High Court sets aside probate order as nullity due to lack of jurisdiction and invalid consent.

[2019] IEHC 353

THE HIGH COURT

2018 No. 4803 P.

BETWEEN

MAJELLA RIPPINGTON

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL

PRINCIPAL PROBATE REGISTRY

THE LAW SOCIETY OF IRELAND

MURRAY FLYNN MAGUIRE SOLICITORS

SIGHLE DUFFY

ANNE STEPHENSON

(PRACTISING UNDER THE STYLE AND TITLE OF STEPHENSON SOLICITORS)

PETER MAGUIRE

DOMINIC HUSSEY

RITA CONSIDINE

DEFENDANTS

JUDGMENT of Mr Justice Garrett Simons delivered on 24 May 2019.

INTRODUCTION

1. These unfortunate proceedings arise out of a long running and bitter dispute in relation to the estate of the late Celine Murphy.

Miss Murphy died testate on 15 March 2011. Miss Murphy had suffered from cancer and made a Will shortly before her death. The Will

is dated 8 March 2011. One of the saddest features of this saga is that the wishes of Miss Murphy were not respected. Rather than

going to the intended beneficiary, the entire of the estate of the late Miss Murphy has instead been exhausted in legal fees incurred

in respect of the probate proceedings described below.

2. The Plaintiff herein, Majella Rippington, is the sister of the late Miss Murphy (“the deceased”). Ms Rippington had issued earlier

proceedings on 16 September 2011 seeking to strike down her late sister’s Will. I propose to refer to these earlier proceedings as “the

probate proceedings”.

3. Ms Rippington had challenged her sister’s Will on the basis inter alia that same had not executed by the deceased, and, in the

alternative, that the deceased had lacked testamentary capacity. The proceedings were ultimately unsuccessful, and the Will was

admitted to probate in solemn form of law by judgment of the High Court (Noonan J.) dated 30 July 2015, Rippington v. Cox [2015]

IEHC 516. Ms Rippington was dissatisfied with the judgment of the High Court and brought an appeal to the Court of Appeal. That

appeal was dismissed on 19 December 2017, Rippington v. Cox [2017] IECA 331.

4. Ms Rippington instituted the within proceedings on 25 May 2018. A Statement of Claim was delivered on 3 September 2018. The

gravamen of the case as pleaded is that an interlocutory order made by the High Court (O’Neill J.) on 23 July 2012 in the course of

the earlier probate proceedings is a nullity. The impugned order had authorised Anne Stephenson, Solicitor, to apply to be appointed

as administrator pendente lite for the purpose of gathering in and preserving the assets of the deceased, paying the debts of the

deceased (including her funeral expenses) and discharging the mortgage on the property of the deceased. Ms Stephenson duly

discharged her limited role, and then applied to have her appointment revoked in 2014. That order was granted by the High Court

(Baker J.) in July 2014, and Ms Stephenson was awarded her costs from out of the estate.

5. Ms Rippington seeks to criticise certain of the Defendants herein for what is alleged to have been their part in securing the

impugned order of 23 July 2012. The Defendants named in the proceedings include inter alia (i) the junior counsel who had originally

acted for Ms Rippington in the probate proceedings; (ii) the solicitors and junior counsel who had acted for the other side in the

probate proceedings; and (iii) Ms Stephenson who, it will be recalled, had been appointed as administrator pendente lite.

6. Each of these Defendants has brought an application to have the proceedings as against them dismissed on the basis that same

are frivolous and vexatious and disclose no cause of action. The proceedings are also said to be an abuse of the court process.

7. In addition, some of these Defendants have sought an order restraining Ms Rippington from issuing any further proceedings without

the prior leave of the High Court. An order of this type is sometimes referred to as an Isaac Wunder order.

8. For the reasons set out in detail hereinafter, I am satisfied that this is an appropriate case to make such orders. By way of

summary only, the principal reasons for my decision are as follows.

9. First, the entire proceedings are predicated on an argument that the order of 23 July 2012 is invalid. It is an abuse of process for

Ms Rippington to seek to reagitate this argument in circumstances where she neither sought to appeal the order at the relevant time

nor applied to O’Neill J. to vary the order. The Court of Appeal has since dismissed an application to extend time on the basis inter alia

that the order was properly made. It is not open to Ms Rippington to use the within proceedings to launch a collateral challenge to

this finding. This is especially so in circumstances where the within proceedings represent, at the very least, the fifth attempt by Ms

Rippington to set aside the order.

10. Secondly, Ms Rippington has been unable to point to any actionable wrong on the part of any of the Defendants. The

uncontroverted evidence before the court indicates that the order appointing the administrator pendente lite was made on consent,

and, in any event, that it was a proper order to be made in the context of the then ongoing litigation. Ms Rippington had the benefit

of legal advice at the time. Neither her own barrister nor the solicitors and barrister acting on behalf of the other side can be

criticised for their conduct. Similarly, no valid criticism can be made of Ms Stephenson. The uncontroverted evidence indicates that

Ms Stephenson discharged her duties properly and was awarded her costs out of the estate.

11. Thirdly, Ms Rippington is unable to point to any loss or damage suffered by her personally as a result of the alleged invalidity of

the order. Even if it had been established that any loss was caused to her late sister’s estate—and the evidence is entirely to the

contrary—Ms Rippington does not have standing to make any claim in this regard in circumstances where she is not a beneficiary of

the estate under the Will nor would she have been a beneficiary on intestacy.

12. Fourthly, the order of 23 July 2012 could not, in any event, be set aside in these proceedings given that neither of the two

defendants to the probate proceedings, namely Michael Cox and Mary Butler, have been joined to these proceedings. It would be a

breach of the principle of audi alterem partem to set aside the order in their absence.

13. I am satisfied, therefore, that the within proceedings disclose no cause of action against any of the Defendants and are bound to

fail. Further, the maintenance of the proceedings constitutes an abuse of process. The proceedings will, therefore, be dismissed.

14. I am also satisfied that this is an appropriate case to make a restraining order against Ms Rippington, prohibiting her from

instituting any further proceedings against any of the Defendants herein without the prior leave of the President of the High Court (or

the prior leave of a judge assigned by the President to hear an application for leave). Regrettably, the past conduct of Ms Rippington

indicates that she has no compunction in making entirely unfounded allegations against those with whom she disagrees. As appears

from the title of these proceedings, Ms Rippington is indiscriminate in those against whom she is prepared to issue proceedings. The

range of Defendants include, for example, Ireland and the Attorney General, the Principal Probate Registry, and the Law Society of

Ireland. Ms Rippington has also purported to join to the proceedings the solicitors and counsel acting for the other side in the probate

proceedings. Ms Rippington on her own admission has made allegations to An Garda Síochána arising out of the litigation, and has also

made complaints to the relevant disciplinary bodies (which complaints have been dismissed).

15. The pursuit of vexatious litigation imposes unnecessary costs on defendants. In addition, it causes stress and anxiety to the

individuals involved. In some instances, it creates practical difficulties for defendants in terms of, for example, having to disclose the

existence of the proceedings to their insurers or to potential clients. It would be remiss of this court—and would bring the

administration of justice into disrepute—if an individual such as Ms Rippington who is vindictive and indiscriminate in her use of

litigation were not subject to some control.

FACTUAL BACKGROUND

16. These proceedings arise out of the administration of the estate of the late Celine Murphy (“the deceased”). Miss Murphy had been

diagnosed with cancer, and died on 15 March 2011 at St Vincent’s Private Hospital, Dublin 4. Miss Murphy had been 50 years old at

the date of her death. Miss Murphy had not married and was survived by her mother and siblings. Miss Murphy’s mother died soon

afterwards on 25 March 2011.

17. Miss Murphy had made a Will shortly before her death, and had left the entire of her estate to one Mary Butler. Miss Murphy’s

sister, Majella Rippington, instituted proceedings on 16 September 2011 seeking to strike down the Will. Ms Rippington’s husband,

Shuan Rippington, and sister, Edel Banahan, were co-plaintiffs in these proceedings. The proceedings were entitled Rippington & Ors.

v. Cox & Anor. and bore the High Court Record Number 2011 No. 8319 P. I propose to refer to these proceedings as “the probate

proceedings”.

18. It is important to emphasise that even if Ms Rippington had succeeded in her attempt to strike down the Will, she would not have

been a beneficiary of her sister’s estate. This is because if the Will were to be struck down, then Miss Murphy’s estate would fall to

be distributed in accordance with the rules on intestacy, and her estate would have passed to her mother. See section 68 of the

Succession Act 1965.

19. An application was made in the context of the probate proceedings for the appointment of an administrator pendente lite. This

application was made by way of Notice of Motion dated 29 June 2012. The Notice of Motion is headed up by reference to the title and

record number of the probate proceedings.

20. The principal relief sought in the Notice of Motion was as follows.

“1. An Order pursuant to Section 27(7) of the Succession Act, 1965, granting administration in the Estate of Celine

Murphy Deceased to Michael Cox pendente lite and granting the Personal Representative liberty to discharge the

mortgage on the property from the proceeds of the life policy;”

21. The application was grounded on the affidavit of Michael Cox. Mr Cox had been named as executor in the Will. The affidavit

indicates that the deceased was the owner of property at Brown’s Barn Court, City West, Saggart, Co. Dublin which was subject to a

mortgage in favour of the ICS Building Society. It was further explained that the deceased had the benefit of a mortgage protection

life policy but that the insurers, Irish Life, would not release the funds under the policy without first being provided with a certified

copy of a grant of probate. The correspondence from Irish Life also noted that the Will was being challenged.

22. The motion came before the High Court (O’Neill J.) on 23 July 2012. The Notice of Motion itself makes it clear that the application

was made on notice to the plaintiffs in the probate proceedings. Further, the order confirms that the court heard from counsel for

both parties.

23. The Notice of Motion had nominated Mr Cox to act as administrator pendente lite. Mr Cox, it will be recalled, was a named

defendant in the probate proceedings, and was one of the witnesses to be called to prove the due execution of the Will. In the

event, an accommodation was reached between the parties on the morning of 23 July 2012 whereby an independent solicitor, Anne

Stephenson, would be nominated instead.

24. The operative part of the order reads as follows.

“On Motion of Counsel for Michael Cox the Applicant herein and on reading the Notice of Motion filed on the 29th day of

June 2012 and the affidavit of Michael Cox sworn the 25th day of June 2012 and the documents and exhibits therein

referred to

And on hearing said Counsel and Counsel for the Respondent

And the Court being of opinion that in the special circumstances of this case it is expedient to appoint some person to be

the Administrator of the estate of the said deceased other than the person who under the Succession Act 1965, would be

entitled to such Grant

IT IS ORDERED by the Court pursuant to Section 27(7) of the Succession Act 1965 that Anne Stephenson solicitor be at

liberty to apply for a Grant of Letters of Administration without Will Annexed Pendente Lite in the estate of the said

deceased for the purpose of gathering in and preserving the assets of the deceased paying the debts of the deceased

including the funeral expenses of the deceased and discharging the mortgage on the property of the deceased located at

8 Browns Barn Court City West Saggart County Dublin

AND IT IS ORDERED pursuant to section 27 (8) of the Succession Act 1965 that the said Anne Stephenson retain her

costs from the estate of the said deceased

AND IT IS FURTHER ORDERED THAT the applicant recover his costs out of the estate of the said deceased and that such

costs be taxed and ascertained in default of agreement.”

25. Given the allegations now made against the junior counsel then acting for the plaintiffs in the probate proceedings, it is necessary

to rehearse the content of the affidavit of Peter Maguire, BL filed in the within proceedings on 30 October 2018. Mr Maguire explains

that he was instructed by Thomas Loomes Solicitors to act on behalf of Ms Rippington and her co-plaintiffs. The application on 23 July

2012 is described as follows.

“9. I say that the application was brought in circumstances where the deceased’s estate included a private dwelling on which there

was a substantial mortgage. The mortgage had run into arrears and substantial back-payments and interest were overdue. The

motion sought an order from the Court to draw down monies from the deceased’s insurance policy to discharge the encumbrances.

10. The Court gave leave to Ms Stephenson, the seventh Defendant, to apply for a grant of administration without will annexed,

pendente lite for the purpose of gathering and preserving the assets of the deceased, paying the debts of the deceased including the

funeral expenses and discharging the mortgage on the property owned by the deceased. I say that the said Order appointing the

seventh Defendant as administrator pendente lite was made on consent, the Plaintiff having been duly advised by me in relation

thereto. I say the Plaintiff was present in Court when the application was made during the course of which I requested, as instructed

by the Plaintiff, the Court to include in the Order a direction to pay the funeral charges outstanding from the obsequies of the

deceased Celine Murphy. I beg to refer to the said Order when produced.”

26. Mr Maguire has also exhibited a letter written to his instructing solicitor following on from this application. This letter was

subsequently produced by Ms Rippington to the Court of Appeal, and the content of this letter was relied upon by the Court of

Appeal. It is clear, therefore, that Ms Rippington has waived any claim to legal professional privilege in respect of this letter.

27. The relevant parts of the letter read as follows.

“I had a consultation with the three Plaintiffs before the commencement of the proceedings. I explained the nature of the

Motion to them and the probability that the Court would grant it as it stood before it and as we did not want Arch Bishop

(sic) Cox to be given permission to get a limited grant in any circumstances (as the validity of his appointment under the

purported will was being challenged) that we should seek the appointment of an independent person to obtain a limited

grant of administration. I recommended that the person appointed should be desirably a practising Solicitor as such an

appointee would have professional indemnity insurance which would protect all interests of the estate and the parties to

the proceedings in the event of anything going wrong during the administration of the limited grant. While the other

Plaintiffs were immediately happy with this course Majella Rippington did not agree at first but when the matter was fully

explained to her and after some remonstrations with her by the other Plaintiffs, she agreed that the course being

recommended was the appropriate approach in the circumstances.

I spoke to Counsel for the applicant before the case was heard and suggested that a solicitor independent of the parties

should be appointed or at least a solicitor in the firm appearing for the Applicant who was not connected with the case.

Counsel for the applicant agreed with this proposal and very helpfully put forward a name of an independent solicitor, Ann

Stevenson (sic) Solicitor Blackrock County Dublin as a proposed nominee. As a result of this conversation, I brought the

three Plaintiffs out of the Court and explained what was proposed and they all agreed to this course and requested that I

ask the court to include in the order a provision that the administrator appointed would also pay the funeral costs of the

late Celine Murphy. I was attended during these consultations by Ms. Kay Manning, legal executive from your office.”

28. No appeal was brought against the order of 23 July 2012 at the time. As explained presently, however, Ms Rippington has since

made at least five attempts to challenge the order. The first four attempts have been dismissed, and the within proceedings

represent the fifth.

29. Returning to the chronology, Anne Stephenson duly extracted the limited grant and proceeded to discharge her duties in

accordance with the order of 23 July 2012. Ms Stephenson subsequently issued a Notice of Motion in April 2014 seeking to have the

limited grant revoked.

30. The application was grounded on an affidavit sworn by Ms Stephenson on 3 April 2014. The basis of the application was

summarised in the affidavit as follows.

“14. It was envisaged that, in the normal course of such an appointment, my appointment pendente lite would be

relatively short-lived in that I anticipated that the will challenge litigation would be dealt with shortly thereafter. I am not

a party to that litigation and seek to make no point with regard to it other than my expectation that the Grant of

Administration would be, by definition, for a limited time only.

15. In any event I have proceeded to administer the estate in accordance with law and pursuant to the very specific

terms of my appointment pendente lite pursuant to the terms of the order of this Honourable Court of 23 July 2012.

Specifically, in accordance with its terms, I have discharged the debts of the Deceased in accordance with the Inland

Revenue Affidavit filed. While the funeral directors expenses were paid for directly from the Deceased’s account with the

EBS, I specifically discharged the mortgage on the property of the Deceased located at 8 Browns’s Barn Court, Citywest

Saggart County Dublin and reimbursed Ms. Rippington for the funeral meal and refreshments, headstone engraving,

memorial cards and the debts of Celine Murphy to Rathcoole Motors and P.C. Financial Services which Ms. Rippington had

discharged. I have also gathered in the assets of the estate with the exception of the deceased’s motor vehicle. The

deceased’s property at 8 Brown’s Barn Court remains rented to the tenant that the deceased placed in situ and the

tenant continues to pay rent to the deceased’s account in the EBS. I also discharged the service charge for the

management company of this property to avoid interest and penalty payments. Accordingly I say that I have now

complied with the terms of my appointment pursuant to the very specific terms of the Court order and subsequent Grant

of Representation.”

31. This application came on for hearing before the High Court (Baker J.) in July 2014. Ms Rippington appeared in person.

Notwithstanding that Ms Rippington now maintains that the appointment of Ms Stephenson as administrator pendente lite was invalid,

Ms Rippington opposed the application to have the limited grant of administration revoked.

32. Having heard submissions from the parties, the High Court ultimately made an order on 21 July 2014 revoking the limited grant of

administration. The ruling as per the transcript of the hearing indicates that the High Court was satisfied that the function and

purpose of the limited grant had been spent, and that Ms Stephenson was entitled to an order that she be removed as administrator.

33. Ms Stephenson was subsequently awarded measured costs of €28,593.95, such costs to be recovered against the estate.

34. Thereafter in November 2014, the High Court made an order directing that Ms Rippington indemnify the estate in respect of the

costs of the motion in July 2014. It will be recalled that Ms Rippington had opposed the motion.

35. (An appeal against the costs order was dismissed on 26 February 2019 by the Supreme Court).

36. The probate proceedings came on for full hearing over four days in July 2015, and the High Court (Noonan J.) subsequently

delivered a reserved judgment on 30 July 2015, Rippington v. Cox [2015] IEHC 516.

37. A campaign thereafter began on the part of Ms Rippington to set aside the order of 23 July 2012. This campaign has been

relentless: Ms Rippington has made at least five attempts to set aside the order. The first four of these attempts have been

dismissed; the within proceedings represent her fifth attempt to set aside the order.

38. The first attempt involved the filing of an invalid appeal to the Court of Appeal. Specifically, Ms Rippington filed an appeal against

the substantive judgment in the probate proceedings on 24 August 2015. However, the reliefs sought in the Notice of Appeal

improperly included orders setting aside the order of 23 July 2012. The Court of Appeal directed that this part of the appeal to be

struck out by order dated 13 November 2015.

39. Ms Rippington instituted a fresh set of plenary proceedings in October 2015. This represented her second attempt to set aside the

order of 23 July 2012. These proceedings were taken against Michael Cox in his personal capacity and in his capacity as the lawful

executor of the estate of the late Celine Murphy. These proceedings are entitled Majella Rippington v. Michael Cox, and bear the High

Court Record Number 2015 No. 7970 P.

40. In the Plenary Summons, it is expressly pleaded at paragraph 9 thereof that Anne Stephenson was appointed pursuant to “an

erroneous order from Judge O’Neill on the 23rd July, 2012”.

41. An application to strike out the 2015 proceedings as disclosing no reasonable cause of action and as frivolous and vexatious was

heard and determined by the High Court (Barrett J.) on 27 January 2016. An order was made on that date striking out the

proceedings.

42. The third attempt to set aside the order of 23 July 2012 took the form of an application to extend time for the filing of an appeal.

This application was made by Notice of Motion dated 31 July 2017. This application was rejected by the Court of Appeal on 19

December 2017, Rippington v. Cox [2017] IECA 332. Separate judgments were delivered by Peart and Whelan JJ. Relevantly, the

judgments indicate not only that Ms Rippington had failed to show the existence of a legitimate basis to justify enlarging time for the

proposed appeal, but also that she had failed to establish that an arguable ground of appeal existed. Whelan J. stated that the

evidence confirmed that the application brought by the named executor to appoint an administrator pendente lite was wholly

warranted at the time for the purposes of preserving the estate of the deceased and discharging a mortgage liability. Peart J. stated

that the order was made on consent and the respondents to the motion had been represented by solicitor and counsel.

43. The fourth attempt to set aside the order of 23 July 2012 involved an application to the High Court in June 2018. Ms Rippington

issued a Notice of Motion on 8 June 2018 seeking to set aside the order. This application post-dates the institution of the within

proceedings: Ms Rippington was thus pursuing parallel attempts to set aside the order of 23 July 2012.

44. The reliefs sought in the Notice of Motion of 8 June 2018 are set out in full below so as to demonstrate the substantial overlap

with the reliefs sought in the present proceedings.

“TAKE NOTICE that on Monday the 23rd day of July 2018, at the hour of 10.30 o’clock in the forenoon or the first

available opportunity thereafter, the Applicant shall apply to this Honourable Court, sitting at the High Court, Four Courts,

Dublin 7, for the following Orders:-

1. An Order to set aside the void the (sic) order of Judge O’Neill dated the 23rd July, 2012 on the grounds that

there was a fundamental defect in the application for administration of the estate of the late Celine Murphy. There

was a fundamental procedural defect. The said order was made ultra vires and a nullity. The said order had no legal

effect ab initio and does not need to be appealed.

2. In the alternative the legality of the order be sent up to the Chancery Division of the High Court for inquiry and

or the DPP.

3. An Order for the audio of the hearing dated 23rd July, 2012 before Judge O’Neill and a further order for the audio

of the 4 day hearings in July 2014 on the revoking of the grant of letters of administration.

4. Such further or other Order as to this Honourable Court seems just and proper:

5. Costs of the application.

6. Damages.”

45. This application came on for hearing before the High Court (Binchy J.) on 23 July 2018. The application was struck out, with an

order for costs to the respondent to be taxed in default of agreement. The application for the digital audio recording (“DAR”) to be

released was also refused.

46. The fifth and final attempt to set aside the order of 23 July 2012 takes the form of the within proceedings. These proceedings

name no less than eleven Defendants. These include Ireland and the Attorney General, the Principal Probate Registry, and the Law

Society of Ireland. These public authorities are all alleged to have turned a blind eye to what Ms Rippington contends were wrongs

done to her. The proceedings against these particular Defendants were discontinued on 18 October 2018. On that date, a Notice of

Discontinuance was filed in respect of the first, second, third, fourth and tenth named Defendants. The Notice of Discontinuance is

stated to be “without prejudice”.

47. Ms Rippington has delivered a lengthy Statement of Claim dated 3 September 2018, running to some 42 pages. The Statement of

Claim is meandering and consists largely of invective against a whole series of public authorities and individuals. There is no doubt but

that the pleading is scandalous. The pleading is bedevilled by a misconception on the part of Ms Rippington to the effect that there is

a rigid distinction between what she characterises as the “Probate Court”, and what she styles as the “Chancery jurisdiction” of the

High Court. Ms Rippington fails to recognise that the judges hearing applications in the Probate List are all High Court judges with full

original jurisdiction. They are not, as Ms Rippington seems to think, “administrative judges” subject to appeal to the Chancery List. Ms

Rippington also fails to understand the limited effect of the order of 23 July 2012 and the limited role exercised by Ms Stephenson.

48. The narrative set out in the Statement of Claim runs from the date of death of the late Celine Murphy (15 March 2011) through to

the delivery of the judgment of the High Court (Noonan J.) in the probate proceedings on 30 July 2015.

49. It is clear, however, from the prayer for relief at the conclusion of the Statement of Claim that the gravamen of the case is

directed exclusively to the circumstances in which the order of 23 July 2012—allowing for the appointment of Anne Stephenson as

administrator pendente lite—came to be made. Rather than disrupt the flow of this judgment by setting it out here, the prayer for

relief from the Statement of Claim has instead been reproduced in full as an appendix. As appears therefrom, Ms Rippington seeks to

set aside the order of 23 July 2012 on grounds including, inter alia, that the order is a nullity; the papers were fabricated; the

plaintiffs did not give their consent; permission or approval; and that Mr Justice O’Neill as an “administrative officer of the Court” did

not have subject-matter jurisdiction to hear any aspect of a plenary case “without jurisdiction of Chancery”.

ATTEMPT TO APPEAL ORDER OF AUGUST 2012

50. For the sake of completeness, it should be noted that Ms Rippington also sought to appeal an order made by the High Court

(Hedigan J.) in August 2012 refusing a stay on the order of 23 July 2012 pending an appeal. No appeal was, in fact, lodged at that

time.

51. Several years later, Ms Rippington sought an extension of time to appeal the refusal to grant a stay. This application was refused

by the Court of Appeal in a written judgement delivered on 27 July 2018, Rippington v. Cox [2018] IECA 265. The following sentiments

expressed by Irvine J. have a certain resonance for the applications to strike out the within proceedings.

“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.”

CASE MANAGEMENT

52. The within proceedings have been subject to case management by the President of the High Court since July 2018. In particular,

the President laid down directions as to the exchange of affidavits in respect of the various applications to strike out the proceedings.

The applications were listed for hearing, on a peremptory basis, on Wednesday, 15 May 2019.

53. The matter came on for hearing before me on that date. At the outset of the hearing, Ms Rippington made an application for an

adjournment. It seems that notwithstanding the fact that the proceedings were being case managed, Ms Rippington had—without any

reference to the President—purported to issue a Notice of Motion on 11 April 2019 seeking leave to amend her Statement of Claim and

seeking to stay the strike out applications. A return date for this motion had been allocated by the Central Office in the ordinary way,

and the matter was scheduled to appear in a motion list on Monday 27 May 2019.

54. I refused the application for an adjournment for the following reasons. First, the strike out applications had been listed for hearing

on a peremptory basis. This had been done in circumstances where the proceedings were being case managed, and the motions

seeking to strike out the proceedings had been issued as long ago as July and October 2018, respectively. Had Ms Rippington wished

to bring her own cross-application to amend the Statement of Claim, then this should have been signalled in advance to Kelly P. who

was case managing the proceedings. It is not open to Ms Rippington to seek to set aside the hearing date by bringing an eleventh

hour application to amend.

55. Secondly, the purported application to amend the Statement of Claim was irregular. A party who wishes to amend pleadings is

expected to furnish a copy of the proposed amended pleadings to the other side. This is especially so in the context of proceedings

which are being case managed. No such draft has been provided by Ms Rippington. Neither the court nor the other parties know what

amendments leave is being sought in respect of. This is unacceptable.

JURISDICTION TO STRIKE OUT PROCEEDINGS

56. It is well established that the High Court has power to strike out proceedings on the basis that they are frivolous or vexatious or

constitute an abuse of the process of the court. This power derives both from the Rules of the Superior Courts and from the court’s

inherent jurisdiction to prevent an abuse of process.

57. The rationale for the power to strike out proceedings as an abuse of process has been summarised as follows by the Supreme

Court in Fay v. Tegral Pipes Ltd. [2005] IESC 34.

“While the words ‘frivolous and vexatious’ are frequently used in relation to applications such as this, the real purpose of

the jurisdiction is to ensure that there will not be an abuse of the process of the Courts. Such abuse cannot be permitted

for two reasons. Firstly, the Courts are entitled to ensure that the privilege of access to the Courts, which is of

considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution

of genuine disputes, and not as a forum for lost causes which, no matter how strongly the party concerned may feel

about them, nevertheless have no basis for a complaint in law. The second, and equally important, purpose of the

jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of

being asked to defend a claim which cannot succeed.”

58. The distinction between the two sources of jurisdiction has been explained as follows by the Supreme Court, per Clarke J., in

Lopes v. Minister for Justice Equality and Law Reform [2014] IESC 21; [2014] 2 I.R. 301.

“[16] Against that background, it is important to distinguish between the jurisdiction which arises under O. 19, r. 28 of

the RSC and the inherent jurisdiction often invoked. The inherent jurisdiction can be traced back to the decision of

Costello J. in Barry v. Buckley [1981] I.R. 306. However, that jurisdiction needs to be carefully distinguished from the

jurisdiction which arises under the RSC, precisely because it would be inappropriate to invoke the inherent jurisdiction of

the court in circumstances governed by the RSC. In that context, I said, at para. 3.12 of my judgment in the High Court

in Salthill Properties Ltd. v. Royal Bank of Scotland plc [2009] IEHC 207, (Unreported, High Court, Clarke J., 30th April,

2009), the following:-

‘3.12 It is true that, in an application to dismiss proceedings as disclosing no cause of action under the provisions of

Order 19, the court must accept the facts as asserted in the plaintiff's claim, for if the facts so asserted are such

that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim.

However, I would not go so far as to agree with counsel for Salthill and Mr. Cunningham, to the effect that the

court cannot engage in some analysis of the facts in an application to dismiss on foot of the inherent jurisdiction of

the court. A simple example will suffice. A plaintiff may assert that it entered into a contract with the defendant

which contained certain express terms. On examining the document the terms may not be found, or may not be

found in the form pleaded. On an application to dismiss as being bound to fail, there is nothing to prevent the

defendant producing the contractual documents governing the relations between the parties and attempting to

persuade the court that the plaintiff has no chance of establishing that the document concerned could have the

meaning contended for because of the absence of the relevant clauses. The whole point of the difference between

applications under the inherent jurisdiction of the court, on the one hand, and applications to dismiss on the factual

basis of a failure to disclose a cause of action on the other hand is that the court can, in the former, look to some

extent at the factual basis of the plaintiff's claim.’

[17] The distinction between the two types of application is, therefore, clear. An application under the RSC is designed to

deal with a case where, as pleaded, and assuming that the facts, however unlikely that they might appear, are as

asserted, the case nonetheless is vexatious. The reason why, as Costello J. pointed out at p. 308 of his judgment in

Barry v. Buckley [1981] I.R. 306, an inherent jurisdiction exists side by side with that which arises under the RSC is to

prevent an abuse of process which would arise if proceedings are brought which are bound to fail even though facts are

asserted which, if true, might give rise to a cause of action. If, even on the basis of the facts as pleaded, the case is

bound to fail, then it must be vexatious and should be dismissed under the RSC. If, however, it can be established that

there is no credible basis for suggesting that the facts are as asserted and that, thus, the proceedings are bound to fail

on the merits, then the inherent jurisdiction of the court to prevent abuse can be invoked.”

59. These principles have very recently been applied in the context of probate proceedings by the High Court (McDonald J.) in

Darragh v. Darragh [2018] IEHC 427. This case has been relied upon by Ms Rippington and is included in her book of authorities.

60. McDonald J. summarised the principles governing a strike-out application as follows.

“In Lopes, Clarke J. (as he then was) carefully reviewed the case law in relation to the court’s jurisdiction to dismiss

proceedings and summarised the principles which must be applied. For the purposes of this judgment, it appears to me

that those principles can be further synopsised as follows:-

(a) If on the basis of the facts pleaded, a case is bound to fail, then the proceedings should be dismissed under

Order 19, Rule 28.

(b) In contrast, the inherent jurisdiction of the court can be invoked where it is possible to establish the facts at an

interlocutory stage with clarity, and where it is possible to show (again with clarity) that those facts do not support

the claim made such that the court can conclude that the proceedings are bound to fail on the merits.

(c) The inherent jurisdiction of the court should, however be sparingly exercised. The court should be slow to

entertain an application to dismiss.

(d) In responding to an application to dismiss a claim, all that a plaintiff needs to do is to put forward a credible

basis for suggesting that the plaintiff may, at trial, be able to establish the facts which are asserted and which are

necessary for success in the proceedings. The court should bear in mind that, in a plenary action, a plaintiff has

available the range of procedures provided for in the rules to assist in establishing facts such as discovery,

interrogatories and the summoning of witnesses by subpoena. Some of these steps are not available at an

interlocutory stage, in the case of others, it is usually not practicable to take such steps prior to the hearing of an

application to dismiss.

(e) There are certain types of cases which are more amenable to an assessment of the facts at an early stage.

This is especially so in cases which are wholly or significantly dependent on documents.

(f) Although not specifically stated by Clarke J. in Lopes v. Minister for Justice, it is also clear from the case law

that the onus lies on a defendant in an application of this kind to demonstrate that it is very clear either that the

plaintiff's claim is bound to fail or that it should be struck out under Order 19, Rule 28.

(g) Again, although not specifically mentioned by Clarke J. in Lopes v. Minister for Justice, it is also clear from the

judgment of McCarthy J in the Supreme Court in Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425 (which is cited by

Clarke J. in Lopes at p. 428) that if a statement of claim admits of an amendment which might, so to speak, save it

and the action founded on it, then the action should not be dismissed. The same principle would, of course, apply in

cases where a statement of claim has not been delivered, to an indorsement of claim. I would add that, in my view,

if this principle is to be applied in any particular case, an intimation would have to be given by the plaintiff or his

legal representatives that the plaintiff proposes to amend the claim.”

61. For the reasons discussed in detail below, I am satisfied that—irrespective of which source of jurisdiction this court invokes—the

within proceedings should be dismissed. Even taking the case at its height as pleaded in the Statement of Claim, the proceedings are

frivolous and vexatious and are bound to fail. None of the alleged complaints disclose a cause of action against any of the named

defendants.

62. More fundamentally, however, the proceedings represent an abuse of the court process and for that reason should be dismissed

pursuant to the court’s inherent jurisdiction. Leaving aside for the moment that there is no underlying merit to Ms Rippington’s

attempt to set aside the order of 23 July 2012, it is an indisputable fact that Ms Rippington has already advanced her arguments in

this regard in no less than four separate applications. In each instance, the application has—for entirely proper reasons—been

rejected. There has to be finality to litigation, and the court must protect its own process from abuse by refusing to entertain

repeated applications for precisely the same relief. To do otherwise would be to bring the administration of justice into disrepute.

63. Reference is made in this regard to the judgment of the Supreme Court in Talbot v. McCann Fitzgerald Solicitors [2009] IESC 25.

Denham J. emphasised the importance of the finality of litigation as follows.

“The reason for this fundamental principle, that a final judgment is conclusive of the litigation, is because the finality of

litigation is an important concept in the administration of justice. In The Ampthill Peerage [1977] A.C. 547 at p.576 Lord

Simon of Glaisdale described the concept as follows:-

‘Important though the issues may be, how extensive whatsoever the evidence, whatever the eagerness for further

fray, society says: ‘We have provided courts in which your rival contentions have been heard. We have provided a

code of law by which they have been adjudged. Since judges and juries are fallible human beings, we have provided

appellate courts which do their own fallible best to correct error. But in the end you must accept what has been

decided. Enough is enough’.’

In essence, the principle of finality in litigation is to underpin certainty in the administration of justice. It is a fundamental

principle for the common good. It ensures that litigation comes to an end and that there is certainty in the situation.”

64. The need for finality has a particular resonance in the context of succession law. Were the courts to permit parties to pursue

endless litigation in respect of the administration of estates, this might well result in the entire value of the disputed estate being

consumed in legal fees. As the facts of the present case sadly illustrate, the costs of High Court litigation may well exceed the value

of an estate, leaving the intended beneficiaries with nothing.

(1). ABUSE OF PROCESS

65. As appears from the prayer for relief in the Statement of Claim, the entire proceedings are predicated on an argument that the

order of 23 July 2012 is invalid. It is an abuse of process for Ms Rippington to seek to reagitate this argument in circumstances where

she neither sought to appeal the order at the relevant time nor applied to O’Neill J. to vary the order. The matter is now res judicata.

An un-appealed order of the High Court cannot be set aside save in exceptional circumstances such as fraud. For the reasons set out

at paragraph 93 below, there is no basis whatsoever for suggesting that the order of 23 July 2012 was procured by fraud.

66. As it happens, notwithstanding her inordinate delay in seeking to bring an appeal to the Court of Appeal, the underlying merits of

her complaint were considered by the Court of Appeal as part of the determination of her application in July 2017 for an extension of

time. The application for an extension of time was determined by reference to the well-established principles in Éire Continental

Trading Co. Ltd. v. Clonmel Foods. [1955] I.R. 170. These principles required the Court of Appeal to consider (i) whether a bona fide

intention to appeal had been formed within time; (ii) whether there was a mistake or other reason justifying the failure to bring an

appeal on time; and (iii) whether an arguable ground of appeal exists.

67. The Court of Appeal delivered written judgments in this regard on 19 December 2017. As discussed under the next heading below,

not only did the Court of Appeal find that there was no justification for an extension of time, it also found that there were no arguable

grounds of appeal.

68. It is self-evident from a reading of the prayer for relief in the Statement of Claim in the within proceedings that the entire thrust

and ambition of these proceedings is to set aside the order of 23 July 2012. This flies in the teeth of the judgment of the Court of

Appeal of 19 December 2017. It is not open to Ms Rippington to use the within proceedings to launch a collateral challenge to that

judgment. This is especially so in circumstances where the within proceedings represent, at the very least, the fifth attempt by Ms

Rippington to set aside the order.

(2). FRIVOLOUS AND VEXATIOUS

69. For the reasons set out under the previous heading, I am satisfied that the pursuit of the within proceedings represents an abuse

of the court process. This on its own is sufficient to justify the dismissal of the proceedings pursuant to the court’s inherent

jurisdiction. For the sake of completeness, however, I should also record that I am satisfied that the proceedings cannot succeed on

the merits, and should, therefore, be dismissed as frivolous and vexatious. Leaving aside entirely the fact that the claims advanced

breach the principle of res judicata and the requirement for finality in litigation, there is, in any event, no underlying merit to same.

70. Ms Rippington has been unable to point to any actionable wrong on the part of any of the Defendants. Her entire case against

each Defendant is predicated on an argument that the order of 23 July 2012 was improperly made. However, the uncontroverted

evidence before this court indicates that the order appointing the administrator pendente lite was made on consent, and, in any

event, was a proper order to be made in the context of the then ongoing litigation.

71. That this is so is confirmed by the note of the decision of the High Court (Hedigan J.) dated 5 September 2012 on the application

for a stay on the order of 23 July 2012 as follows.

“On 23rd July, 2012, O’Neill J. made an order in the above estate giving Ann Stephenson, Solicitor, liberty to extract a

grant of letters of administration pendente lite for the purpose of gathering in and preserving the assets of the deceased

and for discharging a mortgage on a property owned by the deceased. This was done by way of a temporary arrangement

whilst the validity of the will in the above estate was being challenged. The applicant in the above matter, Majella

Rippington wished to appeal the order of O’Neill J. and was before the court seeking a stay on his order of 23rd July, 2012.

It seemed to me that the order of O’Neill J. was a very sensible and practical order which appointed an entirely

independent solicitor for the purpose of gathering in and preserving the assets of the deceased and for discharging a

mortgage. It seems to me that it was the most sensible course of action in order to preserve the estate for whoever

ultimately was to benefit from it. Neither party was prejudiced and neither party would benefit. Only the estate would be

affected and this only to the extent of maintaining its integrity pending the resolution of the dispute between the

parties.”

72. Similar sentiments were expressed by Whelan J. in the Court of Appeal in her judgment of 18 December 2017.

“It would thus have been remiss of the executor named in the last will of the deceased to have failed to take the

necessary step of making the application in the probate list and I am satisfied, based on having perused all the papers,

that the application was prudent, appropriate, proportionate and necessary.”

73. It is inevitable that were the within proceedings to go to full hearing, the trial judge would reach a similar conclusion. Even if the

trial judge were not bound by the principle of res judicata, he or she would have to dismiss the proceedings on the basis that Ms

Rippington has been unable to advance any tenable argument as to why the order appointing an administrator pendente lite was not

an appropriate order to make.

74. The application had been made in circumstances where the normal administration of the estate had been delayed by the probate

proceedings and where the mortgage protection policy could not be encashed. It was, for all the reasons outlined by Hedigan J. and

Whelan J., a proper order to make.

75. Ms Rippington’s objection that the High Court did not have jurisdiction to make the order, and that only the “Chancery jurisdiction”

could make such an order is simply unstateable. The High Court had express statutory jurisdiction to make the order pursuant to

section 27(7) and (8) of the Succession Act 1965 which provides as follows.

“(7) Where any legal proceedings are pending touching the validity of the will of a deceased person, or for obtaining,

recalling or revoking any grant, the High Court may grant administration of the estate of the deceased to an

administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the

estate of the deceased, and every person to whom such administration is granted shall be subject to the immediate

control of the Court and act under its direction.

(8) The Court may, out of the estate of the deceased person, assign to an administrator appointed under subsection (7)

such reasonable remuneration as the Court thinks fit.”

76. In the premises, no valid criticism can be made of any of the lawyers involved in the application to appoint an administrator

pendente lite. I consider briefly the position of each of the Defendants who have brought this application to strike out the

proceedings as follows.

77. The Statement of Claim discloses no cause of action against Mr Maguire, the barrister who had been acting on behalf of Ms

Rippington and her co-plaintiffs in July 2012. Mr Maguire had set out his version of the events of 23 July 2012 in detail in a

contemporaneous letter. Mr Maguire has also confirmed his version of events in an affidavit sworn in these proceedings.

78. The contemporaneous letter has been exhibited as part of these proceedings, and the relevant extracts have been set out at

paragraph 27 above. As appears from the judgment of Whelan J. in the Court of Appeal of 18 December 2017, Ms Rippington herself

relied upon this letter during the course of her appeal. Ms Rippington has, accordingly, waived any claim to legal professional privilege

in respect of the letter.

79. The compromise achieved whereby an independent solicitor with specialist knowledge of succession law was appointed

administrator instead of Mr Cox was, self-evidently, a sensible one. The probate proceedings were acrimonious, and it would have

been unsatisfactory from the plaintiffs’ viewpoint had the defendant, Mr Cox, been appointed even on a limited basis. The compromise

of appointing an independent solicitor is one which would invariably have recommended itself to the court even if the plaintiffs had not

consented.

80. There is nothing in the Statement of Claim which contradicts the barrister’s version of events, still less is there any affidavit

evidence which puts forward a contrary version which would meet the “credible basis” threshold test in Lopes v. Minister for Justice

and Equality (cited above). In the circumstances, the claim against Mr Maguire is incapable of succeeding.

81. I turn next to the claim made against the law firm, the individual solicitor and the barrister acting for the other side in the probate

proceedings. If anything, the claim against these defendants is even weaker. The Statement of Claim discloses no cause of action

against these lawyers. These lawyers did not act on behalf of Ms Rippington, but rather represented the defendants in the probate

proceedings. Whereas the lawyers did, of course, have ethical obligations under their respective professional codes of conduct, and

had duties to the court, there is nothing in the Statement of Claim which suggests that any of these obligations or duties were

breached. The application to appoint an administrator pendente lite was made on consent in circumstances where the plaintiffs were

legally represented by solicitor and counsel. The order was one which the High Court had jurisdiction to make pursuant to the

Succession Act 1965, and the application was grounded on affidavit evidence.

82. Turning finally to the claim against Ms Stephenson, the gravamen of the case as pleaded is that Ms Stephenson “intermeddled” in

the estate pursuant to an “erroneous order”. These pleas are untenable. It is beyond question that Ms Stephenson was properly

appointed as administrator pendente lite, and there can be no valid criticism of the manner in which she discharged the limited

function under the order of 23 July 2012. Indeed, the High Court was satisfied in July 2014 to revoke the limited grant in

circumstances where Ms Stephenson had fulfilled her functions, and, further, the High Court made an order of measured costs in Ms

Stephenson’s favour out of the estate.

83. Not only does the Statement of Claim fail to identify any wrong on the part of any of the Defendants, it also fails to identify any

loss alleged to have been incurred by the estate. Still less does it establish any causal link between the conduct of the Defendants

and any alleged loss.

84. For the reasons set out above, I am satisfied that the Statement of Claim discloses no cause of action against any of these

Defendants. This on its own is sufficient reason to dismiss the proceedings as frivolous and vexatious. As it happens, however, there

is an additional reason why these proceedings are destined to fail. Ms Rippington is unable to point to any loss or damage suffered by

her personally as a result of the alleged invalidity of the order. Even if it had been established that a loss was caused to the estate—

and the evidence is entirely to the contrary—Ms Rippington does not have standing to make any claim in this regard in circumstances

where she is not a beneficiary of the estate nor would she have been a beneficiary on intestacy.

85. In the circumstances, it is doubtful whether Ms Rippington has any legal standing to maintain these proceedings. The appropriate

plaintiff in proceedings alleging damage to an estate is the executor of that estate. In the present case, the lawful executor of the

estate of the late Celine Murphy is Michael Cox.

86. Even if one adopted a generous approach to standing, and allowed that proceedings might properly be maintained by the person

who would benefit in the event of intestacy, such proceedings would have to have been taken by the executor of the estate of the

late Miss Murphy’s mother, Catherine Murphy. Ms Rippington is not the lawful executor of that estate, and any interest which she may

allege as a result of her being one of the four beneficiaries under her late mother’s Will is not sufficient to allow her to maintain

proceedings in the present form.

87. Leaving aside for the moment Ms Rippington’s legal standing to maintain the proceedings, it is, in any event, well established that

proceedings will be regarded as vexatious if such proceedings do not confer any practical benefit on the plaintiff. For the reasons set

out above, even if she could succeed in the case—which she cannot—there would be no practical benefit to Ms Rippington. This

represents a further ground for striking out the proceedings.

88. Finally, the order of 23 July 2012 could not, in any event, be set aside in these proceedings given that neither of the two

defendants to the probate proceedings, namely Michael Cox and Mary Butler, have been joined to the proceedings. It would be a

breach of the principle of audi alterem partem to set aside the order in their absence.

CLAIM NOT CAPABLE OF BEING SAVED BY AMENDMENT

89. The case law indicates that a court hearing an application to strike out proceedings must consider whether the proceedings could

be saved by an amendment to the Statement of Claim. (See Darragh v. Darragh [2018] IEHC 427, [36] cited at paragraph 59 above).

90. I have had regard to this consideration in determining this application. As noted earlier, Ms Rippington had intimated an intention

to apply to amend her Statement of Claim and had purported to issue a Notice of Motion in this regard. Ms Rippington failed, however,

to furnish a copy of the draft amended Statement of Claim. Ms Rippington was unable at the hearing before me to articulate in what

respects she proposed to amend the Statement of Claim.

91. Having carefully considered the Plenary Summons and the current version of the Statement of Claim, I am satisfied that no

amendment could properly be made to the pleadings which would be capable of saving them. As is clear from the prayer for relief in

the Statement of Claim (which has been set out as an appendix hereto), the entire thrust and ambition of these proceedings is

directed to setting aside the order of 23 July 2012. That claim is hopeless and cannot succeed for the reasons set out in detail under

the previous two headings. Once that claim is stripped out of the proceedings, there is nothing left. Put shortly, the claim is so

fundamentally misconceived that it is incapable of being put right by way of amendment.

92. The proceedings would have to be reconstituted, and this goes well beyond the concept of an “amendment”. The introduction of

any claim for different relief would almost inevitably be statute barred given that more than six years have now elapsed since the

events of July 2012.

NO FRAUD

93. In the course of her submissions at the hearing before me on 15 May 2019, Ms Rippington relied on an article dating from 1916

from the University of Pennsylvania Law Review entitled “Collateral Attack upon Judgments on the Ground of Fraud” (65 U. Pa. L. Rev.

103 (1916)).

94. It is, of course, correct to say that the courts enjoy an exceptional jurisdiction to set aside an otherwise final order in the case of

fraud. The limited circumstances in which this might be done have been set out recently by the Supreme Court in Talbot v. McCann

Fitzgerald Solicitors (cited above).

95. There is no basis whatsoever for suggesting that the order of 23 July 2012 was procured by fraud. The application to appoint the

administrator pendente lite was brought by way of motion on notice to Ms Rippington and her co-plaintiffs. Despite repeated

allegations to the contrary on the part of Ms Rippington, there is no question but that the Notice of Motion was in the correct form

and properly bears the title and record number of the probate proceedings. Despite earlier protestations that she was not present in

court on 23 July 2012, Ms Rippington now accepts that she was present when the order was made and had been represented at the

hearing by counsel. (See, for example, paragraph 44 of her affidavit sworn on 12 April 2019).

96. Ms Rippington subsequently maintained that she had not consented to the order. Leaving aside for the moment that this

allegation is scarcely credible given the history of the proceedings and the letter from her own barrister set out earlier, the fact of the

matter is that by August 2012, Ms Rippington had dismissed her legal team and made an application to the High Court (Hedigan J.)

seeking a stay on the order of 23 July 2012 pending an appeal. It is clear, therefore, that within a matter of weeks of the impugned

order having been made, Ms Rippington was in a position to appear before a judge of the High Court and to indicate that she intended

to appeal the order. This confirms that she was fully aware of the existence of the making of the order, and, further, that she was

aware that she had a right of appeal against that order. However, for reasons which have never been properly explained, no such

appeal was brought at the time. Instead, the first attempt to appeal the order was when an attempted appeal was improperly rolled

up with the appeal against the substantive judgment in the probate proceedings of July 2015. This appeal was dismissed by the Court

of Appeal in November 2015. The other attempts to appeal the order has been set out in detail earlier.

97. The chronology confirms that there is no basis for alleging that the court should exercise its exceptional jurisdiction to set aside

an order for fraud.

REQUIREMENT FOR PRIOR LEAVE TO ISSUE FURTHER PROCEEDINGS

98. The High Court has an inherent jurisdiction to restrain the institution of proceedings in order to ensure that the process of the

court is not abused. See Riordan v. An Taoiseach (No. 4) [2001] 3 I.R. 365 at 370 as follows.

“It is, however, the case that there is vested in this court, as there is in the High Court, an inherent jurisdiction to

restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by

repeated attempts to reopen litigation or to pursue litigation which is plainly groundless and vexatious. The court is bound

to uphold the rights of other citizens, including their right to be protected from unnecessary harassment and expense,

rights which are enjoyed by the holders of public offices as well as by private citizens. This court would be failing in its

duty, as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues already

determined or to pursue groundless and vexatious litigation.

The applicant has not merely repeatedly sought to reopen decisions of this court, he has also persistently abused the

locus standi which he has been afforded by the High Court and this court in cases in which he has no direct personal

interest, in order to make scandalous allegations, not merely against members of the judiciary, but other persons whom he

chose to join as defendants in his proceedings.”

99. Applying these principles to the facts of the present case, I am satisfied that it is appropriate to make such a restraining order

against Ms Rippington. As the chronology set out earlier in this judgment indicates, Ms Rippington is engaged upon a relentless

campaign to re-agitate issues in respect of the administration of her late sister’s estate. Ms Rippington refuses to accept the fact

that the order of the High Court (O’Neill J.) of 23 July 2012 cannot be set aside in circumstances where no appeal was taken in time,

and the Court of Appeal has since refused to grant an extension of time. Ms Rippington also refuses to accept that any appeal would,

in any event, have failed in circumstances where there are no arguable grounds for setting aside that order.

100. The repeated attempts by Ms Rippington to set aside the order of 23 July 2012 represent an abuse of the court process. The

affected parties have been put to the trouble and expense of having to respond to each of her unmeritorious applications to court. To

date, there have been at least five attempts on the part of Ms Rippington to set aside the order.

101. Ms Rippington can achieve no practical benefit from the litigation in circumstances where she has no legal standing in respect of

her late sister’s estate. Ms Rippington is not a beneficiary of the estate under the Will nor would she have been a beneficiary on

intestacy. The pursuit of proceedings in the circumstances can only be regarded as the epitome of vexatious litigation.

102. In this regard, it is salutary to recall the observations made by the Court of Appeal (Irvine J.) in the context of the application

for an extension of time to appeal the refusal of a stay on the order of 23 July 2012, Rippington v. Cox [2018] IECA 265.

“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.”

103. Not only is the litigation abusive, the manner in which Ms Rippington has conducted the litigation is also a cause for concern. Ms

Rippington has no compunction about making entirely unfounded allegations against anyone with whom she disagrees. As appears from

the title of these proceedings, Ms Rippington is indiscriminate in those against whom she is prepared to issue proceedings.

104. The multiple affidavits which Ms Rippington has sworn in her various proceedings are, to put it at its mildest, evasive. For

example, Ms Rippington sought to suggest in her early affidavits that she had not been present in court on 23 July 2012.

105. It is also a cause for concern that at the hearing before me Ms Rippington admitted to being in possession of original documents

from the case file held at the Probate Office. Specifically, Ms Rippington was in possession of the original letter of Anne Stephenson

consenting to act as an administrator pendente lite. Even allowing that Ms Rippington’s explanation that this document was handed to

her by mistake may be true, she should have returned the letter to the Probate Office immediately once she discovered the mistake.

106. In all the circumstances, I am satisfied that the test as set out in Riordan (No. 4) has been met and that Ms Rippington’s

conduct exhibits all of the features criticised by the Supreme Court in that case. Accordingly, I propose to make an order restraining

Ms Rippington from pursuing any proceedings against any of the named defendants herein without the prior leave of the President of

the High Court (or the prior leave of a judge assigned by the President to hear such application).

PROPOSED ORDERS

107. For the reasons set out herein, I propose to make the following orders.

1. An order striking out the within proceedings pursuant to the High Court’s inherent jurisdiction in circumstances where

the proceedings (i) disclose no cause of action, (ii) are frivolous and vexatious and (iii) represent an abuse of process.

2. An order restraining Majella Rippington from:

(i) instituting any further proceedings against any of the Defendants herein, or

(ii) taking any further steps in any pending proceedings against any of the Defendants herein

without the prior leave of the President of the High Court (or the prior leave of a judge assigned by the President to hear

an application for leave). Such leave to be sought by way of application in writing addressed to the Principal Registrar of

the High Court, Central Office, Four Courts, Inns Quay, Dublin 7.

APPENDIX

EXTRACTS FROM STATEMENT OF CLAIM

“12. In July 2012 there was a misconceived and inappropriate application to the Probate Court by the executor who failed

and/or refused to prove the Will. The family were prevented from presenting their evidence where an administrative judge

acted ultra viros (sic) hearing a contentious case and making an order without Chancery jurisdiction. This was to the

detriment and harm of the Plaintiff and her family. The executor and his legal team obtained a gain that they were not

entitled to keep.

13. The Plaintiff is denied Justice by the Irish Courts and is further compelled to apply eventually to the European Courts

regarding the Order of Judge O’Neill dated 23/7/12 to uphold her constitutional rights. This is wrong and the Irish Stat

(sic) and its agents have knowledge of this wrong and continue to offer immunity to the wrong doers.

[…]

27. The Order of Judge O’Neill. This order is erroneous and permitted Anne Stephenson solicitor to intermeddle in the estate of the

late Celine Murphy. The Plaintiff has been exhausted every remedy to have this Order reviewed and has been refused by the Courts.

The Probate Court has remained the Court of first and last instance. Justice is being denied to the Plaintiff. The Plaintiff met the legal

test for extension of time, however, given the order is a nullity, no appeal is necessary and the Order should be set aside. A motion

was taken to the Probate Court on 23 July 2018 and the Judge Binchy refused the Motion on the grounds that he had no jurisdiction

however, the Judge further refused to send the matter to the High Court. There is fraud permitted under this order and the Courts

persist in not hearing any review to remedy a fraud.

28. The Plaintiff pleads that the consequences for the legal sector to put right what they knew from the outset was a misconduct

and the Courts continue to protect the costs, trumping the wrong. The Plaintiff is compelled to take this matter to the European

Courts which is deliberately prolonging the litigation and enforcement of rights.

[…]

33. In and around the 23rd July, 2012, before Judge O’Neill Michael Cox was granted his Order and permitted to have his LPR

intermeddle in the estate of the late Celine Murphy under an erroneous Order.

34. The Order of Judge O’Neill was obtained against all best practice, outside of law and outside of subject matter jurisdiction in a

contentious matter. The Plenary proceedings were ignored. The defence team circumvented enquiry, circumvented the law and had

knowledge of same. Judge O’Neill was retiring and would not be available to revoke his own order and the Plaintiffs would be prohibited

anyway because their legal team withdrew their services. The Plaintiffs had no working knowledge, skill or practice in law and the

Courts were closing for vacation. The matter would lie in abeyance until October and in the meantime Michael Cox would have

secured access to the funds.

35. At the said hearing, the Plaintiff’s legal team gave an invalid consent to the Court and blamed the Plaintiff.

36. As noted in the transcript (modified and altered) the Judge awarded the executor his costs of application, his costs in plenary

matter which included the beneficiary’s costs, Anne Stephen’s costs and the plaintiff’s solicitor’s costs all from the estate.

37. The said Order dated 23rd July, 2012 was silent on the fact that the Order was allegedly made on consent and silent in the detail

of the defendant’s costs and silent on the plaintiff’s legal teams costs.

[…]

16. The Murphy family have suffered grave injustices following what took place in the Probate Court on the 23rd July 2012 to their

detriment and harm and have been kept in prolonged litigation as the matter is cover up and immunity afforded to the Order of Judge

O’Neill dated 23rd July, 2012, all that followed from this day was a falsehood on the family, plaintiffs in litigation been harmed and set

up to fail. The legal sector had knowledge of this wrong doing and miscarriage of justice and continued to protect this wrong to the

present day.

[…]

AND THE PLAINTIFF CLAIMS:

1. An order that the Order of Judge O’Neill dated the 23rd July, 2012 be set aside on the grounds that: The order is a nullity, the

papers were fabricated and there was no jurisdiction to award plenary costs in this application.

2. An order that the Order of Judge O’Neill dated the 23rd July, 2012 be set aside on the grounds that the Plaintiffs did not give their

consent, permission or approval.

3. An Order that the Order of Judge O’Neill dated 23rd July, 2012 be set aside on the grounds that the administrative officer of the

Court Judge O’Neill did not have subject matter jurisdiction to hear any aspect of a plenary case without jurisdiction of Chancery.

4. An order for a telescopic review of all of the evidence and claims of the Plaintiff who has been denied unlawfully.

5. An order for an inquiry into the handling of the estate of the late Celine Murphy by the executor Michael Cox and his legal team.

6. An account and inquiry into the accounts of the estate of Celine Murphy and the financial harm to Catherine Murphy’s estate.

7. An order for enquiry as this Honourable Courts deems

8. An order for damages as per reliefs sought.

9. Interest pursuant to statute or alternatively pursuant to the equitable jurisdiction of this Honourable court.

10. Such further and other relief as to this Honourable Court deems just and proper.

11. The costs of the within proceedings.