Supreme Court holds personal representative is not a State authority, applying 12-year limitation period to recover deceased's land.

THE SUPREME COURT

07/08

Fennelly J.

Macken J.

Finnegan J.

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

AND IN THE MATTER OF A CASE STATED FROM THE DUBLIN CIRCUIT, COUNTY OF THE CITY OF DUBLIN (2002/5784)

BETWEEN

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

PLAINTIFF

and

DESMOND GROGAN

DEFENDANT

Judgment of Mr Justice Finnegan delivered on the 16th day of February 2012

This matter comes before the court by way of a Case Stated from the Circuit Court pursuant to the Courts of Justice Act 1947

section 16. The questions raised on the Case Stated concern the appropriate limitation period within which, in the facts and

circumstances hereinafter detailed, an action must be brought by a personal representative to recover lands forming part of the

estate of a deceased in respect of whom the State is the ultimate intestate successor.

Facts agreed or found

The facts agreed or found by the learned trial judge are set out in the Case Stated as follows.

“1. The late Alice Dolan was the owner of a house at 36 Botanic Road, Dublin, which Dublin Corporation wished to

acquire for the purposes of road widening. The Corporation made a deal with Mrs Dolan to acquire this property in

exchange for a house at No. 6 Enniskerry Road, which the Corporation purchased with the intent that it would be

conveyed directly to Mrs Dolan. An assignment dated 15th December 1978 between the vendors of No. 6

Enniskerry Road, the Corporation of the second part and the purchaser Alice Dolan of the third part was prepared.

The assignment was executed by the vendors and by the Corporation but not by Mrs Dolan. The document has

been stamped.

2. Mrs Dolan was allowed into occupation of No.6 Enniskerry Road. The Corporation carried out the road works

involving 36 Botanic Road which are long since complete.

3. Mrs Dolan died intestate on the 22nd October 1981. The defendant learned of Mrs Dolan’s death, and the

apparent absence of next-of-kin, in the course of his auctioneering business, and broke into the premises through

the back door in February 1982. The late Alice Dolan, nee Alice Williams, had shared the house at 36 Botanic Road

with her sister Mary Williams who predeceased her. Her husband had died in 1969.

4. A citation was issued on the 21st January 1998 and letters of administration were extracted on the 21st July

2000 by the plaintiff’s predecessor as Chief State Solicitor, Laurence A. Farrell, for and on behalf of the State, the

Attorney General, Michael McDowell,(note: in fact David M. Byrne) having duly renounced his right and consented

thereto.

5. These proceedings were issued on the 14th May 2002 and served on the 24th May 2002. The plaintiff brings the

proceedings in his capacity as Chief State Solicitor and as successor to Laurence A. Farrell, who was appointed as

personal representative of the estate of Alice Dolan, for inter alia an injunction directing the defendant to vacate

the dwelling house and lands and to forthwith deliver up possession of the same to the plaintiff.”

Documents

From the documents annexed to the Case Stated it appears that Alice Dolan (hereinafter “the deceased”) by virtue of an assignment

dated the 15th December 1978 became entitled to the leasehold interest under an indenture of lease dated 18th March 1902 in the

premises 6 Enniskerry Road in the City of Dublin for a term of two hundred and forty five years from the 25th March 2002. The

deceased died on the 22nd October 1981 intestate leaving no known next-of-kin her surviving. On the 26th September 1997 David M.

Byrne the Attorney General executed a consent in the following terms:-

“And I hereby consent that Letters of Administration in the estate of the said deceased be granted to Michael A.

Buckley, Dublin Castle, in the City of Dublin, Chief State Solicitor, as nominee and on behalf of the State. And I

hereby appoint the said Chief State Solicitor to file or cause this consent to be filed for me in the Principal Registry

of the said Court.”

Michael A. Buckley duly set about obtaining a Grant of Letters of Administration Intestate. For that purpose he completed the Oath

for Administration which contained the following averment:-

“That by an instrument in writing dated the 26th day of September 1997 on which marked ‘A’ I have signed my

name, Mr David Byrne, Attorney General of Ireland, duly renounced on behalf of the State all rights to Letters of

Administration of the estate and effects of the said deceased and consented that same should be granted to me.”

It is to be noted that this not an accurate recital of the terms of the consent of 26th September 1997 which merely consented to the

application for Letters of Administration “as nominee and on behalf of the State”.

On the 21st July 2000 Letters of Administration Intestate were granted to Laurence A. Farrell in the following terms:

“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, barrister deceased

who died on or about the 22nd day of October 1981 at James Connolly Memorial Hospital, Blanchardstown, Dublin,

intestate, a widow and a citation to the next-of-kin (if any) and all persons interested and their non-appearance

thereto having been deemed and taken as and for a renunciation of their rights 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 having been first sworn faithfully to administer the same.”

No issue arises by reason of the succession from Laurence A. Farrell to Michael A. Buckley and to Desmond Grogan as Chief State

Solicitor (see Succession Act 1965 section 65(3) post). Again no issue arises in relation to the succession of Michael McDowell to

David M. Byrne as Attorney General.

Questions of law for determination by the Supreme Court

The questions of law for determination raised by the Case Stated are as follows:-

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

(c) Is the answer (b) affected by section 65 of the Succession Act 1965?

The statutory provisions

The relevant statutory provisions are as follows.

Statute of Limitations 1957

Section 2. “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.

Section 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.

Section 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.

(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.

Section 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.

Section 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.

Section 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.

Section 24. Subject to subsection 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 lands shall be extinguished.

The Succession Act 1965.

Section 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.

Succession Act 1965

Section 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. (underlining added)

(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.

(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.

Intestates Estates Act 1884

Section 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. (underlining added)

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

and a petition of right 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. (underlining added)

Administration of Estates Act 1925 (U.K.)

This Act in section 30 repealed and restated sections 2 and 3 of the Intestates Estates Act 1884 and extended the provisions to real

property. Subsection (1) restated section 2 and subsection (2) restated section 3 of the 1884 Act.

Limitation Act 1939 (UK)

Section 34 of the Act amended subsection (2) of the Administration of Estates Act 1925 by deleting the words “within the same time

and”. However subsection (1) still provided for actions by and against an administrator who is a nominee of the Crown that the

ordinary limitation should apply.

Submissions of the Plaintiff

The plaintiff submits that the relevant limitation period is that prescribed by section 13(1) of the 1957 Act the Chief State Solicitor

being a State authority within the definition in section 2(1) of the Act. The definition does not simply define State authority as those

set out at paragraphs (a) to (e) but extends to “any authority being” one of those Authorities. The Ministers and Secretaries Act

1924 section 6(1) and the ninth part of the schedule to that Act provide for the vesting in the Attorney General of the administration

and control of the business, powers, authorities, duties and functions of the branches and officers of the Public Services specified in

the section and in the ninth part of the schedule: included in the ninth part of the schedule is the Chief State Solicitor’s Department.

It is submitted that the Chief State Solicitor’s office, being under the administration and control of the Attorney General, it is for the

purpose of the Statute of Limitations an authority “being” the Attorney General and so a State authority. Section 3(1) of the Act

provides that the provisions of the Act shall apply to proceedings by or against a State authority in the like manner as if the State

authority were a private individual unless it is otherwise expressly provided in the Act. Section 13(1)(a) of the Act expressly provides

for a thirty year limitation period in respect of an action brought by a State authority to recover any land.

Insofar as the defendant relies on the Succession Act 1965 there are material differences between section 65 of the Act and the

corresponding provisions in the Intestates Estates Act 1884 and the English Administration of Estates Act 1925 section 30 as

amended by the Limitation Act 1939. The 1884 Act expressly refers to limitation periods in sections 2 and 3. The restated section 3

contained in section 30(2) of the Administration of Estates Act 1925 had the words “within the same time and” deleted by the

Limitation Act 1939 section 34. The Succession Act 1965 section 65 subsection (1), corresponding to section 2 of the 1884 Act and

subsection (2) corresponding to section 3 of the 1884 Act make no mention of Statutes of Limitation or time limits.

In referring to “rules of law and equity” in section 65(1) the reference includes statutory enactments and so includes the Statute of

Limitations 1957.

Submissions of the Defendant

The definition of “State authority” is clear and there is no basis upon which the court should extend the same and in particular to

interpret the phrase “the Attorney General” as including the Chief State Solicitor. As the plaintiff is not a State authority section 3(1)

of the 1957 Act applies. The Statute of Limitations applies to proceedings by or against a State authority in like manner as if the

State authority were a private individual unless it is otherwise expressly provided. As the Chief State solicitor is not a State authority

section 13(1)(a) of the Statute of Limitations has no application. The relevant limitation period is that in section 13(2)(a), twelve

years.

The effect of the Succession Act 1965 section 65(1) and (2) is to place a State nominee in the same position in relation to limitation

periods as a private individual: accordingly the relevant limitation period is twelve years. Reliance is placed on the United Kingdom

Administration of Estates Act 1925 section 30 and the Limitation Act 1939 section 34 and on the passage in Williams, Mortimer and

Sunnucks on Executors, Administrators and Probate at paragraph 64.06 which states as follows:-

“If 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 has obtained a grant of letters of administration, to recover land forming part

of an intestate’s estate is twelve 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.”

Section 65(1) of the Succession Act 1965 has the same effect in relation to the State as the United Kingdom legislation. The phrase

“same rules of law and equity” in section 65(1) and (2) of the Succession act 1965 should be interpreted as including the statutory

provisions as to the limitation of actions and in particular the provisions of the Statute of Limitations section 13(1)(a).

Discussion

(a) Is the Chief State Solicitor a State Authority?

The definition of State authority in section 2 of the Statute of Limitations 1957 is clear. There is within the definition or within the Act

as a whole nothing to suggest that the Attorney General for the purposes of the Act includes the Chief State Solicitor. However, the

plaintiff calls in aid the Ministers and Secretaries Act 1924 which provides as follows:-

“6(1) There shall be vested in the Attorney General of Soarstat Eireann (who shall be styled in Irish Priomh-Aturnae

Shaorstait Éireann and shall be appointed by the Governor General on the nomination of the Executive Council) the

business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney General for

Ireland, the Solicitor General for Ireland, the Attorney General for Southern Ireland, the Solicitor General for

Southern Ireland, the Law Adviser to the Lord Lieutenant of 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 and also the administration and

business generally of public services in connection with the representation of the Government of Saorstat Éireann

and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion

or protection of public rights and all powers, duties and functions connected with the same respectively together

with the duty of advising the executive council and the several ministers in matters of law and of legal opinion.”

The Ninth Part of the Schedule lists the particular services assigned to the Attorney General as follows:-

Chief Crown Solicitor for Ireland

Chief State Solicitor’s Department and all local State solicitors

Treasury Solicitor for Ireland

Parliamentary Draftsman

Charities

Estates of illegitimate deceased persons.

I am not satisfied that the vesting in the Attorney General of the administration and control of the Chief State Solicitor’s Department

by section 6(1) of the 1924 Act has the effect of expanding the definition contained in section 2 of the 1957 Act. The definition is

clear and concise. The fact that the Attorney General has conferred upon him administrative powers in relation to the offices

mentioned in the ninth schedule does not, I am satisfied, justify an extension of the meaning of State authority in the 1957 Act to

include the Chief State Solicitor or other officers mentioned in the ninth schedule to the 1924 Act.

A similar drafting approach to that in the 1957 Act was adopted in the State Property Act 1954 where State authority is defined even

more narrowly:-

“State authority” means any authority being –

(a) a Minister of State or

(b) the Commissioners (i.e. the Commissioners of Public Works in Ireland).

This contrasts sharply with the approach with the legislature took in the Succession Act 1965 section 65 dealing with actions by or

against the State in relation to the Administration of Estates:-

“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)…”

In defining State authority in the 1957 Act there are no general words, “such as any other person”. Had it been the legislative

intention that Attorney General be broadly interpreted I would expect in the 1957 Act an approach similar to that adopted in the

Succession Act 1965.

Historically, where the Crown by reason of the failure of all next-of-kin became entitled to the estate of a deceased, the practice was

for representation to be raised by a nominee of the Crown, normally the Treasury Solicitor. To facilitate this practice, by the Treasury

Solicitor Act 1876, the Treasury Solicitor was constituted a corporation sole. The Act continues to apply in Ireland. The wording of

the consent of the Attorney General and of the Letters of Administration Intestate issued in this case reflect that procedure – the

grant is made to the Chief State Solicitor as nominee for and on behalf of the State. It is quite clear that the person entitled to bring

or defend proceedings on behalf of the estate is the Chief State Solicitor to whom representation has been granted. This will remain

the position until an assent is executed to a Minister of State pursuant to the provisions of the State Property Act 1954. The Minister

of State being a State authority could then maintain proceedings. As the Chief State Solicitor can be called upon at any time to

execute an assent in favour of a State authority (normally the Minister for Finance) it does not appear to be necessary to construe

Attorney General widely to enable the State’s interest to be protected where representation issues on behalf of the State to the

Chief State Solicitor. For this reason also I would not extend the definition of State authority.

I am satisfied that the Chief State Solicitor is not a State authority within section 2 of the Statute of Limitations 1957.

(b) Is the relevant limitation period that provided for in section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?

As the plaintiff is not a State authority within the meaning of the Act of 1957, section 13(1)(a) of the Act does not apply. The

relevant limitation period is that in section 13(2)(a).

(c) Is the answer (b) affected by section 65 of the Succession Act 1965?

As section 13(2)(a) is the relevant provision of the Statute of Limitations this question is moot: however, I propose dealing with the

same briefly. The defendant’s submission is that, in the event that section 13(1)(a) applies, then the Succession Act 1965 section

65(1) has the effect of applying the ordinary period of limitation which would apply had the administrator been a person beneficially

entitled to a share in the estate, that is twelve years. Section 65(1) applies to this action: it provides that such action shall 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 in the estate.” Had it been the legislature’s intention in enacting section 65(1) to apply not just rules

of law and equity but enactments it would have done so in express terms. Thus the Succession Act 1965 in section 12(1) commences

as follows:-

“All enactments (including this Act) and rules of law…”

The Succession Act itself distinguishes between rules of law and enactments. I am satisfied that it is not the effect of section 65(1)

to apply statutory limitation periods.

The legislative history of section 65 is relevant. The Intestates Estate Act 1884 section 2 applied where administration was granted

to a nominee of the Crown. The effect of the section was to apply the ordinary rules of limitation to any action coming within the

section whether by or against the nominee of the Crown. Likewise section 3, in relation to actions by or against the Crown coming

within that section, applied the ordinary rules of limitation. Section 3 related to informations and other proceedings and petitions of

right claiming in an estate and is not relevant to the present case. The result was that thenceforth the rules of limitation could be

relied upon by or against the Crown. See In re Mason [1929] 1 Ch.1, In Re Blake [1932] 1 Ch. 54. In the United Kingdom prior to the

enactment of the Irish Statute of Limitations 1957 there were two statutory amendments to the 1884 Act sections 2 and 3. The

Administration of Estates Act 1925 section 30 repealed sections 2 and 3 and re-enacted the same in section 30(1) and (2) extending

them to real property. The Limitation Act 1939 amended section 30(2) (corresponding with section 3 of the 1884) by deleting the

words “within the same time and” : thus at the enactment of the Succession Act 1965 the position in the United Kingdom was that in

actions coming within section 30(1) of the 1925 Act (corresponding with section 2 of the 1884 Act) the same limitation period applied

to an action by or against a Crown nominee as if the administrator was a next-of-kin. Section 30(2) of the 1925 Act no longer

provided for a limitation period. The Succession Act 1965 repealed sections 2 and 3 of the 1884 Act and in substance re-enacted the

same in section 65 (1) and (2) but without in any way prescribing in express terms in either subsection for a limitation period. Having

regard to the legislative history I am satisfied that it was the intention of the legislature in enacting section 65 of the Succession Act

1965 to repeal and re-enact in an amended form sections 2 and 3 of the 1884 Act by no longer applying a limitation period: the effect

of this is that the limitation periods provided for in the Statute of Limitations 1957 section 13(1) and (2) are unaffected by section 65

of the Succession Act 1965.

It follows from this that had the appropriate limitation period in this case been that prescribed by section 13(1)(a) of the Statute of

Limitations that limitation period would be unaffected by the provisions of section 65(1) of the Succession Act 1965. However as the

appropriate limitation period is that prescribed by section 13(2)(a) of the 1957 Act section 65(1) has no application. Section 65(2)

does not provide for a limitation period so that the relevant period where that section applies is that provided for by section 13(2)(a),

twelve years.

Conclusion

I would answer the questions of law for determination raised by the Case Stated as follows:-

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

Answer: No.

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

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

Answer: the relevant limitation period in this case is prescribed by section 13(2) of the Statute of Limitations 1957.

(c) Is the answer (b) affected by section 65 of the Succession Act 1965?

Answer: No.