Supreme Court dismisses promissory estoppel claim as statute barred under s. 9 Civil Liability Act 1961.

THE SUPREME COURT

[Appeal No: 211/2012]

Murray J.

Clarke J.

Dunne J.

Between/

Francis Declan Cavey

Plaintiff/Appellant

and

Aidan Cavey, Jane O'Donoghue and Pamela O'Rourke

Defendants/Respondents

Judgment of Mr. Justice Clarke delivered the 4th March, 2014.

1. Introduction

1.1 Maurice Paul Cavey, the father of each of the parties to this appeal, died on the 18th December, 2006. Each of the

defendants/respondents ("the executors") are named in his last will and testament as executors. Probate of that will was, on that

basis, granted to the executors on the 13th March, 2008. The plaintiff/appellant ("Mr. Cavey") is clearly dissatisfied with the terms of

that will and initially commenced proceedings, under s. 117 of the Succession Act 1965 ("section 117"), on the 12th December, 2008

("the first proceedings"). The first proceedings were heard by Laffoy J. on the 23rd April, 2009, and were dismissed. Mr. Cavey

appealed that decision to this Court but subsequently advised the Court that he was withdrawing his appeal on the 23rd July, 2010.

Four days later, on the 27th July, 2010, Mr. Cavey commenced these proceedings ("the second proceedings"). The substance of his

claim in these second proceedings arises out of what was said to be a representation made to him by both of his parents to the

effect that he would inherit the family home. It is said that he acted on that representation and claims, under the doctrine of

promissory estoppel, that he is thereby entitled to relief. In all of these proceedings, and on this appeal, Mr. Cavey has acted as a

litigant in person.

1.2 The executors brought a motion before the High Court seeking to have the proceedings dismissed under alternatively:-

(a) an allegation that the proceedings were an abuse of process in accordance with the rule in Henderson v. Henderson

(1843) 3 Hare 100 and/or

(b) that the proceedings must invariably fail as being statute barred having regard to the provisions of s. 9 of the Civil

Liability Act 1961 ("the 1961 Act").

1.3 That application was heard by Herbert J. who delivered judgment on the 7th February, 2012 (C v C & Ors [2012] IEHC 537).

Herbert J. held that the proceedings were statute barred under the provisions of the 1961 Act, that they were, therefore, bound to

fail, and that it was appropriate to exercise the Court's inherent jurisdiction to dismiss the proceedings on that basis. Herbert J. did

not, in those circumstances, consider it necessary to determine whether the proceedings might also be considered to be an abuse of

process under Henderson v. Henderson. Mr. Cavey has appealed to this Court against that decision. I, therefore, turn to the basis of

Mr. Cavey's appeal.

2. The Appeal

2.1 In substance the case made by Mr. Cavey on this appeal was that the trial judge was incorrect in the way in which he interpreted

the relevant provisions of the 1961 Act. The basis which Mr. Cavey put forward for that proposition was to suggest that he had, in

fact, started proceedings (being the first proceedings) within the two year limitation period provided for in s. 9 of the 1961 Act. Thus,

he argued, he had, in fact, started proceedings within time.

2.2 Apart from the fact that these second proceedings are not the proceedings said to have been started with the limitation period, a

further difficulty with that argument is, of course, that the first proceedings were very different relying, as they did, on a statutory

entitlement to have proper provision made in circumstances where a court is satisfied that a deceased has failed in a moral duty to

make such proper provision for a child. When that point was raised with him by the Court, Mr. Cavey indicated that he had, at the

trial of the first proceedings, raised the question of promissory estoppel. However, it is clear from the transcript of the hearing before

Laffoy J. that she determined that the only case before her on the pleadings was a claim under section 117. The relevant passage

from the transcript reads as follows:-

"Ms. Justice Laffoy: The only matter that is before me is a Section 117.

Mr. Cavey: Yes, I wasn't sure when I was preparing the papers if promissory estoppel came under the heading of

117 or if it was an entirely separate matter.

Ms. Justice Laffoy: Well, the only matter that is before me is a Section 117 and the determination I will make is

whether you late father failed in his moral duty to make provision for you in his will in accordance with his needs

and doing that I take into account the provision he did make for you in his will."

2.3 On that basis counsel for the executors argued that it had been definitively and finally determined that the only case which was

before the courts up to the time when Laffoy J. heard Mr. Cavey's claim in the first proceedings was one brought under section 117

and not, therefore, one involving any claim in promissory estoppel. On that basis counsel further argued that it was not now open to

Mr. Cavey to suggest otherwise for he had brought an appeal against the decision of Laffoy J. and had then withdrawn that appeal.

Counsel argued that the mere fact that Mr. Cavey mentioned the possibility of a claim in promissory estoppel when the case was at

hearing before Laffoy J. did not mean that he had brought such a claim. The bringing of a claim, counsel argued, required that the

case as pleaded include such a claim. No claim in promissory estoppel having been made in the first proceedings, counsel argued that

the only case in promissory estoppel ever properly brought by Mr. Cavey was the one which is the subject of these second

proceedings and this appeal. As is clear from the dates referred to earlier, these second proceedings were commenced over three and

a half years after the death of Mr. Cavey's father and thus, counsel argued, were well outside the limitation period of two years

provided for in s. 9 of the 1961 Act.

2.4 Because Mr. Cavey was a litigant in person and notwithstanding the fact that the point was not raised by him, the Court invited

counsel for the executors to also address a second question. While it will be necessary to turn to the text of s. 9 of the 1961 Act in

due course, it is clear that s. 9(2) refers to and governs the limitation period in respect of a cause of action which "has survived

against the estate of a deceased person". The question which the Court invited counsel for the executors to address is as to how it

is appropriate to characterise, in the context of that phrase, a claim in promissory estoppel which is to the effect that a person was

in breach of a legal obligation to bequeath property in a will. Can it be said that such a claim is one "which has survived against the

estate of" that person? In one sense such a claim can only arise when the person dies for it remains theoretically possible, up to the

moment of death, that the relevant person could comply with their legal obligation by making or changing their will in such a way as

to comply with whatever promise had been made. On one view, therefore, it might be said that a claim in promissory estoppel of that

type only arises on death, is not, therefore, the type of claim covered by s. 9(2) of the 1961 Act and, thus, is not statute barred.

Counsel argued that such a claim is, in its nature, a claim that the deceased had, during his life, failed to do something even though

the time at which it could have been done was at any time up to the moment of death. It followed, counsel argued, that the claim

was one which could properly be described as one which, if it existed, would have "survived against the estate of the deceased

person", was thus covered by s. 9(2) of the 1961 Act and was thus, on the facts of this case, statute barred.

2.5 In addition, it should be emphasised that counsel also argued that, in the event that this Court was against him in resisting the

appeal from the judgment of Herbert J. on the ground of the Statute of Limitations, he would also wish this Court to consider the

point argued before, but not decided by, Herbert J. as to whether the claim brought in these proceedings amounted to an abuse of

process.

2.6 Thus, three issues potentially arise. The first is as to whether Mr. Cavey's point about his prior proceedings is correct.

2.7 The second is the point concerning whether a claim of this type can properly be said to be a claim which has survived against the

estate of the deceased and, thus, be statute barred.

2.8 The third, which only arises in the event that the appeal is successful on one or other of the other two points, is as to whether

the proceedings ought nonetheless be dismissed as an abuse of process. I turn first, therefore, to Mr. Cavey's own point.

3. Mr. Cavey's Point

3.1 I am satisfied that there is no substance to the point argued in person by Mr. Cavey on this appeal. I fully appreciate that the

courts afford all due consideration to persons who litigate without the benefit of legal advice or assistance. But the courts cannot go

so far as to disadvantage those who are sued by a litigant in person. Mr. Cavey chose to bring his first proceedings under section

117. In the claim made by him in the documents filed in court, there was no mention, good, bad or indifferent, of a claim in promissory

estoppel.

3.2 Mr. Cavey indicated that he believed that he could bring a claim in promissory estoppel in the context of a claim under section

117. I am prepared to accept that he did have that belief. But it is plainly wrong. The claims made in the first proceedings and these

second proceedings are entirely different. The first involves the suggestion that a deceased person has failed in their moral duty to

make adequate provision for a child. The second is a claim that a person (not necessarily a parent) has made a promise, relied on, as

to what they will do in their will and has failed to meet that promise. There is absolutely no overlap between the two cases.

3.3 It is true that there was, as per the transcript reference already cited, a mention made by Mr. Cavey at the trial before Laffoy J.

of promissory estoppel. It is clear that Laffoy J. ruled, as she was bound to rule on the papers, that the only claim before her was one

brought under section 117. Even if it had been possible to amend or otherwise reconstitute Mr. Cavey's first proceedings, at that

time, to include a claim in promissory estoppel, that claim would already have been out of time by that stage. The hearing before

Laffoy J. was also well over two years after the date of death of Mr. Cavey's late father. Therefore, even on the basis of his own

argument, the first time that Mr. Cavey brought before the Court any mention of a claim in promissory estoppel was outside the

limitation period.

3.4 In any event, Laffoy J. ruled that the original claim was a claim under section 117 and only such a claim. No appeal against the

judgment of Laffoy J. was pursued. That point must now be taken to have been definitively decided. There is, therefore, just no basis

on which it can be said that Mr. Cavey brought a claim based on promissory estoppel at any time prior to the institution of these

proceedings.

3.5 In addition, it does need to be noted that the one set of proceedings which were commenced within two years of the death of

Mr. Cavey's late father are no longer, of course, in being, having been dismissed by Laffoy J., and then having been the subject of an

appeal to this Court but where that appeal was withdrawn. What the executors seek to dismiss are these second proceedings which

were, in any event, commenced outside of the two year period.

3.6 As already pointed out, these proceedings were commenced by Mr. Cavey more than three and a half years after his late father's

death which is well outside the limitation period provided for if it can properly be said that this is a claim governed by s. 9(2) of the

1961 Act as being a claim "which has survived against the estate of a deceased person". I, therefore, turn to that question.

4. Is this Claim one which "has survived against the Estate"?

4.1 It is appropriate to start by making reference to the terms of the section itself. Section 9 of the 1961 Act provides as follows:-

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

or any other limitation enactment.

(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against

the estate of a deceased person unless either—

(a) proceedings against him in respect of that cause of action were commenced within the relevant

period and were pending at the date of his death, or

(b) proceedings are commenced in respect of that cause of action within the relevant period or within

the period of two years after his death, whichever period first expires."

4.2 It clearly follows that, if the claim which Mr. Cavey seeks to make can properly be described as a claim which survives against the

estate of his deceased father, the claim would require to have been brought, under s. 9(2)(b), within two years of his late father's

death. The claim was clearly not so brought and must, therefore, be regarded as statute barred if it is proper to characterise it as

being a claim which survived against the estate of his late father.

4.3 It seems to me that the proper approach to this question is to focus on the elements of the relevant cause of action. Assuming

that all the necessary ingredients for a promissory estoppel can be established, then it follows that there was a legal obligation on a

person, during their life, to make a will which complies with the promise made. While it is true that the person can make such a will at

any time before death, it nonetheless follows that it is a failure to act during the lifetime of the deceased which gives rise to the

cause of action.

4.4 This question has not yet been determined this Court but has been the subject of a number of decisions by the High Court most

recently in the decision of O’Keeffe J. in Prendergast v McLaughlin [2011] 1 I.R. 102. In that case, the plaintiff alleged that he had

been promised, in return for his assistance in working and maintaining farmlands, that he would be bequeathed those lands following

the death of the owners. The plaintiff asserted that, in reliance of those representations, he continued to work on the lands to his

detriment. The surviving owner died intestate and the plaintiff then sought to claim the entire beneficial interest in the lands.

However, on a preliminary point, it had to be determined whether the plaintiff’s cause of action was one which “survived against the

estate of a deceased person” and, thus, was governed by the relevant two year limitation period. Having examined conflicting lines of

authority on the issue, O'Keeffe J. favoured one of those lines being the approach adopted by Fennelly J., hearing a Circuit Court

appeal in Corrigan v. Martin (Unreported, High Court, 13th March 2006), in a case concerning a pre-existing obligation by a deceased

to “transfer and/or devise” lands. Fennelly J. stated, at p. 6 of his judgment:

"[T]hat the obligation of the deceased was to perform the contract during his lifetime and not at the moment of his

death. Hence the cause of action was completed immediately before his death … the cause of action, therefore

subsisted at the moment of death and survived against his estate by virtue of s. 8(1) [of the 1961 Act]."

O'Keeffe J., therefore, concluded that the plaintiff’s claim was statute barred, being a claim subsisting at the time of death and not

initiated within a two year period from the date of death.

4.5 As to the other line of authority, Barron J., in Reidy v. McGreavey, (unreported, High Court, Barron J., 19th March, 1993), had

taken a different view. At p. 5 of his judgment Barron J. stated "… the claim could not be maintained until the death of the testator

because it could have been ascertained until then, that he had failed to honour his promise. Of course if he had repudiated his

promise in his lifetime, this would have given rise to a cause of action at that stage". O'Keeffe J. in Prendergast, expressly preferred

the approach of Fennelly J. in Corrigan to that of Barron J. in Reidy.

4.6 It seems to me that a significant distinction is made in s. 9(2), so far as claims against an estate are concerned, between a

cause of action which results from an act or omission of the deceased, on the one hand, and a cause of action which may exist

against those in charge of the administration of the estate of the deceased, on the other. If Mr. Cavey had a cause of action in

promissory estoppel at all, it can only be because he might be able to establish that his late father was in breach of a legally

enforceable promise in respect of bequeathing the family home to him. If such could be established it would be a failure, during his

life, on the part of his late father to make an appropriate will to comply with his promise that gives rise to the claim.

4.7 That involves an allegation of a failure on the part of his father rather than a failure by the estate itself. How otherwise could

such a claim be brought? It necessarily involves a claim against the estate but arising out of a failure on the part of the deceased. It

seems to me that such a claim necessarily comes within the scope of the phrase "a claim surviving against the estate of the

deceased" even if it is true that a deceased could have avoided such a claim being capable of being brought by complying with their

promise to bequeath the relevant property up to the moment before their death.

4.8 I am, therefore, satisfied that, on a proper interpretation of the effect of s. 9 of the 1961 Act, a claim in promissory estoppel

arising out of an enforceable promise by a person to leave property by will, is a claim which can properly be characterised as one

which survives against the estate of that person in the sense in which that term is used in the section. It follows that the claim

brought in these proceedings could only be maintained by Mr. Cavey if it had been commenced within two years of his late father's

death. The claim not having been so commenced, it is clearly statute barred. It follows that Mr. Cavey's proceedings are bound to fail

on that basis and should be dismissed.

5. Conclusions

5.1 It follows that I am satisfied that there is no basis for suggesting that Mr. Cavey commenced proceedings within the two year

period specified in s. 9 of the 1961 Act. The first proceedings, which he commenced within that period, were dismissed and an appeal

against that dismissal withdrawn. Those proceedings are no longer in being. In any event, the first proceedings could not be described

as proceedings which raised the cause of action now sought to be litigated, that is a claim in promissory estoppel, at all. The fact

that there was mention at the trial (which occurred outside the limitation period) of a possible claim in promissory estoppel does not

alter that fact and does not displace the clear finding of the trial judge in the first proceedings that the claim before her was one

under section 117 and no other claim.

5.2 I am also satisfied that a claim of this type, being a claim in promissory estoppel which arises out of a contention that a person

was required to make a bequest by will, is a claim which can be said to survive against the estate of the person concerned for the

purposes of s. 9 of the 1961 Act. It follows that a claim of this type is required to be brought, at the outside, within two years of the

date of death of the relevant deceased. Because, as already pointed out, the only claim which has been brought by Mr. Cavey

involving this cause of action is the one brought in these second proceedings, which were commenced significantly more than two

years after the death of his late father, then it follows that this claim and these second proceedings are statute barred.

5.3 It also follows that the trial judge was correct in his interpretation of s. 9 of the 1961 Act and its application to the facts of this

case and the appeal must, on that basis, be dismissed. It further follows, for reasons similar to those indicated by the trial judge, that

it is, in those circumstances, unnecessary to address the alternative basis for dismissal put forward on behalf of the executors being

that the proceedings ought be dismissed as an abuse of process under the rule in Henderson v. Henderson.