Court dismisses appeal upholding time bar for counterclaim against deceased's estate under Civil Liability Act 1961.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Neutral Citation No.: [2026] IECA 3

Court of Appeal Record No.: 2025/78

High Court Record No.: 2023/5412P

Binchy J. Meenan J. Hyland J.

BETWEEN/

GORMAN

PLAINTIFF/ RESPONDENT

- AND -

LYNCH

DEFENDANT/ APPELLANT

JUDGMENT of Ms Justice Hyland delivered on the 16th day of January, 2026 SUMMARY

1. This appeal concerns a decision of Stack J. (the “trial judge”) of 7 February 2025, where she held that the Appellant’s counterclaim to the Respondent’s application for possession of lands was time barred under s. 9(2) of the Civil Liability Act 1961 (the “1961 Act”). The Respondent is the executor of the estate of Mr. Joe Elliot (the “deceased”). Section 9(2) requires proceedings in respect of any cause of action that survives a person’s death to be brought against the estate of that person no later than two years from the date of death or within the applicable statutory limitation period, whichever expires first. In this case, the Appellant filed a counterclaim against the Respondent 3 years and 6 months after the deceased died, arguing that he was entitled to the estate because of promises allegedly made to him by the deceased. The Respondent brought a motion under Order 34 RSC seeking to try the applicability of the time bar imposed by s. 9(2) as a preliminary issue. The trial judge both ordered the trial of a preliminary issue and substantively adjudicated on the preliminary issue in favour of the Respondent, concluding that the Appellant’s counterclaim was time barred. The appeal concerns the substantive adjudication by the trial judge.

2. For the reasons set out below, I am satisfied that the appeal must fail and that the trial judge’s decision should be upheld.

RELEVANT LEGISLATION AND CASE LAW

3. Sections 8 and 9 of the Civil Liability Act 1961 are in the following terms: 8.—(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.

…

(2) Where damage has been suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of subsection (1) of this section, to have been subsisting against him before his death such cause of action in respect of that act as would have subsisted if he had died after the damage was suffered.

…

9.—(1) In this section “the relevant period” means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.

(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either—

(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or

(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.

4. Helpfully, the Supreme Court has considered the meaning of a surviving claim for the purposes of s. 9(2) in the context of a claim very similar to the claim the subject of this appeal. In Cavey v. Cavey [2014] IESC 16, a son pursued a claim based on promissory estoppel against his father’s estate after an earlier application under s. 117 of the Succession Act 1965 had failed. The Supreme Court held that the promissory estoppel claim was a distinct cause of action which survived against the estate of the deceased and was therefore subject to s. 9 of the 1961 Act, making it statute-barred due to the two-year limitation period. Clarke J. observed as follows: “4.6 It seems to me that a significant distinction is made in s. 9(2), so far as claims against an estate are concerned, between a cause of action which results from an act or omission of the deceased, on the one hand, and a cause of action which may exist against those in charge of the administration of the estate of the deceased, on the other. If Mr. Cavey had a cause of action in promissory estoppel at all, it can only be because he might be able to establish that his late father was in breach of a legally enforceable promise in respect of bequeathing the family home to him. If such could be established it would be a failure, during his life, on the part of his late father to make an appropriate will to comply with his promise that gives rise to the claim.

4.7 That involves an allegation of a failure on the part of his father rather than a failure by the estate itself. How otherwise could such a claim be brought? It necessarily involves a claim against the estate but arising out of a failure on the part of the deceased. It seems to me that such a claim necessarily comes within the scope of the phrase "a claim surviving against the estate of the deceased" even if it is true that a deceased could have avoided such a claim being capable of being brought by complying with their promise to bequeath the relevant property up to the moment before their death.”

5. Following that approach, the claim made by the Appellant that he is entitled to all or part of the deceased’s estate because of promises made to him by the deceased is a claim that comes within s. 9(2), being a claim that has survived against the estate arising out of an alleged failure on the part of the deceased.

FACTUAL BACKGROUND

6. The Appellant is an engineer and a farmer, who farms land at Lacken, Arva, Co. Cavan. His farm is adjacent to that of the deceased, who was his neighbour and friend for many years. As pleaded in the counterclaim, the Appellant and the deceased were friendly for a long period of time, and the Appellant consistently assisted the deceased with his farm and occupied his lands. He pleads that he did so on the clear representation that the land would ultimately be left to him, and that this representation was made by the deceased on various occasions. Particulars of the representations in question are pleaded in the counterclaim. Those claims are denied in the defence of the Respondent to the counterclaim.

7. The counterclaim also pleads that on 3 August 2020 the deceased died, and that at the funeral the Appellant was told by a Ms. Vance that the lands had been left to three persons, who were the children of the couple with whom the deceased lodged. The Appellant was left the sum of €5000 and was appointed as joint executor along with the Respondent. After the funeral, the Appellant wrote a letter to the solicitor for the estate on 10 December 2020 asserting that the deceased had promised him the land, that the deceased had benefitted from the Appellant’s family’s labour and service for over 50 years, and that a substantial claim would be made against the estate. Three letters were written in reply by Ms. Mimnagh, solicitor for the estate of the deceased, calling upon the Appellant to renounce his rights as executor if he was making a claim against the estate. No response was provided until 2022. In his replying affidavit sworn 8 December 2023, the Appellant exhibits a letter of 18 July 2022 that he avers was sent to the solicitors for the Respondent. This is a letter from a Mr. John McGuinness of Kilrane Solicitors on the Appellant’s behalf, asserting a claim on the estate owing to representations made to him by the deceased. It is claimed that in reliance upon express representations, the Appellant acted to his detriment by providing financial assistance and assistance in the day to day running of the farm for over 15 years. This assistance included physical labour, preparation and execution of all Department of Agriculture documents and mart paperwork. He also refers to daily interaction with Mr. Elliott in his home assisting where and when required.

8. In the affidavit of Ms. Mimnagh, solicitor, sworn 4 March 2025 i.e. after the affidavit of the Appellant, she does not refer to the letter of 18 July 2022, and avers that following the letter of 10 December 2020, she heard nothing further from the Appellant and proceeded to apply for the grant of probate on behalf of the Respondent. There is obviously an issue as to whether this letter was received by her, but it is not material to the outcome of this appeal, since the critical issue is not whether notification of a claim was given but whether proceedings were issued before the applicable limitation period expired under s. 9(2). It is accepted that no proceedings were issued prior to the elapse of the limitation period on 4 August 2022, being two years since the date of death of Mr. Elliot.

9. On 8 June 2023, JV Geary solicitors wrote to the solicitors for the estate, reciting the history of the Appellant’s relationship with the deceased and threatening to seek an injunction against the estate to restrain the sale.

THE PROCEEDINGS

10. On 8 November 2023, the Respondent issued a plenary summons restraining the Appellant from occupying and trespassing on the lands and directing the Appellant to vacate the lands, and a motion seeking such relief on an interlocutory basis. On 23 February 2024, a defence and counterclaim were delivered by the Appellant. In the Appellant’s counterclaim, he pleads inter alia proprietary estoppel, unjust enrichment, constructive or resulting trust, and specific performance of the alleged agreement with the deceased.

11. In the reply and defence to the counterclaim delivered on 3 March 2024, the Respondent pleads that the counterclaim is statute-barred pursuant to s. 9 of the 1961 Act, denies that the Appellant had established any enforceable agreement, estoppel or trust, denies particulars of undue influence and/or coercion, and pleads that the deceased made a prior will on 16 November 2006 in which the Appellant was not named as a beneficiary.

12. The Appellant also issued what were described as protective proceedings on 25 July 2023 seeking reliefs similar in substance to those sought in the counterclaim. In the context of the motion for possession, the Appellant swore a replying affidavit. This affidavit goes into some considerable detail as to the factual circumstances surrounding the claim and his long history with the deceased. No replying affidavits contesting those facts were filed by the Respondent and it is accepted by counsel for the Appellant that the factual basis upon which the judge disposed of the motion was on the basis of the Appellant’s case as set out in the affidavits.

THE MOTION

13. On 5 March 2024, the Respondent issued a motion not only seeking an order directing the trial of a preliminary issue under Order 34 RSC but also requesting that the substantive preliminary issue itself be determined within the motion if it was the view of the court that the matter was suitable for a preliminary hearing. No objection appears to have been taken to this course and the case was heard for two days before the trial judge.

DECISION OF TRIAL JUDGE

14. The trial judge held that the Appellant’s counterclaim was statute-barred pursuant to s.

9 of the 1961 Act. In doing so, she emphasised that what is critical in identifying a cause of action is not the legal label attached to it, but the material facts from which the cause of action arises. The trial judge accepted that – regardless of whether the Appellant characterised his claim as promissory estoppel, proprietary estoppel, a constructive or remedial trust, or otherwise – the material facts relied upon were the alleged assurances and representations made by the deceased during his lifetime and the deceased’s failure to give effect to them. Any cause of action founded on those facts therefore accrued during the lifetime of the deceased and was subsisting immediately prior to his death. She observed that what was critical to a cause of action was the material facts which lead that cause of action to accrue and that several causes of action can arise out of the same facts.

15. The trial judge found that allegations of deceit or concealment did not assist the Appellant because he was aware of the essential basis of his claim shortly after the deceased’s death and well within the limitation period. Thus, any alleged fraud would not materially have extended the time.

16. In relation to capacity, the trial judge held that there was no proof of any disability on the part of the Appellant at the time his cause of action accrued, and that he had capacity to give instructions at material times. In any event, she observed that s. 9 of the 1961 Act does not permit an extension of time for fraud or disability.

17. Accordingly, the trial judge concluded that the Appellant’s counterclaim could not be maintained, and that determining the issue at an early stage was both appropriate and consistent with the policy underlying s. 9, notwithstanding that the outcome was harsh for the Appellant.

THE APPEAL

18. Although the notice of appeal identified a number of different alleged flaws with the

decision of the trial judge, the written submissions focused very heavily on one issue and one issue only i.e. that there was a resulting trust and/or a remedial constructive trust such that the property, the subject matter of the proceedings, was held on trust for the Appellant and that therefore the Appellant had an entitlement to the reliefs sought in the counterclaim. At the hearing, the claim narrowed still further, with counsel for the Appellant accepting that had the plea been exclusively one of promissory estoppel, it would have to be treated as a surviving claim within the meaning of s. 9(2). As counsel eloquently expressed it, relying on promissory estoppel would lead him into the “rabbit hole of s. 9(2)”. That was in my view a reasonable concession, given the very clear terms of the decision in Cavey.

19. However, counsel for the Appellant attempted to overcome this difficulty by arguing that the promise gave rise to a remedial constructive trust. It was contended that, once the promise and/or promises were made, the property became subject to a trust and was thereby settled. In those circumstances, the property did not form part of the deceased’s estate and the Appellant was not caught by s. 9 because he did not have a surviving claim against the estate. In support of this approach, counsel relied upon the decision of the House of Lords in Thorner v. Major, [2009] 3 All ER 945 and an article by Keating, ‘Remedial Constructive Trusts’, (2016) 34(12) 174- 176.

20. Thorner concerned a set of facts similar in certain respects to those of the instant case, where Mr. Thorner had worked for many years on the farm of his cousin in the expectation that he would inherit lands. On his cousin’s death, he was disappointed in that expectation and issued proceedings claiming a proprietary estoppel entitling him to the estate. I should emphasise that this decision was not concerned in any way with limitation periods: the House of Lords was exclusively concerned with whether he was entitled to a share in the estate despite the clear terms of his cousin’s will.

Only one of the five law lords, Lord Scott, addressed the difference between proprietary estoppel and a remedial constructive trust, with the other law lords being content to characterise the claim as one of proprietary estoppel. Lord Scott observed as follows: “20. These reflections invite some thought about the relationship between proprietary estoppel and constructive trust and their respective roles in providing remedies where representations about future property interests have been made and relied on. There are many cases in which the representations relied on relate to the acquisition by the representee of an immediate, or more or less immediate, interest in the property in question.

In these cases a proprietary estoppel is the obvious remedy. … Constructive trust, in my opinion, has nothing to offer to cases of this sort. But cases where the relevant representation has related to inheritance prospects seem to me difficult, for the reasons I have given, to square with the principles of proprietary estoppel established by the Ramsden v Dyson and Crabb v Arun District Council line of cases and, for my part, I find them made easier to understand as constructive trust cases. The possibility of a remedial constructive trust over property, created by the common intention or understanding of the parties regarding the property on the basis of which the claimant has acted to his detriment, has been recognised at least since Gissing v Gissing [1971] AC 886 (see particularly Lord Diplock, at p 905) … For my part I would prefer to keep proprietary estoppel and constructive trust as distinct and separate remedies, to confine proprietary estoppel to cases where the representation, whether express or implied, on which the claimant has acted is unconditional and to address the cases where the representations are of future benefits, and subject to qualification on account of unforeseen future events, via the principles of remedial constructive trusts.”

21. Because the other law lords treated the case as one concerning proprietary estoppel, the comments of Lord Scott cannot be considered as in any way binding. Nonetheless, they are of interest given the reliance placed upon the cause of action being a remedial constructive trust by counsel for the Appellant at the hearing, and his disavowal of any claim based on proprietary estoppel.

22. Unfortunately for the Appellant, the distinction drawn is not one that avails him. When considering the operation of s. 9(2), whether one characterises the Appellant’s claim as being based on proprietary estoppel or on a remedial constructive trust is immaterial. In either case, the Appellant claims an entitlement to the estate or part of it on the basis of representations and an inequity in allowing the terms of the will to prevail. As the trial judge observed, it matters little in what legal box the Appellant chooses to situate the facts that he relies upon. The critical issue is the existence of a claim requiring adjudication by a court. That brings limitation periods into play. Section 9(2) cannot be circumvented simply by characterising the cause of action in one way rather than another. Indeed, the all-encompassing nature of s. 9(2) is emphasised by the words used therein: “in respect of any cause of action whatsoever”. There is no carve out from s. 9 for a form of action that contends that property is being wrongly treated as part of the estate.

23. Returning to the Appellant’s argument that the property was never in the estate and therefore he did not need to claim it in these proceedings, that proposition could never allow the Appellant to sidestep s. 9(2). If the property had already been determined to be held in trust for him, he would have no reason to litigate its inclusion in the estate. Given that it has not, he must litigate that question with the executor, and thus face s. 9(2). Of course, had he issued proceedings prior to the death of the deceased, contending the property was being held in trust for him, these difficulties would not arise. But because he is contending that the contested property ought not be within the estate because of promises made by the deceased, that claim must now be made against the Respondent as executor.

24. The policy reasons for the blanket approach of s. 9 are obvious. If the Appellant was correct, and there was some kind of carve out for claims made on the basis of an argument based on the existence of a remedial constructive trust (or indeed any other legal argument), then, as pointed out by counsel for the Respondent, there could never be any certainty in relation to the distribution of estates since there would no limitation period at all. Nor is there any support whatsoever in the wording of s. 9 to buttress this argument, nor any case law to this effect. If a claim is made as to the existence of a resulting or remedial constructive trust due to the conduct of the deceased on equitable principles, that claim must be adjudicated by a court (as demonstrated by Thorner v. Major, and by Finnegan v Hand [2016] IEHC 255).

25. The Appellant also argues that the cause of action did not exist prior to the death of the deceased but was entirely inchoate and was therefore not a surviving cause of action under s. 9(2). This argument cannot be accepted. Any trust in favour of the Appellant allegedly based upon the behaviour of the deceased must necessarily have arisen during the lifetime of the deceased and, consequently, must have survived the deceased and is captured by s.9(2). As correctly observed by the trial judge, any cause of action which depends on the acts, or omissions or conduct of the deceased during his lifetime is a cause of action subsisting on death. Following Cavey, the alleged wrongs contended for by the appellant are those of the deceased and not his executor.

26. Moreover, in Corrigan v. Martin (Unreported, High Court, 13 March 2006) – as approved in Prendergast v. McLaughlin [2009] IEHC 250 – Fennelly J. held that a cause of action on foot of a promise to leave lands to a plaintiff was a cause of action subsisting at the date of death and consequently s. 9(2) applied. There, the plaintiff, a nephew of the deceased, had injured himself on the defendant’s farm and the defendant had agreed that he would transfer or devise lands to the plaintiff in consideration of the plaintiff agreeing not to sue him. Fennelly J. observed that the correct interpretation of the plaintiff’s cause of action in the light of s. 8 of the 1961 Act was that the obligation of the deceased was to perform the contract during his lifetime and not at the moment of his death and hence the cause of action was complete immediately before his death, subsisted at the moment of his death and survived against his estate by virtue of s. 8(1), noting: “The Oireachtas intended that provision to apply to all causes of action coming into existence right up to the point of death itself. It is unreal and almost metaphysical to distinguish between causes of action existing immediately prior to the death and those which matured on the death itself. I do not believe the Oireachtas can have intended to make such fine a distinction”. Having regard to this authority, the Appellant’s argument that the cause of action was not one surviving at the date of death is doomed to failure.

27. In short, if the Appellant wishes to argue for the existence of a remedial constructive trust, he is entitled to make such a claim, but only within the limitation period identified by s. 9(2). He has not done so, and therefore, he is not entitled to maintain his counterclaim or his own proceedings. Accordingly, I fully agree with the approach and the conclusion of the trial judge.

EXTENSION OF TIME UNDER THE STATUTE OF LIMITATIONS -

DISABILITY

28. The Appellant made what appeared to be an alternative argument to the effect that, because of his mental health difficulties, he was not in a position to institute proceedings within the requisite time period under s. 9, and that the time should be extended under the provisions of s. 49 of the Statute of Limitations 1957 (the “Statute of Limitations”). He relied on three medical reports in this respect, and he also averred in his affidavit at paragraph 18 that he has had mental health issues since the death of the deceased which have curtailed his ability to deal with the matter, and that he has not been able to manage his own affairs in the manner that he would ordinarily do so.

29. I should say that the Appellant has obviously gone through a very difficult period in his life and feels that he was very unfairly treated by the deceased despite the assistance that, on his case, he provided to him during his lifetime. He has undoubtedly had serious mental health difficulties. However, I am afraid those difficulties cannot be relied upon to extend the applicable limitation period. First, as correctly observed by the Respondent, all the psychiatric evidence relied upon by him was in relation to time periods after the time had elapsed under s. 9(2). But more fundamentally, any such lack of capacity or disability that he could establish would not avail him even if he could show that he would have been entitled to an extension of time under the Statute of Limitations because of his personal circumstances. That is because the operation of s.

9 is such that the time expires either two years from the date of death, or the relevant time period under the Statute of Limitations, whichever is the earlier. Assuming for example the relevant period under the Statute of Limitations to bring a claim for a remedial constructive trust was 6 years, extendable for a further number of years due to a person’s disability, that would bring the limitation time within which proceedings must be brought in this case to well beyond the two-year limitation period identified in s. 9. The operation of s. 9 means that the applicable time limit defaults to two years, being the shorter of the relevant periods. In the circumstances, the Appellant cannot escape the two-year limitation period by seeking to rely on an extension of time under the Statute of Limitations based on disability.

EXTENSION OF TIME UNDER THE STATUTE OF LIMITATIONS - DECEIT

30. The Appellant also sought to make an argument based on deceit under s. 71 of the Statute of Limitations to the effect that time should not begin to run because the deceased had been deceitful in relation to his true intentions. The claim of fraud and/or deceit was not included in the counterclaim nor indeed in the affidavits responding to the motion but rather appeared two days before the motion was heard in the form of replies to particulars dated 4 February 2025. The particulars pleaded that the deceased induced the Appellant to provide labour, services, time and expertise on the basis of repeated false promises that was deceitful or reckless in manner, and the deceased deliberately concealed his true intentions or allowed himself to be influenced by others, thereby maintaining a course of dishonesty up to his death and depriving the Appellant of the opportunity to take legal advice and issue proceedings during the deceased’s lifetime.

31. However, this invocation of fraud at a very late stage (such delay being unexplained) cannot avail the Appellant. This is for the same reason as applies in the context of the capacity issue – even if there was an extension of time by reason of fraud, that extension could not avail the Appellant. The cause of action cannot accrue any later than the date of death, and therefore the two-year limitation period under s. 9 would expire earlier than any extension contended for by the Appellant.

32. Even if this were not the case, the claim of an extension of time based on fraud is unstateable. Fraud may extend time where facts have been concealed, thus resulting in time running from the actual date of knowledge. Here, there is no dispute about the fact that the Appellant became aware of the deceased’s will at the time of his funeral, as noted by the trial judge. It is difficult to see how any case could be made for an extension of time based on concealment after the Appellant became aware of the terms of the deceased’s will.

33. Insofar as these claims based on fraud and/or capacity are arguments that are intended to go towards an amelioration of the harshness of s. 9, the Appellant has not challenged the constitutionality of this section. But even if he had, this issue has already been determined in Moynihan v. Greensmith [1977] IR 55 where there was a straight challenge to the constitutionality of s. 9. As noted at paragraphs 13 and 14 of the Respondent’s submissions:

13. […] The essence of his argument is that the assertion of, and entitlement under, a trust (howsoever constituted: whether expressly, by deed, or by construction) enjoy a status that renders them immune from any limitation period and, by extension, immune from the policy considerations in the enactment of limitation periods, in general, and s.9 of the 1961 Act, in particular (as enunciated by O’Higgins CJ in Moynihan v Greensmyth [1977] IR 55): “Bearing in mind the State’s duty to others — in particular those who represent the estate of the deceased, and beneficiaries — some reasonable limitation on actions against the estate was obviously required. If the period of infancy were to form part of the period of limitation, as was formerly the case, then the danger of stale claims being brought would be very real and could constitute a serious threat to the rights of beneficiaries of the estate of a deceased. The alternative was to apply a period of limitation which would have general application. It had to be either one or the other; and it does not appear that any compromise was possible.” [emphasis added]

14. It is submitted that the rationale for enacting s.9 of the 1961 Act is clear: a balance must be struck between the rights of persons who have claims subsisting at the death of a deceased person and the interests of the beneficiaries of that deceased’s estate. The balance that was struck was that “no such proceedings shall be maintainable in respect of any cause of action whatsoever” unless commenced within two years of the death.

34. The legislature has made a clear choice here, placing certainty in the administration of estates over flexibility based on personal circumstances once two years have expired from the date of death. Accordingly, the Appellant cannot invoke either his own personal circumstances or the particular nature of the legal claim he makes to avoid the effect of s. 9(2).

CONCLUSION

35. For all those reasons I am unpersuaded by any of the Appellant’s arguments, although I acknowledge the sincerity and commitment with which they were advanced by his legal team on his behalf. The Appellant is clearly not only personally vulnerable but also holds a deep-seated belief that he was wronged by the deceased and that his labours on behalf of the deceased for many years have gone unrewarded. I have no doubt that he will be very disappointed at the outcome of this appeal. Nonetheless, the provisions of s. 9 are very clear and its application in the instant case is, in my view, uncontroversial in a legal sense. In the circumstances, I uphold the decision of the trial judge.

36. For the foregoing reasons I would dismiss this appeal. Since the Respondent has been entirely successful in resisting the appeal, my preliminary view is that he is entitled to an order for its costs pursuant to s. 169(1) of the Legal Services Regulation Act 2015. If the Appellant wishes to contend for a different order, then he may do so by making submissions in writing, not to exceed 1500 words, no later than 30 January 2026, and the Respondent shall make any replying submissions, also limited to 1500 words, by

13 February 2026.

37. Since this judgment is being delivered remotely, Binchy J. and Meenan J. have authorised me to indicate their agreement with it.