.46, (p. 173):-

“The question of whether the representor’s fraud is proved is tested by reference to the civil standard, but in applying

this test, the courts take into account the consideration that the more serious the allegation is, the greater the proof

needed to persuade a court that can be satisfied that the allegation is established: the very gravity of any allegation of

fraud is a circumstance which had to be weighed in the scale of deciding as to the balance of probabilities.”

159. Having due regard to the evidence that was before the trial judge and particularly having regard to the jurisprudence of the

Supreme Court, with regard to the weight to be attached to the findings of a trial judge in a case such as this involving fraud or

deceit of a most grievous kind, I am satisfied that the findings of the trial in this case are correct and are not to be disturbed.

160. Accordingly I would dismiss this appeal on all grounds.