The Gazette 1984

GAZETTE

JULY / AUGUST 1984

In the Goods of William WalkerDeceased, Florence O'Brien, Plaintiff/Respondent and MS Defendant/Appellant and the Attorney General, Supreme Court (per Walsh J.) 20 January, 1984 - unreported. Karl Hayes CONTRACT Contract — Mareva Injunction — Juris- diction — Balance of Convenience — Principle in Lister -v- Stubbs applied. Ap p l i c a t i on b r o u g ht f or an interlocutory injunction to restrain Defendants from disposing of or dealing with the assets of the first named Defendant ("Ranks") and for an Order giving the Plaintiffs liberty to inspect the books and records of Ranks so as to ascertain what funds are available to satisfy the Plaintiffs' claim in the action. In 1978, Agreement was reached between Ranks and the ITGWU covering redundancy compensation. A subsequent letter by the second named Defendant on behalf of Ranks stated that Ranks would not discontinue the 1978 Redundancy Scheme "unless it could be shown to the mutual satisfaction of the parties that such payments were financially unsustainable." The Plaintiffs refused to accept redundancy proposals following an announcement of the mills' closure in 1983. The Plaintiffs occupied one of the mills. Accounts were furnished by Ranks purporting to show that the terms of the 1978 Agreement were now financially unsustainable but such accounts were not accepted by the Plaintiffs as establishing this. The Court HELD — that there are serious questions to be decided in the proceedings and that there is definitely a case to be made on behalf of the Plaintiffs. The case made for granting the injunction was that the association of Ranks with its subsidiary companies and its parent company was likely to enable Ranks to dispose of its assets so that any judgment obtained by the Plaintiffs would be of no value. The case made on behalf of the Defendants was that there was no actual evidence that Ranks were trying to get rid of their property or were likely to do so, that the Company is an Irish Company with no record of defaulting on its commitments, that an injunction in the terms sought by the Plaintiffs would not make the Plaintiffs secured creditors and that the balance of convenience was all in favour of refusing to grant an injunction, particularly having regard to the admitted perishable nature of the wheat and flour which must be disposed of, and that the Court should take account of the behaviour of the Plaintiffs in refusing to permit these commodities to be properly preserved. The injunction sought is known as a Mareva injunction (first

to succeed on intestacy, not being issue within the meaning of Section 67 and found also that Sections 67 and 69 of the Act were not invalid. The Defendant appealed to the Supreme Court. The Court first examined the meaning of the word "issue" as used in the Succession Act, and concluded that it did not include an illegitimate child of a deceased person. The Act does not define the term "issue". Having regard to the long-established acceptance in the law of succession that the word "issue" referred only to issue born within marriage and to the fact that the Oireachtas in no way qualified or defined the term and to the fact that it did make express provision in section 110 of the Act for children born outside marriage having the right in certain cases to succeed, it appeared to the Court that the only reasonable construction to put upon the word "issue" in Sections 67 and 69 of the Act was tht it referred solely to issue born within marriage. It therefore became necessary to consider whether such statutory discrimination between children born inside and those born outside marriage in the law relating to intestate succession was invalid under the Constitution. The Defendant attacked the statutory provisions under Article 43 Section 1 subsection 2 of the Constitution (the right to the private ownership of property), under Article 40 Section 3 (property rights) and under Article 40 Section 1 (all citizens shall, as human persons, be held equal before the law). The Court quickly dismissed the arguments under the first two Articles referred to, but considered at length the argument under Article 40 Section 1, which was the Article principally relied upon by the Defendant. Following an exhaustive review of the authorities, the Court found that the Succession Act was designed to strengthen the protection of the family as required by the Constitution and for that purpose to place members of the family based upon marriage in a more favourable position, than other persons in relation to succession to property whether by testamentary dispositions or intestate succession. In doing so it provided that in the event of intestate succession children of the deceased born outside marriage would not stand in the line of succession, although they could succeed to property by bequest, subject to the particular provisions for the benefit of the spouse of the deceased or his children born within marriage. Having regard to the constitutional guarantees relating to the family, the Court held that the differences created by the Succession Act were not unreasonable, unjust or arbitrary. The Defendant having failed to establish that Sections 67 and 69 of the Succession Act were invalid having regard to the provisions of the Constitution, the Appeal was dismissed.

Recent Irish Cases

Edited by Gary Byrne, Solicitor

SUCCESSION ACT Illegitimate child not "issue" of his or her parent for the purposes of Section 67 of the Succession Act, 1965 and accordingly takes no share in the Estate on intestacy — neither Section 67 or 69 of the Succession Act are invalid having regard to the provisions of the Constitution. The deceased died a bachelor and intestate on 5 March, 1975. He was survived by four sisters and one brother and one illegitimate daughter. The Plaintiff was one of the sisters and the Defendant was the illegitimate daughter. On 5 September, 1975 the Plaintiff applied to the Principal Probate Office for Letters of Administration Intestate to the estate of the Deceased and on 7 October a caveat to the Plaintiffs Application was entered by the Defendant. Proceedings were issued by way of Plenary Summons, seeking an order setting aside the caveat and for an order granting liberty to the Plaintiff to proceed with the application for a grant of administration to the estate. The Defendant in her defence claimed a declaration that she was "the issue" of the deceased, and as such the person entitled to the estate, there being no spouse. The substantive claim in the case was that the Defendant was entitled to succeed under Section 67 of the Succession Act (which in subsection (3) thereof provides that if an intestate dies leaving issue and no spouse, his estate shall be distributed among the issue) or, alternatively, that by reason of being illegitimate and therefore not being entitled to succeed under Section 67, a claim that Sections 67 and 69 of the Succession Act were invalid having regard to the provisions of the Constitution. In view of this attack on the provisions of the Act, the Attorney General was added as a party to the action and the main issue in the case was between the Defendant and the Attorney General on the validity of the two Sections of the Act. In the High Court, Mr. Justice D'Arcy held that the Defendant was not entitled

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