Judgment: 2024-04-24 · Court archive

High Court refuses challenge to order requiring occupants to leave estate property

A judge refused certiorari after finding the fraud allegations lacked particulars and the Circuit Court hearing was fair. The occupants’ separate probate application to revoke the administrator’s grant remains unresolved.

High Court · [2024] IEHC 220

Who, what, where, when and why

Who
  • Laksmee Bissessur
  • Philip Smith (Applicant)
  • Evelyn McMillen
  • Adeline Keppel
  • Rita Keppel
  • Florence Chambers
What

A judge refused certiorari after finding the fraud allegations lacked particulars and the Circuit Court hearing was fair. The occupants’ separate probate application to revoke the administrator’s grant remains unresolved.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 14 November 2023

    In a judgment delivered on 24 April 2024, Ms Justice Emily Farrell refused the substantive relief sought in a telescoped judicial review hearing. The Circuit Court had made the order on 14 November 2023, with a 14-day stay, and ordered costs. The High Court challenge argued that the Circuit Court judge had wrongly restricted consideration of alleged fraud and that his interventions during cross-examination breached fair procedures.

Why

Reasons reported in the judgment

The judge also rejected the claim that the Circuit Court hearing was unfair because of the trial judge’s interventions during cross-examination. She found the interventions were largely aimed at clarifying the purpose and relevance of questions. The applicants had opportunities to question the respondent and to present evidence and submissions, but declined to call evidence or make closing submissions. Justice Farrell said the applicants had not shown that the interventions rendered the hearing unfair.

The High Court has refused an application by Laksmee Bissessur and Philip Smith to quash a Circuit Court order directing them to leave a property forming part of the estates of Adeline Keppel and Rita Keppel.

In a judgment delivered on 24 April 2024, Ms Justice Emily Farrell refused the substantive relief sought in a telescoped judicial review hearing. The Circuit Court had made the order on 14 November 2023, with a 14-day stay, and ordered costs. The High Court challenge argued that the Circuit Court judge had wrongly restricted consideration of alleged fraud and that his interventions during cross-examination breached fair procedures.

The applicants had pleaded that Evelyn McMillen, acting as personal representative of both estates, obtained letters of administration through fraud. Their pleaded particular was that McMillen had wrongly claimed her mother, Florence Chambers, was a second cousin of the deceased women and entitled to a share in one or both estates. The judgment records that the applicants accepted the pleading contained an error: they accepted McMillen was Chambers’s daughter and did not claim she held power of attorney for her mother.

Justice Farrell said the pleading did not allege that McMillen knowingly made a false claim or acted dishonestly. The applicants challenged the sufficiency and consistency of evidence previously put before the High Court, but the judge said those matters could be considered in an appropriate application to revoke the grants. She noted that such an application was pending in the High Court probate list, with a separate motion seeking its dismissal on standing grounds; judgment on that motion had been reserved. Its outcome was not relevant to the judicial review.

The judge also rejected the claim that the Circuit Court hearing was unfair because of the trial judge’s interventions during cross-examination. She found the interventions were largely aimed at clarifying the purpose and relevance of questions. The applicants had opportunities to question the respondent and to present evidence and submissions, but declined to call evidence or make closing submissions. Justice Farrell said the applicants had not shown that the interventions rendered the hearing unfair.

In refusing certiorari, the judge said the applicants accepted they were squatters and had put forward no legitimate basis for occupying the property. She found no evidence that McMillen had acted, or intended to act, contrary to an administrator’s duties. The Circuit Court’s order enabled her to protect and distribute estate assets; it did not give her a beneficial interest in the property. The Circuit Court had no jurisdiction to revoke or otherwise interfere with the property’s vesting in the administrator.

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