McCann (Michael Gerard) v Hugh Kenneth McCann
| Jurisdiction | Northern Ireland |
| Judge | Horner J |
| Judgment Date | 01 April 2013 |
| Neutral Citation | [2013] NICh 7 |
| Date | 01 April 2013 |
| Year | 2013 |
| Court | Chancery Division (Northern Ireland) |
1
Neutral Citation No. [2013] NICh 7
Ref:
HOR8820
Judgment: approved by the Court for handing down
Delivered:
17/04/2013
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
CHANCERY DIVISION
________
BETWEEN:
MICHAEL GERARD McCANN
Plaintiff
and
HUGH KENNETH McCANN
Defendant
________
HORNER J
Introduction
[1] These proceedings primarily involve a claim by Hugh Kenneth McCann
(“H”) that he has acquired exclusive title to all the lands he holds as tenant in
common with his brother Michael Gerard McCann (“M”). They are the fourth and
final set of proceedings in a number of different legal disputes that have
overwhelmed the McCann family in general, and H and M, the two brothers, in
particular, following the death of their father, Myles McCann (“the deceased”) on 18
November 2001. The various disputes have involved:
(i) A claim for trespass involving M trespassing on H’s lands by repositioning
the boundary fence of his house. The proceedings were issued in the County Court
by H on 11 April 2006.
(ii) H’s claim for, inter alia, a declaration that the Will made by the deceased on
14 September 2001 be set aside in favour of an earlier Will which gifted H the
deceased’s lands. M and the other siblings were defendants in the proceedings
which were issued on 6 September 2007. The solicitor who acted in respect of the
execution of the Will and other documents was also alleged to have been guilty of
negligence.
2
(iii) M also issued proceedings in September 2007 against the solicitors involved
in the drawing up of the Will.
(iv) The present proceedings were issued by M against H on 21 May 2007
claiming, inter alia, sale in lieu of partition of Folio 36387 County Tyrone, an area of
approximately some 61 acres, and an adjacent area of unregistered land comprising
a field of some 10 acres which had been owned by the Mullins. When taken together
these two pieces of land are known as the “Mountain Lands” and I refer to them as
such during the rest of this judgment. H responded with a defence in October 2007
and then with a counterclaim on 14 February 2011 which has been the subject of
major amendments.
[2] This internecine strife, which has consumed the family from the deceased’s
death, has been expensive both in the amount of costs that have been incurred by
each side and more importantly in the terms of the breakdown of human
relationships. It is disappointing that the parties to the present dispute have been
unable to resolve this matter between themselves without resorting to a contentious
hearing. There is no doubt that the other sets of proceedings which have now been
concluded did affect the relationship between the brothers. H clearly regarded M as
being primarily responsible for H having to issue the earlier probate proceedings in
order to ensure that he effectively succeeded to the deceased’s farming business.
Further, H could be said to have emerged as the winner in those other proceedings.
In any event all the different sets of proceedings have also served to increase the
acrimony and upset among the family members and certainly appear to have led to
a complete breakdown of trust and confidence between H and M.
[3] The real issue in these proceedings is between H and M. It relates to H’s
claims in respect of the Mountain Lands. These claims over the years have
undergone a metamorphosis. Originally the defence served by H claimed that the
Mountain Lands, of which approximately 61 acres were gifted to H and M in 1979 by
the deceased and the other approximately 10 acres purchased by H and M from the
Mullins, had been farmed with the consent of M, as co-owner. By his counterclaim
served for the first time in February 2011, H alleged, inter alia, that M, having
originally agreed to a partnership to farm the lands, had emigrated to America in
1981 without warning and had placed upon him the entire burden of improving and
farming the lands. It was claimed that M was in breach of contract and that there
was some estoppel operating. As a consequence, H claimed, he had entitlement to
substantial compensation for his contribution to the Mountain Lands, including an
initial claim of £500,000 for wages and £375,000 being the increase in value of the
Mountain Lands. This claim, made by H during a period when he had no legal
representation, has not been pursued before me. It was only following a further
amendment by H in 2012 that for the first time H claimed he had acquired title to the
whole of the Mountain Lands by adverse possession and asked for a declaration to
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...45; (2007) 23 B.H.R.C. 405. Leigh v. Jack (1879) 5 Ex. D. 264. Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273. McCann v. McCann [2013] NICh 7, [2014] N.I. 201. Murphy v. Murphy [1980] I.R. 183. Northern Bank Finance v. Charlton [1979] I.R. 149. Powell v. McFarlane [1979] 38 P. & C.R. 45......