High Court: Limited administrators ad litem have no authority to take active steps

High Court: Limited administrators ad litem have no authority to take active steps

The High Court has determined that administrators ad litem appointed for the purpose of substantiating proceedings simply provide a defendant who can be sued, and are not obliged to take active steps in defence of the action.

Delivering judgment for the High Court, Ms Justice Siobhan Stack commented that there is “little or nothing between this and permitting judgment to be entered in default, save that… in many proceedings where judgment is obtained by default, some evidence is required to actually obtain the relief sought”.


Mary Moore died intestate on 10 December 2016, survived by her six children. Each was entitled to a sixth of her estate under the Succession Act 1965. One of the children, Donal Moore, applied for a grant of letters of administration, apparently without consulting the others.

The grant issued on 20 September 2017, and by November 2018 Mr Moore decided to claim against the estate based on an agreement allegedly made with his mother that she would bequeath all of her real property to him on her death.

Mr Moore’s solicitors advised him to revoke the grant and that an alternative personal representative would need to be found. As the limitation period was due to expire pursuant to s.9(2) of the Civil Liability Act 1961, an application to appoint an administrator ad litem was made pursuant to s.27(4) of the 1965 Act.

The application was made by consent in November 2018, with the court’s order recording that the existing grant would be revoked, and that it would be expedient to appoint an administrator of the estate other than the person(s) entitled to a grant.

The order gave liberty to the administrator ad litem, Donal O’Sullivan, to apply for a grant of letters of administration to substantiate the proceedings to be issued by Mr Moore.

Erroneously, the second grant issued was not limited in its terms, contrary to the order. Consequently, this second grant was revoked and a fresh limited grant issued on 10 December 2018. Mr Moore’s proceedings issued on 6 December 2018, and Mr O’Sullivan entered an appearance on behalf of the estate.

In January 2019, solicitors acting for four of the remaining adult children (the beneficiaries) wrote to Mr Moore’s solicitors indicating their intention to apply for a general grant.

The correspondence as between the beneficiaries’ solicitors, Mr Moore’s solicitors and Mr O’Sullivan suggested that all parties believed that Mr O’Sullivan would defend the plenary proceedings to their conclusion.

In response to a request from Mr O’Sullivan for details of the assets of the estate, Mr Moore’s solicitors sent a cheque in the sum of €53,707.41 and advised him that Mr Moore held estate funds in the sum of €15,500. Seemingly responding to pressure from the beneficiaries’ solicitors, Mr O’Sullivan issued a motion to dismiss Mr Moore’s claim in June 2020.

In September 2020, new solicitors for the beneficiaries wrote to Mr O’Sullivan complaining that he was not moving the proceedings along, and stating that the beneficiaries would extract a general grant, but failing to say when this would be done.

In January 2021, Mr Moore’s solicitors indicated to Mr O’Sullivan that they had been proceeding on the basis that he was a general administrator, apparently having missed the fresh grant issued in December 2018. They stated that Mr O’Sullivan should not have taken any step in the proceedings beyond entering an appearance.

Mr O’Sullivan requested that the beneficiaries take out a general grant, and sought various directions from the court. The matter eventually came before Ms Justice Stack, who dealt with two issues: whether the grant should be revoked, and secondly, the effect of a grant limited to ‘substantiating proceedings’.

The High Court

The court observed that Mr O’Sullivan no longer wished to act as administrator, which was “hardly surprising given that his initial consent to act was given on the understanding that a general grant would issue shortly afterwards, relieving him of any further involvement”.

Noting that Mr O’Sullivan was in an “unenviable” position in which he could not obtain instructions from the beneficiaries, whilst being berated by them for not progressing the proceedings, the court stated: “This is compounded by the fact that the party who first sought Mr O’ Sullivan’s consent to act…for over two years proceeded on the basis that Mr O’ Sullivan was acting within the scope of this authority, while now asserting that he is exceeding it.”

Finding that Mr O’Sullivan “never indicated that he would take out a general grant, and that, insofar as he may have misinterpreted the nature of the steps he was obliged to take, there was no objection from anyone for several years”, the court acceded to Mr O’Sullivan’s application, revoking the grant pursuant to s.27(2) of the 1965 Act.

Ms Justice Stack confirmed that it is not “appropriate to give directions to a limited administrator for the conduct of proceedings…the extent of the administrator’s authority should appear from the grant. Which in turn is determined by the terms of the order limiting the grant to certain purposes”.

In respect of the second issue, the court commented on the “considerable vintage” of grants to substantiate proceedings, noting that in the older authorities such grants were issued in much more detailed form than in modern practice.

Ms Justice Stack considered that in the absence of guidance from the authorities, the issue was to be decided from first principles, noting as a starting point that Mr O’Sullivan was not vested with any assets of the estate and did not enjoy the power of a general administrator, and so could not have meaningful obligations to the estate or to the beneficiaries.

Highlighting that it would be nearly impossible for a limited administrator to deal with the defence to an action, the court found that it is open to them “not to take active steps in the defence of the proceedings so as to impose an obligation to defend proceedings in any substantive way”.

Remarking that in cases such as that before her, where the appointment of a plaintiff’s nominee could result in an order contrary to the interests of those entitled to succeed, “it is necessary to ensure that, before such an administrator is appointed, appropriate steps are taken by an applicant for a limited grant to identify those entitled to extract a grant and to notify them in good time of the intention to make the application”.

The court concluded that “a grant limited for the purpose of substantiating certain proceedings simply provides to a plaintiff a defendant who may be sued such that any order obtained or the determination of any point arising in the action will bind the general administrator if and when he or she is appointed, but without imposing an obligation on the person appointed as limited administrator to take active steps in defence of the action”.


Finding that Mr O’Sullivan acted at the behest of the beneficiaries and did not act improperly, Ms Justice Stack revoked the grant and commented that an undertaking to hold the estate funds on trust until a general grant is extracted would deal with the monies transferred to Mr O’Sullivan.

Re Mary Moore Deceased [2023] IEHC 607

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