Court holds plaintiff is not a State authority and limitation period is governed by s.13(1) of the Statute of Limitations 1957.

THE SUPREME COURT

[S.C. No. 07/08]

Fennelly, J.

Macken, J.

Finnegan, J.

BETWEEN

DAVID J. O’HAGAN AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ALICE DOLAN, DECEASED

Plaintiff

AND

DESMOND GROGAN

Defendant

Judgment of Macken J. delivered on the 16th February, 2012

This is an application arising on a consultative Case Stated to this Court from the Circuit Court (Judge Linnane) dated the 16th

January, 2007, pursuant to the provisions of s.16 of the Courts of Justice Act, 1947. The questions posed in the Case Stated are the

following:

(a) Is the plaintiff a “State authority” for the purposes of the Statute of Limitations, 1957?

(b) Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this

case prescribed by s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?

(c) Is the answer to (b) affected by s.65 of the Succession Act, 1965?

The Case Stated has arisen as a result of the pleadings, including the defence and counterclaim of the defendant, in proceedings

commenced by the plaintiff, seeking possession of a house which the defendant occupies, and has occupied since 1982, and an

injunction restraining trespass. The defendant claims that, on the basis of what are frequently called squatters’ rights, he acquired

title to the premises “adverse to the President of the High Court” more than 12 years prior to the time when Letters of Administration

were granted to the plaintiff in 2000, and therefore the plaintiff has no legal right to have either possession of the house, or an

injunction to restrain the alleged trespass.

Background Facts as Agreed or Proven

According to the Case Stated, on facts agreed or proven, the late Mrs. Alice Dolan died intestate on the October 22, 1981 in

possession and in occupation of a house at 6 Enniskerry Road in Dublin. Well before she died, and on her death, Mrs. Dolan was

entitled to the beneficial ownership of that property which had been agreed by Dublin Corporation (as it then was) to be conveyed

directly to her by the then vendors of the property, in exchange or in part exchange for her previous home in Dublin, which the

Corporation required for road widening. The deed of assignment (dated in December, 1978) to Mrs. Dolan had been executed both by

the then vendor and by Dublin Corporation (who were paying the vendor for the property) and the deed had also been stamped. At

the time she died, Mrs. Dolan had not executed the deed of assignment, but she had been allowed into occupation of the property

well prior to that time (in 1978). No issue arises as to Mrs. Dolan’s entitlement to the property. In the course of his employment in the

auctioneering business, the plaintiff learned of Mrs. Dolan’s death and of the apparent absence of any next of kin. He, it seems, broke

into her home (“the premises”) through the back door, in February, 1982, and has remained in possession of the premises, along with

a Mary Grogan, since that date.

A citation to next of kin, if any, was issued on 21st January, 1998, and was deemed as a renunciation of any interest in the estate.

Letters of Administration were extracted in July, 2000 and granted to Laurence A. Farrell, as then Chief State Solicitor, the then

Attorney General having consented to his doing so. He thereupon became the personal representative of the estate of Mrs. Dolan. Mr.

O’Hagan (“the plaintiff”) is the successor to Mr. Farrell. Although his entitlement to bring proceedings, both as Chief State Solicitor

and as personal representative was raised in the defence, as filed, which challenged devolution to the plaintiff from Mr. Farrell in

either such capacity, these pleas are not mentioned in the Case Stated or in the submissions on behalf of the defendant. For the

purposes of this judgment, I take the view that no issue arises on that devolution.

By a Circuit Court Equity Civil Bill issued on the 14th May, 2002 and served on the defendant on the 24th May, 2002, the plaintiff

sought, inter alia: injunctions directing the defendant to vacate the premises, delivery up of possession of them to the plaintiff, and

an order restraining the defendant from all further trespass on the premises, as well as damages for trespass and a declaration that

the defendant has no equitable or legal title to the premises. The defendant by his defence, denied trespass and all entitlement in the

plaintiff to the reliefs sought. He then followed these denials with the following positive pleas: (a) that as of the 21 July 2000, the

date when Letters of Administration issued, the real and personal estate of the late Alice Dolan on the date of her death on the 22nd

October, 1981 had vested in the President of the High Court until administration of her estate was granted, pursuant to the provisions

of s.13 of the Succession Act, 1965; (b) that in or about the month of February, 1982 the defendant, together with a Mary Grogan,

went into occupation and possession of the premises, and remained there for upwards of 12 years, “adversely to the President of the

High Court”; (c) that as of the 21st July, 2000, all right, title and interest in the estate of Alice Dolan, of the then personal

representative, and of all other persons claiming any interest in her estate, including the State as ultimate successor pursuant to the

provisions of s.73 of the Succession Act, 1965, were already statute barred under the provisions of the Statute of Limitations 1957

and the Succession Act 1995; (d) that no estate or interest in the premises vested in the personal representative, Laurence A.

Farrell, on the extraction of the grant of Letters of Administration; (e) that neither Laurence A. Farrell, as former Chief State Solicitor,

nor the plaintiff, either in the same capacity or as personal representative of the late Alice Dolan, is, or were, at any relevant time, a

“State authority” within the meaning of the Statute of Limitations, 1957, contrary to the plaintiff’s plea that he was; and (f) that the

title of the said Laurence A. Farrell, and/or of the State, to the premises had been extinguished by virtue of the provisions of s.24 of

the said Statute of 1957.

The defendant did not, by his defence, although it is entitled “Defence and Counterclaim”, in fact, counterclaim either as against the

President of the High Court, any State authority, or the State, which latter was otherwise entitled to the premises, as ultimate

intestate successor to the estate of Alice Dolan, and no relief was sought against any of them. Neither the President of the High

Court, nor the State, nor any State authority was joined as a party to any plea by the defendant in his defence, or the adverse

possession plea. I will return to this in the course of my judgment.

Issues Presented

It will be seen from the foregoing exposé of the basic facts and of the pleadings, that the essential issues to be resolved in the

Circuit Court proceedings are whether the plaintiff, either as a State authority, or as personal representative, is entitled as against

the defendant to possession of the premises, and whether the defendant has established that he is the owner, by adverse possession

of the premises, as against the true owner. In turn, the outcome of these depends on (a) whether the plaintiff is a State authority,

as he claims; (b) whether, if not a State authority, he is entitled as personal representative pursuant to the Grant of Letters of

Administration to have possession of the premises as against the defendant, and (c) what limitation periods operate in relation to

these and allied issued arising, in particular in the case of a person dying intestate with no next of kin. The significance of determining

the relevant limitation period is as follows. The defendant began his occupation of the premises in February 1982. Letters of

Administration issued in July 2000. The defendant was, therefore, in possession of the premises for over 17 years before that date. If

the defendant is correct in his contention that the applicable limitation period is 12 years from the date of death of the late Mrs.

Dolan, and he had, in law, adversely possessed the premises against the appropriate party(ies) for the appropriate period, this would

have the effect of barring any title to it vesting in the personal representative in July, 2000, following upon the purported grant of

Letters of Administration to the plaintiff’s predecessor at that date. If the plaintiff is, on the contrary, a “State authority” within

s.2(1) of the Statute of Limitations for and on behalf of the State - at least according to one of his pleas in the Equity Civil Bill – and

as argued in this appeal, or is entitled to possession on any alternative legal basis pleaded, then the defendant’s claim cannot

succeed, since possession does not become adverse to the State or any State authority until the expiration of 30 years from the

date on which the right of action accrued, according to s. 13(1)(a) of the Statute of Limitations, 1957. If a 30 year limitation period

properly applies, this effectively bars the defendant’s claim to have adversely possessed the property on or before July, 2000 In the

above context, and having heard legal argument, the learned Circuit Court judge posed the three questions set out at the

commencement of this judgment, for the opinion of this Court. Helpful written submissions were filed by both parties and were

supplemented by oral argument on the part of counsel for each party.

Since the answers to the questions raised, and to important allied issues, concern the correct interpretation and application of

several legislative provisions, it is appropriate to commence by setting out the relevant legislation, which is fairly lengthy, interrelated

and also quite complex.

Ministers and Secretaries Act, 1924

S.6(1) of this Act is relied on by the plaintiff. It states:

“There shall be vested in the Attorney-General … the business, powers, authorities, duties and functions formerly vested

in or exercised by the Attorney-General for Ireland, the Solicitor-General for Ireland, … and any or all of them

respectively, and the administration and control of the business, powers, authorities, duties and functions of the

branches and officers of the public services specified in the Ninth Part of the Schedule to this Act …” (emphasis added)

The “Ninth Part of the Schedule to this Act” includes, inter alia, the “Chief State Solicitor’s department and all local State Solicitors.”

Statute of Limitations 1957

There are several provisions of this Act (“the Statute of Limitations”) which play a pivotal role in a proper consideration of the issues

arising on the Case Stated. They are the following:

s.2(1) “State authority” means any authority, being:

(a) a Minister of State, or

(b) the Commissioners of Public Works in Ireland, or

(c) the Irish Land Commission, or

(d) the Revenue Commissioners, or

(e) the Attorney General.”

s.3(1) “Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act

shall apply to proceedings by or against a State authority in like manner as if that State authority were a private

individual.”

S.7 “This Act shall not apply to—

(a) any action for which a period of limitation is fixed by any other limitation enactment, or

(b) any action to which a State authority is a party and for which, if that State authority were a

private individual, a period of limitation would be fixed by any other limitation enactment.”

s.13(1)(a) “Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to

recover any land after the expiration of thirty years from the date on which the right of action accrued to a State

authority or, if it first accrued to some person through whom a State authority claims, to that person.”

s.13(2) “The following provision shall apply to an action by a person (other than a State authority) to recover land

–

(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of

twelve years from the date on which the right of action accrued to the person bringing it or, if it first

accrued to some person through whom he claims, to that person;

(b) if the right of action first accrued to a State authority the action may be brought at any time

before the expiration of the period during which the action could have been brought by a State

authority, or of twelve years from the date on which the right of action accrued to some person other

than a State authority whichever period first expires.”

s.14(2) “Where –

(a) any person brings an action to recover any land of a deceased person, whether under a will or on

intestacy, and

(b) the deceased person –

(i) was on the date of his death in possession of the land or, in the case of a rentcharge created

by will or taking effect upon his death, in possession of the land charged, and,

(ii) was the last person entitled to the land to be in possession thereof

the right of action shall be deemed to have accrued on the date of his death.”

s.18(1) “No right of action to recover land shall be deemed to accrue unless the land is in possession (in this

section referred to as adverse possession) of some person in whose favour the period of limitation can run.”

s.23 “For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of

the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the

date of the death of the deceased and the grant of letters of administration.”

s.24 “Subject to section 25 of this Act and to section 52 of the Act of 1891, at the expiration of the period fixed by

this Act for any person to bring an action to recover land, the title of that person to the land shall be

extinguished.” (emphasis added)

The Administration of Estates Act 1959

Section 13 of this Act (“the Act of 1959”) is also invoked, and is in the following terms:

s.13 “Where a person dies intestate, his real and personal estate, until administration is granted in respect

thereof, shall vest in the President of the High Court in the same manner and to the same extent as formerly in

the case of personal estate it vested in the Ordinary.”

The Succession Act 1965

Again, several provisions of the Act (“the Act of 1965”) are also important, and include:

s.13(1) “Where a person dies intestate, or dies testate but leaving no executor surviving him, his real and personal

estate, until administration is granted in respect thereof, shall vest in the President of the High Court who, for this

purpose, shall be a corporation sole.”

s.65(1) “Where administration of an estate is granted for the use or benefit of the State (whether to the Chief

State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the

administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted

and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the

grant had been made to the administrator as a person beneficially entitled to a share of the estate.”

s.65(2) “Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share

thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and

subject to which proceedings for the like purposes might be instituted by or against a private individual.”

s.65(3) “Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of

the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become

administrator in his place without further grant.”

s.73(1) “In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State

shall take the estate as ultimate intestate successor.”

(emphasis added)

Intestates Estates Act 1884 (U.K.)

Some English legislation, including of the late 19th century, were also invoked. The provisions of this Act, and of the later

Administration of Estates Act 1925, were both cited in argument by the parties. The relevant provisions are the following:

s.2 “Where the administration of the personal estate of any deceased person is granted to a nominee of Her Majesty

(whether the Treasury Solicitor, or a person nominated by the Treasury Solicitor, or any other person), any action or

other proceeding by or against such nominee for the recovery of the personal estate of such deceased person, or any

share thereof, shall be of the same character, and be brought, instituted and carried on in the same manner, and be

subject to the same rules of law and equity (including the rules of limitation under the Statutes of Limitation or

otherwise), in all respects as if the administration had been granted to such nominee as one of the next-of-kin of such

deceased person.”

s.3 “After the passing of this Act, information or other proceeding on the part of Her Majesty shall not be filed or

instituted, and a petition of rights shall not be presented, in respect of the personal estate of any deceased person or

any part or share thereof, or any claim thereon, except within the same time and subject to the same rules of law and

equity in and subject to which an action for the like purpose might be brought by or against a subject.” (emphasis

added)

It will be seen that s.2 covers the position as to personal estate, where administration is granted to a nominee of the Crown, in which

event proceedings by or against the nominee are subject to the same rules (including expressly those concerning limitation periods

under the “Statute of Limitations or otherwise”). Section 3 concerns proceedings taken on the part of the Crown.

Administration of Estates Act 1925 (U.K.)

Section 30 of this Act repealed and restated the above two sections of the Act of 1884, and extended the provisions of those

sections to real property, but did not otherwise change them. S.30(1) amended s.2 of the Act of 1884, and s.30(2) amended s.3 of

the same Act. S.30(2) covering proceedings by the Crown was, however, later amended by s.34 of the next mentioned Act.

Limitation Act 1939 (UK)

Section 34 of this Act which is the section concerned with the repeal of earlier legislation, repealed in a small, but important, manner,

the provisions of s.30(2) of the Act of the 1925 Act, by deleting the words “within the same time and” from that section. This had

the effect of removing any suggestion of time limits applying to an action commenced by the Crown in respect of the personal estate

of a deceased, such as had been the position under s.30 of the Act of 1884, as amended in 1930. Different rules have always applied

to proceedings by the Crown relating to real property. Such proceedings by the Crown are commenced by the Solicitor General or the

Treasury Solicitor, depending on the nature of the proceedings.

The Arguments of the Parties

The First Question

Is the plaintiff a state authority for the purposes of the Statute of Limitations 1957?

There is disagreement between the parties as to the meaning, scope and ambit of the language used in s.2(1) of the Statute of

Limitations, 1957. The plaintiff’s argument is that s.2(1) does not simply limit “State authority” to those parties expressly set out in

paragraphs (a) - (e). Rather, the definition is said to encompass other relevant persons, at least as concerns the Attorney General.

For the purposes of this argument, the plaintiff invokes s.6(1) of the Ministers’ and Secretaries’ Act, 1924 set out above. On the basis

of the wording of that section, and the 9th Schedule to that Act, which specifically refers to the branches and officers of the Chief

State Solicitor’s department, including the Chief State Solicitor, since it is under the direct control and administration of the Attorney

General, is, by virtue of the above provision, and for the purposes of s.2(1) of the Statute, an authority ‘being’ the Attorney General,

and thus “a State authority” within s.2(1).

The defendant, on the other hand, argues that those included within the definition of a “State authority” in s.2(1) are only those

expressly listed parties there mentioned. Since neither the plaintiff nor his predecessor, as Chief State Solicitor, is within the

definition, neither can be a “State authority” for the purposes of s.2(1). On the argument arising under s.6(1) of the Act of 1924,

while the defendant accepts that the administration and control of, inter alia, the powers, duties and functions of branches and

officers of, inter alia, the Chief State Solicitor’s department, vested in the Attorney General, this did not, however, make the Chief

State Solicitor’s department a “State authority”, but merely vested those functions and control in the Attorney General. Further, the

defendant argues that on the documents before the Circuit Court, it was clear that the Attorney General at the time, had renounced

his right to raise representation, and consented to the then Chief State Solicitor taking out the grant.

The defendant argues further, however, that the issue of his title to the premises by adverse possession has, in any event, been put

beyond dispute by the decision of this Court in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522, which I deal with in greater detail

below, but in the course of which it was stated that the title of the defendant in that case, was “adverse to the President of the

High Court”, in circumstances where the defendant had occupied the premises for more than 12 years from the relevant date had

passed. It follows, the defendant here submits, that on the facts of this Case Stated, the time to be calculated to establish his

adverse possession of the premises is 12 years, in accordance with s.13(2) of the Statute of Limitations, and not the 30 year period

provided for under s.13(1), in favour of a State authority. Therefore, since he took possession of the premises in 1982, 17 years

before the Grant of Letters of Administration, no title then vested in the plaintiff’s predecessor in July, 2000, as that title to the

premises had been extinguished by reason of the defendant’s adverse possession of them. Whereas the defendant does not base his

claim to the application of a 12 year limitation period as against the President of the High Court on any express provisions of

legislation, implicit in his argument in reliance on the Gleeson, supra. case, is that 12 years is the correct period in law to be applied.

The Second Question

Having regard to sections 23 and 24 of the Statute of Limitations 1957, is the relevant limitation period in this case prescribed by s.

13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?

Under this heading, the plaintiff also submits that, since these proceedings are “an action for the recovery of land”, as expressly

referred to in s.13(1) of the Statute of Limitations, brought by the administrator of the estate of a deceased person, s.23 of the Act

also applies to it. It follows, therefore, that even if Chief State Solicitor is not, himself, a “State authority” within the meaning, or for

the purposes, of s.2(1) of the Statute, the plaintiff, as administrator of the estate, is nevertheless entitled to succeed against the

defendant. The time that had elapsed between the death of Mrs. Dolan in 1981 and the date of the grant of Letters of Administration

in July, 2000 is irrelevant, counsel for the plaintiff argues, as his action for the recovery of land must be treated “as if there had been

no interval of time” between the two events. On this argument, the effect of s.23 is to permit the plaintiff to sue for and recover the

premises from the defendant, once Letter of Administration were extracted, as occurred here.

The defendant, on the other hand, while accepting that s.23 permits relation back, contends that this provision applies solely to

actions brought by an administrator in respect of tortious claims, which, the defendant contends, cannot be applicable to the facts

as found in the Case Stated. To support this argument, the defendant relies on an extract from Spierin in A Commentary on The

Succession Act 1965 and Related Legislation, paragraph [82], which will be considered below.

As to the provisions of s.24 of the Statute, while this also appears to be fairly straightforward on its face, each party again cites

different case law to discern its meaning. The plaintiff invokes the interpretation found in Perry v. Woodfarm Limited [1975] IR 104 at

p. 119, in which it was stated:

“In the case of land, the effect of the Statute is to destroy the title of the person dispossessed to the estate from

which he has been dispossessed, but it does not destroy the estate itself.”

The plaintiff argues that the meaning of this statement is simply to clarify that no estate in the land is extinguished, and that what is

affected is only the title of the party who, but for the dispossession, would be entitled to the premises. The plaintiff also submits

that, in any event, in view of the combination of s.23 and s.13(1) of the Statute, a thirty year period exists during which the plaintiff

can bring a claim, which taken alone, is sufficient in the context of the facts in the present Case Stated, to defeat the defendant’s

claim to be in possession “adverse to the President of the High Court”. As a result, s.24 can have no limiting effect on the plaintiff’s

claim against the defendant.

The defendant, on the other hand, contends that Perry v. Woodfarm Homes Limited, supra., as followed in Gleeson v. Feehan (No. 2)

[1997] 1 ILRM 522 supports his argument that he acquired title by adverse possession as against the President of the High Court and,

as a result, the plaintiff’s title was extinguished 12 years after the date of death of Mrs. Dolan, and nothing, including a later

purported grant of Letters of Administration, could revive it. The defendant invokes the following extract from the judgment of Keane,

J. in Gleeson v. Feehan (No. 2), supra:

“As s.24 of the Statute of Limitation 1957 extinguished the title of the President of the High Court to the land and his

right to bring an action to recover the land, no estate or interest could thereafter be vested by anyone in the next-of-

kin, regardless of whether the next-of-kin were in or out of possession. The grant of letters of administration to the

estate of James Dwyer could not revive the title to the land which had been extinguished by s.24.”

The Third Question

Is the answer to (b) affected by s.65 of the Succession Act, 1965?

For purposes of clarity, the defendant’s position is set out first. He relies on this provision, together with s.3(1) of the Statute of

Limitations 1957, to support his argument as to the appropriate limitation period. He submits that these two provisions, taken

together, dictate that any proceedings instituted by the State in respect of the intestate estate of a deceased person, must be dealt

with as if the grant of Letters of Administration had been made to a “person”, in which case a 12 year - rather than a 30 year -

limitation period applies. The defendant also submits that since there is no express provision to the contrary in the Act of 1965, the

plaintiff must be treated as a private individual for the purposes of that Act, and all limitation periods contained in it. To support this

argument, counsel looks to earlier English legislation, commencing with s.30 of the Administration of Estates Act 1925 itself, which will

be discussed further below, as well as to the commentary on that section found in Williams, Mortimer and Sunnucks on “Executors,

Administrators and Probate” which is in the following terms:

“Where the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position

is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the

nominee of the Crown, who had obtained a grant of letters of administration, to recover land forming part of an

intestate’s estate is 12 years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same

position as the subject for limitation purposes.”

The defendant also relies on s.14(1) of the Statute of Limitations, 1957 contending that, under that provision, since Mrs. Dolan was

the last person in occupation of the premises, the right of action against a person dispossessing her by adverse possession, accrued

on her date of death.

The plaintiff presents two arguments on s.65 of the Act of 1965 and its application to this case. First, counsel submits that, in

adopting the Act of 1965, the Oireachtas made a deliberate decision to exclude the issue of limitation periods from the reach of s.65.

In support of this point, the plaintiff cites the equivalent of s.65 in the earlier English Act of 1884, above cited. The Act of 1884 only

governed personal estate. It was only subsequently amended by the s. 30 of the Administration of Estates Act of 1925 to include real

estate, and, at that time, the limitations invoked by the defendant. Secondly, it is said, that the Oireachtas had all of the prior

language available to it from corresponding English legislation, in order to decide whether or not it wished to displace the provisions of

the Statute of Limitations when enacting s.65 of the Act of 1965, but it chose not to do so. Thirdly, counsel submits that the term

“the same rules of law” in s.65 of the Act of 1965 does not, in any event, include a statutory provision or enactment such as the

Statute of Limitations, but is instead limited to judge-made rules or case law only. The plaintiff cites T v. L (Unreported, High Court,

23rd November 2001) [at p.15] in support of this argument, and also invokes the distinction made between a “rule of law” and an

“enactment” or “statutory provision” in the following statutory provisions in contending that his interpretation is to be preferred,

because it is correct in law. The examples include s.12(1) of the Succession Act, 1965 itself which states: “All enactments…and rules

of law ...”; s.45(1) of Courts and Courts Officers Act, 1995 which states: “any enactment or rule of law…”; s.2 of European

Convention on Human Rights Act 2003, which speaks of “statutory provision or rule of law”. As to s.3(1) of the Statute of

Limitations, invoked by the defendant, the plaintiff submits that this is of no application, as there is an express provision, namely in

s.13(1) of the same Statute, which applies to proceedings by a State authority, including the plaintiff.

Conclusion: Preliminary

Although a significant amount of legislation and some case law was opened to the Court on the hearing of this appeal, and the

interaction of some of that legislation is complex, I am of the view that it is necessary first, to clarify in simple terms, or as simply as

possible, the legal position obtaining in the administration of an intestate estate, in particular of the type in issue here, and the status

of several of the players, including that of the Attorney General, the Chief State Solicitor, and the President of the High Court, as well

as an Administrator of an intestate estate. It is also necessary to say something about the rules of court applicable to proceedings of

this nature.

The Role of an Administrator

I start with an administrator, and the general position in the case of administration of an intestate estate with no time limit issues

arising. In such circumstances, there may be next of kin or none, and the deceased may have died wholly or only partly intestate. In

either event, the grant of Letters of Administration is made with a view to the proper administration of the intestate estate. Under

the provisions of s.10() of the Act of 1965 the whole of the intestate estate vests in the personal representative, who nevertheless

does not hold the estate on his own behalf, but (under s.10(3)) as a trustee for the persons in law who are entitled to it, and he

must act accordingly. Those persons have an immediate beneficial equitable interest in the estate by way of trust, which is,

nevertheless, subject to rights of the administrator, who has certain powers, including, for example, those for the purposes of

disposition. The power to deal with the property of an intestate dates only from the date of grant, however, (as opposed to the

position of an executor of a person who dies testate where the property vests on death).

An administrator, acting in accordance with the provisions of the Act of 1965, is charged with collecting in all assets, paying all

relevant debts, and on completion of the administration, vesting the assets in the beneficiaries entitled on intestacy. This is not to

say, however, that although the administrator must act as aforesaid, he cannot himself take property by adverse possession. He can,

as is provided for in Part V of the Act of 1965. That is not, however, an issue in the present case. Such an event is most likely to

arise where a next of kin within a family raises representation, and either takes possession, or is already in possession, of property

within the estate, and retains it for a limitation period of, say, 12 years, as against other next of kin, even siblings, not in possession,

who would otherwise have been entitled, on final administration, to that part of the estate, a situation which arose in Gleeson v.

Feehan (No. 2), supra., although in that case there was also a non-next of kin (“a stranger”) in possession, adverse to the parties

otherwise entitled. During the course of administration, if a party, such as a next of kin or a stranger (but most often a next of kin) in

possession, seeks to assert adverse possession in land the subject of administration, the administrator may sue for possession, or

defend a claim to title by adverse possession, acting at all times in the interest of the eventual beneficiaries.

Rules of Court Relating to Administration Proceedings

In the normal course of events, and absent administration, where parties are in dispute in relation to the ownership of land, a

defendant who raises a defence of adverse possession, may do so against a plaintiff claiming title to the land – the most usual

situation – or against a third party. If a defendant contends he has acquired adverse possession as against a third party not already

a party to the proceedings, he must also counterclaim naming the third party as the person against whom he sets up his claim, so

that such third party has an opportunity to be heard. In the case of an administration, of course, several other non-possession next

of kin (as ultimate beneficiaries) may well be parties against whom a defendant sets up a claim to adverse possession. In the case of

an intestate estate, as here, the administrator when bringing proceedings or defending an adverse possession claim, is deemed to act

in the interest of all those ultimate beneficiaries otherwise entitled to the property but for the adverse possession claimed. Because of

this, and to avoid unnecessary depletion of the estate, those parties do not have a right to be joined as parties separate to the

administrator. This is both straightforward and sensible and should not create complexity, whatever the eventual outcome of any

such proceedings, since it is undesirable that a myriad of persons having the same interests being protected by the administrator

should be joined separately in proceedings. It is only where, in special circumstances, on an application to court, a separate party

might be joined in such proceedings. Order 15, Rule 8 of the Rules of the Superior Courts provides accordingly. Analogous provisions

exist in the Rules of the Circuit Court.

As is clear from Gleeson v. Feehan (No. 2), supra., and other cases, when an administrator sues or defends proceedings concerning

adverse possession of land, the limitation period affecting the administrator depends entirely on whose interest he represents, that is,

on the identity of those who, but for such a claim, would be entitled to the land or premises. In that case all of the parties involved

were persons who were next of kin, and a stranger – all subject to a 12 year limitation period under the Statute of Limitations. As will

be seen later, no other limitation period was considered in that case.

Once administration is completed, the administrator must ensure the property vests in the ultimate beneficiary, that is, in the present

case and absent the defendant’s claim, in the State, or its nominee, likely to be the Minister for Finance, pursuant to legislation in

that regard.

The Position of The President of the High Court

The position of the President of the High Court was also part of the argument before this Court, once the defendant pleads in his

defence adverse possession “against the President of the High Court”, after a period of 12 years from 1982. That reflects an extract

from the decision of this Court in Gleeson v. Feehan, supra. Before considering that case, it is however important to consider the

President’s role and status. As mentioned, under the provisions of s.13(1) of the Act of 1965 the estate of, inter alia, a person such

as Mrs. Dolan dying intestate, vests in the President of the High Court as a corporation sole, between the date of death and until

Letters of Administration are granted. The President, however, is not entitled, nor would his estate be entitled, to deal with or dispose

of the estate, in his own right, or at all. He has no beneficial interest in the estate, and s.13(1) imposes on him no powers, no duties

and no obligations. It is precisely to avoid such an estate being left, in effect, in limbo, that s.13(1) vests the estate in him, pro tem.

It, in a sense, “hovers” in the person of the President of the High Court for the time being, by means of a legal fiction, until something

else happens. In the case of intestacy, the first necessary condition, the estate vests in him automatically on death. It remains so

until the second condition occurs, that is, the grant of administration and the appointment of the personal representative, on which

event he is divested of the estate, also automatically. The mechanism adopted in the Act of 1965, which mirrors previous legislation,

is a mere “mechanism of convenience”, as it is described in the case law, and to ensure that an estate has a temporary home

pending the grant of administration. It becomes clear, however, on a consideration of the case law, not considered in Gleeson v.

Feehan, supra., and discussed below, that there is no beneficial or other estate vested in the President, against which a claim to

adverse possession can be made. At most he has, on a temporary basis, a bare estate in the property in question. In these

proceedings, not surprisingly, he was not joined as a party, was not represented, and no order was sought against him.

I am fortified in my view that the President of the High Court does not hold any interest in the property which vests in him

temporarily, sufficient to permit a third party to secure rights by means of adverse possession, by a consideration of his role in the

devolution of the property upon administration Apart from the fact that, as mentioned below, Letters of Administration are not

granted to the Attorney General (or the Chief State Solicitor) by or on behalf of the President of the High Court, which would be the

logical position, if the intestate estate vests in him in any real sense, when such property is eventually to vest in the beneficiary at

the end of the administration, the President of the High Court plays no role in that either. He does not even assent to the vesting of

such bare estate as is vested in him temporarily under the Act of 1965. His interest is not mentioned as a party to any devolution of

the property in any of the learned academic writings, such as in Wylie on Conveyancing, nor is his English equivalent mentioned in

Halsbury, nor in any other writing I have been able to research. Nor have I been able to trace any case law in which the President of

the High Court, nor indeed the Ordinary in whom such estates temporarily vested prior to the modern legislation, in which any court

has held that those parties had such an interest in an estate, which could support an adverse possession claim. In the case of the

Ordinary, at least, he held the estate as Trustee, whereas, according to the case law to which I refer below, the President of the

High Court does not hold it even in that capacity.

The Position of the Attorney General and the Chief State Solicitor

The Attorney General is the legal representative of the State in all legal proceedings. The State does not, in general, act in its own

name, independently of its Ministers or others officers, although it may, of course, do so. It acts through Ministers, including the

Minister for Finance. The Attorney General falls into a different category to Ministers of state and those other parties mentioned

expressly in s.2(1) of the Statute of Limitations. The Attorney General may hold property, qua Attorney General, although I do not

know in what circumstances this occurs, but undoubtedly is also entitled to deal with the State’s own property and in property to

which it may become entitled, such as on an intestacy, by virtue of the unique position of the Attorney General as such legal

representative. No limitation is placed on the scope of the Attorney General’s role as a “State authority” in s.2(1), and he/she may

act in more than one capacity, although always for an on behalf of the State, or on behalf of a Minister of State. The State itself is

not separately represented in the list, although it must be accepted as a given, and, in the course of argument was accepted by

counsel for the defendant, that it would be entitled to raise representation to the estate of Mrs. Dolan. But if it did so decide, it

would act through the Attorney General, or the Chief State Solicitor. In circumstances where the State is the ultimate intestate

successor to an intestate estate, as here, the Attorney General may act as a “State authority”, and, as such, clearly is within the

ambit of s.2(1) of the Statute.

For the purposes of extracting a grant of Letters of Administration of an intestate estate, the application is not made by or on behalf

of the President of the High Court, in whom the estate formally vests. According to the terms of the Grant of Letters of Administration

in the present case, which appears to be in a standard format, the grant was made to the named party, Laurence A. Farrell “for and

on behalf of the State”, and correctly I believe, was not made on behalf of the President of the High Court. When an Attorney General

secures Letters of Administration, he does not – any more than any other administrator - do so, qua beneficial owner, but as personal

representative of the estate, acting in the interests of the party entitled as beneficial owner, that is in the present case, the State,

as ultimate beneficial owner.

There does not, however, appear to me to be any reason why Letters of Administration cannot, with the consent of the party

otherwise entitled, issue to another appropriate party, such as the Chief State Solicitor, as indeed occurred in the cast of Gleeson v.

Feehan (No. 2), supra. In this application, apart from querying the devolution of the grant from the originally nominated Chief State

Solicitor to the present plaintiff, in truth no objection was raised to a Chief State Solicitor being granted Letters of Administration.

S.65(1) and s.65(3) of the Act of 1965 expressly recognises that the Chief State Solicitor is an appropriate person to be granted

Letters of Administration, on behalf of the State. The objection which is raised is that he could not have done so, qua “State

authority”.

Decision on The Three Questions

The First Question

S.2(1) of the Statute of Limitations, 1957 is clearly intended by its terms to protect what might be called “state property”, that is,

the type of property that formerly vested in the Crown. In providing that, as concerns the parties included in s.2(1), the limitation

period is, at 30 years, significantly longer that in the case of a private person, the Oireachtas clearly intended that in respect of such

property – of whatever nature, and from wheresoever emanating, once the State owns or is beneficially, or otherwise entitled in law

to the same - a longer limitation period is to have effect.

Under the provisions of s.2(1) of the Statute of Limitations, it is submitted by the defendant that since the Chief State Solicitor is not

a party mentioned in that section, he cannot be a “State authority”. I am satisfied that the defendant’s argument on this point is the

correct one, and that the plaintiff is not, himself, a “State authority” within the section. Other parties listed, including the Attorney

General, may also hold State assets, including lands, or represent the State in relation to them, and the State will protect such

property, inter alia, from being adversely acquired. In the case of s.2(1), several of the Ministers included in the first group there

cited, may, or do, have land vested in them, as opposed to it being vested in the State, simpliciter. Simple examples include military

barracks, airports and the foreshore which may be vested in the Minister for Defence: roadways in the Minister for Local Government:

harbours and ancient monuments in the Commissioners for Public Works. Lands were, and may still have been until recently, vested in

the Land Commission, and as concerns the Revenue Commissioners, real property may also vest in them, for example, on the recovery

of assets procured through the proceeds of crime or on execution of revenue debts. It is readily understandable why all of the parties

listed in s.2(1) fall within the category of “State authority” for the purposes of real property, of whatsoever kind or type.

I also accept the defendant’s argument that, even if the plaintiff, or any predecessor to him, is – pursuant to the provisions of the

Act of 1924 – under the control of the Attorney General, he is not himself, a “State authority” within s.2(1). I am satisfied that,

notwithstanding the close relationship between the Attorney General, as a State authority, and the Chief State Solicitor, there is no

basis for concluding that the latter is a “State authority” for the purposes of s.2(1) of the Statute of Limitations. The terms of s.6(1)

of the Ministers and Secretaries Act 1924 are not sufficiently broad or inclusive to support the plaintiff’s claim in that regard. That

subsection deals with two situations: (a) the “vesting in” the Attorney General of, inter alia, the “powers … duties … and functions…”

formerly vested in the Attorney General for Ireland, and (b) the “administration and control” of the “powers, duties and functions …”

of the branches and officers of the public service (including the Chief State Solicitor as per the Ninth Schedule). But the powers,

duties and functions remain those of the Chief State Solicitor. That phraseology does not support the plaintiff’s contention that a

Chief State Solicitor is a “State authority” for the purposes of s.2(1) of the Statute of Limitations, or as “being” the Attorney General

for the purposes of s.2(1). This is clear from the wording of the section itself which is expressly limited to those parties who fall within

it. Moreover, since the list of parties in that subsection very clearly represents parties likely to hold property, and include the legal

representative of the State in the persona of the Attorney General, there seems no need to have any other party included in the

category, since this would simply add a layer of legal persons acting in the same cause and for the same end, and in respect of the

same beneficiary. I am satisfied, therefore, that the plaintiff is incorrect in his assertion that he is a “State authority”, such as to

enable him, in that capacity, to claim a 30-year limitation period in respect of the premises.

The purpose of the argument as to whether of not the plaintiff is a “State authority” is in order to apply the appropriate limitation

period. I am not satisfied that merely because he is not a State authority, within s.2(1) of the Statute of Limitations that,

nevertheless, determines the limitation period. The answer to question one, therefore, is that the plaintiff is not a “State authority”

within s.2(1) of the State of Limitations. However, that response does not determine whether, in the circumstances of this case, a 30

year limitation period applies. It is therefore necessary to examine that issue in greater detail.

I deal first with the question of the defendant’s claim to be a person in “adverse possession” of the premises since 1982, as against

the President of the High Court, and his contention that title to the estate was extinguished, pursuant to s.24 of the Statute, at the

very least well prior to the date of the grant of Letters of Administration in July, 2000. He argues that such a result is clear from the

judgment of this Court in Gleeson v. Feehan (No. 2), supra. This argument, however, does not seem to me to flow logically from the

facts leading to the decision in that judgment, notwithstanding the language used. All the parties in that case were individuals and

therefore the limitation period in issue was 12 years. Indeed, there had been an earlier decision on the same estate, Gleeson v.

Feehan (No. 1) [1993] 2 I.R. 113, in which a dispute arose as to whether a limitation period of 6 years as opposed to 12 years

applied. It is clear, therefore, that many different limitation periods exist. The primary issue in the second case, concerned, first,

whether or not, as against other family members (otherwise next of kin) not in possession of the land, but claiming to be entitled to a

share in it, a next of kin in possession was entitled to succeed against them. A second important issue concerned possession by a

next of kin together with a stranger in possession, and their rights as against other next of kin. These issues are clear from the

questions posed in the Case Stated itself, which were in the following terms:

“1(a) Where, prior to the Succession Act, 1965, several next-of-kin in actual occupation of lands of a deceased person

acquired title to those lands by adverse possession against the personal representative, was the title so acquired the

title to which they would have been beneficially entitled on due administration?

(b) Where such next-of-kin acquired title by adverse possession against other next-of-kin not in occupation, was

such title acquired as joint tenants?

2. Where such next-of-kin in actual occupation shared such occupation with persons other than next-of-kin, was

the possession of such other persons adverse possession against (a) the personal representative or (b) next-of-kin

not in occupation?

3. If the answer to 1 (a) or 1 (b) is yes, was such title acquired jointly with the next-of-kin in occupation as (a)

joint tenants or (b) tenants in common?”

(emphasis added)

It is true, as counsel for the defendant notes, that Keane, J. (as he then was) in a unanimous decision of this Court, and in the

course of a lengthy judgment, mentioned the President of the High Court. What he actually stated was as follows:

“As s.24 of the Statute of Limitations 1957 extinguished the title of the President of the High Court to the lands and his

right to bring an action to recover the land …”

(emphasis added)

However, although that statement was made, it was not, it seems to me, the ratio of the decision, and nor was it, strictly speaking,

necessary for the determination of the questions raised. The questions did not even mention the President of the High Court. Nor,

according to the judgment, was any issue argued as to the status or role of the President of the High Court under the Succession

Act, 1965, or under earlier legislation. No order was sought against the President of the High Court. Nor was any issue raised as to

whether, as against the President of the High Court - in a claim based on the State’s ultimate entitlement to an estate - as here - a

different period of limitation might apply. The judgment gives no reasons for the implicit assumption that a 12 year limitation period

applies to property vesting in the President of the High Court under s.13(1) of the Act of 1965. Moreover, the plaintiff in Gleeson,

supra., was the personal representative of the next of kin, and, as such, argued, not on his own behalf, but as representing the

interests of those next of kin who would otherwise have been entitled to the estate on intestacy (analogous to the position of the

State in this Case Stated), and against whom adverse possession was claimed. It seems clear reading the judgment that there was

no argument at all leading to the statement made, and now relied on in this Case Stated, and the very detailed arguments made in

the case on the actual issues arising from the questions, take up almost the entire of the judgment. If it was intended to determine

that adverse possession was procured as against the President of the High Court, then, with respect, I consider this not to be a

correct statement of the law, as contended for by the defendant. For the reasons explained above, as to his status, and having

regard to the case next mentioned, I consider that the mention of adverse possession as against the President of the High Court in

Gleeson v. Feehan (No. 2), supra. can only properly be understood in the shorthand sense that, once title adverse to the interest of

the relevant next of kin who would have been entitled to the property upon administration, absent rights acquired by the non next of

kin stranger, in that case, the role of the President of the High Court, and his interest in the property, ended at that date.

The role of the President of the High Court under s.13(1) of the Act of 1965 was, however, directly in issue in the decision of the High

Court in Gladys Flack and another v The President of the High Court (Unreported, The High Court, 29th November 1983) in which

Costello, J (as he then was), dealt with an application to strike him out of proceedings commenced by the plaintiffs, on the basis that

he had been wrongly joined. The circumstances were as follows. There had been in existence a partnership, never formalised, created

by five brothers, and all of whom had died, some testate and others intestate. The last of the two brothers died intestate in 1982,

and a row broke out between the members of the several families of the deceased brother partners, in respect of which two sets of

High Court proceedings had been commenced. These were commenced by the executors of one of the 1982 deceased for the taking

of an account and for an order for sale of the partnership assets. No representation had, however, been raised to the estate of the

other brother to die (intestate) and the executors joined the President of the High Court as a party on the basis of s.13(1) of the

Succession Act, 1965, on the basis that the property vested in him, in the absence of an administrator. As was pointed out in that

case, the plaintiff, as in the case of the defendant in this Case Stated, had sought no order against the President.

The learned High Court judge granted the order striking out the proceedings as against the President of the High Court. Before doing

so, however, he analysed the legal position of such an administration pre-1965, and of the status of the President, tracing the matter

back to the Probate Act (Ireland) 1857 which abolished the jurisdiction of the then diocesan courts in Ireland in testamentary and

intestate business and established a new court “the Court of Probate”. He explained the rationale of his judgment as follows:

“I do not think that it was proper so to join the President. To explain this conclusion I think I can best begin by referring

to the pre-1965 position. The Probate Act (Ireland) 1857 abolished the jurisdiction in testamentary and intestate

business of the diocesan courts in Ireland and established a new court, ‘the Court of Probate’. By section 15 of the Court

of Probate (Ireland) Act 1859 it was provided that:-

‘From and after the decease of any person dying intestate, and until letters of administration shall be granted in

respect of his estate and effects, the personal estate and effects of such deceased person shall vest in the judge

of the Court of Probate for the time being, in the same manner and to the same extent as heretofore they vested

in the Ordinary.’

By virtue of the provisions of the Judicature Acts and later the Courts of Justice Acts, the personal estate of persons

dying intestate until letters of administration were granted vested firstly in the Judge of the Probate and Matrimonial

Division, and later in the President of the High Court.

Section 15 of the 1859 Act was repealed by the Administration of Estates Act 1959 but the vesting of the personal

estates of persons dying intestate in the President remained the same for section 13 of that Act provided:

‘Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof shall

vest in the President of the High Court in the same manner and to the same extent as formerly in the case of

personal estate it vested in the Ordinary.’

Section 13 of the 1959 Act was repealed by the Succession Act 1965 but was re-enacted with only slight modification by

section 13 to which I have already referred.

I think it is worthy of note that neither under the 1859 Act nor under the 1959 Act was the President of the High Court

ever joined as a defendant in proceedings arising from the vesting provision to which I have referred. The reason was

perfectly clear. In vesting personalty and later both realty and personalty in the President, the legislature did not make

him a trustee of the estate which vested in him and he had no duty to perform and no obligation in respect of the

estate. As was pointed out in relation to the vesting provisions of section 9 of the Administration of Estates Act 1925 in

England (which are similar to those I am considering) these vesting provisions are ‘a mere matter of necessary

convenience and protection’ (see re Deans 1954 1 A.E.R. 496 at 498). The President's position under the 1965 Act is

exactly the same.” (emphasis added)

This judgment, although unreported, has been cited in two other decisions of the High Court, although in related contexts. Moreover,

the decision in re: Deans, supra. has been adopted as correct in recent decisions of the English Court of Appeal, in Earnshaw v

Hartley [1999] EWCA Civ 1141.

I consider that had the above case law been brought to the attention of and considered by the Supreme Court in Gleeson v. Feehan

(No. 2), supra., it is unlikely the learned Supreme Court judge would have made the statement found in the judgment as to the role of

the President. The defendant’s defence, and the limitation period applicable to his claim to adverse possession as against the

President of the High Court must be considered in light of the above case law, and of the true legal position arising in an

administration of the type at issue here, which gave rise to the questions posed in the present Case Stated.

In the present case, the only parties whose interest are in issue are the defendant, who claims squatters’ rights, and the State,

represented by the plaintiff. This is clear from the grant. Looking at the Grant of Letters of Administration, it provides as follows:

“Be it known, that on the 21st day of July 2000 Letters of Administration of all the estate which devolves to and vests in

the personal representative of Alice Dolan late of 6 Enniskerry Road Phibsboro Dublin deceased… were granted by the

Court to Laurence A. Farrell of Osmond House Little Ship Street Dublin Chief State Solicitor for and on behalf of the State

the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said

Laurence A. Farrell.” (emphasis added)

From the language of this document it is clear that the Attorney General was the person entitled, on behalf of the State, to raise

representation to the estate. He in turn delegated a task assigned to him to another person who acts on behalf of the State. From

the numerous tasks assigned to the Attorney General in the Ministers’ and Secretaries’ Act 1924, such as the right to raise

representation, delegation would appear necessary and unexceptional for such duties to be executed effectively and efficiently.

Secondly, and perhaps of more importance, it seems to me that the Attorney General’s role, in so far as the Letters of Administration

are concerned, is an administrative one, although one having legal consequences. He is the legal officer who acts for and on behalf of

the State in a myriad of events and circumstances. He is therefore the person entitled to make application for letters of

administration for and on behalf of the State. As such, he may delegate that role to any other authorised person. In Gleeson v.

Feehan (No. 2), supra., the personal representative had been granted Letters of Administration pursuant to a power of attorney. In

this case, the Attorney General consented in writing to Lawrence A. Farrell being appointed, as nominee of the State. The Chief State

Solicitor, pro tem, appears clearly to be a person who may act for and on behalf of the State, on the instructions of the Attorney

General, in applying for Letters of Administration, and has done so in the present case. The Act of 1965 recognises this possibility in

s.65(1) and s.65(3). The application for the grant of Letters of Administration to the Chief State Solicitor, pro tem, thereafter, and

devolving to his successor, the plaintiff, is also in accordance with the Act of 1965, is perfectly proper.

It would, in my view, be wholly inconsistent to have a procedure whereby the Attorney General renounces his right to raise

representation on behalf of the State, and appoints another individual under his control to act on behalf of the State, as

administrator, if by doing so the State’s rights under s.2(1) were eliminated. I can find nothing in the legislation, or in any case law,

that suggests this as a result only of such a renunciation and appointment of the Chief State Solicitor, as administrator. That does

not alter my earlier view that the Chief State Solicitor is not a “State authority”. The Attorney General’s “renouncement” in the grant

is not a renouncement by him of the State’s entitlement in the estate under s.73 of the Act of 1995, or of any rights under s.2(1) of

the Statute, but merely of the right to extract Letters of Administration.

The Second Question

Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by

s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?

An issue also arose under what is known in some jurisdictions, and in some authorities, as the doctrine of “relation back”. By this is

meant that once letters of administration issue, the right of the administrator to protect the interests of the estate, relates back to

the date of death of the deceased owner, as if no time had elapsed in the period between death and administration. Section 23 of

the Statute, which provides for this, is set out earlier in the judgment. The doctrine was available at common law, but has now been

incorporated into s.23.

The plaintiff’s interpretation of s.23 appears to me to be extremely and unjustifiably extensive, and is so broad as to render the

limitations period moot. If s.23 was read so as to be applicable in the manner contended for by the plaintiff, then any period of time,

be it eighteen years (at issue in this case) or one hundred years (which could be at issue in the future), could pass, without this

intervening period affecting the administrator’s claim to land, once Letters of Administration eventually issue.

The defendant, on the other hand, relies on an extract from Spierin, referred to earlier in the exposé of his argument earlier in this

judgment. On that basis, it is contended that the doctrine is only to be invoked in respect of claims of a tortuous nature for damage

to the estate. I do not agree that this is so. The extract relied on in the written submissions is not quite complete, and the full

extract is in the following terms:

“To overcome the inconvenience of the postponement of vesting in an administrator, the doctrine became established

that the grant of administration when made would, for certain purposes, relate back to the time of the death of the

deceased. The reason for this was to provide a remedy for wrongs done against the estate. Thus an administrator may,

after the grant of administration, bring an action in respect of tortious injuries to the estate in the interval between

death and grant, or bring an action for breaches of covenant during the interval by a lessee of the deceased’s land. See

also the Statute of Limitations 1957, s.23, in relation to actions by an administrator to recover the land.” (emphasis

added)

While the defendant’s argument as to the limitation on the meaning of s.23 is based on the above extract, I am not satisfied that this

proposition can be correct. There is no limiting language within the provision which supports the defendant’s contention that the

author suggests, in turn, that s.23 applies only to tortious claims arising in the intervening period. On a reading of the extract, it is

not what the author suggests is the scope of the section.

From the above exchanges, two things emerge. First there is no suggestion in the text relied upon that the relation back can only

occur in the limited manner which the defendant contends for. Use of the phrase “wrongs done against the estate” cannot, in law,

mean only claims of a tortious nature. I can see no basis for suggesting that a claim of adverse possession is not a wrong done

against the estate. The use of the doctrine of relation back in the case of tortious claims is but an example of the circumstances in

which it may apply. Secondly, it is of note that the author, while making specific reference to s.23 of the Statute does not suggest

that it provides any limitation of the type the defendant invokes, on the application of the rule. The text of the section itself permits,

on the application of the rule in actions for the recovery of land, itself broader than the defendant’s contention., when the relation

back may apply to such “a claim”, and is no narrower.

The question arises therefore, as to the scope of the section, and if any limits are imposed on the relation back. No express limitation

is found in Spierin, and indeed no limit is suggested either in Halsbury, where, dealing with the equivalent section (s.26 Limitation Act

1980), the doctrine is explained in the following terms:

“In order to prevent injury being done to a deceased person’s estate without remedy, the courts have adopted the

doctrine thqt on the grant being made the administrator’s title relates back to the time of death. This doctrine has been

consistently applied in aid of the administrator seeking to recover against a person who has dealt wrongfully with the

deceased’s … real estate. It cannot be applied however to disturb the interests of the other persons validly acquired in

the interval, or to give the administrator title to something which has ceased to exist in the interval, or to bind the

administrator to an agreement made before the grant irrespective of its benefit to the estate.”

Halsbury also clarifies that the doctrine of relation back applies for the purposes of the statutory provisions limiting the time for

bringing proceedings to recover land …, since the administrator is “deemed to claim” as if there had been no interval of time between

the death and the grant of administration. This is in the same terms as s.23 of the Statute of Limitations, and equally applies only to

the recovery of land. A similar approach is taken in the Australian writings, where somewhat similar, but not identical legislation in all

States, is found.

It is clear from the above statement that if an interest has been validly acquired in the interval, or title has ceased to exist in the

meantime, the doctrine cannot assist the administrator. When an administrator has been appointed, his title to the real estate relates

back to the intestate's death; see Re Pryse, 1904, P. 301, 306. All this concerns the application of the doctrine in the case law. S.23

of the Statute provides a statutory basis for the application of the doctrine of relation back, and is on its face, in broad and clear

terms.

I am satisfied, however, that the section must be read so as to avoid the consequences of the approach contended for by the

plaintiff. The best expression of the true meaning of the section is found in Jourdan on Adverse Possession 2002 [London], in which, in

dealing with the English equivalent, he states:

“Under the general law, the estate of a deceased person vests in an executor at the moment of death. But an

administrator’s title only vests on the grant of letters of administration, although for certain purposes it is treated as

relating back to the death. Apart from the Limitation Act, 1980, s.26, time for bringing an action does not begin to run

against the administrator until letters of administration are granted. The effect of s.26 is that time for recovering land

runs against a deceased person’s estate, regardless of whether an executor or an administrator is appointed.” (emphasis

added)

I am satisfied that this is a correct statement of the effect of the section. It means that, if in the interval between the death of an

intestate and the appointment of an administrator, a party has procured a lawful interest in lands the subject of the administration,

that interest may be sufficient to bar its recovery by the administrator, when appointed, acting in the interests of those who, but for

such event, would have been entitled to the lands. In the result, time commenced to run against the estate for the purposes of

adverse possession from either the date of death of Mrs. Dolan, or the date of possession by the defendant. In either event, in this

case, well more than 12 years passed before July, 2000. It does not follow, however, in the present case, that by reason of this

interpretation of s.23 of the Statute of Limitations, the claim of the defendant to adverse possession is thereby determined. That

issue at all times depends on the appropriate limitation period.

Before dealing with the effect of s.13 of the Act on the issues arising, however, I should also dispose of the arguments under s. 24.

That section appears to me, however, to be little more than a passage that spells out the consequences flowing from the expiry of

the applicable limitation period – whatever that period may be. The estate itself in the land is not extinguished, but title to that

estate may well be, if a party has successfully established that he has adversely possessed the property for the relevant period. I am

not persuaded that s.24 has any substantive impact on, or is at all determinative of, which limitation period applies in the present

case.

I now return to the real issue in this case, that arising under s.13 of the Statute of Limitations, which I find is not limited by the

possible application of s.23. The role of the Chief State Solicitor’s is very material to the right in State authorities having the benefit

of a 30 year limitation period under the provisions of s.2(1) of the Statute of Limitations. When the Attorney General renounces the

right to seek Letters of Administration on behalf of the State (in whom the longer limitation period vests), and instead transfers that

right to the Chief Solicitor, as already mentioned, I am satisfied he is entitled so to do, having regard both to the provisions of s.6 of

the Act of 1924 and also to the provisions of s.65 of the Succession Act 1965. The consequence is that the relevant limitation period

is not disturbed at all, and the Chief State Solicitor, as personal representative, cannot, by so acting, affect a limitation period which

is determined by reference to the interests of persons otherwise entitled to the estate, in this case, the State, as intestate

successor. As in the case of any other administrator, when the Chief State Solicitor is granted Letters of Administration on behalf of

the State, he takes no beneficial interest in the estate in his own right, but can only act as and how required by law, as a trustee for

the benefit of the ultimate beneficiaries. That position is no different to the position of an administrator who acts for personal

beneficiaries.

Although in the Case State, and in argument, much emphasis was laid on the claim by the plaintiff to be a “State authority” within

s.2(1) of the Statute of Limitations, and I have rejected that plea, I have also found that Letters of Administration were correctly

granted to the former Chief State Solicitor, and the plaintiff as his lawful successor, has, as personal representative both the right

and indeed the obligation in law, both to bring proceedings in respect of the recovery of the premises, and to defend the claim to

adverse possession, representing the beneficiary, that is, the State, and including claiming the appropriate limitation period on its

behalf. If on the other hand, he were an administrator acting for an on behalf of an individual, the period would be the shorter period

of 12 years applicable to the beneficiary, namely, a person with s.13(2) and the period would be 12 years. This approach is

unexceptional. I know of no case in which an administrator is entitled to alter or reduce the statutory period of limitation applicable to

the beneficiary otherwise entitled, or is subject to a lesser period than that to which a beneficiary is entitled.

There is another reason why I do not think the position is determined by his presence or absence as a named State authority in

s.2(1) is because, if for any reason, he was not entitled to raise representation to the estate of Mrs. Dolan, because he is not a

State authority, then it would be perfectly possible for the grant to be set aside on consent. If that occurred, it would be a simple

matter for the Attorney General to reapply for Letters of Administration to be granted to him again on behalf of the State, and

commence fresh proceedings before the expiry of the 30 year limitation period. There might be costs implications in such an approach

of course, but as to the substantive position, the consequences of the plaintiff not being expressly mentioned in s.2(1) as a State

authority is immaterial to the applicable limitation period. Moreover, as mentioned earlier in this judgment, if a defendant pleads he has

acquired adverse possession as against a person not already a party to the proceedings, such as in the present case against the

President of the High Court, he cannot do so, as against that third party, by mere defence. He must instead counterclaim, naming the

third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. The third party

against whom he has asserted adverse possession is the President of the High Court, against whom however no relief has been

sought, and against whom no counterclaim was lodged. It seems to me unsatisfactory that the appropriate party(ies) have not been

joined, while at the same time the defendant seeks to suggest that the ultimate beneficiary, the State, is a person on whose behalf

the administrator is not entitled to invoke the State’s a 30 year limitation period. Had the appropriate parties been joined against

whom the adverse possession assertion is made, then the position would have been quite different, and the President would have

been removed from the proceedings, on the above case law, with the administration continuing on behalf of the State, with the

State’s limitation period being applied.

In this Case Stated, the nub of the defence is, in reality, confined to whether or not the defendant had already acquired adverse

possession of the property in July, 2000, as against the President of the High Court, long before Letters of Administration were

granted. I now propose to treat that issue. I have already held that the vesting of the estate, pro tem, in the President of the High

Court does not, and could not deprive the administrator of the limitation period vesting in the State. For the reasons I have already

mentioned, the President only holds, pro tem, a bare estate in the property, but no sufficient interest against which adverse

possession could be claimed, and the President has neither powers nor obligations in that regard, as is clear from the case law. The

defendant has of course been clever in not joining the State or even the President of the High Court in the proceedings, as to do so

would have entitled those parties to be heard, and to raise their interests and limitation period. He has relied instead on the

statement in Gleeson v. Feehan (No. 2), supra. As to the State’s interest, it does not have to be joined in order for the personal

representative to resist the adverse possession claim on the basis of the limitation period found in s.13(1), for the reasons given.

I am satisfied that the correct period of limitation applicable in the present case is that provided for in s.13(1) of the Statute of

Limitations.

The Third Question

I mentioned in the preliminary part of my conclusions, before dealing with the three particular questions, that much emphasis was

placed on the meaning to be attached to the provisions of s.65, the Succession Act of 1965 and on its predecessors, both Irish and

English in support of the respective contentions of the parties.

I find it is possible to rule on the third question without difficulty. As to the s.65 of the Act, having regard to the provisions of the

section itself, and to the legislative history of its predecessors, as set out above, I am satisfied that the plaintiff’s argument is the

correct one in law. The earlier legislation in the United Kingdom, even though it refers, at least prior to 1921, only to the personal

estate (limitation periods in respect of Crown land were always different), together with later amendments were clearly before the

Irish legislature when adopting the provisions of the Act of 1965, which dealt with both realty and personalty, and the deliberate

omission of any reference to enactments as opposed to rule of law it would have said so. The Administration of Estates Act, 1925

s.30(1), cited above, specifically includes, as concerns personal estate, the following:

“… except as otherwise provided by this Act, the rules of law and equity, (including the rules of limitation under the

Statutes of Limitation or otherwise) …”

In passing, although not specifically mentioned in the course of the appeal to this Court, I should mention that S.30(2) which applied

in like or similar manner to proceedings commenced by the Crown, was itself, as is clear from the above extracts, also amended by a

later Act. For the reaons set out in my later conclusions, these provisions of English legislation must also be seen in light of their

history.

On this issue, I am persuaded by the argument of the plaintiff. Contrary to the defendant’s contention in relying on English legislation,

the language referring to “time limits” or similar limitation rules, that exists within legislation that preceded the Act of 1965

demonstrates that, when adopting s.65 of the Act of 1965, the Oireachtas made a decision not to have the provisions of s.2(1) of

the Statute of Limitations pre-empted by the adopting language in s.65 so as to have that effect, buy amendment or otherwise.

Further, there is a plethora of case law supporting the plaintiff’s argument that the term “rules of law” is limited to judge-made rules.

Since the Statute of Limitations is a legislative enactment, this further solidifies the argument that s.65 provision should have no

bearing on the correct limitation period applicable. Finally, section s.3(1) of the Statute of Limitations should similarly have no effect.

This is because, as the plaintiff argues, there is an express provision (13(1)) which directly applies to the facts of this case:

therefore, on its own language s.3(1) cannot be relied upon.

The provisions of s.65 do not affect the position.

I mention in passing that no question has been posed in the Case Stated on the issue of estoppel, although it was addressed by the

parties in some detail. I make no comment on this aspect of the submissions of either party.

I would answer the questions posed as follows:

(1) The plaintiff not a State authority within s.2(1) of the Statute of Limitations.

(2) The relevant limitation period is that provided for in s.13(1) of the Statute of Limitations.

(3) No