Court of Appeal dismisses appeal as moot and bound to fail due to non-attendance and completed proceedings.

THE COURT OF APPEAL

CIVIL

Neutral Citation Number: [2018] IECA 265

Record Number 2014 600

[Article 64 Transfer]

Peart J.

Irvine J.

Whelan J.

IN THE MATTER OF CELINE MURPHY DECEASED WHO DIED ON THE 15TH DAY OF MARCH 2011

BETWEEN/

MAJELLA RIPPINGTON, SHAUN RIPPINGTON

AND EDEL BANAHAN

PLAINTIFFS/

APPELLANTS

- AND -

MICHAEL COX AND MARY BUTLER

DEFENDANTS/

RESPONDENTS

JUDGMENT of Ms. Justice Irvine delivered on the 27th day of July 2018

1. This is an application brought by the defendants/respondents, Michael Cox and Mary Butler, seeking an order striking out the

appeal of the plaintiffs/appellants dated the 27th August 2012 on the grounds that the appeal is moot and/or bound to fail.

2. The appellants did not attend the hearing of this motion which was heard by this court on the 23rd July 2018 notwithstanding the

fact that the first named appellant, Mrs Majella Rippington, was present when the date was allocated to the hearing. Relevant also is

the fact that Mrs Rippington made known the fact that she had an application before the High Court probate judge on that date but

was advised that the court would not commence hearing the application until such time as her probate motion had been dealt with.

3. The within application was called on for hearing at 11 o’clock and was mentioned again at 1 p.m. and 2 p.m. There was no

appearance by her or any of her co-plaintiffs. At 1 p.m. the court was informed by counsel for the respondents that Mrs Rippington’s

application before the probate judge had concluded shortly after midday. Notwithstanding this fact Mrs Rippington did not appear in

the Court of Appeal at any stage during the course of the day for the purposes of either requesting an adjournment or resisting the

respondents’ application. Further, in light of her failure to attend prior to 1 p.m., Mrs Rippington was advised by the court registrar by

email that the appeal would be proceeding later in the day. She did not appear at any stage of the day. It was in these

circumstances that the respondents’ application was heard and determined in her absence.

The relevant background facts are as follows

4. The late Celine Murphy died on the 15th March 2011. She was then 50 years of age and was unmarried and had no children. At the

time of her death, Celine Murphy had been residing with her mother, Catherine Murphy, in Clondalkin, Dublin. Catherine Murphy was a

widow and she died very soon after her daughter’s death.

5. Mrs Majella Rippington and Ms Edel Banahan, the first and third named appellants are two of the three surviving siblings of the

deceased. Mr Shaun Rippington is the husband of the first named appellant. It is common case that had Celine Murphy died intestate

her estate would have formed part of the estate of her mother and would have fallen to be distributed amongst her three surviving

siblings in equal shares.

6. Core to these proceedings is the last Will and Testament of Celine Murphy dated the 8th March 2011. As is readily apparent from

the facts earlier outlined, her will was executed only a short number of days prior to her death.

7. In the within proceedings, which were issued on the 16th September 2011, the appellants maintained that the said will had not

been validly executed. They also claimed that the deceased was not of sound disposing mind with the result that she did not have

the capacity to execute her will. The appellants also relied, inter alia, upon the doctrine of undue influence.

8. The proceedings were heard in the High Court by Noonan J. who dismissed the appellants’ claims and ordered that the will be

admitted to probate in solemn form of law, as had been counterclaimed by the respondents.

9. The appellants appealed the judgment and order of Noonan J. to this court and by judgment delivered by Ms. Justice Whelan on

the 19th December 2017, the appeal was dismissed.

10. Of particular relevance to the present application is an order that was made in the High Court by O’Neill J. on the 23rd July 2012

whereby he directed Ms. Anne Stephenson, solicitor, to apply for a grant of administration without will annexed pendente lite so that

she might, inter alia, gather in the assets of the deceased, pay her debts and discharge the mortgage on a property which she

owned. Material in this regard is the fact that the appellants were on notice of that application, were represented by solicitor and

counsel and made no objection to the relief sought.

11. As soon as Ms. Stephenson had fully complied with the order of O’Neill J. and had gathered in the assets as directed, she applied

to the High Court (Baker J.) to revoke the grant and that order was duly made on the 21st July 2014. The appellants appealed that

order to the Supreme Court and were unsuccessful.

12. Somewhat surprisingly in light of the passage of time and the completion by Ms Stephenson of the work with which she had been

tasked, namely the gathering in of the deceased’s assets, by notice of motion dated the 31st July 2017, the appellants applied to the

Court of Appeal for an extension of time within which to appeal the order of O’Neill J. That application was rejected and is the subject

matter of a detailed judgment delivered by Ms. Justice Whelan on the 19th December 2017.

13. What I hope is clear from this chronology is that the substantive proceedings brought by the appellants were dismissed by Noonan

J. in the High Court, and that decision was upheld in this Court. Further, the order made by Mr. Justice O’Neill on the 23rd July 2012,

which the appellants sought to make the subject matter of an appeal to this court, is unchallengeable for the reasons outlined by Ms

Justice Whelan in her judgment of the 19th December 2017wherein she explained why it was that the time could not be extended to

permit the appellants appeal the order of O’Neill J.

14. It is against this background that this Court must consider the respondents’ motion seeking to strike out the only subsisting

appeal as being moot and/or bound to fail.

15. That appeal is one brought by the appellants in respect of an order made in the High Court by Hedigan J. on the 8th August 2012.

By his order he refused the appellants a stay on the order of O’Neill J. made on the 23rd July 2012, which had appointed Ms. Ann

Stephenson as administrator pendente lite. By reason of the refusal of that stay the assets of the deceased were gathered in by Ms.

Stephenson and the grant of administration pendente lite later revoked by the order of Baker J. made on the 21st July 2014.

16. The Court’s jurisdiction to grant a stay is a limited one. It exists only to support a prospective or existing appeal. It is available to

an appellant who can establish that they have arguable grounds of appeal and that the balance of justice would favour the making of

such an order. It is the prospect of a successful appeal that provides the only legitimate basis for a stay application. If the Court

grants a stay it does so in order to protect an appellant against unnecessary or irrevocable damage which might be done during the

interval between the date of the High Court order and the hearing before the appellate court. Such an order will only be made if the

court is satisfied that the greater risk of injustice would likely arise if the stay was to be refused and the appellant were to succeed in

their appeal than would potentially occur if the stay were to be granted and the appellant failed in their appeal. It is only in these

circumstances that the High Court order will be held in abeyance until the outcome of the appeal.

17. In the present case, however, there is no longer any substantive appeal pending before the Court of Appeal (my emphasis

added). The appeal against the refusal of the stay only had purpose and validity while the appellants had some prospect of appealing

the order of O’Neill J. As already stated, they were refused an extension of time to appeal that order and in such circumstances their

appeal against the refusal by Mr. Justice Hedigan of a stay on the order of O’Neill J. is moot, can serve no useful purpose and is bound

to fail. It should also be stated that in legal terms an appeal which is bound to fail is one which must be categorised as an abuse of

process. It is to be remembered that the order of O’Neill J. was fully complied with and the effect of the order reversed by the order

of Baker J. In such circumstances one might legitimately ask what conceivable benefit could there be to a hearing in the course of

which the court would consider whether or not Mr Justice Hedigan should have stayed the order of O’Neill J.

18. I also consider it worthwhile observing that the appeal would in any event be bound to fail, not only for the reasons earlier stated

but in circumstances where the appellants did not contest the making of the order made by O’Neill J. although represented by counsel

and solicitor, and neither did they seek a stay on the order made.

19. Of somewhat less importance, but nonetheless relevant to the outcome of the respondents’ application, is the obligation of the

court itself to marshal its own scarce resources. Courts are not obliged to determine issues which do not need to be determined or

where, by reason of the passage of time, the court’s determination on any such issue will have no effect. In the present case, the

order of O’Neill J. was fully complied with by Ms. Stephenson. She gathered in the assets of the deceased and discharged her liabilities

in accordance with that order. Accordingly, a stay on the order of O’Neill J. at this stage would have no effect whatsoever. Thus,

apart from the fact that the appellant’s appeal against the order of O’Neill J. has already been rejected, from a practical perspective it

matters not whether or not Mr. Justice Hedigan was or was not correct as a matter of law when he refused the stay application.

20. For all of the aforementioned reasons I would dismiss this appeal as one which is moot and is also bound to fail.