The High Court has proposed staying a family’s counterclaim over rents from their parents’ estates until a separate claim about their mother’s will is determined. The court said the two disputes could be heard in separate stages, with the will issue addressed first.
The judgment, delivered by Mr Justice Rory Mulcahy on 12 June 2023, concerns two motions. The first was brought by three defendants, who had sought an account from Brian Bohan, administrator of Mary Eastwood’s estate, including details of rent collection. They did not pursue that application at the hearing, saying they were satisfied with the progress being made. The only remaining issue was costs.
The judge made no order for the costs of that motion. He said the defendants could not be treated as having won the application, and that it was possible to decide costs at that stage. He did not decide the plaintiffs’ and administrator’s objections to the way the motion had been brought.
The second motion was brought by Robert and Jennifer Eastwood. At the hearing, their counsel pursued a stay of the counterclaim pending determination of the plaintiffs’ claim to prove a copy of their mother’s will. The defendants oppose a stay, arguing that the same witnesses would be needed for both disputes and that hearing them together would use court time more efficiently.
The will claim follows an earlier probate hearing at which Allen J. concluded that the question of proving the will by a copy could not be decided on affidavit evidence alone and required oral evidence. The defendants deny that the copy is Mary Eastwood’s will. Their counterclaim alleges that the plaintiffs received rents from properties belonging to the estates of Mary and James Eastwood without accounting for them to the estates’ administrator.
Justice Mulcahy said there was a logical division between the will claim and the rent counterclaim, with unlikely overlap in evidence or legal issues. Resolving the will issue first could narrow the counterclaim and save time and costs. He considered that any need for some parties to give evidence more than once would not amount to the kind of prejudice that should prevent separate stages.
The judge said he proposed an order staying further prosecution of the counterclaim until the plaintiffs’ claim is determined. He also proposed that the costs of the plaintiffs’ motion be costs in Mary Eastwood’s estate, while allowing either side ten days to submit a different costs proposal and the other side a further ten days to reply. The matter was listed for mention on 11 July 2023 so final orders on that motion could be made. The judgment records a proposed stay and costs order; it does not state that final orders had yet been made.