Permanent Injunctions
Cases
C & A Modes v C & A (Waterford) Ltd
[1976] IR 198
O Higgins CJ: I agree with the judgment which is about to be delivered and have nothing to add to it.
Henchy J: In the High Court the following matters were held to have been established as facts:
1.C & A Modes (the first plaintiffs) carry on a retail clothing business in a chain of 65 shops throughout the United Kingdom, including one in Belfast, and use as a symbol or hallmark of that business the combination C & A For a number of reasons, particularly because of the number of people from this State who frequent the C & A shop in Belfast and because of the widespread advertising of C & A in English newspapers circulating in this State and on televi sion, the business of C & A is well known in this State.
2.Michael Vincent O Toole and Samuel McClure (the individual defendants) adopted C & A as a component of the names of C & A (Waterford) Ltd. and C & A (Finance) Ltd. (the defendant companies) and used the symbol C & A on a van operated by one of the defendant companies with the intention that people in this State would associate their business with that of C & A.
3.If the defendants continue to use the name and symbol C & A in that way, there will be a con fusion in the public mind between their business activities and those of the first plaintiffs.
4.If C & A Ireland (the second plaintiffs and a subsidiary company of the first plaintiffs) proceed, as had apparently been intended, to open a C & A shop in Dublin, there will be substantial con fusion between the trading activities of that shop and those of the defendant companies.
5.It is the intention of the individual defendants to deceive by associating the goods or business activities of the defendant companies in the minds of people with the goods or business of the first plaintiffs.
As the note of the evidence and the careful and comprehensive judgment of the President of the High Court show, those findings of fact were fully substantiated. In this appeal by the defendants against the injunction granted to the plaintiffs restraining the defendants from passing off or attempting to pass off in that manner, the only challenge to those findings was a submission that the evidence did not support the finding that the conduct of the defendants was likely to lead to confusion in the public mind between the goods or business of C & A Modes and the goods or business of the defendant companies. I must reject that submission.
The name and symbol C & A were not chosen through any bona fide coincidence or mischance, they were plainly chosen with the intention that members of the public would be confused into thinking that the goods or business of the defendant companies emanated from the C & A ambience. When the individual defendants were sent a letter of complaint, they, as the sole directors and shareholders of the defendant companies, had an opportunity of asserting an innocent or harmless purpose in the conduct complained of. They did not do so. Instead, they claimed a right to do what was complained of because neither of the plaintiff companies was trading in this State. They allowed to go by default the complaint that their conduct was calculated to deceive members of the public. In those circumstances the judge was fully justified in finding an intention to deceive. While that mental element is not of the essence of the cause of action, it shows that the conduct complained of was in fact likely to deceive – which goes to the gist of the action for passing off.
It is, of course, correct to say, as counsel for the defendants say, that even where conduct likely to deceive is proved the plaintiffs cannot succeed unless they show that their goodwill is at least imperilled by that conduct. Here it is contended that there was no breach of the plaintiffs goodwill which could be affected by the defendants conduct. The plaintiffs have no shop or place of trading within the State, and it is urged that the evidence fell short of showing that the orbit of their trading activities outside the State was capable of carrying with it a public awareness within the State of the import of C & A as a business name or symbol, and that, consequently, the defendants conduct was incapable of invading their goodwill.
Consider this submission in the light of the evidence. Sixty-five shops throughout the United Kingdom, including the one in Belfast, purvey the distinctive C & A wearing apparel. It would be remarkable, considering the movement of people between this State and the United Kingdom, if there were not a significant number of at least intermittent C & A customers in this State. The evidence also showed that there has been massive advertising of C & A goods on television and in some of the most widely read British newspapers and magazines circulating in the Republic of Ireland, as well as in Northern Ireland newspapers. The Belfast shop draws a not inconsiderable number of its customers from the Republic. The C & A organization recruits staff from the Republic. In 1975, one factory in Cork manufactured 850,000 items which were sold in the C & A shops.
Can it be said in these circumstances that, because the plaintiffs have no direct retailing outlet in the Republic, they have no protectable goodwill in the Republic? In my opinion, the answer is No . Goodwill does not necessarily stop at a frontier. Whether in a particular area a plaintiff has a goodwill which is liable to be damaged by the unlawful competition resulting from passing off is a question of fact and of degree. What has to be established for the success of a plaintiff s claim in an action such as this is that by his business activities – be they by direct selling within the State or otherwise – he has generated within the State a property right in a goodwill which will be violated by the passing-off. It is true that there is authority for the proposition that a plaintiff s reputation which owes nothing to user in this State is not sufficient to support a passing-off action (Alan Bernardin et Cie v Pavilion Properties Ltd [1967] RPC 581) but, as is stated in Kerly s Law of Trade Marks and Trade Names (10th ed, p 386), it is difficult to see any rational basis for this distinction. If there are in this State sufficient customers of a plaintiff s business to justify his claim to have a vested right to retain and expand that custom, then there is ample authority in principle and in the decided cases for the conclusion that, no matter where the plaintiff s business is based, he is entitled to be protected against its being taken away or dissipated by someone whose deceptive conduct is calculated to create a confusion of identity in the minds of existing or potential customers.
I consider that the evidence in this case amply satisfies the test. The nature and spread of the C & A trade throughout the United Kingdom, the extent to which the shop in Belfast draws its custom from this State, the advertising campaign in papers and magazines circulating here, the distinctive nature of C & A goods in their labelling and packaging and in the C & A symbol, all these in combination point to a goodwill in this State. If there were any doubt that the first plaintiffs enjoy in this State the attractive force which brings in custom (per Lord Macnaghten in Commissioners of Inland Revenue v Muller & Co s Margarine Ltd [1904] 1 IR 161, 171), one might ask why did the individual defendants purloin the name and symbol of C & A? The answer is that they did so to gain commercial advantage from the resulting confusion in the public mind between their trading activities and those of the first plaintiffs. Their passing-off was calculated to operate to the detriment of the goodwill in this State of the first plaintiffs. It is to prevent unfair competition of that kind that the action for passing-off lies.
Finally, it was submitted on behalf of the defendants that as this is in reality an action for a quia timet injunction, the plaintiffs should be held to have failed to prove a well-founded apprehension of injury – proof of actual and real danger – a strong probability, almost amounting to moral certainty, which is the degree of proof laid down by FitzGibbon LJ in The Attorney General v Rathmines & Pembroke Joint Hospital Board (1904) 1 IR 161, 171 as necessary before such an injunction should be granted. The trial judge held that, if that was the degree of proof necessary in this action, the onus of proof had been discharged. Having regard to the whole of the evidence, I think there was more than sufficient ground for that conclusion.
However, while so holding, the trial judge did not decide that what the plaintiffs claimed in this action was a quia timet injunction. I think it was not. A quia timet injunction restrains a feared or threatened infringement of a right. That is not the situation that the plaintiffs sought to have redressed in this action. A passing-off was not threatened: it had actually taken place. The C & A name and symbol had been taken and put to use by the defendants in an impermissible manner. In such circumstances, the plaintiffs, in order to succeed in their claim for an injunction, were not required to prove by further evidence that they had suffered or would suffer damage. Their right to their goodwill had been violated by the passing-off, and in those circumstances the law assumes a resulting damage: see the remarks of Sir Wilfred Greene MR at p 518 and of Goddard LJ at p 526 of the report of Draper v Trist [1939] 3 All ER 513. The facts proved would have justified as award of at least nominal damages and, as there was a continuing completed tort, the plaintiffs were entitled to the injunction restraining the commission of that tort. I would dismiss these appeals.
Kenny J: The facts in this case have been so fully stated by the President of the High Court that I need not repeat them. There was ample evidence to support his findings of fact and I agree with his conclusions.
The legal wrong known as passing-off includes the incorporation in the Republic of Ireland of a company with a name likely to give the impression to the public that it is a subsidiary or branch of or is associated or connected with another company which has an established goodwill, whether the latter company is incorporated in the Republic or outside it. The incorporation with the name selected may have been with the intention of creating that impression (Lloyds & Dawson Bro v Lloyds (Southampton) Ltd [1912] 29 RPC 433; Harrods Ltd v R Harrod Ltd [1924] 41 RPC 74) or innocently without knowledge of the existence of the well-known company: Ewing v Buttercup Margarine Co Ltd [1917] 2 Ch 1. In either event, the wrong of passing-off may be restrained by the company with the established goodwill.
The defendants urged that this principle should be limited to cases where the well-known company has acquired some of its goodwill in the Republic by user or trading in this country. I do not see any reason why this limitation on the general principle should be imposed to-day when extensive advertising can be carried out by television, radio and newspapers – all of which go into almost every home in this State. Programmes broadcast by BBC1, BBC2 and UTV are regularly looked at on television sets in this State. I suspect that the idea that some of the goodwill must be acquired by user or trading in the country where it is sought to protect it comes from the days when television and radio were unknown and when international trade in domestic goods was not as extensive as it is to-day. It is not an appropriate rule for this age and as no authority binds me to accept it. I refuse to do so.
The defendants relied on two cases to support the limitation which they suggested should be imposed on the general principle. The first of these of Oertli AG v Bowman (London) Ltd [1957] RPC 388; [1959] RPC 1, in which the decision of the English Court of Appeal was confirmed in the House of Lords; it related to the passing off of goods of a Swiss company. It was not established in the case that the plaintiffs were associated in the public mind with the goods: their name did not appear on them or in the advertisements in connection with them. The plaintiffs were unknown so far as the public in Britain was concerned. In the case which we are considering, the name C & A is well known in this country although the company does not carry on any trading activities here because they have a large store in Belfast and many others in Britain and because they have carried out extensive advertising on television and radio and in the newspapers. The second case on which the defendants rely is Alain Bernardin v Pavilion Properties Ltd [1967] RPC 581 and, in my opinion, it is incorrect and should not be followed. I think that the judge who decided it erred in thinking that Oertli s Case [1957] RPC 388; [1959] RPC 1 required him to decide that a company with a goodwill in France and which had carried out an extensive advertising campaign in Britain could not protect its well-known name ( The Crazy Horse Saloon ) in England because it could not establish that it had carried on any activities (other than advertising) in that country. This decision is rightly criticised in Kerly s Law of Trade Marks and Trade Names (10th ed p 386).
The passage so strongly relied on by the defendants in the judgment of Jenkins LJ in the Court of Appeal in the Oertli Case [1957] RPC 388; [1959] RPC 1 reads at p 397 of the report:
It is of course essential to the success of any claim in respect of passing-off based on the use of a given mark or get-up that the plaintiff should be able to show that the disputed mark or get-up has become by user in this country distinctive of the plaintiff s goods so that the use in relation to any goods of the kind dealt in by the plaintiff of that mark or get-up will be understood by the trade and the public in this country as meaning that the goods are the plaintiff s goods. The gist of the action is that the plaintiff, by using and making known the mark or get-up in relation to his goods, and thus causing it to be associated or identified with those goods, has acquired a quasi-proprietary right to the exclusive use of the mark or get-up in relation to goods of that kind, which right is invaded by any person who, by using the same or some deceptively similar mark or get-up in relation to goods not of the plaintiff s manufacture, induces customers to buy from him goods not of the plaintiff s manufacture as goods of the plaintiff s manufacture, thereby diverting to himself orders intended for and rightfully belonging to the plaintiff.
This passage relates to passing off by the use of a trade mark or get-up of goods (as the judge emphasises) and has no application to passing off by the use of a well-known name. This is, I think, the distinction which the judge who decided the Bernardin Case [1967] RPC 581 did not make. I think that an injunction should have been granted in that case.
The plaintiffs in the cases before us have a goodwill in the Republic of Ireland although they do not carry on any trading activities here. No explanation has been given by the defendants as to why they adopted the symbol C & A in the names of the two companies which they formed. I have no doubt that their sole motive in forming the two defendant companies with the name which they used was to create the false impression that these two companies were, in some way, associated with or connected with the plaintiffs. I think that these two appeals should be dismissed.
Patterson v Murphy
[1978] ILRM 85
Costello J: The plaintiffs herein instituted proceedings for damages and injunctions arising out of alleged acts of nuisance for which they claimed the defendants were responsible. They sought interlocutory relief and on the hearing of their motion a date was fixed for the trial of action. As the matter was an urgent one an early date was fixed but this resulted in the fact that the rules relating to pleadings were not complied with. No point has been taken on this, however, and it is agreed that I should hear the case on the basis of the pleadings actually filed. The plaintiffs had also brought a motion under s 27 of the Local Government (Planning and Development) Act 1976. Again, by agreement I directed under Rule 6 of the Rules of the Superior Courts (No 1) 1976 that evidence heard in the nuisance action should be treated as the evidence on the 1976 Act motion. Although different issues arise in the two proceedings it was in fact found convenient to have them heard together. It will, I think, be equally convenient if I give one judgment in both proceedings, dealing firstly with the nuisance action.
The plaintiffs married in 1967. Both are, by profession, musicians, Mr Patterson being a singer and Mrs Patterson a pianist and harpist. They lived in Paris between 1967 and 1971 In 1971 they returned to Ireland renting a cottage in Brittas, County Dublin. They liked the area and sought somewhere in it where they could settle permanently. Late in 1972 Mr Patterson found Shillelagh Lodge. It was a small two-storeyed house, very old and in a dilapidated condition, but it ideally suited his requirements and the plaintiffs decided to purchase it and renovate it. It was situated in a very beautiful part of the countryside, and some distance from the main road. Access to it was by means of a narrow laneway. It was purchased in April 1973, along with five acres of land and a right-of-way up the laneway. The Pattersons did a lot of renovation work to the house, and built on a music room and moved into their new home in the month of September 1973.
The laneway ends beside the entrance to Shillelagh Lodge at an old gateway which leads into a field (which, for ease of reference I will refer to as the quarry field ). This field is a little over 4 acres in area. Mr Patterson took a walk in it before buying his new home, and he noticed that some of the top soil had been scraped away leaving areas of broken rock and shale. He said (and I accept his evidence) that the total area involved was approximately 25 yards square and the rest of the field appeared to consist of rough grazing and heather. He took the precaution of inspecting the planning register in the county council offices and found that no permission to use the field as a quarry had been given but that permission to erect a dwelling on the other side of the lane existed. In fact the plot of ground opposite Shillelagh Lodge had been purchased by Mr O Sullivan who, not long after the Patterson s purchase, built a bungalow for himself (which is now known as Aughfarrel) which he moved into after his marriage in September 1974.
The owner of Shillelagh Lodge, and Aughfarrel, had been Mrs Murphy. She also owns the quarry field, the land over which the laneway runs and other land in the vicinity amounting in all to over 100 acres. Her home is lower down the lane closer to the main road. She is now a remarkable old lady of 81 who, as a child, was brought up in Shillelagh Lodge. Her husband, for many years, farmed the land and also carried on a sand and gravel business until he got into ill-health in the year 1964. Thereafter her son, Michael Murphy, has managed the family business and the farm and, in fact, all the negotiations in relation to the sale of the property and the dealings relating to the quarry field were conducted by Mrs Murphy s son on her behalf. Not surprisingly, Mrs Murphy s recollection of events is infirm, and the principal evidence in the case was given by her son. Sometime in the month of August or September 1973. Mr and Mrs Patterson called on Mrs Murphy. As they were shortly to be neighbours they wanted to introduce themselves to Mrs Murphy and also raise with her the question of the gates on the lane. At that time there were two gates on the laneway and Mr Patterson hoped that an arrangement to keep them open could be made. In the course of the conversation Mr Patterson was told that a big quarry was to be opened in the quarry field. This was the first he learnt of this possibility. I should make it clear that I do not accept the suggestion that he had been told about this possible development by Mr Michael Murphy at or about the time he had effected the purchase some months previously. I think, however, that it is probable that Mr Michael Murphy was not in his mother s home when the Pattersons called to see her.
The possibility that a quarry might be opened up in the adjoining field came closer to reality in the month of July 1974. An explosion then took place in the field and a considerable quantity of rock was displaced. Mr Patterson went to his solicitor and to the county council offices and, no doubt as a result of his representations, a notice to cease development dated the 25th September 1974 was served on Mr Murphy. The notice stated that the use of lands as a quarry was being carried out without a grant of permission under the relevant Act and was unauthorised development. For approximately four weeks after the blast rock was removed by means of lorries but thereafter the situation reverted to the normally peaceful conditions which had existed prior to July. What those conditions were I will examine in greater detail later. But a new development and a most startling one from the Pattersons point of view occurred in the early summer of 1977. Large items of equipment and vehicles were brought up the laneway by the second-named defendants. Blasting rocks on an extensive and regular basis commenced. Crushing equipment was used to reduce the size of the rocks, to produce 4 inch stones and a very considerable volume of traffic of heavy lorries commenced. In fact, quarrying operations on a considerable commercial scale had begun.
The plaintiffs claim that they have been subjected to a nuisance as a result of the quarrying operations carried on in the adjoining quarry field and by virtue of the traffic on the laneway and they seek damages and relief by way of injunction.
Acts of Nuisance
I should begin my examination of the nuisance claim by considering a submission of the second-named defendant. It is this. In ascertaining whether the noise, vibration and dust complained of in these proceedings amounts in law to a nuisance it is submitted that the standard of comfort to be applied is that of the ordinary and reasonable man in the locality in which the plaintiffs reside (see Salmond on the Law of Torts 17 edition p 56); that as the plaintiffs came to reside in what was termed a mining area the standard of comfort to which they are entitled is less than would apply in an ordinary rural area; that by applying the proper standards no nuisance has been established. In connection with this submission evidence was adduced both as to the nature of the locality in which Shillelagh Lodge was situated, and, also, the user of the quarry field adjoining the plaintiffs home. From the evidence I find the following facts:
1.Shillelagh Lodge is in fact situated on a hillside. It is surrounded by fields which are used for coarse grazing. The quarry field itself was covered to a considerable extent by heather. To the west of the field a large State forest commences. On the laneway close to Murphy s house there was a gravel pit and further away beside the main road there was a larger gravel pit formerly operated by Messrs Roadstone. At the time of the plaintiff s purchase this gravel pit has been worked out. About three quarters of a mile from Shillelagh Lodge there was a quarry known as Tracey s Quarry from which stone was extracted. The environs of Shillelagh Lodge are well illustrated in the fine panoramic photographs taken by Dr O Rahilly.
2.Later I will examine the use of the quarry field prior to October 1964. For the purposes of this part of the case I find that from 1964 to 1969 the quarry field was used very intermittently by Mr Murphy to obtain shale. For this purpose a mechanical shovel was used to scrape to the top of the soil and to put the shale into lorries.
3.The quarry field was more intensively worked by a Mr Mansfield in the year 1969 (not the year 1970 as he thought). Mr Mansfield entered into an agreement with Mr Murphy and as a result of this he was given permission to take shale. He did this by using a caterpillar bulldozer. He worked the field only for some weeks. During this time the bulldozer scraped to a depth of between seven to ten feet in portions of the field. When Mr Mansfield left the field the area exploited was that as subsequently seen by the plaintiff and described by him in evidence.
4.After Mr Mansfield vacated the field it was, again, only used very intermittently for the purpose of obtaining shale. It was, in fact, let from tine to time by Mr Murphy for sheep grazing. Mrs Nocter (who moved into a house on the laneway in the year 1973) was in a good position to describe how the laneway and the quarry field was used. I accept her evidence (and that of Mr Leavy Jr who grazed sheep on an adjoining field) to the effect that the laneway and the quarry field were very little used in the years from 1972. It is true that Mr Murphy produced in evidence tenders for the years subsequent to 1969 which he said had been accepted by Dublin County Council for the supply of shale. But these documents did not establish the amount of shale he actually supplied or from where it was obtained.
I conclude, therefore, that the existence of the gravel pits and the quarry some distance away from Shillelagh Lodge and the use actually made by the defendant of the quarry field do not reduce the standard of comfort to which the plaintiff was entitled when he purchased his new home. The standard to which he was entitled and which I should apply in considering the nuisance claim is that which an ordinary reasonable person would expect whose home was on a country lane in an area used for normal and common agricultural purposes.
The new developments which occurred from about the middle of 1977 were these. In the month of May of that year Mr Murphy and Mr Daragh, the managing director of Trading Services , (the second-named defendant) entered into an oral agreement about the use of the quarry field. Mr Daragh wrote out a Memorandum of the agreement, part of which reads – permission to install crusher screeners and conveyors and necessary equipment for the purpose of manufacturing stone . Not long after their agreement Trading Services brought into the quarry field a large crushing plant, a Parker Screening plant, an excavator, two dumpers, a loading shovel, a compressor and a drill. Basically, the operations which Trading Services began were these. From time to time large quantities of rock were blasted by means of explosives. The blasted rock was loaded by the excavator into a dumper. The dumper transferred the rock into a hopper at the rear of the crusher. The material travelled by conveyor belt (having been crushed in the crushing machine) to the screening plant. The crushed stones fell from the screening plant into a hopper, and the four inch stones were loaded into lorries and taken away. As stated in the written memorandum the object of the operations was the manufacture of these stones It appears that between twelve and twenty men were employed in the operations, and that they began at 8 o clock in the morning and finished at 5.30 pm. Large 30 ton lorries were used to take away the stone, and these, naturally, were driven up and down the laneway close to the plaintiffs house. The intensity of the traffic varied. Sometimes lorries came in convoys of four and five and on some days more than 80 lorries would pass by the plaintiffs entrance. The evidence establishes to my satisfaction that from the middle of 1977 until after the institution of the present proceedings the operations carried on in the quarry field were extensive and intense. To obtain the raw material for the manufacture of stone blasting occurred on 26 July, 8 August, 15 September, 28 September, 11 October, 20 October, 8 December. By arrangement made in the course of these proceedings a further blast occurred on the 30th March of the present year. The total amount of explosives used in each blast varied. On the 30th March last a total charge was 30 pounds; whilst on the 8th August 1977 well over 2000 pounds were used. Blasting took place at distances from 500 feet from the plaintiffs house to about 675 feet or thereabouts. The rock face of the quarry is now 10 to 12 metres high at its highest point. The crusher is about 175 yards from the house.
I have heard evidence from Mr and Mrs Patterson and Mr and Mrs O Sullivan as to the effect of the operations which I have described. I have no hesitation in accepting their evidence. Each gave their testimony without exaggeration, with care for accuracy, and conscientiously. None could be regarded as being in any way abnormally sensitive. Turning, firstly to the allegation relating to noise and dust, I accept that the noise from the operations in the quarry field was continuous and loud and calculated to fray the nerves of any normal person. The noise came from the plant, including the crushing plant which was used continuously; it came from the movement of the rocks and stones as they were shifted in the different parts of the operation which I have described. I accept that the noise became so intolerable that Mrs Patterson was forced to leave her home and live elsewhere and that, similarly, Mrs O Sullivan was driven from her home by it. Equally, I accept that serious nuisance from dust was created by the operations in the quarry field. The level of dust, naturally, varied according to the climatic conditions but I accept the evidence that on some occasions the dust could actually be felt on the face; that it created a film over the house and gardens; that it was such as to require windows to be kept closed, and prohibited Mr and Mrs Patterson from sitting in the garden.
Apart from the noise and dust emanating from the quarry field the evidence established to my satisfaction that further acts of nuisance were occasioned by the lorries travelling to and from the quarry field. The laneway was unmetalled and in fine weather very considerable dust came into the plaintiffs house and garden both from the loads being carried on the lorries but principally from the surface of the laneway. In addition the size of the lorries and the frequency of the journeys created an excessive amount of noise. In wet conditions the laneway became a morass and almost impassable on occasions, and the laying of stones from the quarry on the laneway proved an ineffective remedy.
I find, accordingly, that the plaintiffs have established acts of nuisance to a serious degree arising from the emanation of noise and dust from the quarry field and from the emanation of noise and dust from the laneway. I will now turn to deal with the allegations relating to the blasting operations.
Trading Services employed Irish Industrial Explosives Ltd, a firm specialising in the supply and use of explosives, to supervise the blasting operations on 26 July, 8 August, 20 October, 8 December, and 30 March of this year. The other blasts were supervised by Mr Daragh himself. Irish Industrial Explosives not only supervise the blasts but also record the results on an instrument called a vibrograph. The vibrograph measures what is called a peak particle velocity in millimetres of a second, the particle velocity being the rate of change of the amplitude of the vibrations set up by an explosion. The vibrograph records other data which is of significance in this case. It shows the amount of charge used, the number of holes used for placing charges, and the depth of the holes. Under the heading Burden particulars are given of the distance the charges are set from the face of the quarry. This is of significance because the distance from the quarry-face affects the severity of the vibrations from the blast. Particulars under the heading Number of Delays are also given. These particulars relate to the use of delaying devices which are employed to ensure that a slight delay (something in the region of .025 of a second) occurs in between the explosion of each charge. By this device the total explosion is fragmented and the vibration set up by the blast is very considerably decreased. The result is that the vibration effect is kept to what is called the maximum instantaneous charge and this figure is also recorded on the vibrograph reports. The evidence establishes that there are two recognised methods for fragmenting an explosion, and for ease of reference I will refer to the process as the use of delayed detonators . The records show that when the blasts were supervised by Irish Industrial Explosives delayed detonators were used. As a result the maximum instantaneous charge was kept between 155 pounds and 80 pounds, the difference in the figures in the main being attributable to the extent of the burden and the depth of the charge. If, as happened in this case, blasts took place and delayed detonators were not used then the maximum instantaneous charge would have equalled the amount of the explosives used, thus setting up vibrations greatly in excess of those set up on the occasions when delayed detonators were used. The particle velocity was measured at or near the plaintiffs house. Three different readings were taken. The figures varied on each occasion, the lowest being 3.8 millimetres per second, and the highest being 15.2 millimetres per second. The evidence of Mr Higgins, an experienced engineer called by Trading Services, was that these figures were well within the safety margin as regards damage to structures. He admitted, however, that a peak particle velocity in excess of ten millimetres per second would affect human comfort and he advises that blasts should be kept below this figure. With the exception of the 30th March, the vibrograph records show peak particle velocity figures in excess of ten millimetres per second. The noise level was measured only on one occasion, ie on the 30th March last. It is to be noted that this was the occasion on which the lowest weight of charge in all the series was employed.
The evidence satisfies me that if delayed detonators had been used in the blasting operations no physical damage to the plaintiffs house would have occurred. Unfortunately, on the 29th September when Mr Daragh personally supervised the blasting operation delayed detonators were not used. A very considerable amount of explosives were used on that occasion and physical damage was, I am quite satisfied, caused to the plaintiffs house by the blast set off on that day. I will now examine the claim arising out of this damage.
The blast of the 29th September was a very severe one. The window of the living-room was shattered, and part of an old boundary wall was knocked down. Mr Patterson gave evidence of cracking appearing on the interior walls of the house which was not there before the blast and Mr Purcell, the well known architect, described these cracks as he saw them on his visit on the 3rd October. I am quite satisfied that the cracks described by Mr Purcell were caused by the explosion on the 29th September. A further explosion took place on the 11th October and Mr Purcell visited the premises on the 14th October and described three additional cracks which he there saw. Although it does appear that in all probability delayed detonators were used for the 11th October explosion, I am satisfied that, on the balance of probabilities, the extra cracks seen on that day were produced by the combined effect explosions carried out in the quarry field. Mr Purcell again examined the house after the 30th March explosions. Some of the cracks had increased in width and length and for the first time he noticed external cracks. These external cracks (which he described in detail) were not present when he examined the premises in October. Controversy exists as to whether or not they were old cracks unassociated with the explosions. I am satisfied that the plaintiffs have discharged the onus which is on them of establishing that, on the balance of probabilities, all the cracks described by Mr Purcell were attributable to vibration from explosion and not otherwise. I am, however, not satisfied that the explosions caused any damage to the plaintiffs chimney as has been alleged. It had been imperfectly constructed and had, in fact, given trouble long before the plaintiffs purchased the premises. Cracks in walls can of course, be serious or insignificant. In this case, none of the cracks are in any way serious; and they are, indeed, difficult to see. The blasting has not affected the structure of the premises. In sum, the physical damage to the house was, fortunately, small.
I will now consider the other aspects of the claim arising from the blasting operations. The blast on the 29th September occurred in the afternoon. Mrs Patterson was lying down (she was then expecting a baby) and had actually gone to sleep. She was awaken by a very loud explosion which actually threw her up into the air, causing her to hit her head on the head-rest of the bed. She thought a bomb had gone off. She found the living-room in chaos and the couch (on which normally she would have been resting) was covered in glass from the blown-in window. Her first reaction was anger at what had been done and she immediately went down to the quarry to see some one in charge. Later she got a severe pain in her chest and she then started to worry that she might have a miscarriage. The experience was, I am quite satisfied, a very frightening one. She was present on subsequent occasions when blasting took place. She found them very frightening and she is now of the view that she could not stay in the house if she thought any future explosions would take place.
The evidence establishes to my satisfaction that if delayed detonators had been used, no physical damage would have been caused to the premises. But the blasting constituted an actionable interference with the enjoyment by the plaintiffs of their home. The evidence further satisfies me that if blasting operations were continued with the volume of charges employed by Trading Services as heretofore that their effect would be in the future to cause material discomfort to the plaintiffs enjoyment of their premises both by the noise involved and the nervous strain associated with the explosives.
As to consequential loss, the plaintiffs left Shillelagh Lodge on the 12th December 1977 and rented a house at 6 Firhouse Grove, Tallaght. This is a semi-detached house and because of its proximity to other dwelling houses Mr Patterson was unable to practise his singing and prepare for concerts in the way he had been able to do at Shillelagh Lodge. The rent has been 90 per month. I appreciate that Mrs Patterson was expecting her baby at the end of December but I am quite satisfied that the plaintiffs would not have left Shillelagh Lodge but for the nuisance of which they complain. They were, in effect, driven out of their home, in this connection it is relevant to observe that Mr and Mrs O Sullivan were likewise driven from their home and I am satisfied that they, too, were not displaying any exaggerated degree of sensitivity in acting as they did. A case for consequential damage has been, without doubt, established
I should add that even if a lower standard of comfort, as urged on behalf of the defendants, was to be applied that the conditions produced by the operations I have described fell far short of the standards which an ordinary reasonable person would expect to enjoy in the sort of mining area envisaged by the defendant s counsel.
Defendants Liability
I now turn to consider the liability of the defendants for the wrongful acts which I have found occurred. I have already referred to the fact that an agreement was entered into between Mr Murphy and Mr Daragh in the month of May 1977. It was an oral agreement and the written memorandum made at the time by Mr Daragh faithfully records its terms. The parties agreed that Trading Services would take a lease of the field which I have termed the quarry field for three years with an option to renew. It was expressly agreed that permission was given to them to install crusher screeners and conveyors and necessary equipment for the purpose of manufacturing stone . This provision clearly shows what was in the contemplation of the parties. Shale had been won from the field at irregular intervals over many years but Mr Murphy, I am quite satisfied, had in mind throughout these years that sometime commercial quarrying and the manufacture of stone would take place in the field. For this purpose the machinery mentioned in the memorandum was required. In addition, of course, substantial blasting operations would have to be undertaken so that the rock would be produced from which the stone could be manufactured. In relation to the rock which had been blasted in 1974 the parties agreed on a price at which it would be sold. In relation to the rock a royalty was fixed which Mr Murphy was to receive. It was also agreed that Mr Murphy could himself collect material which had been produced by Trading Services and he would pay Trading Services for this half the price he can buy anywhere else .
The first matter which arises for my consideration on this part of the case is the relationship created by the oral agreement to which I have referred. I am satisfied that the parties used the phrase lease in their agreement and that they intended that the occupation by Trading Services of the field would be an exclusive one. I conclude, that it was intended that the relationship of Landlord and Tenant would be created between the parties. No legal problem arises in relation to the liability of Trading Services once I have found that the operations carried on by them in the quarry field caused a nuisance; as occupiers of the field and creators of the nuisance they are liable. But is Mrs Murphy concurrently liable with them ? To answer this question, I should refer, briefly, to three decisions relating to the liability of a landlord for nuisance caused by the act of his tenant.
The leading case on the subject is Harris v James (1876) 45 LJQB 545. In that case the landlord let a field for the purpose of it being worked as a lime quarry. The ordinary way of getting limestone was by metres of blasting and the landlord authorised the quarrying of the stone and the erection of lime kilns in the field. A nuisance was caused to the adjoining occupier by the blasting and by the smoke from the kilns and he took proceedings against the tenant and the landlord. It was held that the landlord was liable. In the course of his judgment Blackburn J said:
There can be no doubt that where a person authorises and requires another to commit a nuisance he is liable for that nuisance; and if the authority be given in the shape of a lease he is not the less liable. I do not think when a person demises property he is to be taken to authorise all that the occupier may do In the present case, as I understand the averments, the field was let for the very purpose and object of being worked as a lime quarry and for erecting lime kilns and burning lime. When, then, it is stated as a fact that the injury complained of arose from the natural and necessary consequence of carrying out this object and as a result of lime getting and lime burning, then I think we must say that the landlord authorised the lime burning and the nuisance arising from it as being the necessary consequence of letting the field in the manner and with the objects described.
In this country Harris v James was followed by Overend J in Goldfarb v Williams and Company Ltd [1945] IR 433. This was a case in which Messrs Williams made a letting of the second floor of premises in Henry Street to the Trustees of a Social and Athletic Club. The landlords were aware that the club would use the premises inter alia for holding dances. The dances were conducted in a reasonable and normal manner but none the less noise was transmitted to the plaintiff s overhead premises. It was held that the landlords were liable in nuisance as they had authorised the nuisance which was inevitable if the premises were used as intended. In the course of his judgment Overend J stated at 445:
As between the club and their lessors I am of opinion that inasmuch as dancing was one of the purposes specifically mentioned during the negotiations, the club was entitled to use the premise for that purpose in a reasonable manner, notwithstanding the restrictive provision against causing nuisance or annoyance. I therefore think the lessors are responsible as having authorised such nuisance, which was inevitable if the premises were used as intended: Harris v James.
More recently, Harris v James was considered in England in Smith v Scott [1973] 1 Ch 314. One of the defendants was a local authority which had placed as tenants in the house adjoining that of the plaintiff a family known by the Corporation to be likely to cause a nuisance. The action against the Local Authority was dismissed, the vice-chancellor holding that the Corporation was not liable for a nuisance committed by their tenants for they had neither expressly nor impliedly authorised the nuisance. In the course of the judgment it was pointed out that the person to be sued in nuisance is the occupier of the property from which the nuisance emanated; that in general a landlord is not liable for nuisance committed by his tenant; but to this rule these is a recognised exception, namely that the landlord is liable if he authorised his tenant to commit the nuisance. It was stated at 391:
This exception has, in the reported cases, been rigidly confined to circumstances in which the nuisance has either been expressly authorised or is certain to result from the purposes for which the property is let I have used the word certain but certainty is obviously a very difficult matter to establish. It may be that, as one of the textbooks suggests, the proper test in this connection is virtual certainty which is another way of saying a very high degree of probability, but the authorities are not, I venture to think, altogether satisfactory in this respect.
I think that I should follow the formulation of the principle as stated in Harris v James. Accordingly, for the plaintiff to succeed in these present proceedings against Mrs Murphy I must firstly ascertain what was the purpose and object of the letting agreement with Trading Services (the creators of the nuisance) and secondly determine whether the injury complained of arose froth the natural and necessary consequence of carrying out that object.
Dealing firstly with the nuisance emanating from the quarry field (otherwise than from blasting) I am satisfied that the object and purpose of the agreement between Mr Murphy and Mr Daragh was that stone would be manufactured. For this purpose rock would be blasted and then crushed on the site into stones of a predetermined size. I am satisfied that it was contemplated that this operation would be carried out on a considerable scale and by the aid of heavy machinery and plant. The natural consequences of these contemplated operations were that nuisance resulting from the noise and nuisance arising from dust would be caused and I conclude that Mrs Murphy authorised these acts of nuisance by virtue of the agreement entered into on her behalf by Mr Michael Murphy.
As to the allegation of nuisance created by blasting, it seems to me that the natural consequence of carrying out the object of the agreement was that blasting would occur at regular intervals and on a substantial scale. I do not think that it was a natural consequence of what was contemplated that damage to property would result as the evidence satisfies me that blasting could be performed (by the use of delayed detonators) without causing physical damage to property. It follows that Mrs Murphy is not liable for the physical damage resulting from the explosion of 29 September and thereafter nor is she liable for the frightening experience by Mrs Patterson on that day. But in my judgment it was a natural consequence of blasting on the scale contemplated that a substantial nuisance to the plaintiffs enjoyment of their house would result by virtue of the noise, nervous strain and inconvenience thereby arising. For this aspect of the damage sustained by the plaintiffs from the nuisance from blasting Mrs Murphy is liable.
Nuisance arising from the use of the laneway is in a somewhat different position. No letting was made by Mrs Murphy of the laneway to Trading Services and the relationship of landlord and tenant did not exist between them in relation to it. But by implication a right of way was granted to Trading Services over the laneway in respect of their own and their customers lorries. It follows, therefore, that the acts of nuisance in relation to the lorries were authorised by Trading Services when they permitted the lorries to come to the quarry and take away loads of material. They were also authorised by Mrs Murphy in granting Trading Services a right of way for this purpose. Both defendants, therefore, are liable in so far its the nuisance arises from the user of the laneway.
The Plaintiffs Remedies
(a) Damages
I will now deal with the damages recoverable by the plaintiffs.
(i) Physical damage to property
The plaintiffs premises were damaged in the way I have described. Evidence has been given as to the cost of repairing the damage by Mr Stapelton. The total figure, including repairing the internal and external cracks and redecoration is 850. I approach the measure of damages by applying the principles set out by Finlay J in Munnelly v Calcon [1978] IR 387. In Munnelly the court was concerned with a claim arising from damage done to a house by the negligent removal of its support. One of the issues which had to be considered was whether damages should be based on the market value of the premises or on the cost of reinstatement. In the course of his judgment the learned President laid down certain general principles of law relating to the measure of damage when damage to property occurs. The following two are relevant to the present case:
1.The building of a building (as distinct from the owner of a chattel) is, when the building is damaged or destroyed by the tort of another, entitled by way of damages to the cost of repairing or restoring the building unless (a) the court is satisfied that he has not got a bona fide intention of restoring or rebuilding the premises, in which case he is entitled to the amount of the reduction in its value, or, if destroyed, its original value, less any salvage, or (b) the court is satisfied that for the plaintiff to repair or restore the building even though he might wish to do so, is a failure on his part to take reasonable steps to mitigate his loss in that there is available to him an alternative method of reasonably restoring him to the position in which he was before the damage or destruction which imposes a less onerous burden on the defendant;
3.Whilst the difference between the burden imposed upon the wrongdoer by a cost of repair or restoration and the alternative assessment on the basis of diminution in value or pre-accident market price is a factor, and an important factor, to be taken into consideration in arriving at a conclusion as to whether it is reasonable for the plaintiff to repair or rebuild, it is not a determining factor. If the court is satisfied that the only reasonable method of restoring the plaintiff s position is the repair or restoration required, if should not deny him that by reason even of a substantial difference between that cost and the cost of the alternative method of assessing his compensation.
Applying these principles to this case, I have come to the conclusion that it is not necessary for the plaintiff to repair the cracks described by Mr Purcell and that payment of damages based on the diminution in value of the house would adequately compensate them in respect of this injury. The diminution in value is obviously slight. No cause of action arises from the defect in the chimney. The plaintiffs are entitled to the cost of repairing the window and the cost of rebuilding the boundary wall. Whilst I have no direct figures as to the actual costs of these items I think I am entitled to measure a figure for them. Doing this and calculating the diminution in the value of the house I award a sum of 450 in respect of damage to property. This is payable by Trading Services alone to the plaintiffs as joint owners of the property.
(ii) Cost of alternative accommodation
The plaintiffs acted reasonably in seeking somewhere to live away from the nuisance of which they rightly complained. The rent of 90 per month which they had to pay is not an excessive one and this sum is recoverable from both defendants from 12 December last to the present time. I award 450 under this heading. I do not think that the costs of heating to which reference was made in the course of evidence has been established as a proper head of loss. The sum of 450 is payable by both defendants to the plaintiffs.
(iii) Further consequential plan
I accept Mr Patterson s evidence that he had intended to carry out extensive additions his home in the autumn of last year and I accept Mr Stapelton s evidence that the cost now of doing the same work has increased by 1,567. A question arises, however, as to whether this loss is recoverable from the defendants. I do not think that it was necessary to the plaintiff to have lived in the house when the additions were being made. Nor do I think that the nuisance was such as to prohibit Mr Stapelton s workmen from doing the work. Mr Patterson postponed the work, I am satisfied, because of the uncertainty arising about the plaintiffs future use of the house arising from the nuisance and these proceedings. As matter of law, is the loss which he thereby suffered recoverable from the defendants? It seems to me that it is not. The expenditure proposed could have been undertaken notwithstanding the infringement of the plaintiffs rights. The decision to postpone it was taken by the plaintiffs having regard to their own particular interest. But the plaintiffs must take reasonable steps to mitigate the loss to them resulting from the defendants wrong, and I do not think that a plaintiff can say to a defendant, in effect: I am entitled to damages and an injunction, but in case I am not, I am postponing the additions to my house; you, of course, must pay the extra costs arising from the postponement if I win my case. The loss which has resulted from the postponement of the expenditure in this case should in my view not fall on the defendants.
(iv) Mrs Patterson s damages
Mrs Patterson suffered a very frightening and an extremely upsetting experience as a result of the blast of 23 September. I measure the damages which she suffered as a result at 100. This is payable by Trading Services to her alone.
(v) General damages
General damages are payable to each of the plaintiffs separately for annoyance, discomfort, inconvenience and mental distress. In measuring the sum payable I have taken into account not just the conditions at Shillelagh Lodge from the summer of last year until the 12th December but also the fact that the plaintiffs had to move to rented accommodation with all the inconvenience thereby resulting. Whilst it may be that Mrs Patterson suffered more acutely than Mr Patterson from the nuisance it must be borne in mind that Mr Patterson had an additional strain associated with his professional career as he was most particularly affected by the lack of proper facilities for practice in the rented accommodation. I conclude that a sum of 500 should be paid to each under this general heading and that both defendants are jointly liable for these payments. I do not think that the plaintiffs condition described in the medical evidence is attributable to the tort complained of.
The amount of damages for which the defendants are jointly liable under paragraphs (ii) and (v) is 1,450. Cross notices have been served by each defendant on the other claiming a contribution or indemnity under the provisions of the Civil Liability Act 1961. I will consider these issues at a later part of this judgment. Before doing so I will consider the plaintiffs claim for relief by way of injunction.
(b) Injunction
The defendants have submitted that even if an infringement of the plaintiffs rights has been established the court has the discretion to award damages in lieu of an injunction and that it should do so in this case. I agree that relief by way of injunction is a discretionary remedy. There are, however, well established principles on which the court exercises this discretion. The relevant ones for the purposes of this case can be summarised as follows:
1.When an infringement of the plaintiff s right and a threatened further infringement to a material extent has been established the plaintiff is prima facie entitled to an injunction. There may be circumstances however, depriving the plaintiff of this prima facie right but generally speaking the plaintiff will only be deprived of an injunction in very exceptional circumstances.
2.If the injury to the plaintiffs rights is small, and is one capable of being estimated in money, and is one which can be adequately compensated by a small money payment, and if the case is one in which it would be oppressive to the defendant to grant an injunction, then these are circumstances in which damages in lieu of an injunction may be granted.
3.The conduct of the plaintiff may be such as to disentitle him to an injunction. The conduct of the defendant may be such as to disentitle him from seeking substitution of damages for an injunction.
4.The mere fact that a wrong-doer is able and willing to pay for the injury he has inflicted is not a ground for substituting damages. (See Shelfer v City of London Electric Company [1895] 1 Ch 287; and Kerr on Injunctions 6th Edition pp 656, 657)
I was referred to the judgment of Gannon J in Halpin v Tara Mines Ltd (unreported, 16 February 1976). It is however clear that that was a case in which an injunction was refused because of the improved working standards employed subsequent to the plaintiffs original complaint, and was not one of the substitution of damages for an injunction.
In the present case there are no circumstances which can deprive the plaintiffs of the relief to which they are prima facie entitled. The infringement of their rights is a most serious one; the injury which they have suffered and will suffer if the nuisance is permitted to continue has been and will be a considerable one; damages would not adequately compensate them. I should add that whilst I am conscious of the financial consequences for the defendants of the granting of an injunction I do not think bearing in mind that the sale to the plaintiffs took place at a time when Mr Murphy was aware of the possibility that quarrying operations in the adjoining field might take place, and bearing in mind that both defendants must have fully appreciated the great inconvenience to the plaintiffs which the quarrying operations would cause, that relief by way of an injunction could be termed oppressive.
In the course of counsel s submissions I was referred to Miller v Jackson [1977] I QB 966, a case in which the plaintiff claimed an injunction to stop the playing of cricket. I do not think this is an authority which helps the defendants in the present case. The three Judges of the Court of Appeal took different views of the matter before them. Cumming-Bruce LJ took the view that the defendants were liable in negligence and nuisance to the plaintiffs but considered an injunction should not be granted, quoting with approval the following passage from Spry on Equitable Remedies (1971 Ed p 365).
…Where the plaintiff has prima facie a right to specific relief the Court of Equity will if occasion should arise weigh the disadvantage or hardship which he will suffer if relief were refused against any hardship or disadvantage which should be caused to third persons or to the public generally if relief were granted.
He held (as did the Master of the Rolls) that it was in the public interest on the facts which he was considering that damages rather than an injunction should be granted. In the present case no question of any hardship or disadvantage to the public arises if an injunction is granted.
I will now turn to the defendants second line of defence on this part of the case; to their submission that an injunction should not issue because the nuisance can be, and will be remedied. It was clear from the evidence that serious consideration to remedial action was only given during the course of the hearing. It was unsupported by any professional opinion. As to the nuisance from noise from the quarry field, Mr Daragh proposed moving the crusher and screening plant about seventy yards further away from the plaintiffs house, lowering the hopper so that the distance which the material had to fall was reduced, putting rubber lining on the chute, and putting another silencer on the machine to reduce engine noise. I regret to say that I have no doubt that these measures would have at best only a marginal effect on the noise levels at the plaintiffs house and I accept Mr Tennyson s opinion in this regard that they would not abate the nuisance. I also accept his evidence on the proposals made to suppress the dust from the quarry field. Mr Magee, a director of a Northern Ireland firm specialising in this work, gave evidence about a dust control system marketed by his firm. The system was based on the use of water to which a chemical wetting agent is added. The water is sprayed on to the material by means of nozzles attached to the machines. Spraying on waste material can also be undertaken. Whilst the system he proposed might be of assistance in relieving the level of dust to which the operatives at the site are exposed, I do not think that it would adequately deal with the nuisance in this case. In Mr Tennyson s opinion (which I accept) the spraying techniques are not, in practice, satisfactory and in the present case would not be adequate to deal with the many sources from which dust escapes from the quarry field. As to the nuisance from the laneway, Mr Daragh said that access to the quarry could be obtained by another route. No evidence was given by the Murphys in this connection and I am not satisfied that such an alternative route is feasible or readily available. Even if it was, however, in the absence of any undertaking to discontinue the present use of the laneway a proposal of an alternative route does not disentitle the plaintiffs to an injunction in relation to the present user of the laneway. It follows that the plaintiffs are entitled to an injunction to stop the nuisance complained of. I will make no order at present for a mandatory injunction as sought in paragraph (d) of the last paragraph of the Statement of Claim, but give liberty to apply in relation to it.
Contribution between the Defendants
Each defendant has claimed against the other a contribution or indemnity under the Civil Liability Act 1961. By virtue of s 21 the amount of the contribution recoverable from a contributor is such as is just and equitable having regard to the degree of the contributor s fault, and the contribution to be recovered may amount to a complete indemnity of the other wrong-doer. The Supreme Court in Carroll v Clare County Council [1975] IR 221 considered the meaning of s 34 of the Civil Liability Act by which, in the case of contributory negligence, the damages recoverable by the plaintiff are to be reduced by such amount as the Court thinks just and equitable having regard to the degrees of fault of the plaintiff and the defendant . It seems to me that I should interpret s 21 of the Act in the same way as the Supreme Court interpreted s 34. In the course of his judgment in Carroll v Clare County Council Kenny J pointed out that s 34 did not require a reduction of damages by reference to degrees of negligence but by reference to degrees of fault and having referred to the Supreme Court s decision in O Sullivan v Dwyer [1971] IR 275 he said:
I think fault in s 34 of the Act of 1961 means a departure from a norm by a person who, as a result of such departure has been found to have been negligent and that degrees of fault expresses the extent of his departure from the standard of behaviour to be expected from a reasonable man or woman in the circumstances. The extent of that departure is not to be measured by moral considerations for to do so would introduce a subjective element white the true view is that the test is objective only. It is the blameworthiness by reference to what a reasonable man or woman would have done in the circumstances, of the contributions of the plaintiff and defendant to the happening of the accident which is to he the basis of the apportionment.
Following this test I should consider the blameworthiness of the contribution which each defendant made to the damages which the plaintiffs suffered by reason of the acts complained of – the test of blameworthiness being an objective one and applied by reference to what a reasonable man or woman would have done in the circumstances of the present case. Approaching the problem this way I conclude as follows. Trading Services actually committed the nuisance which emanated from the quarry field; they were in control of the operations and determined their intensity. Their s is the major share of fault. But Mrs Murphy authorised the nuisance (other than the nuisance resulting from the blast of the 29th September) and must bear some blame. Both defendants authorised the nuisance which emanated from the laneway but the major blame must again attach to Trading Services who were responsible for the actual level of the activities from which the various nuisances resulted. I think the justice of this case would be met if I apportion damages which are jointly payable by the defendants on the basis that Trading Services bear 75% of them and Mrs Murphy 25%.
Judgment will be entered accordingly on the findings I have made.
The Section 27 application
The plaintiffs have brought a Motion pursuant to the provisions of s 27 of the Local Government (Planning and Development) Act 1976 for an order prohibiting the operation being carried out in the quarry field. As I have already pointed out the evidence heard in the nuisance action was directed to be treated as evidence on the hearing of the Motion. The defendants have resisted the application on a number of grounds the first of which goes to the jurisdiction of the court to hear the application. Their submission is based on s 5 of the Act of 1963 which provides as follows:
5(1)If any question arises as to what in any particular case is or is not development or exempted development, the question shall be referred to and decided by the Minister.
(2)Where a decision is given under this section an appeal to the High Court from the decision may be taken at any time within the period of three months after the giving of the decisions or such longer period as the High Court may in any particular case allow.
The defendants contention is that the present application raises a question as to what … is or is not development ; that s 5 is mandatory and requires this question to be referred under the section to the Minister; that until the s 5 procedures have been adopted the court lacks jurisdiction to hear the application under s 27.
The procedures enacted by s 27 were new ones and a completely new jurisdiction was given to the High Court. On the face of the section no restriction on the courts jurisdiction appears. The defendants case is, however, based on the provisions of s 46(4) of the 1976 Act by virtue of which the 1976 Act and the 1963 Act are to be construed as one Act and claim the restriction becomes apparent when the two sections are read together. If the defendants are right then the effect of construing the two sections in the way suggested is that the efficient and expeditious machinery for stopping unauthorised development or use of land is not available in a case where a question arises as to what is or is not development or exempted development. In such cases the complainant (be it a Planning Authority or any other person) cannot avail of s 27 until the much slower and considerably more cumbersome procedures of a reference to An Bord Plean la (substituted for the Minister by the 1976 Act) followed, possibly, by an Appeal to the High Court has been exhausted.
I think it is highly unlikely that the Oireachtas intended to produce the anomalous situation which would result from this interpretation of the two sections and I am satisfied that they can be reasonably interpreted without producing such a result. The key to the problem lies in considering the scope of s 5 of the 1963 Act. There are two possible ways of interpreting that section. The first is to regard it as meaning that whenever and in whatever circumstances a question arises, whether under the 1963 Act or otherwise, as to what is or is not development that the question must be referred to the Minister. Take, for example, the case of two individuals who enter into an agreement to carry out a scheme of development which is expressed to be development within the meaning of the Act. If a dispute subsequently arose as to whether or not what was done amounted to such development this question would, on the construction I am now considering, have to be referred to the Minister. This, however, must be incorrect as it would mean that the legislature had intended that the Minister be appointed to arbitrate in every possible dispute, including disputes of a private nature – a construction which is manifestly wrong. The alternative construction, and I believe the correct one, is that s 5 means that if any question arises between a Planning Authority and another person in the course of the procedures established by the Act of 1963 as to what is or is not development then this question must be referred to the Minister. If this is the correct construction then s 5 of the 1963 Act cannot in any circumstances bar an application under s 27 of the 1976 Act. The 1976 Act applications are not part of the 1963 Act procedures, and as s 5 only refers to a question arising under the procedures established under the earlier Act, the courts jurisdiction under the later Act is untrammelled and it is free to consider, if required, a question as to what is or is not development . I reject, therefore, the submission that the court has no jurisdiction to determine the present application. In doing so I should make clear that I have not overlooked the judgments in Readymix (Eire) Ltd v Dublin County Council delivered in the Supreme Court on the 30th July 1974, and unreported. I do not think that they assist in the elucidation of the construction of the two sections I have been considering as they dealt with a case in which a reference had been made under the section by the Planning Authority and no question that the reference ousted the jurisdiction of the Court arose or could have arisen.
The respondents submission on the substance of the application is that, briefly put, no permission under the 1963 Act is required for what is being done in the quarry field, because the present development was commenced before the appointed day (which was 1 October 1964). Their submission involves an examination of the evidence relating to the user of the quarry field prior to 1 October 1964, but before making any findings of fact in this connection I should refer to the relevant sections of the two Acts by virtue of which the Courts power to make a prohibition order arises.
Turning firstly to s 27 itself it will be noted that it refers to two distinct and separate situations (a) where development is being carried out without permission and (b) where an unauthorised use is being made of land. For a definition of these terms it is necessary to refer back to the 1963 Act. It will then be seen that these words depend for their construction on the artificial meaning given to the word use by s 2 of the 1963 Act.
The consequences of that meaning were pointed out by Finlay J in In re Viscount Securities Ltd 112 ILTR 17. As it does not include, when used in relation to land, the carrying out of works on land, and as works includes any act or operation of excavation, it follows that it the user of a field is changed from, say, tillage to quarrying this does not amount to a change of use for the purposes of the 1963 Act. Such a change would, of course, amount to development as defined by s 3; it would come within the first limb of the definition, as it would constitute the carrying out of works on land. On the facts of the present case, therefore, it seems to me that because of this artificial definition it cannot be successfully contended that there has been an unauthorised use in relation to the quarry field, and the applicants claim under s 27 fails to be considered under subsection (1)(a) rather than under subsection (1)(b) of the section.
Considering the case, then, under the first part of subsection (1) I must be satisfied that development of land being development of which a permission under Part IV of the 1963 Act is required, is being carried on before I would be justified in making a prohibition order. The respondents admit that no permission of any sort has been obtained in respect of the present operations in the quarry field, and their case is that permission under Part IV of the 1963 Act is not required for what is now being done because under s 24(1) of the 1963 Act permission is not required for development commenced before the appointed day, and the present development was in fact commenced before that day. It is therefore of crucial importance to the issues which rise on this application to ascertain exactly what operations were carried out in the quarry field prior to the appointed day. When that has been done they can then be compared to the present day operations.
I am satisfied that from the evidence I have heard that I can reach the following conclusions. Before the appointed day Mr Murphy Sr had for some years drawn shale from the quarry field. As long ago as 1946 explosives were used to dislodge the material (an incident which was recalled by Mr Watkins, who as a young boy witnessed the blast), but apart from this one occasion no explosives were ever used in the field until 1974. There is definite evidence that in 1949 shale from the quarry field was used for the foundations of the Blue Gardenia public house, and that in 1962 shale was taken from the field for foundations for a roadway at a factory at Baldonnel. Mr Murphy senior employed a Mr Hudson in his business between 1963 and 1964, and I accept Mr Hudson s evidence that during this period he used a loading shovel in the quarry field from time to time to scrape off loose rock and to load it into lorries. But Mr Daragh, who also visited the field prior to 1964 satisfies me that the operations being carried on were primitive and haphazard. I conclude that the operations which were then being carried out amounted to development as defined in the 1963 Act; and I find that this development consisted in the loosening of shale with picks and bars, the scraping of portions of surface of the field with a mechanical shovel, and the loading of the shale into lorries with the help of a mechanical shovel. I find that these operations were carried out intermittently and on a small scale, and that they only constituted a small part of Mr Murphy s business as sand and gravel contractor.
The present operations differ materially from those carried on prior to 1 October 1964 I have reached this conclusion bearing in mind the following considerations. The object of the present operations is to produce a different product to that being produced in 1964. As stated in the parties agreement, the operations are designed to manufacture stone. The 4 inch stone now being produced is different to shale; it is used for a different purpose in the building industry, and it fetches a different price The method of production is different to that obtaining in and before 1964. The raw material (rock) for the end product is now obtained by means of blasting and this is done on a regular basis. Large crushing and screening plant is used to produce stones of the correct dimension. Considerable ancillary equipment is used and a considerable labour force employed. Finally, the scale of operations is now a substantial one, and bears no relationship to the scale of operations carried on prior to the appointed day. In England it has been held that an intensification of use may amount to a material change of use (see Guildford Rural District Council v Fortescue [1959] 2 QB 112, 125 and Brooks and Burton v Environment Secretary [1977] 1 WLR 1294, 1306). It seems to me that this concept is a correct one and that it applies whether the court is considering development under the second limb of the definition (ie material change of use) or under the first limb (ie the carrying out of works on land), which was commenced prior to the appointed day. So, if it appears that the scale of operations has so intensified as to render contemporary operations materially different from those carried on before the appointed day, this fact can be taken into account in considering whether what is presently being done commenced prior to 1 October 1964.
If present day development differs materially from the development being carried on prior to 1 October 1964. I do not think that it can be said that it was commenced prior to the appointed day. This is the situation in the present case. The development, I am now considering was in fact, not commenced until the summer of last year. Thus, it was and is development which requires permission under Part IV of the 1963 Act and in my opinion I should prohibit its use under s 27. I should add that if the case fell to be considered as one of development arising from the making of a material change in the use of land I would have reached the same conclusion.
Addendum
After I had delivered judgment in this matter and before the perfection of the order in it the Supreme Court delivered on the 5th May 1978 judgment in the appeal taken from the judgment of Finlay J in Munnelly v Calcon Ltd to which I had referred. Having considered the judgments delivered in the Supreme Court I am satisfied that it is not necessary for me to re-consider the views I expressed in relation to the damages recoverable for physical injury to the plaintiffs property.
Connolly v Radio Telefis Eireann
[1991] 2 IR 446
Carroll J: The plaintiff seeks an injunction to prevent RTE, from using film taken in December 1990, on the Stillorgan dual carriageway at a Garda checkpoint during the campaign at that time against drunken driving. It was first broadcast on the six o clock news and used again a few days later. The portion she objects to shows her car stopped and a guard talking to her as the driver although she cannot be seen. This is intercut with another shot of a woman driver being breathalysed and a voice-over saying this woman was just below the limit. The film shot on that occasion was used twice during the year and the third and fourth time it was used the footage shows a driver handing out a breathalyser from the car followed by a shot of the plaintiff standing at the rear of her car talking to a guard.
The plaintiff didn t see the transmission but was told about it by people who had seen she was on it. The plaintiff claims that the use of the shots of her on film intercut with breathalysing shots and the commentary about drunken driving is defamatory of her and she sought an undertaking from RTE that they would not use the film again. RTE replied that they have no intention at present of using the film but reserved the right to use it if they want to. The plaintiff is not identified on the film, her face does not appear and the registration number of her car does not appear. Also, since the film was shot at night it is relatively indistinct.
The defence of the case was on the ground that it is not defamatory and that the plaintiff is not identifiable. The argument for the plaintiff was based on the principle in Campus Oil v Minister for Industry and Energy (No 2) [1983] IR 88 namely, that if there is an issue to be tried, and damages are not an adequate remedy, the balance of convenience determines whether the injunction should issue. For RTE it was argued that the decision in Campus Oil v Minister for Industry and Energy (No 2) [1983] IR 88 does not apply and that the established law in defamation cases is that injunctions that to restrain defamation are very rarely granted and never if the defendant claims justification as a defence.
It seems to me that there is no reason why both principles cannot be applied together. So that in considering the balance of convenience, the court must take into account the right to freedom of expression balanced against the plaintiff s right to a good name and reputation in the light of the law on injunctive relief in defamation cases.
So, given that there is an issue to be tried and the fact that damages are not an adequate remedy for defamation, it comes down to the balance of convenience judged in the light of the case law. The plaintiff claims her reputation was injured and her constitutional right has been attacked, whereas RTE claims there is no defamation and that an injunction would operate to impose a far-reaching restraint on the type of material which they could otherwise legitimately use.
In my opinion the balance of convenience is in favour of not granting the injunction. Despite the plaintiff s fears, there is no immediate danger of using the footage and RTE, has promised to co-operate in bringing the matter to an early trial. It is preferable in the circumstances of this case that the alleged libel which is contested should be tried by a jury rather than that an injunction should issue.
Attorney General v Paperlink Ltd
[1984] ILRM 373
Costello J:
Introduction
Paperlink Ltd was established by the four other defendants in this action at the end of 1981 and has since then carried on a courier service in and around the city of Dublin. Mr Conliffe (the last named defendant) is no longer associated with the company and no relief is now claimed against him. Mr O Connell, Mr Brady, and Mr Drum are shareholders in and directors of Paperlink and the Minister for Posts and Telegraphs and the Attorney General claim against them and their company a declaration that the defendants by carrying on the business of collecting, receiving, forwarding, conveying, and delivering letters and packets are in breach of the provisions of the Post Office Acts 1908/1969 and they claim injunctions restraining them and their company from conveying letters or packets and other relief.
The Minister now enjoys certain privileges conferred of the Postmaster-General by the Post Office Act 1908 (see s 1(ix) of the eight part of the schedule to the Ministers and Secretaries Act 1924) and the plaintiffs claim that the defendants are now trading in breach of the statutory monopoly conferred on the Paymaster-General by that Act. The defendants say they are not and in addition maintain that the relevant provisions of the 1908 Act are unconstitutional. It will help to understand the issues to be resolved in these proceedings if I turn immediately to the relevant sections which fall for consideration.
The Minister s privileges with which this case is concerned are conferred by s 34(2) of the 1908 Act. By virtue of that sub-section the Minister now has, subject to certain exceptions to which I will refer in a moment:
the exclusive privilege of conveying from one place to another all letters … and shall also have the exclusive privilege of performing all the incidental services of receiving, collecting, sending, dispatching and delivering all letters …
It is important to contrast the statutory privilege given by s 34(2) with the statutory power given by sub-s (1) of the same section. The statutory power is one to establish posts and post offices and to collect and convey postal packets – a phrase defined as meaning a letter, post card, reply post card, newspaper, book packet, pattern or sample packet, or parcel and every packet or article transmissible by post and includes a telegram . The Minister s statutory privilege is however much more limited. It relates only to the conveyance of letters . By virtue of s 34(7) the term letter includes packets but nowhere in the Act is the word letter itself defined. The first defence raised in this case is that it has not been established that the defendants are conveying letters . The American authorities to which I have been referred do not greatly help in interpreting the meaning of letter in the 1908 Act, nor, curiously enough, do the dictionary definitions. What I must do is to give the word its ordinary meaning in everyday speech Without purporting to give an exhaustive definition it seems to me that as used in the 1908 Act a letter must include any communication, whether written or printed, by which the sender addresses himself in a personal way to the person with whom he wishes to communicate. This would mean that business communications such as invoices or cheques would not be letters , but that a document beginning and ending with a personal salutation probably is.
The second issue arises from an exemption clause in s 34. The exclusive privilege of conveying letters which this sub-section conferred on the Paymaster-General did not embrace, inter alia,
letters sent by a messenger on purpose concerning the private affairs of the sender or receiver thereof.
But this exemption (and the other five exceptions set out in s 34(2)) is itself subject to the following proviso:
but nothing herein contained shall authorise any person to make a collection of those excepted letters for the purpose of sending them in the manner thereby authorised.
The defendants submit that even if they are conveying letters (which they deny) then the letters are sent by messengers on purpose concerning the private affairs of the sender or the receiver and so are exempt letters and accordingly no breach of the Minister s monopoly has taken place.
The proper interpretation of s 34(2) has been the subject of some considerable debate and I think I should indicate here my conclusions on the matter. The section (a) grants an exclusive privilege to the Minister, but then (b) exempts from it certain letters ( excepted letters ) if sent in a certain way, and then (c) abolishes the exemption if a collection of excepted letters is made for the purpose of sending them in a manner authorised by the section. It seems to me that if the sender of a letter uses his own employee for the purpose of delivering it and if the letter concerns the private affairs of the sender or the receiver then it is an excepted letter. It is also an excepted letter if the sender employs an independent contractor (such as a courier firm) to act as his messenger provided the letter concerns his private affairs or the affairs of the recipient of the letter. But this exemption to the monopoly disappears if the messenger or courier makes a collection of excepted letter for the purpose set out in the proviso. The making of a collection within the meaning of the sub-section occurs, it seems to me, if and when a courier firm so conducts its business that it obtains letters for delivery from more than one sender at a time. I propose to examine the evidence in the case in the light of this interpretation of s 34(2).
The third issue which the defendants raised when they asked for a non-suit at the end of the plaintiffs case was the right of the Attorney General to maintain these proceedings. The Minister s monopoly is buttressed by two specific statutory sanctions. Firstly, if any person conveys a letter which is not an excepted letter or does certain specific acts incidental to the conveyance of letters or makes a collection of those excepted letters for the purpose of conveying them then he shall be liable on summary conviction to a fine not exceeding 5 for every letter (s 34(4)). Secondly if any person is in the practice of doing any of the said things (ie those acts prohibited by subsection 4) he shall forfeit for every week during which the practice is continued 100 (s 34(5)). This, it will be noted, is not a criminal sanction and it is expressly provided that a forfeiture or fine imposed by this section may be recovered by action in the High Court (s 70). The defendants submission is that the 1908 Act is a criminal statute and that the civil proceedings by the Attorney General are misconceived in the circumstances of this case. I indicated to counsel during the hearing that I did not accept this submission and I propose to defer explaining my reasons for this conclusion until after I have considered the plaintiffs claim and the defendants counterclaim.
The Plaintiffs Claim
The plaintiffs evidence relating to the operation of the Minister s monopoly was given by Mr Warren, the director of the postal unit in the Department of Posts and Telegraphs. He established that the postal service employs directly about 9,500 persons and indirectly under contract, approximately 2,000 sub-Postmasters. The postal service is a nation-wide one and the Department s policy is to provide a uniform service throughout the State, which means that the price charged for a letter is uniform notwithstanding the fact that in areas of high population density the cost of delivering each item of mail is appreciably less than in rural areas. His evidence established that in recent years there has been considerable growth of private courier firms and there are now about fifty of such firms in operation in different parts of the country. None of these firms operate in a nation-wide basis but are locally based and carry out deliveries in a limited area and not all infringe the Minister s monopoly. Because these firms are able to offer lower rates than those charged by the Department (benefiting as they do from delivering mail in areas of high population density) they have taken business from the Department s postal service. If the activities of these firms are not curtailed the Department would be forced to take steps to cut expenditure by, for example, reducing the number of their staff and/or to increase their charges. In relation to the services provided by Paperlink in the city of Dublin the Department did not provide a fast pick-up and delivery service as Paperlink does, nor does the Department provide a delivery service on Saturday which Paperlink provides. The activities of the defendants first came to the notice of the Department in January 1982 as a result of the delivery to the Department of envelopes which bore the Paperlink sticker. The first of these envelopes was marked private and confidential and was addressed to Mr OJ Fehily an assistant secretary in the Department. It was from a newly formed institute of accounting technicians. The communication was on headed notepaper and began Dear Sir . It then referred to an information brochure relating to the new institute and went on:
any of your staff who fit into one or other of these categories would find it greatly to their benefit to find out more about the new body.
The last paragraph went on: A poster is enclosed which I would ask you to display and the communication ended with the customary salutation Yours Sincerely which in turn was followed by a signature which had obviously been reproduced by some mechanical means and the printed name of the secretary of the institute.
There can be no doubt that this communication was a letter within the meaning of the Act.
In March 1982 an envelope was received by Mr Daniel J McCarthy, inspector of service of the postal branch, General Post Office. The envelope had the same Paperlink sticker affixed to it. Its contents were clearly an advertisement sheet and could not be regarded as a letter . A further envelope was obtained about this time addressed to the Bank of Ireland Finance Company. It was marked Private and Confidential . I am unaware of its contents but the envelope bore the Paperlink sticker.
As a result of the receipt of these documents enquiries were made about the Paperlink firm and it was ascertained that Paperlink Ltd had been registered as a company on the 16th December 1981. Investigations into the activities of the company were then carried out and following these the Minister s solicitor wrote on the 12th July 1982 stating that the defendants were acting in contravention of s 34 of the 1908 Act and requesting an assurance that the company would desist from offering the services it was then providing and threatening legal proceedings if the requested assurance was not forthcoming. Paperlink replied on the 13th July 1982. The letter arrived in the plaintiffs solicitors office in an envelope with the Paperlink sticker and the enclosed letters stated:
It is impossible for my company to consider complying with the request in the second paragraph of your letter since we do not know what you are alluding to in the first paragraph of your letter. When you are more specific we can consider the matter further.
On the 14th July the plaintiffs solicitor wrote enclosing a copy of s 34 of the 1908 Act and stating:
You will note from the provisions of this section the exclusive privileges to the Postmaster-General (now the Minister for Posts and Telegraphs) in relation to letters and packets.
I await the assurance sought by me in the second paragraph of my letter of the 12th inst which should reach me by the 22nd inst.
As there was no reply to this letter and no assurance was given by the defendants, their activities were again subject to investigation on the 1st December 1982 and thereafter, on the 13th December, these proceedings were instituted.
In addition to the three communications to which I have referred Mr Warren produced a large bundle of envelopes which had come into the possession of the Department since the beginning of 1982 and all of which bore the Paperlink sticker. The contents of some of these envelopes were available. The envelopes had either been delivered directly to the Department or had come into the postal system by one means or another, for example by being put into a post box when the addressee had left the address to which the envelope had originally been delivered.
An examination of these communications shows that a number of the contents of these envelopes can properly be regarded as letters within the meaning of the section. Whilst I have not been through them all in detail a random sample discloses a letter of 28 February 1983 from a Mr Kelly to the Department, a letter of 15 February from a firm called Foley Duffy and Co Ltd to the Minister, and two more letters of 16 February 1983 to the Department.
In addition the testimony of another officer of the Department established the delivery by Paperlink of a communication which can properly be regarded as a letter . This officer received an envelope bearing the Paperlink sticker addressed to him in his capacity as secretary of his local residents association. Its contents comprised a communication from a local radio station and was, in my opinion, a letter addressed to him from the sender of the communication.
I come now to the plaintiffs evidence relating to the defendants trading activities. The Department s first investigation took place on the 22nd April 1982. Mr Cullen, a member of the Department s investigation branch and Detective Sergeant Maguire went to 79 Lower Gardiner Street where by then Paperlink was carrying on business. There they met two of the directors of the company. After a proper caution had been administered one director, Mr Conliffe, made a written statement in which he stated Paperlink Ltd operates a courier service in Dublin and the greater Dublin area and added this is a full and accurate description of the business and there is nothing further I can add . Before this statement had been written Mr Conliffe had been shown a copy of the Department s post office guide which clearly set out that the Minister s monopoly relates to the conveyance of letters and packets but neither Mr Conliffe nor his co-director suggested that Paperlink was not involved in the conveyance of letters . In the room in which the defendants business was carried on Mr Cullen and Sergeant Maguire noticed about six employees at work and a number of wooden frames containing pigeon holes with envelopes in them. Mr Cullen also produced an advertising circular bearing the Paperlink name which gave the rates for its courier service in the Dublin area, rates considerably below those charged by the Department.
The second investigation which took place on the 1st December 1982 yielded further information. It is clear that by then the defendants business had considerably expanded. Sergeant Maguire and Mr Graham (another official from the Department s investigation branch) stood outside the Lower Gardiner Street premises for some hours during the morning. They observed a number of youths going into the premises carrying satchels which contained envelopes, some arriving on foot and some on motor cycles. A large lorry drew up and a man alighted carrying a bundle of envelopes in his hand. A van also arrived containing six large tin boxes. Sergeant Maguire observed the contents of these boxes and saw that they contained a large number of brown envelopes addressed to addresses in the Dublin Area. The boxes were subsequently carried into the premises with the help of the two men. In the afternoon of the same day between 2 and 3.45 Mr McNally (another Departmental official) saw twenty different youths enter the premises carrying satchels which contained a considerable number of envelopes.
At the close of the plaintiffs case I was satisfied that the evidence established that Paperlink was operating a courier service on a substantial scale, that this service involved the collection of envelopes from different parts of Dublin, their sorting in the company s Gardiner Street premises, and their subsequent delivery to addressees in Dublin and in the greater Dublin area. It was also established to my satisfaction that the courier service involved the delivery of envelopes which contained letters within the meaning of the 1908 Act. A prima facie breach of the 1908 Act had therefore in my opinion been established, and I refused the application for a non-suit.
After legal submissions the defendants then went into evidence. Mr Anthony O Connell, one of the founders and directors of Paperlink, gave evidence which in my opinion confirmed that a breach of the Minister s monopoly had taken place and was continuing. The firm s business began in Mr O Connell s home in Clontarf but after a couple of months it moved to rented accommodation in Gardiner Street. The business expanded considerably so that by October 1982 it employed approximately forty persons. Paperlink s service has been confined to the greater Dublin area but it delivered envelopes as far north as Baldoyle and as far south as Killiney. The firm has now approximately five hundred clients over ninety per cent of which are business firms, the balance being private persons. Clients may telephone and ask for a messenger to call to make a delivery but the more normal procedure is that a messenger from Paperlink calls on a regular daily basis to collect the clients documents and parcels. Envelopes are brought by messenger to the Gardiner Street premises where they are sorted and other messengers deliver the envelopes to the addressees. Labels are sold to customers who afix them to their envelopes.
Under cross-examination Mr O Connell identified a number of letters received from clients who were making complaints about the non-delivery of what these clients termed were letters . A letter of 2 July 1982 stated we are anxious to trace two non-delivered letters , and one of 9 July referred to the non-delivery of a specific letter, as did another communication of 19 August. Letters from clients to Paperlink dated the 21st September and the 26th November each complained about non-delivery of letters . The evidence, therefore, established quite clearly that the courier service operated by Paperlink involved the delivery of letters and that the company made a collection of letters within the meaning of the Act and so breached the Minister s monopoly. It would follow, therefore, that the plaintiffs would be entitled to the relief claimed unless the defendants plea that the statute was unconstitutional was to succeed. To their argument in support of this pleas and the course of the trial in relation to it I will now turn.
The Defendants Counterclaim
(a) The right to communicate
The constitutional attack on the 1908 Act is based on two distinct sets of rights which it is claimed the second, third and fourth named defendants enjoy by virtue of the Constitution. The claim, it is to be noted, is maintained by these defendants and not by Paperlink, it being accepted that the company has no constitutionally guaranteed personal rights on which to found a cause of action. The individual defendants, however, claim that they enjoy (a) rights to communicate and (b) to carry on a business which the 1908 Act infringes. I will deal with the claim to the (a) rights first.
It is pleaded in paragraph 2 of the counterclaim that the rights of citizens guaranteed by the Constitution include:
(a)the right of citizens to communicate freely with one another, and
(b)the right of citizens to communicate freely with one another without being obliged to have recourse to the State as the vehicle of such communication.
These rights, it is said, are derived from Article 40.3.1 which provides that:
the State guarantees in its laws to respect, and, as far as practicable by its laws, to defend and vindicate the personal rights of the citizen.
and it is claimed that those two rights, though unspecified in this Article, are personal rights of the citizen guaranteed by its provisions.
As to the assertion that there exists in the Constitution a right to communicate freely it seems to me that this submission fails to take into account the distinction between a personal right guaranteed by the Constitution and the freedom to exercise a constitutionally guaranteed personal right, a distinction which is to be found throughout the entire Constitution and which is made explicit for example, in Article 40.6.1 . I will, therefore, consider whether a right to communicate without the qualifying adverb freely is embraced by Article 40.3.1 . It seems to me that as the act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1 (i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1 .
But the right to communicate is obviously not an absolute one. Laws may restrict the nature of the matter communicated (for example, by prohibiting the communication of confidential information or treasonable, blasphemous, obscene or defamatory matter) and laws may also restrict the mode of communication (for example by prohibiting communication by advertisement contrary to the planning code or by radio contrary to wireless telegraphy regulations). It follows, therefore, that it is not correct, and indeed, can be seriously misleading, to suggest that the defendants enjoy a right to communicate freely . Along with other citizens they enjoy a right to communicate.
A constitution which guarantees personal rights imposes co-relative constitutional duties on the State. In the case of those protected by Article 40.3.1 the duty imposed on the State is to guarantee in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the right to communicate. Considering the 1908 Act from the point of view of the defendants as citizens wishing to communicate by letter I fail to see how the Act infringes their constitutional rights. The 1908 Act does not prohibit them from delivering a letter themselves nor from employing someone else to deliver it for them and in fact by making the provision for a nation-wide service for the delivery of letters facilitates the exercise of their rights. The Act, as has been pointed out, prohibits the activity of making a collection of letters for delivery to others but that prohibition does not in itself involve an interference with the citizen s right to communicate (whether it interferes with a right to do business is a question for separate consideration). Neither the enactment itself nor its mode of operation infringes in any way the basic right to communicate which the defendants enjoy.
But the defendants plead that along with other citizens they have another right, viz, a right to communicate freely with one another without being obliged to have recourse to the State as the vehicle of such communication. This right, it is said, is one of the unspecified rights accorded to them by Article 40.3.1 . I am unable to agree. I cannot see that such a right inheres in the human personality. Nor is it a right which can be derived from any of the other provisions of the Constitution. It was argued that citizens may want to communicate by letter to other citizens on political matters and that they should not be beholden to the State for the provision of a postal service, but I fail to see how the political rights which citizens enjoy under the Constitution require to be protected by the right now being asserted. It was also argued that constitutionally guaranteed family rights could be interfered with unless the right now being considered existed. But here again I can find nothing in the holding that there existed in Article 40.3.1 the personal right now being considered. It does not, in my opinion, exist and so no question of its infringement by the 1908 Act can arise. So this part of the attack on the Act fails.
(b) The right to earn a livelihood
I now must consider the defendants as citizens wishing to carry on a business as couriers and unable to do so because of the 1908 Act.
The plaintiffs have raised a preliminary objection to this part of the defendants counterclaim. They point to the elementary principle of company law that a company is a legal entity distinct from its shareholders and that the relationship of principal and agent does not exist between the company and its shareholders so that it cannot be said that a company is carrying on business on behalf of its shareholders (see Salomon v Salomon & Co [1897] AC p 20). They argue that the defendants case is based on the alleged interference in the business of Paperlink affected by the 1908 Act and submit that as Paperlink is a distinct legal entity and as the defendants as shareholders are not themselves carrying on any business so no interference with constitutional rights resulting from the 1908 Act is established.
Counsel for the plaintiffs drew my attention to (and then sought to distinguish) a recent decision of the Supreme Court (The Private Motorist Provident Society & Moore v Attorney General [1984] ILRM 88). The first-named plaintiff in that case was a society registered under the Industrial and Provident Societies Acts and the second-named plaintiff was a shareholder in and a member of the society. The proceedings concerned the constitutional validity of the Industrial and Provident Societies (Amendment) Act 1978 which prohibited societies like the plaintiffs from accepting or holding deposits after the expiration of five years from a specified date. It was alleged that the Act constituted:
(a)an unjust attack on the second-named plaintiff s constitutionally guaranteed property rights and
(b)his constitutionally guaranteed freedom of association.
The Supreme Court held that as a shareholder the second-named plaintiff to the extent of his investment in the society and contractual rights therefrom had property rights which were capable of being harmed by injury to the society and it rejected a preliminary submission that the second-named plaintiff had no property rights capable of being invoked for the purposes of Article 40.3 of the Constitution.
But the point in issue in the PMPA case is not the same as that in the instant case. In the PMPA case the plaintiff asserted that his constitutionally guaranteed property rights were being infringed – here the infringement alleged is that of a constitutionally guaranteed right to earn a livelihood. It would, no doubt, have been open to the defendants to have pleaded, as did the second-named plaintiff in the PMPA case, that their property rights as shareholders in Paperlink have been invalidly infringed by the unconstitutional interference with the business of Paperlink. But I do not think that their failure to rely on this argument means that their claim must fail. If the defendants have a constitutional right to earn a livelihood (as I believe they have) they can properly claim that they are exercising this right by becoming shareholders and directors in a private company. If the defendants bought shares in Messrs Guinness A Son & Co Ltd it could not be said that they were carrying on business as brewers. But if they are actively engaged in a business carried on by a private company of which they are shareholders and directors then they are not merely investors in a company but are exercising a constitutional right to earn a livelihood by means of a company.
The defendants have maintained that they have a constitutionally guaranteed right to carry on a business derived from the private property provisions of the Constitution and Article 40.3.1 . There is no doubt that the defendants have a constitutional right to earn a livelihood. It was at one time considered that the right to work could be regarded as a property right (Brendan Dunne Ltd v Fitzpatrick [1958] IR 29) but in the light of more recent constitutional development it seems to me to be more proper to regard the right to earn a livelihood (which can be regarded as synonymous with the right to work) as one derived from Article 40.3.1 , rather than from the property rights guaranteed in the Constitution (see Murphy v Stewart [1973] IR 92). As the Supreme Court has shown, the exercise by the citizen of his right to private property is regulated by Article 40.3.2 and not by Article 43 (see Blake & Ors v AG [1981] ILRM 34). And so if the right to earn a livelihood is derived from property rights it would have been to this Article that attention should be drawn. But, for reasons I will give in a moment there is, it seems to me, no difference in the protection afforded to the unspecified rights referred to in Article 40.3.1 to the protection granted to the specified personal rights referred to in Article 40.3.2 .
The right to earn a livelihood which all citizens enjoy by virtue of the Constitution is a right which in practice in modern industrial societies can be exercised in one of a myriad of different ways. It seems to me to be inaccurate and potentially confusing to state without qualification that each citizen has the constitutional right to carry on the occupation in which he is actually earning his living. The defendants like all citizens have a constitutional right to earn a living; they may choose to exercise that right by doing manual work or non-manual work, by entering a profession or by entering employment, by engaging in commerce (either alone or with others), by manufacturing goods, providing a service, or engaging in agriculture. Their freedom to exercise this constitutional right is not an absolute one, however, and it may be subject to legitimate legal restraints. The nub of the issue, therefore, is whether the 1908 Act invalidly restricts the defendants freedom to exercise their constitutional right to earn a livelihood.
The defendants challenge to the Act depended partly on a construction of the Constitution and partly on certain facts which they sought to establish by means of expert evidence. Before examining their submissions in detail I should briefly refer to the course of events at the trial. I ruled at the outset of this case that the plaintiffs should present such evidence as they thought fit in support of the relief claimed in their statement of claim but that it was not necessary for them to call evidence at that stage in rebuttal of the defendants counterclaim; that at the conclusion of the plaintiffs case the defendants would be at liberty to adduce evidence both in answer to the plaintiffs claim and in support of their counterclaim; and that the plaintiffs, if they so wished, could then call evidence in rebuttal of the counterclaim. In the course of the cross-examination of the plaintiffs principal witness. Mr Warren, questions were put to him designed to establish that the postal service operated by the department was inefficient and that its administration was defective. I decided to allow these questions on a de bene esse basis and I did not then know the basis on which it was claimed such questions were relevant and I did not wish to interrupt the cross-examination to hear what obviously would be lengthy legal argument. It was made clear, however, at the close of the plaintiffs case that the efficiency of the departments postal service was not an issue in defence of the plaintiffs claim but was, it was said, a matter relevant to the defendant s counterclaim. Having made submissions at some length in support of the defendants counterclaim counsel then called Mr O Connell one of the founders and current directors of Paperlink to whose evidence I have already referred. At the conclusion of his evidence I was then informed that the defendants wished to called as witnesses two economists and two accountants. I was told the nature of the evidence it was proposed they would give. I ruled that their evidence was inadmissible. When expressing my conclusions on the legal arguments to which I will now refer I will explain the basis for this ruling.
As I have said, the defendants suggested that the right to carry on a business was derived partly from the property rights referred to in Article 40.3.2 and partly from the personal rights referred to in Article 40.3.1 . I have already pointed out that in my view the correct approach is to start from the proposition that the defendants have a right to earn a livelihood derived from Article 40.3.1 . Referring to the particular phraseology of Article 40.3.2 it was urged on the defendants behalf that the State is required by its laws to protect as best it may from unjust attack the property rights of any citizen and that for the purpose of considering whether or not there has been an unjust attack the notice of justice in the Article should be informed and guided by the provisions of Article 45 which sets out the directive principles of social policy.
I should explain at once that I do not think these submissions necessarily fail because the defendants right to earn a livelihood are derived from Article 40.3.1 rather than Article 40.3.2 .
The Constitution is a political instrument as well as a legal document and in its interpretation the courts should not place the same significance on differences of language used in two succeeding sub-paragraphs as would, for example be placed on differently drafted sub-sections of a Finance Act. A purposive, rather than a strictly literal, approach to the interpretation of the sub-paragraphs is appropriate. I do not, therefore, think that any significance should be attached to the fact that the State s duty towards the citizens unspecified personal rights in Article 40.3.1 is phrased in somewhat different language to its duty towards the citizens specified personal rights set out in Article 40.3.2 . Accordingly, I am prepared to hold that the State has a duty by its laws to protect as best it may from unjust attack the personal right of each of the defendants to earn a livelihood.
What then falls for consideration is whether the State monopoly established by the 1908 Act is (a) an attack on the defendants right to earn a livelihood and (b) whether it is an unjust attack on that right. As the defendants submissions are largely based on conclusions which they say can be drawn from Article 45 the first matter which I must consider is whether I am permitted to have regard to this Article for the purposes of this case. Article 45 has an introductory paragraph which states that the principles of social policy set forth in it are intended for the general guidance of the Oireachtas and that the application of those principles in the making of laws shall be the care of the Oireachtas exclusively and shall not be cognisable by any court under any of the provisions of this Constitution . Notwithstanding the apparently all-embracing exclusion of Article 45 from the purview of the courts Kenny J considered that he could have regard to it for the purpose of ascertaining what unspecified personal rights were included in the guarantees contained in Article 40.3.1 (see Murtagh Properties v AG [1972] IR 335) and Finlay J held that he could look at Article 45.4.2 for the purpose of reaching a general conclusion as to what may fairly be embraced by the expression the exigencies of the common good , – a phrase used in Article 43 in connection with the State s power to delimit the exercise of private property rights (see Landers v AG 109 ILTR 16). I respectfully agree. I consider therefore, that I am not precluded by the introductory words of the Article from considering the principles of social policy set out in it for a limited purpose, namely, for assisting the court in ascertaining what personal rights are included in the guarantees contained in Article 40.3.1 and what legitimate limitations in the interests of the common good the State may impose on such rights.
The defendants arguments are based on Article 45.3.1 which provides that:
The State shall favour and, where necessary, supplement private initiative in industry and commerce.
It is urged that this principle of social policy means that the Constitution contains an ideological preference in favour of private enterprise and private initiative in commerce. The first conclusion they say to be drawn from this interpretation is that the onus is on the State to justify any interference with private initiative in matters of commerce. Having made this submission in opening the defendants case the defendants counsel at the close of the case submitted that as the plaintiffs had failed to discharge the onus on them of justifying the State monopoly contained in the 1908 Act the court should declare the Act inconsistent with the Constitution. There are, it seems to me, two main objections to the first submission.
Firstly, the defendants are, in my view, reading a great deal more into the Article than its provisions justify. Article 45 contains provisions to guide the legislature in its law-making activity and by Article 45.3.1 the Oireachtas is told that the State is required to favour and where necessary supplement private initiative in industry and commerce. This guideline is couched in most general language. Undoubtedly it demonstrates a view, found in other Articles of the Constitution, that the social order should not be based on a system in which all the means of production are owned by the State and a preference for one in which, in the main, industry and commerce are carried on by private citizens rather than by State agencies. But it does not follow from this very general guideline that the Oireachtas could not pass laws establishing State trading corporations or public utilities and I do not consider that it is proper to infer from its provision that the State is called upon in legal proceedings to justify the existence of a State monopoly either in the form of a public utility or a trading corporation.
Secondly, the submission that the onus of proof rests on the plaintiffs ignores the views of the Supreme Court as explained by the Chief Justice in Norris v AG Supreme Court 1980 No 278. In that case the court was considering a pre-1937 statute of the United Kingdom parliament. In his judgment the Chief Justice, having quoted Article 50 of the Constitution, pointed out that the purpose of the Article was to continue in force the laws which had previously operated in Saorst t ireann with as few exceptions as possible and he pointed out:
According to the actual words used in the Article, the law or laws in question operate unless inconsistency is established and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not. Each such law must be examined to see what it purports to authorise or permit. If on such examination it emerges that the law permits that the Constitution prohibits or forbids what the Constitution sanctions, then inconsistency is established, and to the extent thereof the law would be declared to have ceased to have effect on the coming into operation of the Constitution. (See pages 9-10).
Inconsistency with the constitution of a pre-1937 statute can be shown to arise from either:
(a)the provisions of the impugned statute or
(b)its mode of application.
The onus is on a counterclaiming defendant to establish either (a) or (b) and there is no onus placed on the Attorney General to adduce evidence to show that the impugned statute is being administered in a constitutional way.
I come then to the substantive part of the defendants argument. The defendants it is said wish to exercise their rights to earn a livelihood by carrying on a courier service. They cannot do so because of the State s monopoly. This monopoly restricts their constitutional rights and it must be shown that this restriction exists for some constitutionally justifiable purpose. The monopoly cannot be justified for reasons of State security. That leaves the economic arguments for its justification. The defendants, it was said, would show by expert evidence how in practice the monopoly was being administered in an inefficient manner and secondly that the advantages which were claimed for the present monopoly would be achieved by a different method of organising the postal service and one which would be less offensive to the defendants rights; in effect, one which would allow a courier service to be conducted by them. Because the monopoly was administered inefficiently and because it was possible to organise one less restrictive of the defendants rights the attack on these rights was unjust . To establish this case it was proposed to call two economists and two accountants to show:
(a)that the level of wages paid by the department to its employees had increased at a rate higher than the cost of living,
(b)that overnight money had not properly been invested so as to establish a maximum return,
(c)that the accounting system was a bad one,
(d)that no accounts had been published since the year 1979,
(e)that no provision was made in the accounts for the department s 2,000 vehicles,
(f)that the Auditor and Comptroller General had criticised the department s accounts for several years past,
(g)that the receipts from the postal services of other countries (paid to the department for handling mail from foreign countries) were less than the sums the department paid to foreign postal services, an inbalance not justified by the inward and outward movement of mail and
(h)that to achieve a national post system and a proper service in rural areas, a state monopoly in the terms of the 1908 Act was unnecessary.
I ruled that the evidence which the defendants proposed to adduce was inadmissible for the following reasons. As to the evidence relating to the alleged inefficiency in the administration of the postal service, it seemed to me that the legal submissions based on the proposed evidence were unsound. Obviously, it is not in the public interest that the service supplied by a department of State is administered inefficiently. But this does not mean that the Act under which it is supplied is unconstitutional. The inefficiency of a public service may be an argument for amending or repealing the Act under which it is provided, but it cannot mean that the provisions of a statute are thereby rendered unconstitutional. If a defendant wishes to establish constitutional invalidity from the manner in which a statute is operated, then it must be shown that in some way it conflicts with the Constitution, for example by an invalid interference with guaranteed personal rights. But even if it was shown that the post office was not being administered in an efficient manner it would not follow from this that any of the defendants rights were being infringed. The proposed evidence, therefore, was irrelevant to any issue which I had to determine.
As to the submission that there were ways in which a national postal service could be organised which could achieve the objects of the present service without interfering with the defendants courier service at Dublin and that I should hear evidence by expert economists on this point it seemed to me that it would be wholly improper for me to do so as it would involve the court in an unconstitutional departure from its role as laid down in the Constitution. This court is required to administer justice. In doing so it may, of course, hear evidence which would tend to establish that the operation of a statute unconstitutionally infringed a citizen s right to earn a livelihood. But that is not what the defendants are asking the court to do. They seek to adduce expert evidence for the purpose of establishing (presumably contrary to the views of any expert evidence which the plaintiffs might call in rebuttal) that the national postal service could be so organised as to provide the benefits of the present national system whilst at the same time permitting the defendants to operate in Dublin their courier service. They then submit that in the light of that evidence I should hold that the 1908 Act is unconstitutional because by changing the law or amending the statute in the way suggested the restriction on the defendants right to earn a livelihood could be raised. But this court is not the forum in which to decide whether a postal service organised on lines advocated by the defendants experts is one which meets the requirements of the common good. These are matters for the Oireachtas to determine. I must, of course, defend the citizens rights against any unjust attack, and hold, if necessary, that an existing law has placed an excessive limit on the citizens right to earn a livelihood. But to carry out the inquiry which the defendants ask me to perform and, thereafter, make a determination on an alternative to the existing postal service, would amount to an unwarranted and unconstitutional interference with the powers of government exclusively conferred on the executive and the Oireachtas, a point strikingly illustrated by the fact that as this case was at hearing the D il was itself considering a Bill to establish a different method of organising the postal system to that contained in the 1908 Act. Just as the courts must not permit the legislature to interfere with the judicial function, so too they must be astute to see that they do not themselves depart from their constitutionally defined role.
So, I disallowed the evidence. And as the defendants have been unable to establish that the 1908 Act is inconsistent with the Constitution I must dismiss their counterclaim.
The Right of the plaintiffs to relief
I come now in conclusion, to explain why the Attorney General is entitled to the relief he claims.
It was made clear when counsel opened the plaintiffs case that this was not a relator action in which the Attorney General was suing on the relation of the Minister as the person entitled to the exclusive privilege conferred by the 1908 Act. This, it was said, is an action which the Attorney General has brought ex officio as guardian of public rights. I heard arguments on the defendants behalf at the close of the plaintiffs case to the effect that these proceedings were misconceived. Having considered them I indicated that I could not accede to them and I will give my reasons for this conclusion now. Before doing so, however, I should record that at the end of the case during counsel s closing submissions it was submitted on the plaintiffs behalf that apart from an independent right of the Attorney General to maintain these proceedings in the public interest the facts had established that a civil wrong had been committed and that the Minister in his own right had a right to protect the exclusive privilege given to him by the Act. I made no ruling on this point, save to indicate that I did not consider that the plaintiffs were estopped from making it. I should make clear, however, that the issue which I had been asked to determine (and did so in the plaintiffs favour) was the Attorney General s right to the relief claimed and that had I decided this point against the plaintiffs I would have dismissed the case as the alternative argument had not then been advanced.
In opening the plaintiffs case counsel referred to certain passages in Halsbury s Laws of England (4th Ed, Vol 24 paras 1030 and 1031) in which it was stated that when an illegal act which affects the public is committed or threatened the court has jurisdiction to grant an injunction at the suit of the Attorney General; that the public is concerned to see that Acts of parliament are observed; and that the court has jurisdiction to grant an injunction even though the right was conferred by a statute which prescribed criminal sanctions for its enforcement.
Mr Gleeson, on the defendants behalf, submitted at the close of the plaintiffs case that the remedy now being sought by the plaintiffs was unconstitutional and furthermore that the courts had no jurisdiction in equity to grant the relief claimed. The argument proceeded as follows. It was said that the proceedings amounted to an unprecedented attempt to make a finding of criminal guilt in civil proceedings and that such a course of action infringed Article 31.1 of the Constitution which provides that no person shall be tried on any criminal charges save in due course of law. The State, it was urged, had ignored the criminal remedies available to it and had opted instead for declaratory and injunctive relief. To obtain this relief the State was required to establish that criminal code and opt for a trial in a civil action in which the level of proof is different. Counsel referred to the three English cases relied on by the plaintiffs (AG v Sharp [1931] 1 Ch 121 and AG v Premier Line Ltd [1932] 1 Ch 303 and AG v Harris [1961] 1 QB 74), and pointed out that in each of these cases criminal prosecutions had been instituted before the Attorney General had applied to the High Court for relief by way of injunction. It was conceded that in certain circumstances the Attorney General can apply for an injunction to restrain a breach of statute but it was urged that when a criminal sanction is contained in the statute the application can only be brought after it has been shown that the criminal proceedings have been ineffective.
I was also referred to the recent decision in the High Court in Campus Oil Ltd v AG [1984] ILRM 45. This was a case in which the Attorney General applied for an interlocutory order to restrain the plaintiffs from failing to comply with the provisions of the Fuels (Petroleum Oils) Order 1983 which had been made under the provisions of s 2 of the Fuels (Control of Supplies) Act 1971. In that case an injunction was granted on the application of the Attorney General notwithstanding the fact that breaches of the statutory order involved criminal sanctions under the 1971 Act. Counsel, however, maintained that the plaintiffs in that case had not argued that the penalty provisions of the 1971 Act were a bar to the relief claimed by the Attorney General and so it is not authority to justify the court granting relief in the present case.
The rule of the Attorney General as guardian of the public interest has, I think, been correctly stated by Professor Casey in The Office of the Attorney General in Ireland at page 149 where he writes:
It is possible (for the Attorney General) to obtain an injunction to restrain someone from acting in breach of a statutory provision even where his action constitutes an offence.
The authority quoted for this statement is the Attorney General (O Duffy) v Mr Appleton, Surgeon Dentist, Ltd [1907] 1 IR 252. This was a relator action in which the Irish branch of the British Dental Association alleged that a company had been formed for fraudulent purposes contrary to the Dentists Act 1878 and it was held that the Attorney General suing in the public interest was entitled to an injunction. In the course of his judgment the Master of the Rolls said:
The only real difficulty that has occurred to me in this case was that of jurisdiction. This is a new offence. There is a remedy provided under the Dentists Act – that is, by prosecution of the offender in a court of summary jurisdiction. Generally speaking, where there is a new offence the remedy given by the statute creating the offence is exclusive. But the existence of a power to sue for penalties does not of itself prevent the interference of the Attorney General seeking an injunction in the interests of the public by way of information. The public interests are committed to the care of the Attorney General, as representing the Crown, and in that way he represents the public (p 257).
The more recent authorities in England do not, in my view, alter the legal situation I have just quoted. Whilst undoubtedly there are differences between the roles and functions of the Attorney General in this country and those of the Attorney General of England and Wales none the less assistance can be found in recent English authorities in determining (a) the jurisdiction of the courts to entertain an application for an injunction at the suit of the Attorney General when breaches of statute have been established and (b) the exercise of the court s jurisdiction in such circumstances – decisions which do not conflict with the earlier Irish authority I have quoted. Firstly, I accept as correct the following general principle:
Whenever parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless, the High Court always has a reserve power to enforce the law so enacted by way of an injunction or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do.
Per Lord Denning MR AG v Chaudry [1971] 1 WLR 1614, 1624.
Secondly, the Attorney General as part of his general power to enforce in the public interest public rights has the right ex officio to apply for an injunction to restrain breaches of statute, even when the statute prescribes other remedies, including criminal sanction.
Thirdly, whilst the High Court has jurisdiction to grant an injunction in the circumstances just outlined the jurisdiction should only be exercised in exceptional cases (see Gouriet v UPW [1978] AC 435).
Fourthly, in deciding whether to exercise its jurisdiction the court will consider the adequacy of the alternative statutory remedy. If satisfied that these alternative remedies are inadequate then the court can properly grant relief by way of injunction. In deciding on the adequacy of the alternative remedies, however, the court must look at all the circumstances of the case and the fact that a criminal prosecution has not been brought does not in itself preclude the court from granting an injunction.
I have come to the conclusion that this is a case in which the Attorney General has established that there are exceptional circumstances and that it is one in which it would be just and convenient to grant the remedies sought. Counsel has informed me that the reason why these proceedings were instituted was that it was considered that the penalties imposed by the Act were totally inadequate and that criminal sanctions would be wholly ineffective to remedy the situation. I have no reason to disagree with the conclusions which the Attorney General had reached. A criminal offence is created by s 34(4) of the 1908 Act which provides that if a person conveys a letter or makes a collection of excepted letters for the purpose of conveying them by post or otherwise he is liable to be fined a sum not exceeding 5 for every letter. This fine was established three-quarters of a century ago and it seems to me to be totally inadequate to meet the circumstances of the present case. It seems to me that it was unnecessary for the Attorney General to consider requesting the Director of Public Prosecutions to institute criminal proceedings and then to await to see whether if successful the defendant company would pay the fine and desist trading. It was reasonable for him to assume that in this case the deterrent effect of the sub-section was in fact negligible and so it seems to me reasonable for the court to exercise its discretion in the plaintiffs favour.
There is, however, another reason peculiar to the particular provisions of the 1908 Act which clearly establishes the right of the Attorney General to apply for equitable relief and justifies the court in granting it. The 1908 Act contains two different sanctions, a criminal one and also a civil remedy. s 34(5) provides that if any person is in the practice of doing any of the acts prohibited by sub-section (4) then he shall forfeit for every week during which the practice continues 100. Section 70 provides that the fine or forfeiture imposed by the Act may be recovered by an action in the High Court. Thus the statutory remedy for breach of the Minister s exclusive privilege is not one confined to the criminal courts and the defendants cannot complain that it is unjust that the issues in dispute between them and the Minister should be tried in a Civil Court where the onus of proof is different to that in a criminal court. Here the dispute could have been determined in a civil court if the Minister had chosen to institute proceedings in the High Court to recover the fine and/or the forfeiture to which I have referred. If the civil remedy is ineffective then there can be no objection to the Attorney General exercising in the public interest his right to apply to stop the statutory breaches by means of a High Court injunction and there is no reason why the court should not exercise its discretion and prohibit the continued breaches of the law which the evidence shows is taking place.
Once it is clear that the courts have jurisdiction to grant an injunction even in cases where criminal sanctions exist in respect of the acts complained of then no constitutional impropriety is involved if it exercises that jurisdiction as requested. The courts are not then trying a criminal charge within the meaning of Article 38 of the Constitution but are merely exercising a distinct and different jurisdiction in civil proceedings.
There will be a declaration and an injunction in the forms set out in paragraphs 12(a) and (b) of the statement of claim except that the word packet will not form part of the declaration or the injunction as the delivery of packets has not been established.
Nutgrove Sand and Gravel Ltd. v Sherlock & ors
[2018] IEHC 621 (14 November 2018)
JUDGMENT of Mr. Justice David Keane delivered on the 2nd November 2018
Introduction
1. In this plenary action, Nutgrove Sand and Gravel Limited (‘Nutgrove’), a quarry operating company, claims for breach of agreement against James Sherlock, an owner of quarry lands, who denies that claim and counterclaims for breach of agreement against Sean Wisely and John Wisely (‘Mr Wisely Jnr’), a father and son (together, ‘the Wiselys’) who are directors of Nutgrove. Further, Nutgrove seeks the attachment and committal to prison of Mr Sherlock for deliberate breach of an interlocutory order already made in the proceedings on 2 July 2015 by Gilligan J.
The conflicting claims
i. Nutgrove’s claim
2. Nutgrove advances the following case.
3. In April 2005, Mr Sherlock agreed to allow it to develop and operate a limestone quarry on lands described as ‘the old quarry lands’ at Kilmainham, Mountmellick, County Laois. Mr Sherlock represented himself as the owner of those lands and, indeed, confirmed that was so in a letter, dated 9 January 2006, that he wrote to Laois County Council (‘the Council’). Nutgrove duly expended a significant sum of money in the preparation and submission of an application for planning permission for the development of a quarry there, with the knowledge and consent of Mr Sherlock. Only when that application for planning permission was opposed by Mr Sherlock’s brother did Nutgrove become aware that the old quarry lands still formed part of the unadministered estate of Mr Sherlock’s deceased father (also James Sherlock), who had died intestate in 1972. Nutgrove then withdrew that application for planning permission on 17 January 2007, having incurred significant losses.
4. Undeterred, Nutgrove entered into a further agreement with Mr Sherlock in November 2007, whereby it obtained the exclusive right to quarry limestone rock on certain adjoining lands to the south, referred to in these proceedings as ‘the lower field’, directly owned by Mr Sherlock. Nutgrove was to apply for planning permission and, should it be obtained, to develop and operate the quarry. Nutgrove was to pay Mr Sherlock €20 per load of saleable limestone rock extracted from the quarry for the life of the quarry or the duration of the planning permission; whichever occurred sooner. Mr Sherlock was to have the right to extract stone and gravel from the quarry for his own personal use. Nutgrove was to make aggregate payments to Mr Sherlock in accordance with the agreement in the first week of every month.
5. Nutgrove expended considerable time, effort and money in applying for, and obtaining, planning permission, and in developing the quarry. Planning permission was granted on 20 January 2009. By the beginning of 2012, Nutgrove had spent in excess of €134,000 to that end.
6. From September 2011, relations between the parties began to deteriorate. Mr Sherlock, directly or through others, interfered with Nutgrove’s operation of the quarry, thereby breaching the agreement between them, in the following ways:
(i) knocking down a security barrier that Nutgrove had erected at the entrance to the quarry site on 31 December 2011 at Mr Sherlock’s request;
(ii) on 3 or 4 January 2012, deliberately blocking access to the quarry by parking a combine harvester at the entrance of the laneway to it, preventing the operation of the quarry and causing damage and loss to Nutgrove’s business;
(iii) on 10 January 2012, deliberately preventing a blasting operation, causing further loss and damage to Nutgrove’s business;
(iv) and on 1 February 2012, deliberately blocking access to the quarry by placing a tractor and slurry tank across the entrance to it, preventing access and causing further loss and damage to Nutgrove’s business.
7. Nutgrove seeks a number of reliefs: first, a permanent injunction restraining Mr Sherlock from preventing or impeding access to the quarry site; second, an injunction restraining Mr Sherlock from interfering with the conduct of Nutgrove’s business; third, an injunction preventing Mr Sherlock from dealing with his lands in any manner that causes prejudice to Nutgrove; and fourth, damages.
ii. Mr Sherlock’s defence to Nutgrove’s claim
8. In his defence and counterclaim, Mr Sherlock pleads as follows.
9. In April 2005, the Wiselys approached Mr Sherlock to propose operating a limestone quarry at the lands known as the quarry field. Mr Sherlock had been in exclusive possession and occupation of those lands since his father’s death in 1972. From the very outset, the Wiselys knew that Mr Sherlock was not the owner of the quarry field and knew that Mr Sherlock’s brothers claimed a share in the ownership of those lands and that they objected to the Wiselys operating a quarry there. The Wiselys did not spend any money on the proposed development of a quarry at the quarry field nor was there any joint venture between Mr Sherlock and either Nutgrove or the Wiselys in that regard. The letter that Mr Sherlock wrote to the Council, dated 9 January 2006, confirming his ownership of the quarry field was one drafted by the Wiselys. The Wiselys told Mr Sherlock that it was ‘a formality required for administration purposes’ by the Council and that he ‘must’ sign it. The Wiselys did not suffer any loss in seeking to develop a quarry at the quarry field and, if they did, Mr Sherlock was not responsible for it.
10. In November 2007, Mr Sherlock entered an agreement with the Wiselys (and not Nutgrove) to permit them to extract and quarry limestone from the lower field. That agreement included the following terms:
(a) The Wiselys would carry out the quarrying activity through the vehicle of their company, Nutgrove.
(b) Nutgrove would apply for planning permission for the quarrying operation and would operate the quarry in accordance with that permission.
(c) The Wiselys would pay Mr Sherlock €1 per tonne of rock extracted.
(d) The Wiselys would pay Mr Sherlock a rent in the sum of €8,000 per annum .
(e) Nutgrove would only quarry and extract rock within the area, and using the access, specified in the planning permission.
(f) Nutgrove would not cause damage to the adjoining lands or the support for those lands.
(g) Nutgrove would not cause a nuisance or damage to Mr Sherlock’s lands or those of his neighbours.
(h) Nutgrove would not interfere with the water table.
(i) Nutgrove was permitted to connect with Mr Sherlock’s electricity, water and sewage services on a temporary basis, until the direct installation of those services.
(j) The Wiselys would ensure that Nutgrove would comply with the terms of the agreement.
11. Despite Mr Sherlock’s demand, the Wiselys refused to pay him for the rock Nutgrove extracted.
12. Nutgrove breached in a very substantial way the terms of the planning permission.
13. Nutgrove did not expend €134,000 on the development and operation of the quarry as it claims.
14. Relations between the parties deteriorated from September 2011 because Nutgrove fundamentally breached the terms of the planning permission for the development and operation of the quarry, causing damage to the environment and nuisance and damage to Mr Sherlock’s property.
15. Mr Sherlock blocked the entrance to the quarry in February 2012 to prevent Nutgrove from operating the quarry in breach of contract; breach of environmental law; breach of Mr Sherlock’s private law rights; and in fundamental breach of the planning permission. Nutgrove had concealed its breach of the planning permission from Mr Sherlock when Sean Wisely signed for a warning letter, dated 18 July 2011, that the Council had sent by registered post to Mr Sherlock but did not give it to Mr Sherlock.
16. Nutgrove did not suffer any commercial loss or damage as a result of Mr Sherlock’s actions.
iii. Mr Sherlock’s counterclaim against the Wiselys
17. In addition to the matters pleaded in his defence to Nutgrove’s claim against him, Mr Sherlock brings the following counterclaim against the Wiselys.
18. The Wiselys induced Mr Sherlock to enter into the lower field quarry agreement with them in November 2007 by warranting: that Nutgrove’s quarrying activities would be carried out in compliance with the planning permission and without causing damage to the property of any adjacent landowners; that Mr Sherlock would be paid €1 per tonne of rock extracted; and that Mr Sherlock would receive a rent of €8,000 per annum .
19. Omitting needless repetition, the terms of the lower field agreement were as follows:
(a) The Wiselys would carry out their quarrying activity through Nutgrove.
(b) The Wiselys would apply for planning permission and operate the quarry in accordance with it.
(c) Mr Sherlock would be paid €1 per tonne of rock extracted.
(d) Mr Sherlock would be paid rent in the sum of €8,000 per annum .
(e) The Wiselys would ensure that Nutgrove did not cause nuisance or damage to any adjoining land in the course of its quarrying activity in the lower field.
(f) The Wiselys would ensure that Nutgrove did not interfere with the water table in the course of it quarrying activities.
20. In breach of that agreement, the Wiselys have:
(a) excavated lands to the northwest of the area described in the planning permission;
(b) quarried right up to the eastern boundary of the lower field quarry lands affecting the stability and support of the adjoining lands to the east owned by a non party;
(c) extracted rock below the water table;
(d) failed to pay Mr Sherlock for 260,377 tonnes of the 385,477 tonnes of rock extracted from the quarry, thereby withholding payment of €260,377 due to him under the agreement; and
(e) failed to pay Mr Sherlock the rent of €8,000 per annum for each of the years 2009, 2010, 2011 and 2012, amounting to the aggregate sum of €28,000.
21. Mr Sherlock repeats essentially the same particulars in asserting a claim in negligence, breach of duty (including breach of statutory duty), nuisance and misrepresentation against the Wiselys, supplemented by the following additional particulars of the tortious conduct of Nutgrove in (omitting repetition):
(a) operating the quarry in fundamental breach of planning permission;
(b) quarrying stone outside the areas permitted under the planning permission and the agreement between the parties;
(c) damaging the adjacent lands of Mr Sherlock and of a non-party;
(d) causing nuisance and damage to Mr Sherlock’s lands; and
(e) constructing and operating the quarry office and weighbridge at an unauthorised location.
22. Mr Sherlock particularises the loss and damage he has suffered from the unlawful conduct of the Wiselys as follows: €60,000 as the sum required to drain the flooded quarry and construct a settlement lagoon; €32,500 to reinstate excavated lands to the north of the permitted quarry area; €56,475 to reinstate excavated lands to the northwest of the quarry area, €10,500 to replace 300 metres of hedgerow; €15,000 to relocate the office and weighbridge; and €20,000 for the investigation of, and works necessary to ensure, the stability of the quarry face and lands to the east of the quarry (all figures exclusive of VAT).
23. The Wiselys’ conduct repudiates the lower field quarry agreement and Mr Sherlock is entitled to rely on their conduct as bringing that agreement to an end.
24. The reliefs that Mr Sherlock seeks against Nutgrove and the Wiselys are damages, a declaration that they have repudiated and, hence, terminated the lower field quarry agreement; an order directing them to restore Mr Sherlock’s land to a condition compatible with the lower field quarry planning permission; and, in the alternative, an injunction, pursuant to s. 160 of the Planning and Development Act 2000, as amended (‘the 2000 Act’), restraining Nutgrove from continuing its unauthorised activities, coupled with an order directing Nutgrove and the Wisely to restore the lands affected to their condition prior to Nutgrove’s unauthorised activities.
iv. the reply of Nutgrove and the Wiselys to Mr Sherlock’s counterclaim
25. Nutgrove and the Wiselys have replied to Mr Sherlock’s counterclaim in the following terms.
26. Neither Nutgrove nor the Wiselys engaged in any of the unlawful conduct alleged against them. Nutgrove, and not the Wiselys, was the counterparty to Mr Sherlock in the lower field quarry agreement. The terms of that agreement are as Nutgrove asserts and the Wiselys did not enter any agreement with, or provide any warranties to, Mr Sherlock. Nutgrove did not breach the lower field quarry agreement with Mr Sherlock and did not by any conduct repudiate that agreement. Nutgrove did not operate the lower field quarry in breach of the planning permission. Nutgrove was frustrated in its operation of the lower field quarry development by the conduct of Mr Sherlock. Mr Sherlock has suffered no loss or damage or, certainly, no loss or damage for which Nutgrove or the Wiselys are responsible.
Procedural history
27. A plenary summons issued on behalf of Nutgrove on 8 February 2012. While it was never produced, I gather from one of the booklets of inter partes correspondence furnished to the court that a memorandum of appearance was filed on behalf of Mr Sherlock at some point in May 2013. Nutgrove delivered its statement of claim on 4 July 2012. Mr Sherlock delivered a defence and counterclaim on 23 November 2012. Nutgrove and the Wiselys delivered their reply and defence to Mr Sherlock’s counterclaim on 14 March 2013. Nutgrove served a notice of trial on 5 June 2013 and the action was set down for trial on 3 July 2013.
28. Meanwhile, on 8 February 2012, Nutgrove had issued a motion, seeking interim or interlocutory injunctive relief against Mr Sherlock, restraining him and any other person on notice of the order sought from interfering with its quarrying operations at the lower field quarry. Regrettably, on the pleadings and papers before me, the subsequent course of that application is unclear. That lack of clarity was at least contributed to, if not caused by, a change of solicitors on the part of Nutgrove and several changes of solicitor on the part of Mr Sherlock in the course of these proceedings.
29. In any event, there was a dispute between the parties about whether Mr Sherlock had furnished an undertaking to the court on 13 February 2012 in terms of the relief sought in Nutgrove’s motion. That dispute appears to have been resolved when an order made by Murphy J on 19 June 2012 was perfected on 20 May 2014. In material part, the perfected order recites that, on that date, by consent between the parties, the court ordered Mr Sherlock and any other person on notice of the order be restrained from locking Nutgrove out of the lower field quarry or from otherwise interfering with Nutgrove’s operations at the quarry.
30. Although the relevant order of the court was not produced by any of the parties at the trial of the action, it is tolerably clear that, on 29 October 2014, terms of heads of agreement entered into between Nutgrove and Mr Sherlock on that date were made a rule of court. I know this because a copy of an order made on 2 July 2015 by Gilligan J, varying and amending those heads of agreement as originally ruled, has been produced to me.
31. The original heads of agreement (which were included in a booklet of inter partes correspondence furnished to me) were as follows:
‘1. Following the carrying out of tests on or before 10th December 2014, Plaintiffs (sic) agree to inform the Defendants (sic) of their intention to continue to quarry the lands in issue.
2. If they choose not to do so, then they consent to an Order for possession to be made on 10th December 2014.
3. If they choose to stay and to quarry the lands, then, subject to payment of €50,000 and agreement of terms of a quarrying agreement on or before 1st April 2015, the parties agree to strike out the proceedings with no order as to costs and an order vacating all existing orders.
4. If there is a failure to agree the terms on or before 1st April then the parties agree to apply for a hearing date forthwith thereafter.’
32. The order made by Gilligan J on 2 July 2015 provides, in curial part:
‘Upon the consent of the parties hereto, it is agreed that the meaning and effect of the Heads of Agreement dated 29th day of October 2014 previously entered into by the respective parties, handed in and made a Rule of this Honourable Court on such day be varied and amended by the following;
Allowing the Plaintiff Company, its servants or agents to re-enter upon the lands and premises the subject matter of these proceedings, namely those lands and premises at Kilmainham, Mountmellick, Co. Laois and as referred to and contained within both the Folio 2488F of the Register of Freeholders of the County of Laois and the lands the subject matter of the Planning Permission Reference No. 08/943 issued by Laois County Council for the sole purposes of effecting compliance by the Plaintiff Company with the provisions of any and all Enforcement Notices issued by Laois County Council pursuant to s. 154 of the Planning and Development Acts 2000-2014 served upon the parties hereto, including in respect of the lands as described in such enforcement notices.’
33. Sadly, the parties failed to agree terms and the matter proceeded to trial before me over 17 days between 22 November and 20 December 2016. In view of the considerable number of documentary exhibits produced by each side in a piecemeal fashion during the trial, at its conclusion I requested that the parties prepare and submit an agreed book of exhibits as soon as possible. Regrettably, the parties failed to reach an agreement with the unfortunate result that the court received two competing booklets of exhibits in July 2017, more than six months later.
Nutgrove’s application for the attachment and committal of Mr Sherlock
34. By motion issued on 15 November 2016, Nutgrove has brought an application for various interlocutory reliefs, principal among which is an order for the attachment and committal of Mr Sherlock for contempt of the order made by Gilligan J on 2 July 2015, already described. The contempt alleged is that Mr Sherlock had been and remains in breach of the added term of the heads of agreement between the parties that were made a rule of court by that order whereby Mr Sherlock was to allow Nutgrove onto his lands for the purpose of carrying out the works necessary to effect compliance with any planning enforcement notice issued by the Council. Nutgrove also seeks various injunctions restraining any further interference with those works.
35. The essential facts averred to in the grounding affidavit of Sean Wisely, sworn on 11 November 2016, are the following.
36. On foot of a complaint made by Mr Sherlock, the Council served an enforcement notice, made under s. 154 of the 2000 Act and dated 11 February 2015 (‘the first notice’), upon both Nutgrove and Mr Wisely, which – after extensive liaison between Nutgrove’s planning adviser John Shiels and the Council – was later superseded by a more limited enforcement notice, dated 5 November 2015 (‘the second notice’).
37. The second notice asserts an unauthorised development comprising a failure to comply with four identified conditions of the planning permission. It sets out five requirements: first, to refrain from quarrying outside the permitted area; second, to provide a restoration plan for the lands quarried outside that area by 26 November 2015, with agreed restoration works to be completed by 7 January 2016; third, to provide a restoration plan to restore the quarry floor above the level of the water table by 26 November 2015, with agreed restoration works to be completed by 7 January 2016; fourth, to submit both a landscaping plan and a restoration plan for the quarry by 26 November 2015; and fifth, to provide a stock and trespass proof fence around the full perimeter of the site before 7 January 2016.
38. After lengthy exchanges between Nutgrove (through Mr Shiels) and the Council that extended well beyond the deadline in the enforcement notice, the Council confirmed in an e-mail dated 24 October 2016 that it was happy for the necessary works to commence in accordance with the plans that had been agreed between them.
39. However, much earlier Mr Sherlock had installed a locked barrier blocking access to the quarry site. By a letter of 26 October 2016, personally served on Mr Sherlock, and by email of the same date sent to his solicitors, Nutgrove notified Mr Sherlock of its intention to commence the necessary works at 9 a.m. on 1 November 2016. An incident occurred when personal service of that letter was effected on Mr Sherlock at his home on 29 October 2016, to which I will return. When Mr Wisely Jnr attended at Mr Sherlock’s home on the morning of 1 November 2016, Mr Sherlock refused to provide him with the key to unlock the barrier. Mr Sherlock’s solicitors wrote the same day to the Wiselys solicitors, requiring the provision of certain documentation as, in essence, a precondition to allowing Nutgrove access to the quarry to effect compliance with the enforcement notice, although the agreed amendment to the heads of agreement between the parties that was made a rule of court by Gilligan J on 2 July 2015 contained no such precondition and no application had ever been made on Mr Sherlock’s behalf to speak to the terms of that order. Mr Sherlock again refused to give Nutgrove access to the quarry site on 3 November 2016.
40. In light of those events, Nutgrove, through its solicitors, again retained the services of a summons server to effect personal service upon Mr Sherlock of the order of Gilligan J of 2 July 2015 with a penal endorsement upon it. That led to a further incident at the home of Mr Sherlock on 12 November 2016 when that order was served upon him, to which it will also be necessary to make further reference in the course of this judgment.
41. Nutgrove’s motion was adjourned to the trial of the action to be heard in conjunction with it.
The evidence
i. the old quarry lands licence agreement
42. Mr Wisely was the principal witness on behalf of Nutgrove. He had already sworn affidavits on 7 and 16 February 2012, 6 March and 29 April 2014, and 11 and 22 December 2016 in support of various interlocutory applications brought by Nutgrove. In those affidavits and, more particularly, in his evidence to the court, Mr Wisely gave broadly the following testimony.
43. He is the managing director of, and largest shareholder in, Nutgrove, which was incorporated in 1999 to engage in the business of quarrying for sand, stone and gravel. He has been engaged in the business of quarrying for about 40 years, initially as a sole trader and, for some years now, through his company Nutgrove.
44. In April 2005, Mr Wisely, who was looking around for a quarry, was introduced to Mr Sherlock by a third party. After meeting Mr Sherlock several times at his house and on his lands, and having seen the old quarry field, Mr Wisely came to a verbal agreement with him to quarry limestone there.
45. Pursuant to that agreement, on 25 April 2005, Nutgrove applied to the Council for registration of the quarry as a pre-1963 development that did not require planning permission, under s. 261 of the 2000 Act. In response, the Council requested the submission of evidence demonstrating that the applicant had the necessary legal interest in the site. Through its planning consultant John Shiels, Nutgrove replied on 9 January 2006, enclosing a letter of the same date from Mr Sherlock to the Council. That short letter twice references Nutgrove; first, in the reference line as the applicant for registration of the quarry; and second, in the body of the letter as the company working the quarry. The letter is signed by Mr Sherlock and, in material part, states ‘I wish to confirm that I am the owner of the lands’ and that ‘[t]he quarry on the lands is being worked by [Nutgrove] subject to my consent.’ The letter recites that a copy of the relevant title deeds to the lands is enclosed.
46. Mr Wisely had agreed that Mr Sherlock was to receive €20 per load of limestone extracted from the quarry.
47. The Council decided that the quarry development required planning permission. Nutgrove prepared and submitted the necessary application, expending €135,000 in the process on, amongst other things, a test well, and archaeological, hydrological and wildlife studies.
48. The Council received an objection to that planning application from a brother of Mr Sherlock on the basis that Mr Sherlock did not own the old quarry lands. It transpired that those lands were still held in the name of Mr Sherlock’s father, also James Sherlock, who had died intestate and whose estate had never been administered, even after the subsequent death intestate of Mr Sherlock’s mother in 2002. The planning application was withdrawn on 17 January 2007.
49. Mr Sherlock gave evidence at the trial of the action. He had previously sworn affidavits on 21 March 2014 and 21 and 22 December 2016 in opposition to various interlocutory applications. His evidence was broadly as follows.
50. Mr Sherlock challenged Mr Wisely’s experience as a quarryman, distinguishing between experience with sand and gravel pits and experience with limestone quarries. He had provided Mr Wisely with the title deeds to the old quarry lands in April 2005, demonstrating that they were registered in the name of his father, albeit his father’s name was also James Sherlock.
51. The agreement to permit Mr Wisely to operate a quarry on the old quarry lands involved the payment of €1 per tonne of limestone extracted from the quarry, together with an annual rental payment of €2,000 per acre. Mr Sherlock understood that the letter to the Council dated 9 January 2006 that he signed was ‘a mere formality’. The letter was prepared for him by Mr Shiels and he signed it ‘without any proper examination.’ At all material times, he understood that he was dealing with the Wiselys, rather than Nutgrove or any other separate entity. Under cross-examination, Mr Sherlock claimed that Mr Wisely sought to pressure him to sign the letter by claiming that Mr Shiels had just been released from a psychiatric hospital and would be upset if Mr Sherlock did not sign the letter.
ii. the lower field quarry licence agreement
52. It is common case that Mr Wisely and Mr Sherlock entered into a further verbal agreement in November 2007 to enable the quarrying of limestone to take place in the lower field. On 3 December 2007, Nutgrove applied to the council for planning permission to do so there. On 4 July 2008, Mr Sherlock wrote a further letter to the council confirming both his ownership of the lands in question and his consent to that planning application by Nutgrove. The council granted the permission sought on 20 January 2009.
53. Mr Wisely testified that the terms of the lower field quarry agreement were the same as those of the old quarry lands one. Mr Sherlock was to receive €20 per load of limestone extracted for the life of the quarry. Aggregate payments were to be made monthly. Mr Sherlock was to have the right to draw rock from the quarry for his own use. The agreement was to be for the life of the quarry or the duration of the planning permission, whichever ended first. There was no agreement to pay any rent in respect of the lands. Nutgrove expended approximately €150,000 in the development of the quarry, including the development contribution it made to the council but excluding the bond it was required to provide.
54. Although, in an affidavit he had sworn earlier, Mr Sherlock had averred that he entered the lower field quarry agreement solely because of improper pressure applied to him by his own solicitor at the behest of Mr Wisely that left him with no choice, he did not repeat that claim in his defence or in his evidence in chief at trial. Rather, he testified that, under the terms of that agreement, he was to receive €8,000 per annum in rent, and €1 per tonne of extracted stone, adding that payment per tonne for extracted stone was important to him as he knew that lorry loads typically exceeded twenty tonnes and a payment of €1 per tonne was, thus, more lucrative, than one of €20 per load.
iii. the collapse of the lower field quarry licence agreement
55. The lower field quarry agreement operated without apparent incident throughout 2009, 2010 and much of 2011. Despite the economic crash, Nutgrove did reasonable business and made payments to Mr Sherlock amounting to €169,000 during that period. Its customers were construction firms and, to a lesser degree, local authorities. A delivery docket accompanied each load; the customer signed the docket; and Nutgrove retained the signed docket as evidence of each delivery. The dockets were used by Ms Bernie Hurley, Nutgrove’s office manager, to calculate the payments due to Mr Sherlock. Mr Sherlock was generally paid by cheque (though sometimes in cash) on a monthly basis, save when certain of Nutgrove’s customers sought and obtained deliveries of stone on credit terms over longer periods and Mr Sherlock agreed to wait for payment until Nutgrove was paid. The great majority of customer orders were for the delivery of stone by the lorry load, rather than by the tonne, and did not necessitate the use of the weighbridge, although a small portion of orders (most notably those from the council) did specify a particular number of tonnes of stone, and they did.
56. Relations between the parties began to deteriorate in September 2011. According to Mr Wisely, Mr Sherlock rang him in November 2011 to say that he was pulling the plug on the quarry. Mr Wisely testified that he asked why and Mr Sherlock replied that he knew why, although he didn’t. Mr Wisely suspected, and still believes, that Mr Sherlock wanted to operate the quarry himself.
57. Mr Wisely gave evidence that Mr Sherlock’s son, John Sherlock (‘Mr Sherlock Jnr’), became actively involved in the operation of the lower field quarry agreement at that time. Mr Wisely testified that, in September 2011, Mr Sherlock had requested that he hold off on making payments to him under the agreement, as Mr Sherlock was in the process of handing over his farm to his son, who would be dealing with Mr Wisely from then on. This resulted in the accumulation of an outstanding payment due to Mr Sherlock of €6,000, while Nutgrove awaited confirmation of whatever new payment arrangements Mr Sherlock wished to have put into effect.
58. Mr Wisely gave evidence of continuing engagement with Mr Sherlock at that time, pointing to various lengthy face to face meetings with the Sherlocks that took place in October, November and December 2011, and January 2012. The Sherlocks made various demands of Nutgrove or the Wiselys during that period.
59. First, the Sherlocks requested the creation of a new bank of earth at the edge of the quarry and the construction of a new barrier at the quarry entrance to prevent unauthorised vehicles from entering the quarry site. According to Mr Wisely, the earthen bank was created as requested and, over the Christmas period in 2011, he arranged for the barrier to be constructed, only to discover in January 2012 that it had been dismantled by digging out its foundation post and forcibly removing the lock from it. Mr Sherlock acknowledged that he had arranged for this to be done, but denied that the barrier had been damaged in the process. Mr Sherlock’s evidence was that he removed the barrier because it was erected on lands forming part of his father’s unadministered estate, over which he claims ownership by adverse possession, although he did not address Mr Wisely’s testimony that the location of the barrier was selected in consultation with him to maintain access to another part of his own lands that Mr Sherlock wished to let by conacre to a third party.
60. Second, Mr Sherlock Jnr sought to be provided with a copy of the ‘computer software’ from the PC in the site office, which I take to be, in substance, a request for a copy of all of Nutgrove’s customer, load and delivery data from whatever database the company maintained on that machine. Third, Mr Sherlock Jnr requested the installation of a security camera inside the site office and a key to that office. Mr Wisely refused each of those requests as, in his view, unreasonable.
61. Nutgrove did comply with the Sherlocks’ request for a copy of its insurance policy and planning permission for the lower field quarry site.
62. On 1 January 2012, the Sherlocks requested that all future payments under the lower field quarry agreement be made to a new company that they were about to incorporate. Nutgrove agreed to do so on receipt of the necessary paperwork but it never arrived.
63. On 3 or 4 January 2012, when Nutgrove staff returned to the lower field quarry site to resume operations after the Christmas break, they found the quarry entrance blocked by a combine harvester that had been parked and left there by the Sherlocks, who only removed it later that day after the intervention of the guards at Nutgrove’s request. Mr Sherlock states that this was done with ‘the bona fide intention of attempting to open and maintain a proper line of dialogue’ with Nutgrove and the Wiselys.
64. On 10 January 2012, Mr Sherlock Jnr intervened to prevent a blasting operation at the quarry that Eddie Hogan, a civil engineering contractor, was about to conduct on behalf of Nutgrove. Mr Sherlock’s evidence was that this occurred because the blast was to be conducted on lands forming part of his deceased father’s estate, outside the lands covered by Nutgrove’s planning permission. Mr Wisely gave evidence that Mr Sherlock Jnr demanded a payment to permit the blast to proceed, as compensation for damage ostensibly caused by previous blasts to Mr Sherlock’s house some distance away, a claim that Nutgrove denies.
65. On 23 January 2012, Mr Sherlock incorporated a private limited company named Kilmainham Quarry Limited, the principle activity of which is described as ‘quarrying of stone for construction.’ Mr Sherlock gave evidence that he did so at the direction of Mr Wisely. Mr Wisely denied that in his evidence. The directors of the company are Mr Sherlock and Mr Sherlock Jnr. Its registered address is that of Mr Sherlock’s house at Kilmainham, Mountmellick, County Laois. In evident anticipation of the incorporation of the company, Mr Sherlock Jnr emailed Nutgrove late on the evening of Thursday, 12 January 2012, requesting it to supply him with a list of materials from the quarry and a price list and to set up a new account for Kilmainham Quarry with authorisation solely for his father and him. The following day, Nutgrove replied, thanking Mr Sherlock Jnr for his email and informing him that the details he had requested would be forwarded to him. On the evening of the day after that (Saturday, 14 January 2012), Mr Sherlock Jnr again emailed Nutgrove as follows:
‘Owing to delay on your behalf regarding the payments and settlements Seamus Sherlock and kilmainham quarry ltd will have no option but to cease trading with nutgrove sand and gravel ltd as and from January 31st 2012.’
66. Mr Wisely gave evidence that the Sherlocks requested that Nutgrove place Mr Sherlock as an insured party on its business insurance policy for the operation of the lower field quarry but that he found that it could not be done because Mr Sherlock was not directly associated with the company.
67. Mr Wisely testified that the Sherlocks sought to renegotiate the payment structure under the lower field agreement to substitute a payment to Mr Sherlock per tonne of material extracted for the existing one per load of material. According to Mr Wisely, both sides resolved to make enquiries of other quarry operators with a view to ascertaining the ‘current price per [tonne] of stone in the ground’, as the basis for attempting to agree a payment per tonne in the future. Mr Wisely stated that, while Nutgrove made the necessary enquiries, it heard nothing further on the matter from the Sherlocks. Ms Hurley produced correspondence that Nutgrove had obtained from seven quarries in the region providing comparator prices, in preparation for the introduction of a new system by which every lorry carrying extracted stone would use the weighbridge and obtain a numbered docket for each load. The prices quoted by other quarries were in the range 40c to 60c per tonne of limestone rock.
68. Mr Wisely Jnr gave evidence that, one day in early January 2012, when he was getting ready to lock up and leave the site office, the Sherlocks approached him to inform him that Mr Wisely, his father, was having an affair with Ms Hurley, Nutgrove’s office manager, and that they had a surveillance video recording, evidencing inappropriate behaviour between them. No such recording was produced in evidence at trial. Mr Wisely is a married man who was then in his late seventies and Ms Hurley is the lone parent of a child with special needs. Each flatly denied the allegation in evidence.
69. Without reference to what possible reason there could be for spreading gossip about Mr Wisely and Ms Hurley (whether true or false), whether as part of the commercial dispute between the parties or in any other circumstance, counsel for Mr Sherlock was instructed to put it to Ms Hurley that the allegation was true, and a close friend and neighbour of Mr Sherlock named Christine ‘Maíre’ Scott when called to give evidence on behalf of Mr Sherlock testified that she had witnessed inappropriate conduct between Mr Wisely and Ms Hurley in the site office. Mr Sherlock first denied on oath under cross-examination that he had made any such allegation about Mr Wisely and Ms Hurley, before later admitting that he had.
70. In giving evidence that, on an unspecified date in September 2011, she had witnessed Mr Wisely and Ms Hurley in a compromising situation in the site office while searching for Mr Sherlock, Ms Scott described herself as an independent witness. Under cross-examination, it emerged that Ms Scott is a close friend and neighbour of Mr Sherlock, who attended every day of the trial as his supporter, conferring frequently with his solicitor in that capacity. Mr Sherlock takes care of the maintenance of her property and, in return, she prepares a meal for him every day. Under cross-examination, Ms Scott acknowledged that she is the person depicted in various photographs taken at various times on various dates in 2014, accompanying Mr Sherlock in the vicinity of the lower field quarry site while he is taking photographs and, in one instance, taking photographs herself (at the request, she explained, of Mr Sherlock’s daughter).
71. When, in January 2012, Mr Wisely was informed by his son of Mr Sherlock’s allegation against him, he caused his solicitor to write to Mr Sherlock on 1 February 2012, demanding an apology and threatening defamation proceedings against him if he did not make one. Mr Sherlock did not apologise. Instead, he placed a copy of that letter in one of the front windows of his house and another copy on a piece of hardboard attached to the fence outside his house. Mr Sherlock’s explanation for doing so was that, once the letter was sent to him, it was his property and he was entitled to do whatever he wanted with it.
72. On 26 January 2012, Mr Wisely met with the Sherlocks over several hours in the kitchen of Mr Sherlock’s house in an attempt to resolve the issues between the parties. Ms Scott was also present, as was a gentleman named Seamus McDonald, a member of the council who, it seems, attended the meeting in a personal capacity. Mr Sherlock claims that, at that meeting, Mr Wisely acknowledged an outstanding debt to him of €83,000 for extracted rock and €24,000 for rent. Ms Scott gave evidence that she heard Mr Wisely acknowledge a debt to Mr Sherlock of €83,000 for stone and €2,000 per acre in rent (without reference to any agreed acreage, rental period or aggregate sum). Mr Wisely denied in evidence either that he acknowledged any such debt to Mr Sherlock at that meeting or that any such debt exists.
73. On 1 February 2012, Mr Sherlock caused a tractor and slurry tanker to be placed cross the entrance to the lower field quarry site, bringing all commercial activity there to a halt. According to Mr Sherlock, he did so on the advice of his solicitor at the time. That solicitor did not appear as a witness. Mr Sherlock does not accept that the action he took was unreasonable.
74. Mr Wisely gave evidence that, from that day forward, Nutgrove took no more material from the quarry and never resumed its operations at the quarry site. Mr Sherlock later replaced the safety barrier at the entrance the quarry site and placed his own lock upon it.
75. As already noted, Nutgrove issued these proceedings on 8 February 2012.
iv. the break in at the site office
76. At some point in or before February 2014, Mr Sherlock broke into the site office and changed the lock on the door to it. Mr Sherlock testified that he did so because the electricity supply for the site office came from his own house and a heater in it had been left on, grossly inflating his domestic electricity bills. He did not corroborate that claim by producing copies of those bills. Mr Sherlock conceded that he had received payments from Nutgrove for the cost of the utilities provided to the site office while the quarry was operating. Mr Sherlock claims that he raised the matter of his excessive electricity bills with Nutgrove before breaking into the site office, but did not corroborate that claim by producing a copy of any relevant communication. Mr Wisely testified that no heater was left on in the site office and that, even if it had been, a master switch for the electricity supply to the site office was located at Mr Sherlock’s house.
v. the sale of stone from the quarry
77. In the affidavit that he swore on 21 March 2014, Mr Sherlock acknowledged that, after February 2012, he had removed stone from the quarry for what he described as remedial purposes, although he later acknowledged under cross-examination in evidence that he had been selling stone from the quarry. Mr Sherlock admitted that notices were placed in the Mountmellick Parish Newsletter on 16 and 23 March, and 27 April, 2014, on behalf of Kilmainham Quarry Limited offering ‘all grades of filling for roadways, foundations, subfloors; sand and gravel; and a small quantity of excellent top-soil’, and that this was a reference to the proposed sale of material from the quarry. Mr Sherlock Jnr accepted in evidence that two tractors, several trailers and, what both he and his father described as, ‘a poor man’s digger’ were present at various times on Mr Sherlock’s 19-acre farm.
vi. the problems with signs at the lower field quarry site
78. Mr Wisely gave evidence that, in 2015, Nutgrove had erected 30 signs at various points around the lower field quarry site, bearing the words ‘ Nutgrove Sand and Gravel, Danger – No Unauthorised Persons Allowed – Deep Quarry Face – Deep Water – Safety Equipment etc. ‘ On various dates between October 2015 and January 2016, all of those signs were either physically removed, torn down, destroyed or altered. In his evidence, Mr Sherlock admitted that he had cut off the portion of several of those signs bearing the words ‘ Nutgrove Sand and Gravel’ but denied that he had removed or torn down the others, which he suggested had probably blown down, not having been properly erected by Nutgrove in the first place.
vii. the theft of cameras and destruction of a machine close to the lower field quarry site
79. Mr Wisely went on to give evidence that, as a result of the destruction and damage caused to Nutgrove’s signs, in October 2015 it had retained a security expert to install five covert cameras at or adjacent to the quarry site in order to keep it under surveillance. On three different dates in October and November 2015, one of those cameras captured Mr Sherlock Jnr closely inspecting a large machine owned by the company that it had obtained permission to store on separate lands adjacent to the lower field, at a point some distance from the main road in a rural area several kilometres away from the nearest town, Mountmellick. On 4 December 2015, all five cameras were stolen. On the night of 1 and 2 November 2016, just before Nutgrove was due to commence using that machine to carry out the remediation works that had been agreed with the council, it was destroyed by arson while still present on those adjacent lands. Mr Sherlock insisted in the course of his evidence that he had nothing to do with those events.
viii. complaints made to the authorities of unlawful conduct by Nutgrove
80. Mr Wisely testified that, in addition to the complaints that Mr Sherlock had made to the council concerning the breach by Nutgrove of its planning permission, anonymous complaints were made against Nutgrove to An Garda Síochána (and the Fraud Squad within An Garda Síochána), the Revenue Commissioners and the Health and Safety Authority, concerning a wide range of alleged improper business practices, although none of the resulting investigations led to any action against Nutgrove or the Wiselys.
ix. the Revenue Commissioners’ audit of Mr Sherlock
81. Mr Sherlock gave evidence that he also had been audited by the Revenue Commissioners. Indeed, he called his accountant, Brendan Allen, who gave evidence concerning two summaries of accounts that he had prepared for Mr Sherlock, covering the overlapping five year periods to the end of 2009 and to the end of 2012. The court was given to understand that these documents comprised a summary of Mr Sherlock’s annual accounts for those years, by reference to which he had made his annual tax returns in the usual way, and that the Revenue Commissioners had accepted the accuracy of those accounts and of the tax returns that Mr Sherlock had made in reliance upon them when they carried out their audit. Only as a result of a casual enquiry made by the court at the conclusion of the cross-examination of Mr Allen did it emerge that the accounts concerned had been prepared only after, and in response to, the commencement of the Revenue Commissioners’ audit of Mr Sherlock’s tax affairs and that Mr Sherlock had made no annual tax return at any time during that period. In preparing those accounts, Mr Allen was obliged to rely upon the very limited diary records that Mr Sherlock first produced to him in 2012.
x. Mr Sherlock’s altercations with summons servers
82. Thomas Jones is a retired member of An Garda Síochána, who has been working as a summons server for over 10 years. He was called as a witness on behalf of Nutgrove. He gave evidence that, in October 2016, the solicitors for Nutgrove requested him to effect personal service of certain documents on Mr Sherlock. On 29 October 2016, he attended at the dwellinghouse of Mr Sherlock for that purpose. Mr Jones testified that Mr Sherlock was extremely hostile and, when Mr Jones had effected service of the documents upon him, made a deeply tasteless and offensive comment concerning Mr Jones’ son, who it was well known in the locality had died in tragic circumstances at a very young age some years previously. In his sworn evidence to the court, Mr Sherlock denied making that comment.
83. Mr Jones gave evidence that, in November 2016, he was again requested by the solicitors for Nutgrove to effect service of further documents on Mr Sherlock. Because of the difficulties and unpleasantness that he had experienced on the preceding occasion, Mr Jones asked both Paul Ryan, another retired member of An Garda Síochána, and Mr Ryan’s adult son to accompany him and they agreed to do so.
84. On 12 November 2016, the three men drove to Mr Sherlock’s house in Paul Ryan’s car. On opening the door to Mr Jones, Mr Sherlock attempted to slam it in his face. Mr Jones observed Mr Sherlock Jnr in the hallway immediately behind Mr Sherlock. Mr Jones managed to wedge his foot in the door and to effect service. The Sherlocks followed Mr Jones back to Mr Ryan’s car, where they behaved extremely aggressively, shouting threats and vulgar abuse and banging on the car’s roof and side panels. Mr Jones testified that each of the Sherlocks used the camera on his mobile phone to take a number of photographs of the vehicle and its occupants. Both Mr Jones and Mr Ryan stated in evidence that the level of hostility displayed by the Sherlocks was unprecedented in their experience.
85. The solicitors for Nutgrove requested Mr Jones to effect personal service of legal documents on Mr Sherlock for a third time on 15 November 2016 and he once again attended at Mr Sherlock’s house on that date, accompanied by Mr Ryan. On that occasion, although Mr Sherlock again attempted to avoid service, it was effected without incident from Mr Jones’ perspective as Mr Sherlock was running from his car to the door of his house.
86. In cross-examination, counsel for Mr Sherlock put it to Mr Jones that he had been the aggressor on each occasion and that he had an agenda against Mr Sherlock. Mr Jones denied that claim, pointing out that he had previously served legal documents on Mr Wisely on behalf of the council and that, in relation to both men, he was simply doing his job. It was put to Mr Jones that he had twice assaulted Mr Sherlock: first, by pushing the door against him on 12 November; and second, by attempting to shoulder him to the ground on 15 November. Mr Jones denied those allegations. It was put to both Mr Jones and Mr Ryan that, on 12 November, Mr Ryan had driven over the foot of Mr Sherlock Jnr. Both men denied that allegation.
87. Very significantly it was put to Mr Ryan that the suggestion that Mr Sherlock had used the camera on his mobile phone to photograph the occupants of Mr Ryan’s car on 15 November 2016 was demonstrably false because Mr Sherlock would say that he did not have a camera phone. Mr Ryan remained steadfast in his evidence. In his evidence in chief, Mr Sherlock did indeed testify that there was no camera on his mobile phone. Under cross-examination, he repeated that he had never had a phone with a camera on it. Mr Sherlock was then shown a number of date-stamped photographs, taken at or in the vicinity of the lower field quarry site, in which, as he was forced to admit, he is clearly depicted using his mobile phone to take photographs on 29 May and 9 June 2014. Mr Sherlock had no explanation to offer for his earlier sworn evidence to the contrary.
88. Nonetheless, Mr Sherlock remained unembarrassed in his evidence that he had been twice assaulted by Mr Jones, requiring hospital treatment on each occasion, and Mr Sherlock Jnr persisted in his evidence that Mr Ryan had driven over his foot, necessitating medical treatment and leaving him on crutches. No medical evidence whatsoever was adduced in support of any of those allegations.
xi. Mr Sherlock’s objection to remediation works at the lower field quarry site
89. I have already described how Mr Sherlock had installed a locked barrier preventing access to the quarry site in 2014. On 2 July 2015, Gilligan J made an order, on consent between the parties, amending the heads of agreement between them to permit Nutgrove to enter the lands to effect compliance with any council enforcement notice. Through their respective solicitors, Nutgrove informed Mr Sherlock by email on Wednesday, 26 October 2016 that the necessary works were to commence on Tuesday, 1 November 2016. But, when Mr Wisely Jnr went to Mr Sherlock’s house on the morning of 1 November 2016 to collect the keys to the barrier, Mr Sherlock refused to provide them. Later that morning, Mr Sherlock’s solicitor wrote to Nutgrove’s solicitor, requiring, both in that letter and in subsequent correspondence, that each of a list of documents be provided in a form satisfactory to Mr Sherlock as a condition precedent to permitting the necessary works to be carried out. Through his solicitor, Mr Sherlock argues that the conditions precedent for which he contends, though nowhere apparent on the face of the order made by Gilligan J on 2 July 2015, are implicit in it. Mr Sherlock’s legal representatives have never suggested that any such condition precedent was agreed between the parties and have never applied to this court to speak to the terms of the order to make explicit what they contend is somehow implicit in it.
90. Mr Sherlock contends that it is implicit in the order of Gilligan J that Nutgrove was not to re-enter the lower field quarry site to effect compliance with the council’s enforcement notice until Mr Sherlock was satisfied with: (a) the nature and extent of Nutgrove’s insurance cover, which must indemnify him; (b) Nutgrove’s restoration plans; (c) Nutgrove’s health and safety statement; (d) Mr Shiels’ professional indemnity insurance as Nutgrove’s consultant in respect of the necessary works; (e) the council’s agreement to the restoration works that it had required in the enforcement notice; (f) the proposed start date for those works; and (g) the identity and qualifications of Nutgrove’s quarry manager.
91. On 8 September 2016, on foot of a complaint made by the council, summonses issued against both Mr Wisely, as a director of Nutgrove, and Mr Sherlock, as the owner of the lower field quarry lands, charging each with failure to comply with the second enforcement notice, contrary to s. 154 of the 2000 Act and s. 156(1)(b) of that Act, as amended by s. 46 of the Planning and Development (Amendment) Act 2010. Those summonses were made returnable to Portlaoise District Court on 16 December 2016.
xii. the payments due to Mr Sherlock for limestone extracted by Nutgrove
92. Mr Sherlock makes a number of complaints about Nutgrove’s performance of the lower field quarry agreement. The first and most significant such complaint is that Nutgrove failed to pay Mr Sherlock the agreed rent for the site and failed to properly pay him for the stone extracted from it.
93. There is a clear conflict of evidence between Mr Wisely and Mr Sherlock on whether the payment of rent ever formed part of the agreement.
94. On the payments due for stone extracted, Mr Sherlock alleges that the Wiselys or Nutgrove still owe him approximately €260,377.
95. In his counterclaim, Mr Sherlock calculates that figure in the following way: 385,477 tonnes of stone has been extracted from the quarry, for which he was entitled to €385,477 (representing €1 per tonne), yet he has only received an aggregate payment of €125,100, implying an outstanding payment due to him of €260,377.
96. Peter Kinghan, who is both a chartered minerals surveyor and a chartered geomatics surveyor, gave evidence on behalf of Mr Sherlock that 132,137 m³ of material (excluding topsoil and overburden) has been extracted from the permitted quarry area, of which 115,630m³ has been removed from the site. A colleague of Mr Kinghan’s, John G. Kelly, who holds a doctorate in geology, gave evidence on Mr Sherlock’s behalf that the lower field quarry is a typical Waulsortian limestone one. Dr Kelly testified that the in situ density of Waulsortian limestone is typically 2.65 to 2.75 Mg/m³ ( i.e. megagrams – or metric tonnes – per cubic metre). Taking an average density of 2.7 Mg/m³, as Dr Kelly suggests, would result in an estimate of 312,201 tonnes of stone removed from the site, as Mr Kinghan points out.
97. Mr Sherlock acknowledged in evidence that he had received payments from Nutgrove or the Wiselys amounting to approximately €169,000, although he sought to characterise approximately €44,000 of that sum as comprising separate payments from them for loads of clay, rather than loads of stone. Mr Wisely was quite clear in his evidence that there had been no separate payments for clay and that Nutgrove had made payments to Mr Sherlock of €169,920.
98. In support of his contention that he had been underpaid by Nutgrove or the Wiselys, in deliberate and dishonest breach of the agreement between them, Mr Sherlock called a gentleman named Peter McDonald as a witness. Mr McDonald gave evidence that he worked as a lorry driver for Mr Wisely for approximately two years between 2008 and 2010. Mr McDonald claimed that, on occasion, he delivered loads of sand for cash without a docket from sand pits operated by Nutgrove in Clonaslea and Clara at the direction of Mr Wisely and, on two occasions, Mr Wisely Jnr. Under cross-examination, Mr McDonald sought to clarify that he had also been referring to loads of stone from the quarry in the lower field. Mr McDonald acknowledged that he had been laid off by Nutgrove in 2010 in circumstances that left him unhappy. Mr McDonald conceded that there had been incidents involving collisions between his lorry and other vehicles and concerning disputed deliveries before he was let go, Mr McDonald confirmed that is good friend and neighbour of the Sherlock family and had attended every day of the trial in that capacity.
99. Mr Sherlock himself testified that, at a time in the year 2010 that he could not specify, he observed Ms Hurley ‘drafting up a docket which she then placed into a bundle of such dockets bound for [the council] with a view to recovering monies from the council’ on foot of that invoice. This was plainly intended as an allegation that Ms Hurley had participated in a fraud upon the council by the Wiselys or Nutgrove. In her evidence, Ms Hurley denied that allegation, pointing out that the council required all dockets to be signed by one of its representatives at the point of delivery of the load concerned.
100. Mr Shiels, the planning consultant retained by Nutgrove, is also a chartered mineral surveyor, as well as a qualified mining engineer. He conceded that, in its planning permission application, Nutgrove had used an estimate of 2.6Mg/m³ for the density of the limestone rock it proposed to extract from the lower field quarry, but testified that that figure had turned out to be unduly optimistic due to the presence of areas of deep overburden at the south end of the quarry site and of significant levels of clay infill there. Nutgrove also called a gentleman named Eddie Hogan as a witness on its behalf. He is a civil engineering contractor with 50 years experience in drilling and blasting. Mr Hogan carried out the drilling and blasting operations at the lower field quarry site on behalf of Nutgrove. He testified that there was a heavy clay seam at the south of the site, giving rise to unusual levels of contamination in the quarry.
101. Mr Shiels gave evidence that the estimated void space (volume of material extracted from the quarry) was 131,006m³, to which he applied a margin of error of 10%, suggesting a figure, at the lower end, of 117,905m³. From that figure, Mr Shiels suggested it had been agreed that the following deductions should be made: 12,058m³ for waste deposited in the old quarry; 4,400m³ for overburden; and 9,022m³ for stone remaining stockpiled at the quarry, leaving a residual figure of 92,425m³ of stone extracted from the quarry.
102. Allowing for the unusual amount of clay infill that had been found to be present in the quarry and the process of karstification (the dissolution of soluble rock such as limestone by weathering), Mr Shiels proposed 2.3Mg/m³ as the average bulk density of the limestone in the quarry. In his view that is a more appropriate measurement than that of its particle density, which was relied upon by Dr Kelly. That would imply that a total of 212,577 tonnes of limestone had been extracted.
103. Further assuming an average lorry load of 23 tonnes, 212,577 tonnes of limestone would have provided 9,242 loads. At €20 per lorry load, that would entitle Mr Sherlock to a maximum potential payment of €184,840 from Nutgrove, as against which Nutgrove has already paid Mr Sherlock €169,000; holds another €6,000 to his account; and claims a deduction for the material extracted from the quarry by Mr Sherlock for his own use. Thus, Nutgrove contends, Mr Sherlock has been fully and properly paid in accordance with the terms of the agreement between them.
104. Under cross-examination, Mr Shiels acknowledged that, in a report that he had prepared for Nutgrove in January 2012, the estimated figure that he had provided for the tonnage of limestone extracted from the quarry was 263,510 tonnes, significantly higher than the estimate of 212,577 tonnes that he was now relying upon, but expressed the view that this simply demonstrated the extraordinary difficulty in making, and drawing inferences from, a retrospective survey of the volume of quarried material.
xiii. Nutgrove’s compliance with planning law as an implied term of the agreement
105. Nutgrove obtained a final grant of planning permission for the lower field quarry development on 20 January 2009. That permission was subject to 19 specified conditions.
106. Mr Sherlock pleads that it was an implied term of the agreement between the parties that Nutgrove would apply for planning permission for the lower field quarry ‘and would operate the quarry in accordance with the said planning permission and the conditions attached thereto.’ Thus, Mr Sherlock contends that the public law obligations assumed by Nutgrove simultaneously became private law obligations owed to him, with the result that any breach of a condition of the planning permission was a breach of the agreement between the parties. Mr Sherlock goes further by pleading that compliance with some or all of the conditions of the planning permission was a fundamental term of the agreement between the parties, any breach of which by Nutgrove amounted to a fundamental breach of the agreement, giving Mr Sherlock the right to terminate it.
107. Quite separately, Mr Sherlock pleads that Nutgrove unlawfully sought to conceal its fundamental breach of the lower field quarry agreement from him, by signing for and failing to deliver a letter from the council addressed to him, dated 18 July 2011, warning him as landowner of a breach of Nutgrove’s planning permission for the lower field quarry development.
108. Confusingly, Mr Sherlock averred in an affidavit that he swore on 21 March 2014, that he had received a warning letter from the council on 17 July 2011 concerning a breach of the planning permission for the quarry. Mr Wisely gave evidence that he could not recall receiving any such letter on behalf of Mr Sherlock and that the the signature in his name on the recorded delivery receipt for that letter was not his. Ms Hurley, Nutgrove’s office manager, testified that she did recall Mr Wisely informing her in passing that he had received a warning letter from the council at about that time but that she also recalled Mr Sherlock coming into the site office with a similar letter that he had received during the same period.
109. It is clear from correspondence produced in evidence without objection that, on 12 July 2011, the council wrote to Nutgrove concerning its failure to provide the cash or bond required under condition no. 17 of its planning permission for the lower field quarry. Under that condition, Nutgrove was to lodge either cash or a bond in the sum of €100,000 with the council within three months of the grant of planning permission on 20 January 2009 to ensure completion of the development or, if necessary, restoration of the lands. On 10 October 2011, the council again wrote to Nutgrove to confirm its agreement to Nutgrove’s proposal to provide five cash payments of €5,000 per annum (amounting to an aggregate payment of €25,000) instead. David O’Hara, a town planner in the planning department of the council, gave evidence that it had sent a separate warning letter to Nutgrove in July 2011, concerning a leak that had occurred from barrels of oil or diesel at the site, but there was no suggestion that the council ever took any further action in relation to that issue.
110. I have already described (at paragraphs 36-38 above), the service upon Nutgrove of a second enforcement notice, dated 5 November 2015, requiring it: first, to refrain from quarrying outside the permitted area; second, to provide a restoration plan for the lands quarried outside that area by 26 November 2015, with agreed restoration works to be completed by 7 January 2016; third, to provide a restoration plan to restore the quarry floor above the level of the water table by 26 November 2015, with agreed restoration works to be completed by 7 January 2016; fourth, to submit both a landscaping plan and a restoration plan for the quarry by 26 November 2015; and fifth, to provide a stock and trespass proof fence around the full perimeter of the site before 7 January 2016.
111. There was a dispute in evidence about whether Nutgrove’s acknowledged extension of the quarry beyond its north and north-east boundary occurred with the permission or acquiescence of Mr Sherlock and whether, if it did, that was a quid pro quo for the sowing of crops by Mr Sherlock or a conacre tenant of his that had ‘hemmed in’ the quarry to the south and west. There was a protracted controversy in evidence about whether Nutgrove had quarried beneath the water table in breach of its planning permission or the water table had risen, due to exceptional weather conditions, above the excavation depth permitted under that permission. There was a controversy about whether the location of both the site-office and weighbridge, which were not those indicated in the site drawings by reference to which planning permission had been obtained, breached that permission or amounted to a permissible exempted development.
112. I have described earlier in this judgment how, after lengthy exchanges between Nutgrove and the council, extending well beyond the deadline in the enforcement notice, the council confirmed in an e-mail dated 24 October 2016 that it was happy for the necessary works to commence in accordance with the plans that had been agreed between them, and how Mr Sherlock refused to permit those works to be carried out.
113. Mr Kinghan, as Mr Sherlock’s planning consultant, testified that Nutgrove had been, and remained, in breach of its planning permission for the lower field quarry development in a number of respects. Mr Sherlock also called as a witness David O’Hara, a town planner in the planning department of the council, to offer a view about Nutgrove’s failure to comply with that permission by reference to the terms of the enforcement notices that the council had issued against it. On behalf of Nutgrove, Mr Shiels, its planning consultant, disputed certain asserted breaches of its planning permission and, in acknowledging the remainder, testified that they were capable of being remediated quickly and easily, if Nutgrove was permitted to do so. In his evidence, Mr O’Hara also expressed the view that the asserted breaches of Nutgrove’s planning permission that were the subject of the second enforcement notice could be easily fixed by carrying out the remediation works that the council had agreed with Nutgrove.
Analysis
114. It is common case that the agreement at the heart of the present proceedings, the lower field quarry licence agreement, was one made orally between the parties and never reduced to writing. There is a direct conflict of evidence between Mr Wisely and Mr Sherlock concerning what precisely they agreed. Much turns on the credibility of each as a witness.
115. Mr Sherlock was an argumentative and evasive witness, more than once caught out in a demonstrable lie, the most obvious – though not the only – example of which was his unwavering insistence, both on affidavit and in his testimony to the court ,that he had never owned a mobile phone with a camera on it, until confronted with photographs clearly showing him using the camera on his mobile phone on more than one occasion. I regret that I am unable to accept his evidence on any point in controversy between the parties.
116. On the balance of probabilities, I find the following facts proved.
117. At all material times, Mr Sherlock represented himself to Mr Wisely as the owner of the old quarry lands. To apply to register the quarry development with the council or to seek planning permission from the council for it, incurring significant outlay in the process, would not have made financial sense for Nutgrove or the Wiselys, had they known or suspected at the material time that Mr Sherlock was not the undisputed owner of those lands. Mr Sherlock was the occupier of those lands and believed that he had obtained title to them by adverse possession, although he did not disclose that to Mr Wisely.
118. The title deeds that Mr Sherlock provided to Nutgrove as proof of his ownership of the lands do record one James Sherlock as the owner of them. Of course, that James Sherlock was Mr Sherlock’s father and namesake, whose estate – remarkably – has remained unadministered since his death in 1972. The fact that the conveyance to James Sherlock occurred as long ago as 28 October 1944, would have given pause to anyone carefully scrutinising those deeds for confirmation of Mr Sherlock’s direct personal ownership of those lands but, as Mr Sherlock must know, there was no reason for Nutgrove, the Wiselys or, indeed, the council to engage in that level of scrutiny of those documents until Mr Sherlock’s brother challenged his entitlement to consent to Nutgrove’s planning application as the owner of them. Mr Sherlock’s repeated assertion that the Wiselys knew that the lands remained part of the unadministered estate of his father is both uncorroborated and implausible in those circumstances.
119. I am satisfied that Mr Sherlock was aware of the existence and role of Nutgrove no later than 9 January 2006, having signed a letter to the council on that date in which those facts were made plain. In asserting that he did not contract with Nutgrove, Mr Sherlock relied on his purported ignorance of its existence, rather than on any practical or principled objection to contracting with it as Mr Wisely’s designated vehicle. Thereafter, every payment cheque he received was written on the account of Nutgrove, and was encashed by him without objection or reservation Thus, I find that the parties to both the old quarry field and lower field quarry licence agreements were Mr Sherlock and Nutgrove.
120. I find that Nutgrove expended approximately €135,000 in developing a quarry operation at the quarry field on the basis of its agreement with Mr Sherlock and of Mr Sherlock’s representation that he was the owner of those lands, and I accept that Nutgrove later spent approximately €150,000 on the development and operation of the lower field quarry site on an equivalent basis.
121. Urging the court to adopt the analysis set out in Halsbury’s Laws (4th edn, 2003) vol 31, para 351, that a quarrying licence which is merely oral may be effectual if the licensee incurs expense in working on the faith it, Nutgrove submits, and I accept, that it obtained an effectual licence from Mr Sherlock in just that way. A right to work a quarry is more than a mere licence – it is a profit à prendre lying in grant (ibid, para 349). Where a profit à prendre to quarry has been granted by licence only, it is thus a licence coupled with an interest, irrevocable until its subject-matter has been exhausted or the term for which it was granted has expired; see Power, Intangible Property Rights in Ireland , 2nd edn. (Dublin, 2008) (at para 12.41).
122. It follows that I must I reject Mr Sherlock’s submission that Nutgrove merely obtained from him a bare licence, or a licence without an interest, comparable to that which was at issue before the old Irish Court of Appeal and the House of Lords in David Allen and Sons Billposting Ltd v King [1915] 2 IR 213, [1916] 2 AC 54 and, in consequence, one that was revocable at will. As Power explains (at para 17.34):
‘A licence coupled with an interest exists when the right to be enjoyed is not a mere privilege or entertainment, but an interest in land, usually a profit à prendre , such as a fishing right or a right of mining or quarrying. A licence coupled with an interest is, in conventional parlance, “irrevocable”.’
123. Even if that were not so, following the observations of Murphy J for the Supreme Court in Sweeney v Duggan [1997] 2 I.L.R.M. 211 at 216, I would imply into the agreement a term that it was one for the life of the quarry or the duration of the planning permission, whichever ended sooner, as reflecting the presumed intention of the parties under the officious bystander test. That must follow from the time and money that Nutgrove was anticipated to spend, and did spend, seeking and obtaining the necessary planning permission and developing and operating the quarry, if the agreement was to have business efficacy.
124. Insofar as it may be argued that the contract is unenforceable as one for the sale of an interest in land that is not in writing or evidenced in writing, I would not hesitate to direct specific performance of it as one captured by the equitable doctrine of part performance in respect of which, as Barron J explained in Mackie v Wilde and Longin [1998] 2 IR 578:
‘[W]hat is essential is that
(1) there was a concluded oral contract;
(2) that the plaintiff acted in such a way that showed an intention to perform the contract;
(3) that the defendant induced such acts or stood by while they were being performed; and
(4) it would be unconscionable and a breach of good faith to allow the defendant to rely upon the terms of the Statute of Frauds to prevent performance of the contract.’
125. While I do not think Mr Sherlock put up any argument to the contrary, I accept that the facts of this case and, hence, the nature of the licence granted here are consistent with those that were in issue in Atkinson v King (1877) IR 11 CR 536; (1878) 2 LR Ir 320 and Stanley v Riky (1892) 31 LR Ir 196, while clearly distinguishable from those that were before the Supreme Court in O’Reilly v S Holmes & Sons (Dublin) Ltd (Unreported, Supreme Court, July 28, 1967).
126. I accept, as Mr Sherlock did under cross-examination, that the licence to quarry was an exclusive one, although I am satisfied that it belonged to Nutgrove, rather than Mr Wisely personally. I find, in accordance with the evidence of Mr Wisely, which I accept, that Mr Sherlock was to receive a payment of €20 per lorry load of limestone extracted from the lower field quarry (without reference to the weight of that stone) and that no rent or other payment was due to Mr Sherlock under the licence agreement.
127. I have been unable to attribute any weight to the evidence given in these proceedings by Ms Scott, Mr Sherlock Jnr, Mr Sherlock’s daughter Sarah Sherlock, or Mr McDonald, wherever it came into conflict with that adduced on behalf of Nutgrove, as none of those persons was unaffected by either obvious self-interest; natural love and affection for, or longstanding friendship with, Mr Sherlock; an established animus towards Mr Wisely; or some combination of those factors.
128. I do not accept that it was reasonable for Mr Sherlock to remove the entrance barrier to the quarry in January 2012; to block that entrance with a combine harvester on 3 or 4 January 2012; or to block that entrance again with a tractor and slurry tanker on 1 February 2012. I do not accept Mr Sherlock’s uncorroborated evidence that he received legal advice that he should leave that tractor and slurry tanker blocking that entrance, or that it would have been reasonable or appropriate for him to follow such advice if it had been proffered. I find, as he admits, that Mr Sherlock did make allegations to Mr Wisely Jnr of immoral behaviour on the part of Mr Wisely and Ms Hurley. I am satisfied that he did so in order to intimidate Mr Wisely into abandoning or renegotiating the lower field quarry agreement and that this constituted reprehensible behaviour on Mr Sherlock’s part. I find that Mr Sherlock’s actions in placing a copy of the solicitor’s correspondence he subsequently received in his front window and in attaching another copy of that correspondence to the fence in front of his house was done for the same purpose, and represented equally discreditable behaviour.
129. I am, thus, satisfied that Mr Sherlock breached the lower field quarry licence agreement by interfering with Nutgrove’s quarrying activities in January 2012 and by effectively bringing those activities to a halt in February of that year. Further, Mr Sherlock remained in breach of that agreement right up to the trial of these proceedings.
130. I find that Mr Sherlock broke into Nutgrove’s site office at some time in or before the month of February 2014 and I reject his assertion that he had some justification or an innocent explanation for doing so. I am satisfied that Mr Sherlock, either in person or through Kilmainham Quarry Ltd (a company owned or controlled by him), has sold limestone rock and other material from the lower field quarry in breach of the lower field quarry agreement between Nutgrove and Mr Sherlock. I am satisfied, on the balance of probabilities, that Mr Sherlock was responsible, directly or indirectly, for the damage to the signs that Nutgrove erected at the quarry in 2015 and that this represents a further breach of the said agreement.
131. I accept without reservation the evidence of Mr Jones and Mr Ryan concerning the incidents that occurred on the three occasions when Mr Jones served legal documents on Mr Sherlock. I reject the conflicting evidence of Mr Sherlock and of Mr Sherlock Jnr on those incidents in its entirety. I find that any injury sustained by either Mr Sherlock or his son in the course of any of those incidents was the result of their own misadventure.
132. I find that Mr Sherlock’s refusal to permit Nutgrove to access the lower field quarry site in November 2016 in order to carry out the appropriate remediation works agreed with the council amounted to a breach of both the lower field quarry agreement and the interlocutory order of Murphy J made on 19 June 2012, restraining Mr Sherlock from locking Nutgrove out of those lands. I reject the assertion made by Mr Sherlock’s legal representatives in correspondence on his behalf that it was an implied term of the order made by Gilligan J on 2 July 2015, amending the heads of agreement between Nutgrove and Mr Sherlock previously made a rule of court, that the implementation of the new head of agreement thereby inserted was subject to Nutgrove’s taking various steps to the satisfaction of Mr Sherlock as a condition precedent. There was no basis for that assertion in law or in fact.
133. Mr Sherlock has failed to satisfy me, on the balance of probabilities, that he was underpaid by Nutgrove for the lorry loads of limestone that it extracted from the lower field quarry. I conclude that there are simply too many variables and acknowledged uncertainties in the method of estimating the tonnage of limestone extracted from the quarry that Mr Sherlock seeks to rely upon, although in doing so I do not disparage in any way the evidence of either Mr Kinghan or Dr Kelly on that issue.
134. I reject Mr Sherlock’s argument that it was an implied term of the agreement between Nutgrove and Mr Sherlock that Nutgrove would operate the quarry in accordance with the planning permission for it, thus duplicating a public law duty as a private law obligation. On the evidence before the court, there was not a scrap of discussion about the significance of the conditions that might attach to the anticipated planning permission for the quarry development when Mr Wisely (on behalf of Nutgrove) and Mr Sherlock were striking their bargain. Hence, if a term were to be implied into their agreement, imposing upon Nutgrove a contractual duty to Mr Sherlock to strictly comply with every condition of whatever planning permission it might obtain, it is one that would have to be cut out of whole cloth. While the argument that a term should be implied into every private law agreement, including this one, that the parties will comply with all relevant public law obligations upon them is, perhaps, a superficially plausible one, it does not stand up to careful scrutiny. In Meridian Communications v Eircell Ltd [2002] 1 IR 17, O’Higgins CJ summarised the principles that govern the identification of an implied term in an agreement as follows (at 40):
‘- before a term will be implied in a contract it must be necessary to do so, and not merely reasonable;
– the term must be necessary to give business efficacy to the agreement;
– it must be a term that both parties intended, that is, a term based on the presumed common intention of the parties;
– the court will approach the implication of terms into an agreement with caution;
– there is a presumption against importing terms into a contract in writing and the more detailed the terms agreed in writing the stronger is the presumption against the implication of terms;
– if the term sought to be implied cannot be stated with reasonable precision, it will not be implied.’
135. In my view, the implication into the agreement of the term contended for by Mr Sherlock would run counter to several of the foregoing principles. First, it is entirely unnecessary to do so in order to give business efficacy to the agreement. In the event of a breach of its planning permission by Nutgrove in a manner inimical to Mr Sherlock’s business interests, he had available to him at all times the entire panoply of public law procedures and remedies under the 2000 Act, without the necessity to create a parallel private law right derived from the implied duplication of all of the conditions of Nutgrove’s planning permission as conditions of the lower field quarry agreement.
136. Second, the reasonableness of the implication of such a broad and unnecessary implied term into the agreement between Nutgrove and Mr Sherlock is, to say the least, open to question on public policy grounds. Is it desirable, as a matter of public policy, to automatically duplicate public law duties as private law obligations by operation of law, when the enforcement of the former involves a legal procedure entirely separate from that used in the enforcement of the latter, creating an obvious risk of procedural confusion and, worse still, irreconcilable judgments? This case provides a perfect illustration of the obvious problems with such an approach, in that, in the present private law action, Mr Sherlock invites the court to consider at length – and, ultimately, to adjudicate upon – the public law issue of whether there has been a breach of various conditions of Nutgrove’s planning permission, in circumstances where substantially the same issue was, at the time of trial, before the District Court in proceedings brought under ss. 154 and 156 of the 2000 Act and may, at any time – at the instance of the council, Mr Sherlock or any other person – be the subject of any other appropriate application under that Act.
137. Further, it is important to bear in mind that Mr Sherlock does not contend that it was an implied term of the lower field quarry agreement that Nutgrove abide by the requirements of the planning code i.e . comply with any declaration of the council under s. 5 of the 2000 Act; or any enforcement notice issued by the council under s. 154; or any order made by the court under s. 160; and so on. That prompts two further questions. First, where is the evidence of any common intention that Nutgrove should be bound under its agreement with Mr Sherlock to strictly comply with each and every condition attached to its planning permission as opposed to, say, a common intention that Nutgrove should be bound to strictly comply with any declaration given, notice issued, or order made concerning it under the 2000 Act or, indeed, a common intention that the public law rights and obligations of the parties should be kept quite separate from their reciprocal private law rights and obligations under the agreement between them? Second, and following on from the first question, on what basis could the officious bystander possibly intervene to observe that it went without saying that the parties shared the common intention first described, to the exclusion of any other possible common intention?
138. The requirement upon Nutgrove under condition 17 of the planning permission to provide a completion or restoration bond in the sum of €100,000 within three months, provides a practical illustration of the problems faced by an officious bystander attempting to assert an intention on its part to be contractually bound to Mr Sherlock to strictly comply with each and every planning permission condition imposed upon it by the council, including that one. At the height of the financial crisis, Nutgrove fell into breach of that condition, before successfully renegotiating it. On Mr Sherlock’s case, Nutgrove’s initial failure to provide that bond, before renegotiating it, amounted not merely to a breach of the implied term of the lower field quarry licence agreement for which he contends, but to a breach of that term as a fundamental term of that agreement, thus permitting him to terminate it. I do not accept that the officious bystander could fairly or reasonably impute an intention on the part of Nutgrove to be bound in that way.
139. For the reasons I have given, I find that it was not an implied terms of the lower field quarry agreement between Nutgrove and Mr Sherlock that Nutgrove would at all times operate the quarry in strict compliance with each and every condition of its planning permission.
140. In addition, I find on the balance of probabilities that many, if not most, of the asserted breaches of Nutgrove’s planning permission – such as its quarrying activity to the north of the permitted area; and the placing of both the quarry entrance and the site office and weighbridge at the wrong location – occurred either with Mr Sherlock’s acquiescence or with his active agreement or consent. While that does not justify or excuse any breach by Nutgrove of its planning permission, if that is what has occurred, it does further militate against Mr Sherlock’s argument that Nutgrove’s strict compliance with every condition of that planning permission was both an implied term and a fundamental condition of the lower field quarry licence agreement between the parties.
141. For completeness, I should add that, even if I could be satisfied of the existence of the implied term contended for (and I cannot), it would be nigh on impossible to accept it as a fundamental term or condition of the lower field quarry licence agreement. Even if Mr Sherlock were permitted to pick and choose, by acknowledging that not every breach of a condition of Nutgrove’s planning permission amounted to a repudiatory breach of that agreement while arguing that certain breaches should be categorised in that way, he would still have to contend with the evidence of Mr O’Hara from the council (Mr Sherlock’s own witness) that, in his view, all of the outstanding asserted breaches of Nutgrove’s planning permission are easily remediable, should Nutgrove be permitted to carry out the necessary works.
142. I conclude by observing that the appropriate way for Mr Sherlock to raise any genuine concerns he may have had about his financial entitlements under the lower field quarry agreement, or about the safety or planning compliance of Nutgrove’s quarry operations, was by dialogue with – and, if necessary, complaint to the appropriate authority about, or legal action against – Nutgrove. It was not by direct physical interference with, or obstruction of, its quarrying operations, still less by the scurrilous abuse of Nutgrove’s directors and staff, or of process servers going about their lawful activities.
Conclusion
143. Based on the findings I have made, I will make the following orders.
144. I grant Nutgrove the permanent injunctions that it seeks in its statement of claim, subject to whatever submissions there may be concerning the appropriate terms of those orders.
145. I dismiss Mr Sherlock’s counterclaim in its entirety. In that regard, it is perhaps superfluous to note that no relief under s. 160 of the 2000 Act could, in any event, be granted in proceedings other than those taken properly in accordance with the requirements of that Act.
146. I do not believe that there is the necessary evidence of loss or damage before the court to permit an award of damages to Nutgrove for Mr Sherlock’s breach of the lower field quarry licence agreement, subject to whatever submissions the parties may wish to make on that issue.
147. I have come to the conclusion that Nutgrove’s application for the attachment and committal of Mr Sherlock for his alleged contempt of the order made by Gilligan J on 2 July 2015 is legally misconceived. The order concerned is one permitting the variation or amendment of heads of agreement that had been previously made a rule of court. As McDermott J pointed out in DL v ML [2013] IEHC 441, the making of a clause of a settlement agreement a rule of court does not have the same effect as making an order in terms of the clause. For that reason, it seems to me that the relevant complaint is that Mr Sherlock is in breach of the heads of agreement made a rule of court, rather than in breach of an order of the court, which does not provide the necessary platform for an application for attachment and committal. Had Nutgrove sought Mr Sherlock’s attachment and committal for breach of the order of Murphy J made on 19 June 2012, the position might well have been different, but it would be inappropriate to express a concluded view on that point and I do not purport to do so.
148. I will hear the parties on whether the interlocutory injunctions sought by Nutgrove to facilitate the restoration works agreed with the council are necessary or appropriate in view of the permanent injunctions I have granted.
A. McD (a minor) v The Minister for Education
[2013] IEHC 175
Judgment of Ms. Justice lseult O’Malley delivered the 17th April. 2013
1. Introduction
This is an application for a mandatory interlocutory injunction directing the first, seventh and eighth respondents to provide forthwith an appropriate educational placement for the applicant. The applicant is a teenage girl with a variety of mental health problems. She has been expelled from school and an appeal against that decision was turned down. In the substantive proceedings in the case she seeks orders of certiorari in relation to those decisions; in the alternative orders of mandamus directing the first, second, seventh and eighth respondents to provide for her an appropriate educational placement together with appropriate educational, therapeutic and support services suitable to her needs; a declaration that the failure to provide her with the foregoing has deprived her of her constitutional rights under Articles 40, 41 and 42 of the Constitution and also her rights under s.7 of the Education Act, constitutional and statutory rights.
2. The application currently before the court arises from the fact that she has been out of school since the expulsion and efforts to find an alternative placement have to date been unsuccessful. At the moment her education is limited to 10 hours per week although funding is available to her for up to 20 hours.
Background
3. The applicant was born on the 3rd July, 1998 and lives with her father and younger brother. The diagnosis of her condition is complex and includes moderate intellectual disability, mixed emotional and conduct disorder with significant challenging behaviour, a history of attachment disorder, attention deficit hyperactivity disorder and, possibly, foetal alcohol syndrome. What this means in terms of her behaviour is described by her father in his affidavit sworn on the 2nd November, 2012:
[A.] can be hostile towards both me and my son and has often been violent towards me. This has taken the form of hitting, kicking, punching and biting, all of which are regular occurrences. She sleeps very poorly in spite of the fact that she has been prescribed sleep medication for a number of years. She frequently wakes up after only a few hours sleep, and will often begin assaulting me with no reason while I am asleep. There have been many times when I have had to lock M., my son, into his bedroom at night, because he too has been subjected to assaults in the middle of the night. A. also regularly assaults M. during daylight hours, and this is often exacerbated if she has seen me showing him affection. She dislikes me showing him any affection and this has caused a significant difficulty for both M. and me.
A is often effectively kept under house arrest for her own protection, and in those circumstances she has been known to break furniture and smash windows in frustration. The incidents of her being kept in the house have increased over the last year due to the fact that I have no respite care available for A. A previous respite arrangement, which I had in place with my sister, whereby she would take A. every weekend, broke down and a subsequent respite arrangement that had been arranged through the HSE also broke down after a very short time due to A.’s violent behaviour towards the respite carer and her husband.
A will often lie on the floor and scream at the top of her voice if she does not get her own way and she has done this in public on a regular basis. This has resulted in a significant diminution of my ability to have a normal family life with her.
4. Is should be said that A’s father has demonstrated enormous motivation and determination in caring for his children in extraordinarily difficult circumstances and that A.’s relationship with him is spoken of highly.
5. Between 2005 and 2008 A. and her family were living in Northern Ireland. A. attended school there and had access to therapeutic supports but it is noted in the reports that her violence to other pupils was a difficulty. In 2008 the family came back to this jurisdiction. It seems to have taken quite some time to organise an appropriate school placement for her. In 2010 A. finally obtained a place in St. Michael’s House Grosvenor School (“St. Michael’s”). It appears from the reports that initially she was in a class of eight, with a teacher and two Special Needs Assistants. Her behaviour was very challenging, and after some time she was put in a class with only one other pupil, a teacher supported by two SNAs. It seems that even with this level of attention there were incidents of violence. By the end of December, 2011 she had been suspended three times. On the one day that she went to school in January, 2012 she was violent to another pupil and was re-suspended.
6. On the 20th February the Board of Management decided to expel A. “in order to ensure good order, discipline and the smooth and safe running of the school”. After a 20 school-day consultation period the Board confirmed its decision on the 20th March, 2012, stating that
“The Board considers that A.’s behaviour is a persistent cause of significant disruption to the learning of others and to the teaching process, and that her continued presence in the school constitutes a real and significant threat to the health and safety of other pupils and staff”
7. An appeal pursuant to s.29 of the Education Act, 1998 was turned down by the fourth, fifth and sixth named respondents on the 22nct May, 2012. The appeals committee considered that the sanction was proportionate to the behavioural challenges experienced by school management and staff when dealing with A.
8. On the 12th June, 2012 the Department wrote to A.’s father to inform him of the result of the appeal and to further inform him of the availability of assistance in securing a school place from the National Educational Welfare Board.
9. The decisions in relation to the expulsion are, as noted above, yet to be dealt with as part of the subject-matter of the substantive proceedings.
Developments since A.’s expulsion from school
10. From the 23rct April to the 29th June, 2012 A. received two hours home tuition per day.
11. On the 21st June, 2012 A.’s solicitor wrote to the Department of Education and Skills referring to the failure of the appeal, the fact that A. was now to make appropriate provision for her schooling. The letter stated that it was “very important that she has social interaction with her peers in a school environment”. In closing, it was stipulated that in the event that no reply was received within 14 days, application would be made to court.
12. The Department replied on the 5th July and again, in greater detail, on the 26th July, 2012. This letter set out the first named respondent’s understanding of his constitutional obligations (specifically, “to provide for education and, where the public good requires it, to provide other educational facilities or institutions rather than to provide education directly”) and his obligations pursuant to the Education Act, 1998 (“to ensure, subject to the provisions of the Act, that there is made available to each person resident in the State a level and quality of education which is appropriate to meeting the needs and abilities of that person”). The services provided by the National Council for Special Education, the National Educational Welfare Board (“the NEWB”) and the National Educational Psychological Service were outlined. Of these, it would appear that the NEWB was the most immediately relevant body, as it is responsible for school attendance and is charged with giving assistance in cases where there is difficulty in finding a placement.
13. In relation to the specific circumstances of A.’s case, it was stressed that the Minister did not have a direct role in identifying school placements but that, in an effort to be of assistance, applications for enrolment had been made to Carmona Special School in Dun Laoghaire and St. Augustine’s School in Blackrock. It was considered that Carmona would be appropriate because it was planning to establish a new class in September 2012, while St. Augustine’s could also be suitable because A. lived in its catchment area and it had a special class attached to St. John of God’s hospital. The Department said that a named Education Welfare Officer was liaising with Carmona Services and that if additional resources were required for A.’s support in accessing the placement the NCSE would consider any applications from the school.
14. The Department also referred to the fact that Ms. Elaine Nolan, of the NEWB, was in the process of convening a meeting on the 9th August, 2012 for the purpose of facilitating A.’s return to school at the earliest opportunity. The persons to be invited to attend were described as “key personnel (including education stakeholders) who have been involved in A.’s case to date.”
15. After the meeting the applications to Carmona (originally made in May) and St. Augustine’s (originally made in July) were followed up, although according to Ms. Nolan A.’s father wished to prioritise an appeal against the expulsion. St. Augustine’s turned down the application because it is a school for children with mild intellectual disability and not suitable for A., who has moderate intellectual disability. Carmona’s initial response was that it could not take A. because it did not have access to psychiatric supports and therefore felt unable to meet her needs. Ms. Nolan continued to pursue this application, asking for it to be brought to the school’s Board of Management and, as appears from the correspondence, liaising with the Health Service Executive, requesting support services to address the school’s concerns. Carmona responded in October, requesting reports from A.’s school in Northern Ireland, St Michael’s, hospital and psychological reports and information in relation to involvement with the HSE from birth to date. Ms Nolan was not in a position to furnish these as the NEWB considered that they should be sourced directly by the school. She continued to ask Carmona to progress the application. It would appear that Carmona replied in late December saying that it could not progress matters without the reports. Ms Nolan then requested a meeting in January, to which she proposed to invite the relevant organisations to gather the information required by Carmona.
16. Meanwhile, by order made on the 5th November, 2012 the applicant had been granted leave to seek judicial review as set out above. This Notice of Motion was issued on the 6th November, 2012 and came on for hearing on the 6th March, 2013.
17. On the 8th November, 2012 the Department sanctioned a further grant of home tuition for up to 20 hours per week. This is still available to A. but as it happens she is not able to cope with more than two hours per day. There is no complaint about the tutor who is working with A.
18. The requested meeting with Carmona was scheduled for February, 2013 and then re-scheduled for the 4thMarch, 2013, two days before the hearing of this application. It was attended by A.’s father and her home tutor, representatives of the NEWB, Carmona School, the HSE and the Department of Education. Carmona confirmed its view that it did not have the clinical and therapeutic supports needed by A. and it would not, therefore, offer her a place.
19. As a result of the discussions at the meeting Ms. Nolan contacted St. Catherine’s Special School in Wicklow to enquire about applying for a place there. She says that she was told that there was a waiting list and A. was outside the catchment area. She further says that A.’s father contacted her the next day, after consulting his solicitor, to say that he did not want an application to be made at this time. Ms. Nolan says that she will continue to seek alternative placements for A.
20. Mr. McD., for his part, wishes to make it clear that he felt that it was obvious after the conversation Ms. Nolan had with the principal of St. Catherine’s that A. would not be offered a place and that he thought there was no point pursuing it. He states his belief that Ms. Nolan has done all that she can do to find a placement for A. but that, through no fault of hers, no placement appears to be available.
21. As of the date of hearing, therefore, the position is that A has not attended school for well over a year. She now receives two hours home tuition per day, with the option of extending that up to four hours if she was able to cope with it.
22. It is Mr. McD.’s belief that the lack of a school place is having a deleterious impact on A.’s social skills as well as on her education, with consequent limitations on her future prospects.
The Health Service Executive
23. Although the HSE was not a party to this motion its role was the subject of some comment and affidavits filed on its behalf in the main action were relied upon to some extent.
24. As it is not a party I will not make any findings or rulings in respect of the HSE and therefore I think I should not go into the affidavits in any great detail. It may however be important to note that in January 2012 a report by Dora Marciniak, Clinical Psychologist, remarked that
“A. seems not to know how to interact with her peers and other children. She would benefit from social skills activities, which would support development of abilities such as making friends, entering and ending conversations appropriately and playing with other children.”
25. The care plan drafted for A. by Celine Judge and Karen Hall, Acting Team Leader of the Protection and Welfare Social Work Team, after the institution of these proceedings states that
“A. requires an educational placement in a school for children with moderate learning difficulties, with a clinical team including speech and language, social work, psychology [and} psychiatry.
It will be essential that a care plan is devised at a Multidisciplinary Meeting when A. recommences education, which will take into consideration A.’s educational needs and abilities, speech and language needs, attachment difficulties, behavioural difficulties and social skills and plan how best to meet any deficits in her development.”
Submissions
26. It is common case that the State has a constitutional obligation to provide for free primary education and the applicant has a right to receive free primary education. On behalf of the applicant Mr. de Blacam says that that right must be enforceable by way of a mandatory order where that is necessary to ensure that provision is made, or it will be meaningless. He acknowledges the principle, based on the separation of powers and most strongly enunciated in Sinnott v Minister for Education [2001] 2 IR 545 and T.D. v Minister for Education [2001] 4 IR 259, that the courts are reluctant to make mandatory orders against State parties and prefer where possible to grant relief by way of declaration but says that the authorities do provide scope for exceptional cases. This, he contends, is one such case. It is further argued that declaratory relief would not be appropriate in this application, there being no such thing as an interim or interlocutory declaration.
27. In particular, the applicant relies on the following dicta.
Sinnott
• Keane CJ at p. 631-
“..while in principle there is nothing to preclude the granting of mandatory relief directed to the Minister concerned, it is appropriate, in my view, for the courts to presume that where this court grants a declaration that he or she has failed to meet his or her constitutional obligations, the Minister will take the appropriate steps to comply with the law as laid down by the courts.’
• Denham J at p. 656 –
“…the courts assume that decisions will be implemented and that mandatory orders are not necessary. Thus a declaratory order, if any order is necessary, is usually appropriate. However, I would not exclude the rare and exceptional case, where, to protect constitutional rights, the court may have a jurisdiction and even a duty to make a mandatory order.”
• Geoghegan J at p. 724 –
“…I do think that in very exceptional circumstances it may be open to a court to order allocation of funds where a constitutional right has been flouted without justification or reasonable excuse of any kind.”
• Murray J at p. 336-
“…I do not wish to determine that the courts may never make a mandatory order in anv form as opposed to a declaratory or other order, against an organ of state.
In so far as McKenna v An Taoiseach (No.2) [1995] 2 IR 10, Crotty v An Taoiseach [1987] IR 713 and District judge McMenamin v Ireland [1996[ 3 IR 100 might be said to be authority for the making of some form of mandatory order where there is “a clear disregard” by the State of its constitutional obligations, it must be borne in mind that in none of those cases was a mandatory order granted …. For example, a mandatory order directing the executive to fulfil a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its obligations in an exemplary fashion. In my view the phrase “clear disregard” can only be understood to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness”.
28. It might be noted in passing that this last passage was agreed with by Hardiman J, who however commented that he did not believe that any circumstances which would justify the making of such an order had occurred since the enactment of the Constitution.
29. The applicant further relies on two High Court decisions that post-date Sinnott and T.D., being the judgments of Herbert J in Nagle v Southwestern Area Health Board unrep. High Court, 30th October, 2001 and Laffey J in Cronin v Minister for Education and Science [2004] 3 IR 205.
30. In Nagle, a mandatory injunction was granted directed to the Minister for education requiring that he forthwith provide for appropriate, free primary education and support services to the plaintiff, who was not at the time receiving any education service at all. Herbert I said that he felt he had no option but to do so, since he could not make an “interim declaration” and believed that he should not make a final declaration at the interlocutory stage. In Cronin, Laffey J granted an order where the “refined, narrow matter” before the court was the provision of money for a programme specific to the plaintiff, limited both in quantum and duration and could have no significant resource or budgetary implications for the Minister.
31. In asserting an entitlement to an order at this stage of the proceedings the applicant relies on the decision of the Supreme Court in Campus Oil Ltd v Minister for Industry and Energy (No. 2) [1983] IR 88. In that case the defendant minister sought a mandatory injunction compelling the plaintiffs to comply with the terms of an order made by him pending the determination of the plaintiffs’ claim that the order in question was unlawful. The plaintiffs resisted on the basis that it was probable that the validity of the order would not be upheld. The case is the leading authority for the proposition that a mandatory injunction may properly be granted where 1) the party seeking it can establish that there is a fair question concerning the right sought to be protected or enforced by the injunction and 2) the circumstances are such that the balance of convenience lies on the side of the granting of the injunction. It is argued on behalf of the applicant in the instant case that there can be no doubt as to either the existence of the right in question or the balance of convenience.
32. On behalf of the respondent Mr. Dignam SC contends as a preliminary argument that the applicant has failed to discharge the burden of proof in that, it is argued, it has not been shown by expert evidence that the current provision of home tuition, as opposed to a school placement, does not accord with her best interests or that it does not constitute an appropriate response to her educational needs. He relies on the principle that mandatory interlocutory injunctions should rarely be granted and invokes the authorities already referred to in relation to the separation of powers. Having regard to the failure of the applicant’s previous placement, he says that it is clear that no placement will succeed without the support of services necessarily supplied by the HSE rather than by these respondents. (This latter proposition is accepted by the applicant, without resiling from the contention that it these respondents who bear the constitutional obligation to ensure that A.’s rights are respected.) The court should not, it said, make an order incapable of fulfilment- the Minister cannot compel a school to accept the applicant (except in the case of an appeal against a refusal to admit a pupil).
Conclusions
33. In my view the respondents are incorrect in the submission that the applicant has not discharged the burden of proof as to the shortcomings of her current educational provision. Apart from the obligation to provide for free primary education, Article 42 of the Constitution requires the State to ensure that children receive “a certain minimum education, moral, intellectual and social”. It is absolutely clear from her father’s evidence, from the psychologist’s report and from her history in school that A.’s social education is gravely deficient. Further, it is clear that the efforts of everyone involved from the field of education have been to find her a school placement. Home tuition, as Mr. Dignam concedes, was only ever meant to be a stop-gap measure, sanctioned on a temporary basis from time to time because A was out of school. I do not believe that evidence is required from an educational expert to establish on the balance of probabilities that home tuition, even with the best of tutors, is not designed to replace the form of social education gained by learning how to get along with one’s peers and other people. If this is not remedied, her future life will be difficult in the extreme.
34. However, it is not possible for me to find that the very high standard for a mandatory interlocutory injunction against these respondents has been met. The passages quoted above from Sinnott and T.D., while supporting a general proposition that in extreme cases such an order may be made, do not assist this applicant since her situation, bad though it undoubtedly is, is not in the class of case envisaged by the Supreme Court as within the definition of “extreme”. There is no element of bad faith, no matter how it might be described. This is not a situation where the rights of A have been consciously and deliberately disregarded or flouted. Notwithstanding the argument made in relation to the burden of proof at the hearing, nobody involved in her case thinks that she should receive only home tuition and efforts continue to be made to find a school. The case on her behalf is effectively made, without those elements, on the basis that she is entitled to a school place, she does not have one and this is having a harmful effect on her development. That does not suffice for an order of the type sought.
35. I also agree with the view of Herbert J expressed in Nagle that a declaration at this stage of proceedings is not appropriate. However, the applicant’s substantive proceedings are at an advanced stage of readiness and I see no reason why a full hearing should not be held in early course.
36. I therefore refuse the relief sought in this application.
Cases Mandatory Injunctions
De Burca v. Wicklow County Council [2000] IEHC 182 (24th May, 2000)
The High Court
De Burca v Wicklow County Council
2000 /42 JR
24 May, 2000
O CAOIMH J
The Applicant Deirdre de Burca is an elected member of Wicklow County Council representing the Green Party and resides at 1 Wellington Court, Novara, Bray in the County Wicklow.
By Order of Mr Justice O’Neill made the 7 February 2000, the Applicant was given leave to apply by way of an application for judicial review for the following relief:
1. A Declaration that the Respondent is required by article 4(2) of the European Communities (Waste) Regulations 1979 and the Waste Management Act 1996 to prepare a plan pursuant to the said article as soon as possible
2. A Declaration that the Respondent is in breach of article 4(2) of the European Communities (Waste) Regulations 1979 and the Waste Management Act 1996 having failed to prepare a plan pursuant to the said article as soon as possible.
3 A Declaration that the Respondent is the competent authority with responsibility within the given zone of functional area of the County of Wicklow, for planning, organisation, authorisation and supervision of waste disposal operations pursuant to Council Directive 91/156/EEC and is, as such, required to draw up as soon as possible one or several plans relating to the matters set out in Article 7 thereof.
4. A Declaration that the Respondent, as the competent authority within the given zone of functional area of the County of Wicklow, for the planning, organisation, authorisation and supervision of waste disposal operations pursuant to Council Directive 91/156/EEC, is obliged pursuant to Article 8 of the said Directive to take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or a disposal undertaking or disposes it himself in accordance with Article 4 of the said Directive.
5. An Order of mandamus requiring the Respondent to prepare a plan pursuant to Article 4(2) of the European Communities (Waste) Regulations 1979 and the Waste Management Act 1996 as soon as possible.
6. An Order of mandamus requiring the Respondent to collect, or arrange the collection of, household waste within the functional area of the County of Wicklow.
7. A Declaration that the Respondent is in breach of section 33(1)(a) of the Waste Management Act 1996 to collect or arrange the collection of household waste within the functional area of the County of Wicklow.
8. A Declaration that the Respondent is in breach of section 33(1)(a) of the Waste Management Act 1996 in failing to collect or arrange the collection of household waste within the functional area of the County of Wicklow
9. An Order of Certiorari quashing the decision of the Respondent by County Manager’s Order Reference number. Env. 70/00 and dated the 27 January 2000 to cease its household refuse collection service with effect from close of business on Friday, 28th January 2000.
10. Interim and/or interlocutory relief.
11. Such further or other Order as to this Honourable Court doth seem fit and meet.
12. The costs of and ancillary to these proceedings,
The grounds upon which relief is sought or set out at paragraph E in the Statement filed on the 8 February 2000 and are as follows:
1. The Respondent is responsible for the planning, organisation, authorisation and supervision of waste operations in the functional area of the County of Wicklow pursuant to Article 4(1) of the European Communities (Waste) Regulations 1979 and the Waste Management Act 1996. The Respondent was required by article 4(2) of the European Communities (Waste) Regulations 1979 to prepare a plan indicating:
(a) the type and quantity of waste for disposal (b) general technical requirements (c) suitable disposal sites, and (d) any special arrangements for particular wastes.
2. The Respondent has failed to prepare a plan as required by Article 4(2) of the said Regulations and is in breach of the duty imposed by Article 4(2).
3. The Respondent is the competent authority with responsibility, within the given zone of the functional area of the County of Wick-low, for planning, organisation, authorisation and supervision of waste disposal operations pursuant to Council Directive 91/56/EEC. As such, it is required to draw up as soon as possible one or several plans relating to the matters set out in Article 7 thereof.
4. The Respondent has failed to draw up as soon as possible one or several plans pursuant to Article 7, and, as the Directive has direct effect on the Respondent as an emanation of the State, the Respondent is in breach of the provisions of said Article.
5. The Respondent is the competent authority with responsibility within the given zone of the functional area of the County of Wick-low, for planning, organisation, authorisation and supervision of waste disposal operations pursuant to Council Directive 91/56/EEC, is obliged pursuant to Article S of the said Directive to take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or a disposal undertaking or disposes it himself in accordance with Article 4 of the said Directive.
6. The Respondent has failed to take the necessary measures required by Article 8 of the said Directive and is in breach of the provisions of the said Article.
7. Section 33(1) of the Waste Management Act 1996 requires the Respondent to collect, or arrange for the collection of, household waste within the functional area of the County of Wicklow.
8. By County Manager’s Order Reference number Env. 70/00 and dated the 27th January 2000 the Respondent purported to decide to cease its household refuse collection service with effect from close of business on Friday the 28th January 2000.
9. The said decision of the 27th January 2000 had the effect that, since the close of business on Friday the 28th January 2000, the Respondent has not collected or arranged for the collection of, household waste within its functional area.
10. The said decision amounted to an abdication of and a refusal to abide by the duty imposed by section 33(1)(a) of the Waste Management Act 1996 and is breach of the said Act.
11. The said decision was predicated on alleged decisions of the elected members of the Respondent County Council on the 22nd November 1999, the 13th December 1999 and the 17th January 2000 but the said alleged decisions did not or could not authorise the breach of duty imposed by section 33(1)(a) of the Waste Management Act 1996.
12. In making the said decision, the Respondent took into account matters which were not relevant to the duty imposed by section 33(1)(a) and failed to have regard to matters which were relevant and which should have been considered.
13. Further or in the alternative, the said decision was purported to be authorised by section 33(2) of the Waste Management Act 1996, which subsection provides that section 33(2)(a) shall not apply to the extent that any of the conditions of section 33(3) applies to that part or, as appropriate, to that household waste. Section 33(2) of the said Act of 1996 therefore relieves the Respondent of the duty imposed by section 33(2)(a) in respect of the limited extent where the section 33(3) conditions apply to a specific part of the Respondent’s functional area or specific household waste within that functional area. The Respondent erred in law by purported to abdicate its duty under section 33(1)(a) of the Act 1996 for the entirely of the functional areas of the County Wicklow and for the entirety of the household waste within the said area.
14. The said decision is unreasonable and offends plain reason and common sense.
15. The said decision was made notwithstanding the fact that:
(a) an adequate waste collection service is not available in the County of Wicklow;
(b) the estimated cost of the collection of the waste concerned by the Respondent was not, in the opinion of the Respondent, unreasonably high;
(c) the Respondent was not satisfied that adequate arrangements for the disposal of the waste concerned can reasonably by made the holder of the waste.
16. The Respondent failed to consider whether:
(a) an adequate waste collection service is or is not available in the functional area of the County of Wicklow;
(b) the estimated cost of the collection of household waste within the said functional area by the Respondent was or was not unreasonably high;
(c) whether adequate arrangements for the disposal of the entire household waste in the County of Wicklow can reasonably be made by holders of any waste within such area.
17. By reason of the matters set forth at paragraphs 15 and/or 16 above, the Respondent erred in law in making the said decision.
18. The said decision of the Respondent was ultra vires for the reasons aforesaid.
19. The said decision was fundamentally flawed because it was expressly motivated by irrelevant reasons.
20. The said decision was in breach of Article 4(1) of the European Communities (Waste) Regulations 1979, being an abdication of the Respondent’s responsibility for the planning, organisation, authorisation and supervision of waste operations in the functional area of the County of Wicklow as imposed by Article 4(1).
21. The said decision was in breach of Article 8 of the Council Directive 91/156/EEC, being an abdication of the Respondent’s responsibility as the competent authority within the given zone of the functional area of the County of Wicklow for the planning, organisation, authorisation and supervisions of waste disposal operations in that functional area.
The Applicant’s application is grounded on her affidavit filed on the 8 February 2000. She states that she is very concerned with the issue of household waste collection, as are many of her constituents. She believes that the collection of household waste is an important function of local authorities and that the local authorities should as far as possible carry out the collection of household waste so there can therefore be accountability, a democratic dimension and a commitment to meeting the needs of the households rather than a private commercial imperative.
The Applicant states that the elected members of Wicklow County Council have a pivotal role in deciding waste management strategy including the strategy for the collection of waste within the County of Wicklow. She states that the European Communities (Waste) Regulations, 1979 (hereinafter referred to as the 1979 regulations) imposed the duty on the Respondent to prepare a waste management plan, which plan shall contain a strategy in which the policy objectives of the local authority are determined. The Applicant states that she has been concerned at the Respondent’s failure to comply with its obligations under the 1979 regulations, which require the preparation of a plan “as soon as may be” after the 18 December 1979. She states that over twenty years later, no waste management plan has being prepared and that draft plans have come and gone. A draft plan was produced in 1982 but was never adopted. Similarly, a draft plan was presented to the elected members in 1999, but again this draft was not adopted.
The Applicant states that the draft plan presented in 1999 was aspirational and discursive in its nature and fell far short of the requirements of the 1979 regulations and the Directive to which those regulations purport to give effect, being Council Directive 75/442/EEC as amended by Council Directive 91/156/EEC. The Applicant states that the draft document also fell short of the requirements of the Waste Management Act, 1996, as that Act requires specific matters to be addressed and the draft plan largely presented options to the executives. She states that it was frustrating to find that the opportunity to provide strategic ‘planning for a Waste Management Strategy with public involvement had been squandered. She states that the Directives and 1979 Regulations together with the Act of 1996 which purport to give effect to the Directives are concerned with providing for a systematic and modern planned approach to waste management at a local level. She states that without a Waste Management Plan the relevant authority has no idea how much waste it currently produces, from where it originates, how it should be collected and how it should dispose of the waste. Effective waste management is crucial to environment management and sustainable development. She states that providing for the proper collection of waste is obviously a vital part of waste management.
The Applicant is disturbed by the failure of the Respondent to adequately meet its responsibilities as imposed by law including the 1996 Act, the 1979 regulations and the Council Directives already referred to herein. The Applicant states that this failure to meet its statutory obligations has being amplified by the Acting County Manager’s order reference number ENV.70/00 and dated the 27 January 2000 to cease its household refuse collection service with effect from close of business on Friday the 28 January 2000. This decision to abandon all responsibility for household waste collection creates many concerns in regard to the protection of the environment and any regard to public health considerations.
The Applicant complains that Blaise Treacy, as County Manager of the Respondent has suggested “out of the blue” that he believed that Wicklow County Council should not collect waste in its functional area and that the collection of waste should be left to the private sector. The Applicant states that she was greatly disturbed by this suggestion, as without accountability and public service considerations provided by the Local Authority as a household waste collector, she believed that this vital service would become expensive and many areas would be denied a waste collection service on a commercial cost benefit analysis. The Applicant complains that there is no commitment to recycling amongst most of the private collectors and the Respondent has no intention to oblige them to recycle. She states that she strongly believes that the waste collection is too important a matter to be left to the vagaries of the commercial market. The Applicant states that she is not only opposed to the suggested abandonment of the public service by the Respondent on principle, but also on detail. She states that no one knows how comprehensive or affordable a service could be provided by private household waste collectors and no one knows the extent to which they could be supervised in practice. She apprehends that private collectors will attempt to maximise their profits by increasing the charges for their services and she fears that illegal and undesirable dumping and burning of waste by householders will increase. She states that no research has revealed the nature and the extent of the alternative service that could possibly be provided by private collectors, or whether any alternative service can be provided to collection by the Respondent in many parts or indeed all of the County of Wicklow.
The Applicant states that a fundamental decision as to whether or not the Respondent should continue its household waste collection service should be decided by the elected members as it would form an intricate part of such Waste Management Plan that the elected members are required to make. She states that it appears that the notion of abandoning a waste collection service at this stage could be designed to remove the question from the elected members when they are eventually permitted to adopt a Waste Management Plan because once the service was abandoned many people have been obliged to enter into contractual arrangements with commercial concerns so that resumption of a local authority service would be less viable than heretofore.
The Applicant states that on the 8 November 1999, at an estimates meeting of the elected members of Wicklow County Council, it was proposed that the household waste collection charge be increased to L200 per annum. She states that this proposal caused significant disquiet and the meeting was adjourned to the 22 November 1999. She states that on the 22 November 1999, the motion was reintroduced. There was a considerable degree of confusion as to the cost of the collection service and the lack of audited accounts from 1997 to 1999 meant that it was not possible for the elected members to make an informed decision as to the appropriate amount to charge householders for the service. The Applicant believed that the motion was designed to be defeated so that this decision could be suggested to be justification for the abandonment of the service. She states that when a majority of fourteen to nine voted against the motion, no sum in respect of household waste collection charges was included in the estimates for the year 2000.
The Applicant states that she became aware of notices published in the “Bray People” and the “Wicklow Times” on or about the 12 December 1999, headed “Wicklow County Council, Bray UDC, Wicklow UDC, Arklow UDC.” indicating that
“The Wicklow local authorities will not be collecting household refuse after 31st December 1999. Householders who presently avail of the Local Authorities Refuse Collection service should make alternative arrangements with the private operations with effect from 1st January 2000.”
The Applicant states that a circular was posted to householders across the County of Wicklow by the Respondent, advising that the Respondent will not provide a refuse service with effect from the 1 January 2000. This circular stated “as from this date it is up each householder to make their own arrangements with private collectors/operators”. The Applicant states that the circular goes on to name private operators who are represented to either provide a service or to be interested in providing a service. The operators she states are based in Dublin, Wexford, Kildare, Car-low as well as in County Wicklow. The circular was enclosed with another leaflet, which stated “All householder should at this stage make alternative arrangements with one of the many private operators currently advertising their service in the County”. The Applicant states that it went on to ask “Was the service not partly privatised ” and answered it’s own question with the word “Yes”. The Applicant states that another leaflet, distributed by Bray UDC, listed a number of waste collectors and added “consumers may wish to consult the yellow pages for a more comprehensive list of refuse collection operators”.
The Applicant states that at the meeting of the elected members of the Wicklow County Council on the 17 January 2000, an opinion of Senior Counsel was circulated. She states that the Assistant County Manager subsequently decided by County Manager’s order, dated the 27 January 2000 ” I hereby order that Wicklow County Council ceases its household refuse collection service with effect from close of business on Friday 28th January 2000″. The Applicant states that the Respondent has acted on this order to cease providing any household waste collection service in the County of Wicklow and says that this has caused significant concern as persons who had previously had their household waste collected by or on behalf of Wicklow County Council have had to contract with private collectors who service parts of County Wicklow. She states that she is aware of people who could not find a collector who would resume the service provided by the Council and that bags of rubbish had begun to accumulate on the streets. She states that there is a real danger that illegal dumping and burning will escalate. This has already occurred in Bray and the dumping on the streets, which took place in Bray, was exacerbated by strike action.
The Applicant believes that on an annual basis Wicklow County Council collects some 12,669 tons of waste from approximately 9,745 households, Bray Urban District Council collects 9,865 tons of waste from approximately 9,000 households and Arklow Urban District Council collects some 4,290 tons of waste from approximately 3,300 households. The Applicant believes that the private collectors will not be able to cope with the increased demand for their services in the short term, which will result from the Respondent’s decision. The Applicant states that the furnishing of householders with the list of names and addresses of collectors of waste did not constitute the arrangement of services for the householders but is instead a complete abdication of responsibility without any consideration given to the consequences of the decision. The Applicant states that the Order of the 27 January 2000, refers to the entire of the County of Wicklow but no enquiry whatsoever has been made into whether an adequate waste collection service is available in every single part of the County of Wicklow. She states that there are now parts of the County in which there is no waste collection service and that this certainly applies to many more remote rural parts. The Applicant states that the Respondent has not decided that the costs of collecting a particular household’s waste is unreasonably high, but rather made an Order without making any or any adequate enquiry into the cost on the basis required by Section 33(3)(b) of the Waste Management Act, 1996. The Applicant states that no question can arise as to whether adequate arrangements for the disposal of a particular household’s waste can be made by that householder as no enquiry was made and no evidence was before the Respondent as to the alternative arrangements that could be made by each and every one of more than 10,000 households left without a waste collection service. The Applicant refers to a press report of the 2 February 2000 in which it is reported that the acting County Secretary stated that more than one half of the 9,000 household’s in Wicklow town is now without a refuse collection service and in such circumstances it can hardly be claimed that an adequate waste collection service is available in the town of Wicklow or that adequate arrangements for the disposal of the waste of householders of Wicklow town can reasonably be made by the householders. It appears that on the 3 February 2000, the press reported that the Respondent had declared that the reinstatement of a waste collection service was not possible.
In this application, the Applicant seeks an Order requiring the Respondent to resume the collection of household waste within the functional area of the County of Wicklow and in the alternative the Applicant seeks an Order requiring the Respondent to arrange for the collection of household waste within the Respondent’s functional area.
On behalf of the Respondent, Micheal O’Leary, who is described as the Senior Executive Engineer, has sworn an affidavit. At paragraph 3 of his affidavit, he states that the background to the Council’s decision of the 27th January 2000, is as follows:
(i) For a number of years, private commercial waste operators have had both the capacity and willingness to provide a waste collection service within the Council’s functional area. In 1999, there were approximately 20,000 households within the functional area of the Council. Of that number, approximately 9,745 were provided with a waste collection service by the Council. Approximately 9,000 were provided with a waste collection service by private commercial operators such as Noble Waste, Arklow Waste, Andrew Phibbs and smaller private operators such as Wheel Bin Service, Cobb and Whelan.
(ii) Therefore, as of 1999, approximately 500/o of the households within the functional area of the Council were provided with a waste collection service by private commercial operators;
(iii) In the course of preparing the Council’s estimates for the year 1999, the County Manager proposed an increase in the annual household refuse charge from L65 to L206. Even with this level of charge, the Council was still providing a subvention of approximately L300,000 towards the estimated costs of the collection of the waste concerned. Following a lengthy debate, the Council eventually adopted a charge of L95 per household in 1999;
(iv) Recognising that the continued subvention of waste collection was unsuitable in the long term (and contrary to “the polluter pays” principle), the Council set about considering whether adequate arrangements for the management of waste within its functional area could be made, including, inter alia, arrangements with private commercial operatOthers In May of 1999, the Council placed an advertisement inviting submission. In all, some 13 submissions were received from private commercial operators and it was clear from the submissions received and subsequent discussions with operators who made submissions that an adequate waste collection service was available throughout the Council’s functional area from those commercial private operators and adequate arrangements could be made for the disposal of the waste concerned between the householders and the private commercial operators at a cost significantly less than that provided by the Council;
(v) In 1999, the Council lost approximately 2,000 householders to the private sector;
(vi) In due course, the Council subsequently prepared its draft estimates for the year 2000. These estimates provided for a refuse service charge of L200 per household (i.e. those households using the Council’s waste collection service), a charge, which was in accordance with Government and EU policy reflecting the real costs of the service provided. The charge of L200 (contained in the estimates) compared with charges by private commercial operators in the range of L90 to L156 (which includes the provision of a wheeled bin) per household. In addition the private commercial operators were also offering a bag collection service at a cost of L1.50 per bag. At present there are approximately ten commercial operators competing for the service;
(vii) The privatisation of the household waste collection service will not affect the employment of the Council’s refuse crews because alternative employment is to be provided or, alternatively, a compensation package offered.
(viii) On the 22 November 1999, the elected members of the Council adopted estimates without providing for a household waste collection charge to be imposed for the service.
(ix) On at least two occasions since the adoption of those estimates, the issue was revisited by the elected members of the Council, but no proposals were passed by way of resolution by the elected members of the Council altering the adoption of the estimates on the 22nd November, 1999.
(x) Mr O’Leary claims that the Applicant took a full part in the deliberations/submissions of the elected members of the Council on the 22nd November, 1999 and that she was fully aware of the implications of the decision of the elected members of the Council to adopt the estimates without a service charge. He says that she has known since at least the 22 November, 1999 that the effect of the decision of the elected members of the Council was the cessation of the Council’s household refuse collection service, with effect from close of business on Friday 28th January 2000. He complains that the Applicant has delayed in seeking the relief herein and has acquiesced in the steps taken by the Council’s executive in the implementation of the privatisation of a waste collection service since that date.
Mr O’Leary then states at paragraph 4 of his Affidavit as follows:
“Having regard to, inter alia, the adequacies of the waste collection services available within the Council’s functional area, by private commercial operators (who in 1999 had already provided 50% of households with that service), the estimated cost of collection of household waste by the Council, the fact that adequate arrangement for the disposal of waste could be made and the adoption of estimates without providing for a service charge, the County Manager made his Order on the 27 January 2000, the decision in principle having being made as of the 22 November 1999.”
Mr O’Leary states that the existing service was continued until the end of January 2000 to assist in the transitional period and to allow the householders to make adequate arrangements for the collection and disposal of waste within their area.
Mr O’Leary states that the decision to privatise the waste collection service for householders within the functional area of the Council was arrived at on or about the 22nd November, 1999 as a result of the process commenced in or about May of 1999.
It is submitted that the Respondent is not obliged to collect or arrange for the collection of household waste within its functional area because one or more of the conditions contained in Section 33(3) of the Waste Management Act, 1996 applies to the entire of the Council’s functional area and to the household waste therein.
Mr O’Leary states that it is incorrect to say that, by virtue of the Council’s Order of the 27th January, 2000, it has abandoned all responsibility for household waste collection and he states that there is no evidence to substantiate the averment that there has been any danger to the environment or to public health in the manner suggested by the Applicant. Mr O’Leary claims that the collection of waste by private commercial operators is not a matter that was suggested “out of the blue” and he says that the Applicant fails to take into account the fact that in 1999 at least approximately 50% of households within the functional area of the Council were provided with a waste collection service by private commercial operators. Mr O’Leary asserts that is clear that the continuation of the Council’s service in the year 2000 would have been more financially onerous on householders within the functional area. With reference to “recycling” Mr O’Leary claims that the Respondent fully encourages recycling and, under regulations to be introduced in the coming months, will be in a position to require recycling as part of the waste regime under those Regulations. Mr O’Leary further asserts that it is clear that the provision of a waste collection service by the Council for the year 2000 would have been more expensive for existing customers within the functional area and there is no evidence before the Council of any increase in illegal or undesirable dumping or burning of waste by householders and no evidence has been adduced in support of such a contention.
Mr O’Leary concedes that no Regulations relating to the issue of “waste collection permits” have been introduced under the Waste Management Act but states that he is informed by the Department of the Environment that regulations pursuant to section 34 of the Waste Management, Act are to be introduced in the coming months.
Mr O’Leary denies that the Council has in any way abdicated its responsibilities under the Waste Management Act or that, in exercising its statutory obligations, the Council is obliging householders to commit a criminal offence.
Mr O’Leary asserts that no imperative exists for the Council to resume its waste collection service nor is there any necessity so to do and that any decision in relation to the collection of waste pursuant to Section 33 of the Waste Management Act, 1996 is not a “reserved function” but, on the contrary, is an executive function of the Council. It is submitted that the obligation of the elected members of the Council to prepare a Waste Management Plan is separate and distinct in law from the Council’s obligation in relation to the collection of waste under Section 33 of the Waste Management Act, 1996.
Mr O’Leary asserts that the Council is unaware that any of its existing customers within its functional area have not been in a position to be provided with a waste collection service. He believes that private commercial operators are now offering a more comprehensive service than that provided by the Council and that it has no evidence of any increase in illegal dumping or burning or of any accumulation of rubbish on streets in the manner alleged. It is submitted that Bray Urban District Council is a separate functional area to that of the Respondent and that since the 27th January 2000, the private commercial operators are dealing with the increased demand for their service and the Council has no evidence to suggest otherwise.
It is submitted that the Council has at all material times complied with the provisions of Section 33 of the Waste Management Act, 1996 and that there is now in place a comprehensive waste collection service throughout the Council’s functional area for its householders and that adequate arrangements for the disposal of household waste can be made by the householders given the comprehensive service being offered by private commercial operatOthers Mr O’Leary says that the Council has no evidence of an insufficient waste collection service within its functional area.
It is submitted by the Respondent that the Applicant’s application for interlocutory relief in these proceedings (by way of mandatory injunction) is, in effect, inviting the Court to make a final determination of the issues raised in these proceedings at the interlocutory stage and that it is inappropriate for the Court to grant such mandatory orders and that the balance of convenience is against such Orders being made.
The Applicant swore a supplemental affidavit on the 13 February 2000, in reply to Mr O’Leary’s Affidavit of the 17 February 2000. In her affidavit, the Applicant states that whether or not some private waste collectors wish to operate a service in the County of Wicklow, it is an indisputable fact that the private waste collectors have not the capacity to take over the collection of household waste abandoned by the Respondent. She states that even if the private waste collectors operating in Wicklow were to increase their capacity, this does not mean that there is an adequate waste collection service available in every single part of the County of Wicklow. The Applicant claims that no waste collector operating in the County is authorised under and in accordance with the Waste Management Act 1996 and further states that no household waste collector operating in the County has received a permit issued by the Respondent authorising it to dispose of waste pursuant to the 1979 regulations. The Applicant states that only one single waste collector operating in the County of Wicklow is authorised under and in accordance with the Environmental Protection Agency Act 1992. This collector currently collects from approximately 7,400 houses, in circumstance where the three Local Authorities collected from approximately 22,000 houses. The Applicant states that this collector Noble Waste has not the capacity to increase its services by 200 overnight.
The Applicant claims that a number of private operators have attempted to step into the breach and take over household waste collection services from Wicklow County Council in the more commercially viable areas. She states that the Respondent has recommended some of these collectors to the people of Wicklow. The Applicant claims that other collectors have mushroomed into existence having never being heard of before. She claims that these collectors are not supervised, regulated or inspected by the Respondent despite its duties under both the Waste Management Act 1996 and the 1991 Directive. The Applicant then states that it seems that the Respondent seeks to rely on the services provided by those collectors. The Applicant believes that these collectors have no authorisation at law and she believes and apprehends that it is an offence for householders to transfer the control of their waste to any of these collectors. The Applicant states that it is not true to say that private commercial operators provided 50% of the households within the functional area of the Council with a waste collection service prior to the Respondent’s decision to cease collection. She claims that only 27% of the household’s in the 1996 census in Wicklow were served by private commercial operators. The Applicant contends that the arguments advanced on behalf of the Respondent as to the cost of collection are mistaken. She contends that if the Respondent made proper attempts to collect the annual household refuse charges due to it, that it is likely that the charge could be significantly reduced. She states that instead the Respondent permits people to simply not pay the charge where no social requirement exists in the particular case. She claims that this is in complete dereliction of the pollution rationale underpinning the Waste Directive and the Irish legislation implementing that Directive.
The Application points out that the passing of estimates for a Council is a reserved function of the elected members, and the executive is under a duty to advise and assist the elected members in carrying out this function. She states that the elected members could not have decided to privatise the waste collection services as this decision could only be made by them in the context of making, reviewing, replacing or varying a Waste Management Plan. She states that the elected members decided not to levy a service charge in relation to waste collection and that such a decision can be justified as pending an adoption of a Waste Management Plan and that financing of the existing waste collection service can be met by the collection of L900,000 outstanding in respect of service charges to Wicklow County Council. The Applicant points out that rates and similar charges are collected on a 98% collection basis but waste collection charges are only collected in recent years on a 68% basis.
The Applicant claims that the decision of the Respondent has in effect usurped the function of the elected members in making a Waste Management Plan as the collection of waste would be a vital aspect of such a plan. She states that the executive of the Respondent has evinced a desire to abandon the collection of waste prior to the adoption of the Waste Management Plan by the elected members. This is why this decision was rushed through without heed to the consequences, legal or practical, in the manner shown. The Applicant contends that the Respondent cannot fulfil its obligations by simply withdrawing its service for the entire of its functional area and that it is untrue that she was aware that the service would be withdrawn by the 27 November last. She points out that the decision of the Manager was not made until the 27 January of this year and no question of delay or acquiescence can arise in this case.
While Mr O’Leary has referred to a decision in principal having being made by the County Manager on the 22 November 1999 to abandon the household waste collection service in County Wicklow, the Applicant indicates that no decision in principal was communicated to her and she doesn’t understand the nature and status of such a decision. She says that she is equally mystified by the reference to a process commenced in or about May of 1999 to privatise the waste collection service in Wicklow. She says that the word privatise is a misnomer in this context. She contends that what the Respondent has done is simply to abandon the public service formerly provided, without any or any adequate service being in place to meet the requirements of the householders of the County.
The Applicant states that her experience as an elected member of Wicklow County Council, is that a large number of households are currently without any service. Many householders refuse to engage the private collectors. She states that at a Council meeting on the 7 February 2000, reference was made to a householder who had no service in her area and was fined following her attempt to transfer her waste to the Council tip in Rathdrum. She states that she can name a number of people who cannot afford or cannot obtain a private waste collection service. She states that the collection service in Bray is on a trial basis. Private collectors have refused to collect in certain areas of that town. The Applicant states that large amounts of waste accumulated in Bray initially, but due to private collectors collecting abandoned waste in the initial period, this accumulation is now restricted to pockets of waste in specific locations. The Applicant claims that a consequence of the withdrawal of the service by the Respondent is the burning, dumping and storing of waste. She says that this should be a cause of great concern to the Respondent and that she finds it extremely alarming to note that Mr O’Leary does not accept that there has been adverse environmental and public health developments since the 27 January 2000 or any dumping or burning. The Applicant states that she had witnessed dumping and burning of household waste since that date. She states “nearly everybody in Wick-low must have.” The Applicant has expressed the fear that dumping and burning will steadily increase unless or until the Council resumes it’s service. She states that the Council has been aware of the situation and it is untrue to say that there is no evidence before the Council of these activities. With regard to Mr O’Leary’s assertion that private commercial operators are now offering a more comprehensive service than that provided by the Council, the Applicant has rejected this assertion and points out that services provided by the collectors servicing Wicklow are not complete and she has been informed by her constituents that many areas and households have not been able to obtain a service.
On behalf of the Applicant it is submitted the failure of the Council to adopt an estimate to include provision for the collection of refuse does not absolve the Respondent of its requirement to collect waste. It is submitted that the status quo at the time of the application to the Court was the collection of waste and that the order, which is sought, is an order requiring that to continue. While the application seeks in effect mandatory relief, it is submitted that this will not determine the action but is of its nature there to maintain the status quo. It is submitted that the relief being sought is simply for a short period of time pending the hearing of this action. The Applicant relies upon the provisions of Article 8 of Council Directive 91/156/EEC, which provides as follows:
“Members states shall take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B or recovers or disposes of it himself in accordance with the provisions of this Directive.”
It is submitted on behalf of the Applicant that the actions of the County Council in this case amounts to a failure on the part of Ireland as a member state to take the necessary measures to ensure compliance with the provisions of Article 8 quoted above. In this regard it is submitted that there has been a failure to ensure that the holders of waste, namely the householders in the County of Wicklow have their waste handled and recovered in compliance with the terms of the Directive.
On behalf of the Respondent, it is submitted that the three steps must be satisfied before an injunction is granted by the Court being the necessity to show 1. That there is a fair issue to be tried. 2. That damages are an inadequate remedy. 3. That the balance of convenience favours the granting of an injunction.
It is submitted that when examined in the light of the instant case, these considerations fail. It is submitted, first of all, that there is no issue to be tried, secondly, that there is no issue of damages being granted to the Applicant herself, and thirdly, that the balance of convenience favours the Local Authority. It is submitted that the Court is being asked to grant a mandatory injunction involving the provisions of personal services subject to the supervision of the Court. It is submitted further that the provision of equipment and the procedures relating to household waste disposal and removal have all been stood down by the Local Authority and in these circumstances it would be extremely difficult to provide the services afresh. It is submitted further that the Applicant had made out no illegality. It is submitted that there is no obligation on a householder to pass on waste to a Local Authority or licensed holder. It is pointed out by the Respondent that obligations under the Act relating to persons collecting waste have not yet been put in place as the necessary regulations have not been made. The term “waste collection permit” is interpreted in Section 5 of the Act to have the meaning assigned to it by Section 34. Section 34, Subsection 1 of the 1996 Act provides as follows:
(1) (a) Subject to paragraph (b), a person other than a local authority shall not, for the purpose of reward, with a view to profit or otherwise in the course of business, collect waste, on or after such date as may be prescribed, save under and in accordance with a permit (in this act referred to as a “waste collection permit”) granted by the local authority in whose functional area the waste is collected.
(b) The Minister may make regulations providing that paragraph (a) shall not apply in respect of the collection of any class or classes of waste where such collection is carried out in compliance with such requirements (which may include a requirement as to the entry of specified particulars concerning the person carrying out the collection in the register maintained by the local authority concerned under section 19) as are specified in the regulations.
(c) a person who contravenes paragraph (a) or any requirement of regulations under paragraph (b) shall be guilty of an offence.
It is submitted on behalf of the Respondent, that no date has been prescribed by regulation made by the Minister under Section 34 (11) (a) for the purposes of Section 34 of the Act and consequently the provision precluding the collection of waste save under and in accordance with a permit does not yet apply in law.
Section 32, subsection 1, provides that a person should not hold, transport, recover or dispose of waste in a manner that causes or is likely to cause environmental pollution. Section 32 (2) provides that a person should not, save in such circumstances as may be specified under Subsection 4, transfer the control of waste to any person other than an ‘appropriate person’. This subsection has not yet been brought into force under the terms of any commencement order in the Act.
At the heart of this case are the provisions of Section 33 of the Act, which provide, inter alia, as follows:
33 (1) (a) Each local authority shall collect, or arrange for the collection of, household waste within its functional area.
(b) The corporation of a borough (other than a county borough) or the council of an urban district may collect, or arrange for the collection of, household waste.
(2) Subsection (1) (a) shall not apply to household waste in any part of a local authority’s functional area to the extent that any of the conditions mentioned in subsection (3) applies to that part or, as appropriate, to that household waste.
(3) The conditions referred to in subsection (2) are
(a) an adequate waste collection service is available in the part concerned of the local authority’s functional area,
(b) the estimated costs of the collection of the waste concerned by the local authority would, in the opinion of the authority, be unreasonably high,
(c) the local authority is satisfied that adequate arrangements for the disposal of the waste concerned can reasonably be made by the holder of the waste.
(4) A local authority may collect, or arrange for the collection of waste, other than household waste.
(5) A local authority may enter into arrangements with one or more other local authorities, or with one or more other persons, for the collection on its behalf by the said authority or authorities or, as the case may be, by the said person or persons, of waste in its functional area or in a part or parts of that area.
It is submitted on behalf of the Respondent that the conditions referred to in Subsection 3 have been satisfied in this case, such that the provisions of Subsection 1 (a) do not apply and as a result that the Respondent local authority is not under any obligation to arrange for the collection of household waste within it’s functional area. In this regard it is submitted firstly, that an adequate waste collection service is available in the Respondent’s functional area, secondly, that where it may not be available that the estimated cost of the collection for the waste concerned by the Local Authority would in it’s opinion be unreasonably high and, thirdly, that the Respondent is satisfied that adequate arrangements for the disposal of the waste concerned can reasonably be made by the householder of the waste. In this regard, reliance is placed upon the affidavit of Mr O’Leary. It is submitted that no lasting requirement exists for collection of the waste – the household waste in this case- under the terms of Article 8 of the Directive or otherwise even if conceding that the activities under Annex II A or B may require a permit. In this regard, it is submitted that the requirement to hold a waste licence only applies to the disposal and recovery of waste at a facility. Accordingly, it is submitted that there is no breach of statute in making available to householders the collection service carried out by a third party or any activity of these collectors of waste, and based upon this, it is submitted that there is no illegality pertaining to their activity.
With regard to the issue of damages, the question posed on behalf of the Respondent is: Has the Applicant herself suffered any damage It is submitted that she has shown no evidence of individual damage and that she can avail of a house collection service by paying the appropriate person.
It is submitted further, insofar as the relief being sought is the grant of a mandatory injunction, that to succeed in obtaining a mandatory order from the Court, it must be possible to specify with a sufficient degree of particularity precisely what action is required to comply with it’s terms and it must be clear “what the person against whom the injunction or Order is made, is required to do or to refrain from doing”. Counsel referred to portion of the Judgment of Lord Justice Maugham in the case of Fishenden -v- Higgs and Hill Limited [1935] 153 LT 128 at 142 where it was stated: “I think a mandatory injunction, except in very exceptional circumstances, ought to be granted in such terms that the person against whom it is granted ought to know exactly what he has to do.”
Counsel has informed the Court that this statement was quoted with approval by Murphy J in Bula Limited -v- Tara Mines Limited (No2) [1987] IR 95, at 104, in which he refused to grant mandatory interlocutory injunctions, inter alia, because, in his opinion, if granted in the terms sought, the orders would not be certain enough in their terms to enable it to be ascertained whether the Defendants were complying with the injunctions granted by the Court.
Counsel further refers the Court to the decision of the House of Lords in Redland Bricks Limited -v- Morris [1970] AC 652, in support of the proposition that a strong case must be made out by the Plaintiff or Applicant in these proceedings before mandatory relief will be granted at an interlocutory stage of the proceedings. It was submitted that at the very least a Plaintiff must show a strong evidence of continuing or imminent prejudice before Court will make an Order of this nature. Counsel further referred the Court to the decision of the Supreme Court in Campus Oil Limited -v- Minister for Industry and Energy (No 2) [1983] IR 88, in which O’Higgins C J made it clear that the lack of its success at trial should not be a factor in granting of interlocutory relief generally, although he did go on to say that such relief would issue in mandatory form in exceptional cases such as that then before the Court. Counsel submitted that mandatory interlocutory injunctions will only issue in very limited circumstances. Counsel referred also to passages in Keane “Equity and the Law of Trusts in the Republic of Ireland” to similar effect. Counsel referred to a passage in the Judgment of Lynch J in the case of ICC Bank Plc -v- Richard Verling and Others [1995] 1 ILRM 123 at page 130, where he stated as follows:
“Where, however, the interlocutory relief sought takes the form of a mandatory injunction, and where, as in this case, a mandatory injunction will effectively conclude the matter as against the second and third Defendants and thus alter rather than maintain the status quo as far as they are concerned, I think that in the exercise of my discretion to grant or refuse interlocutory relief, I shall look for something more from the Plaintiff’s than a mere arguable case.”
In that case Lynch J, held that the Plaintiffs had made out a strong prima facie case.
Counsel referred the Court to the decision of Murphy J in Bula Limited -v- Tara Mines Limited (No2), referred to above, where at page 103 of the report, having referred to the following portion of the judgment of Megarry J in Shenard Homes Limited -v- Sandham [1971] Ch. 340,
“At the trial of the Action, the Court will, of course, grant such injunctions as the justice of the case requires; but at the interlocutory stage, when the final result of the case cannot be known and the Court has to do the best it can, I think the case has to be unusually strong and clear before a mandatory injunction will be granted, even if it is sought in order to enforce a contractual obligation.”
Murphy J stated as follows:
“Whilst I would respectfully agree with much of what the learned Judge said in the Shenard Homes Case about the important differences between prohibitory and mandatory injunctions, I would be reluctant to accept the position, if that is what it is, that the granting or withholding of a mandatory injunction on an interlocutory application should be related to or depend upon the strength of the applicant’s case. As has being pointed out in a number of cases in recent years, there are grave difficulties in evaluating the strength of an applicant’s case on fact or even in law at any time before a full hearing has taken place.”
In the same case Murphy J referred to the Redland Brick Case and noted that it concerned a mandatory Order granted after a preliminary hearing. However, he went on to state that it seemed to him that the same principle is at least equally applicable to the granting of a mandatory order at the interlocutory stage.
In reply to the arguments presented on behalf of the Respondent, Mr Bland of Counsel for the Applicant referred afresh to the legislation and pointed to the failure on the Minister’s part to make regulations governing the Act of 1996. Counsel referred to the fact that Section 32 (2) of the Waste Management Act of 1996, was one of the sections which was not brought into force when the Minister for the Environment made a commencement Order relating to that Act on the 24 June 1996. Counsel referred to the fact that no regulations had been made under the terms of the 1996 Act and that in the context of Section 32, subsection 2, only one operator had obtained a licence under the Environmental Protection Agency Act.
Counsel relied squarely on the provisions of Section 32 and the prohibition contained in that Section. Counsel stated that until 1996 under the terms of the 1979 regulations which were then in force, it was a criminal offence to transfer waste to anyone other than an authorised collector.
The 1979 Regulations were revoked by the provisions of Section 6 Subsection 2 of the Waste Management Act, 1996. This Section itself came into operation on the 20th of May 1998 by reference to the provisions of Section 1 (2) of the Act of 1996. Under the terms of the 1979 regulations, it was provided at Regulation 3 thereof that a holder of waste, if he does not himself dispose of the waste, shall not permit disposal of the waste by any person other than a public waste collector or a person holding an appropriate permit under Article 5 of these Regulations. As the regulations have now been revoked, it is to be noted that they have not been replaced by any fresh regulations made by the Minister under the Act of 1996. Subsection 2 of Section 32, of the Act of 1996, provides that a person shall not, save in circumstances as may be specified under Subsection 4, transfer the control of waste to any person other than an appropriate person.
The term “an appropriate person” is defined in section 32 (5) to mean a local authority, the corporation of a borough that is not a county borough, the council of an urban district, or a person otherwise authorised under and in accordance with this Act or the Act of 1992 to undertake the collection, recovery or the disposal of the class of waste in question. The Act of 1992 means the Environmental Protection Agency Act, 1992 (See Section 5 (1) of the Act 1996.) It is provided in Subsection 6 of Section 32 that a person who contravenes subsection 1, 2 or 3 or a provision of regulations under subsection 4 shall be guilty of an offence.
Based upon this legislative picture, the case made on behalf of the Applicant is that anyone who transfers the control of waste to any person other than a Local Authority or a person authorised under the terms of the 1992 Act is guilty of an offence.
The Applicant’s case is that as no regulations have been made under the provisions of Section 32 Subsection 4, the transfer of the control of waste to any person other than the sole holder of an EPA licence is illegal. It is submitted that none of the other persons identified by the Local Authority to collect household waste is a person who is authorised by law to take the control of such waste having regard to the provisions of Section 32 subsection 2.
Counsel has submitted that the Respondent constitutes an emanation of the State and that the terms of the 1991 Directive, (i.e. Council Directive 91/156/EEC of the 18 March, 1991), requires Members States to take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or by an undertaking which carries on the operations listed in Annex II A or B, or recovers or disposes of it himself in accordance with the provisions of this Directive. The activities referred to Annex II A and Annex II B are disposal operations or operations which may lead to recovery of waste without endangering human health. It is submitted on behalf of the Applicant that the term “holder” applies to any holder in the State and, furthermore, that any holder of waste can rely upon the terms of the Directive on the basis that the same has direct effect, insofar as Wicklow County Council constitutes an emanation of the State.
It is further submitted on behalf of the Applicant that if, contrary to the earlier submissions to the effect that the 1979 regulations no longer are applicable, the Court holds that the same do apply, nevertheless the activities in the instant case amount to a contravention of Regulation 3 thereof as the collectors identified by the Respondent are not holders of any permit under Article 5 of those regulations. The Applicant complains that the action of the Respondent is that of handing out lists of unauthorised persons to collect waste. It is further submitted on behalf of the Applicant that the longer time elapses from the 27 January last that the more people will enter into arrangements with unauthorised waste collectOthers
The Applicant contends that, if Section 32 (2) has the effect contended for, the result is that approximately 20,000 people who had the benefit of public collections will be engaged in criminal activity, unless Noble Waste collects their refuse and clearly that is not a company that would be in a position to collect the waste from 20,000 people. In light of this submission, the contention on behalf of the Applicant is that the situation is such that the Respondent County Council must collect the waste in question or itself arrange for the collection of the waste. It is conceded on behalf of the Applicant that if the County Council sees fit to remove itself from the actual collection of waste that it can satisfy its statutory duty by making public arrangements for the collection of this waste. It is submitted that this could be done by an appropriate tendering out to persons with licences or persons otherwise regulated under Article 12 of the 1991 Directive. It is emphasised that the fact that the Minister failed to make regulations under the 1996 Act does not prevent the provisions of Section 32 Subsection 2 having the force of law. Based upon the contention of the Applicant that the activity being put in place since the 27 January last amounts to an illegal activity, criminalising up to 23,000 people, it is submitted that this renders the balance of convenience to lie with the Applicant in the instant case.
Collection of Waste
Section 33 of the Act of 1996 provides for the collection of waste and imposes in subsection 1 thereof, an obligation on each local authority to collect or arrange for the collection of household waste within its functional area. By reference to the provisions of subsection 9 of section 33, it will be seen that the definition of local authority appearing in section 33, subsection 1, excludes an Urban District Council or a borough corporation or council. This means that the Respondent in these proceedings has responsibility under the provisions of Section 33 (1) of the Act in relation to the entire of the County of Wicklow. However it is to be noted that Section 33 (1)(B) provides that the corporation of a borough other than a county borough or a council of a urban district may collect or arrange for the collection of household waste, This provision is permissive in its nature.
It is submitted on behalf of the Applicant that no evidence exists of an opinion having been formed by any of the Urban District Councils within the County of Wicklow to the effect that the estimate of cost of collection of the waste concerned by the local authorities would in the opinion of the authority, be unreasonably high, having regard to the provisions of Section 33(3)(b) of the Act. It is further submitted that the provision referred to at Subsection 3(a) of the Section, that an adequate waste collection service is available in the part concerned in the local authority’s functional area is a matter of objective fact to be ascertained, as opposed to a situation arising in subsection (b) where a specific opinion has to be formed by the local authority in question. It is submitted that nothing has been offered by way of an opinion by the Respondent outside of the Urban District Council areas within County Wicklow. Counsel for the Applicant has queried whether one can rely upon the affidavit of Mr O’Leary as demonstrating the formation of the opinion required in Section 33 Subsection 3(b). It is submitted in relation to this subsection that the question of an opinion having been formed that the estimated cost of the collection of the waste concerned by the local authority would be unreasonably high was not something to which the appropriate test is as propounded by the Supreme Court in the case of O’Keeffe -v- An Bord Pleanala relating to alleged irrationality. It is submitted that it involves the estimated cost of specific personal waste and whether these costs are unreasonably high and that these costs are the cost to the local authority and therefore requires a specific opinion to have been formed by the local authority in relation to the costs in question. It is submitted that in the application before me that nowhere is there any evidence as to the cost to the local authority having been the subject matter of any specific opinion. Counsel for the Applicant has placed particular stress upon the provisions of Article 8 of the Council Directive whereby Member States are required to take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or by an undertaking which carries out the operations referred to in the Annex to the Directive. In light of this provision, it is submitted that Section 33, insofar as it permits the withdrawal of a service, must entail that the entire County meets the various conditions referred to in Section 33 (3), if the waste collection service is to be withdrawn from all households within that area. It is further submitted that one must consider the particular household in the context of Section 33 ss. 3(b) and (c) when read in conjunction with the provisions of Subsection 2 of the Section. Counsel for the Applicant stressed that Subsection 2 of the section, insofar as it permits for an exception to the general rule, pertains to part of a local authority’s function area and is not intended to apply to the entire of the area in question. It is further submitted that there is no evidence before the Court that section 33 (3) applied to any part of the Urban District Council areas in question or to the County Council’s administrative area as a whole. It is further submitted that the result of the decision taken by the Respondent is that 23,000 householders have been left without any legitimate or legal waste collection service by reason of the withdrawal of the service. On behalf of the Applicant a query is raised as to whether section 33 would permit the Respondent to arrange for the collection of waste by collectors without those collectors holding appropriate EPA licences. It is further submitted that the condition set out in s. 33 (3) (a) that an adequate waste collection service be available in the part concerned of the local authority’s functional area has not been complied with. In any event no arrangement as such was made by the Respondent to provide such a service but the individual householders were left in a position of seeking to arrange for same with individual private collectors.
With regard to the question whether the Applicant’s case could be met adequately by the award of damages, it is submitted on behalf of the Applicant that damages could not be an adequate remedy in the context of an application before the Court for relief in the form of a public law remedy. In this regard it was submitted that the normal considerations in relation to the adequacy of damages arising at the interlocutory stage of an application for an injunction do not apply in a case such as this where the relief sought in the action is relief in the public law context. A further factor submitted to the Court is that by reason of the action of Wicklow County Council resulting in activity which arguably is criminal in nature being carried out, namely the collection of waste by persons without the appropriate licences provided for by law, the considerations relating to the balance of convenience could not favour the refusal of the relief in the instant case. It was further submitted insofar as the relief being sought was mandatory in nature that it should viewed as being restorative in nature in restoring to the Applicant and other householders in Wicklow a waste collection service which is not being validly withdrawn. It was submitted that the granting by the Court of an injunction would preserve the status quo, which existed up the 27 January last. Counsel further submitted that there is no obligation on the Applicant to show that she has a particularly strong case and reference has been made to the decision of Lord Diplock in the case of American Cyanamid -v- Ethicon Ltd [1975] AC 296, at page 407 where the obligation upon the Applicant is to show that there is a serious issue to be tried. The Court was referred to the decision of Lynch J. in I.C.C. Bank Plc -v- Richard Verling & Ors [1995] 1 ILRM 123 at page 130 where he indicated that where the relief sought was interlocutory relief taking the form of a mandatory injunction, the court should look for something more from the Plaintiff than a mere arguable case.
CONCLUSIONS
Applying the appropriate test set out by the Supreme Court in the case of Campus Oil -v- Minister for Industry (No 2) [1983] IR88, I am of the opinion that the Applicant has raised a fair question to be tried. However, I am inclined to accept the view expressed by Murphy J in the Bula case, to the effect that it is difficult to make any real assessment of the strength of the case at this stage of the proceedings.
At paragraph 4 of his affidavit, Mr Michael O’Leary states that having regard to, inter alia, the adequacy of the waste collection services available within the Council’s functional area by private commercial operators (who in 1999 had already provided 50% of households with that service) the estimated cost of the collection of household waste by the Council; the fact that adequate arrangements for the disposal waste could be made and the adoption of estimates without providing for service charges, the County Manager made his order on the 27 January, 2000, the decision in principle having been made as of the 22 November, 1999. One must contrast Mr O’Leary’s use of the phrase “could be made” in regard to an adequate arrangement for the disposal of waste and the words appearing at section 33 (3)(a) of the Act of 1996 that “an adequate waste service is available”. I am of the opinion that the phrase used by Mr O’Leary is not in line with the requirement of the section.
While Mr O’Leary compared the charge of L200 contained in the estimates with charges for private commercial operators in the range of L90-L156, which included the provision of a wheely-bin per household, he fails to indicate what opinion was formed by the Respondent in relation to areas which were not to be covered by private commercial operatOthers Furthermore, one has to bear in mind that, if what is stated by the Applicant is true, it does suggest that adequate arrangements such as the disposal of waste cannot reasonably be made by the householders of waste in all areas of the county. Nevertheless while I make these observations in relation to the Applicant’s case, it remains that these are issues, which fall to be determined at the Plenary hearing of this action.
The Applicant in these proceedings has failed to demonstrate that at a personal level she has been deprived of a waste collection service and that none is available to her. Her case seems to relate to other persons. In the context of the application her position as Applicant is that which must be borne in mind by the Court notwithstanding the fact that the relief sought in these proceedings is a public law remedy. Based upon this fact, I am of the opinion that the balance of convenience favours the Respondent and were the Applicant’s position to be that no service was available to her in circumstances where no appraisals had been made in relation to the provision of the service for her personally, the Court would be faced with a different situation. In light of this consideration I must refuse the Applicant the relief of an interlocutory injunction at this stage. I feel that in ascertaining the balance of convenience this Court must take into consideration the Applicant’s own personal position rather than the position of her constituents and other householders in the County of Wicklow.
Boyle v An Post
Patrick Joseph Boyle, Brian Diviney, John Joseph Doheny and Thomas Hennessy Plaintiffs v. An Post, Defendant
[1992 No. 3240P]
[1992] 2 IR 437
Lardner J.
18th May 1992
These are two notices of motion seeking relief by way of mandatory injunction, the first one brought by Mr. Patrick Joseph Boyle and three co-plaintiffs, all of them being members of the supervisory staff employed by An Post and the second brought by three members of the staff not being members of that supervisory staff, Ms. Attracta Kelly, Mr. Thomas Rowe and Mr. William O’Toole. The plaintiffs are all employees of An Post and they are employed under contract. In the case of Mr. Boyle and his three co-plaintiffs, their wages are payable fortnightly. In the case of the three plaintiffs in the other notice of motion, their wages are payable weekly.
In the recent past An Post, it appears, employed a number of temporary staff in the central sorting office (98 in number, I think). A number of the permanent staff members refused to work with the temporary staff and were suspended. This occurred in relation to a small number of supervisory staff. In addition, several hundred (originally 600, I think) non-supervisory staff were suspended. I am told that the number now suspended has gone up to over 1,000 members of staff.
The plaintiffs in both notices of motion have continued to carry out their normal work. They have continuing contracts of employment with An Post which have not been terminated. Under those contracts the supervisory staff are entitled to receive, and An Post is bound to pay, their wages and salaries fortnightly. The plaintiffs who are non-supervisory staff are also employed under contract by An Post and An Post is bound to pay their wages weekly. Following the suspension by An Post of a number of supervisory and non-supervisory staff, An Post intimated to the plaintiffs that it could not pay them their wages and salaries in the week ending or the fortnight ending the 8th May, 1992, nor their subsequent weekly and fortnightly payments.
It is apparent that the non-payment of wages and salaries in both cases is a clear breach of contract by An Post. This is not disputed by An Post but it is claimed that they had no other course. I need not go into detail, but the circumstances are deposed to in the affidavit of Mr. John Russell, director of personnel of An Post. Mr. Russell deposes to the fact that when the temporary staff were employed instructions were given to the staff of the Dublin area payroll section, whose function it is to administer and operate the payroll system, to enter the appropriate records in relation to the temporary employees, that this instruction was refused and that as a result the payroll system computer had to be shut down. That is the explanation given for the non-payment to these plaintiffs of their salaries and wages.
In those circumstances the plaintiffs instituted the present proceedings and issued plenary summonses in each case claiming an injunction restraining An Post, its servants or agents, from refusing to make salary and wage payments to which the plaintiffs are entitled and, if necessary, an order compelling An Post to pay the salaries and wages as they become due, and further a declaration that An Post, in ceasing to pay fortnightly salaries in the case of the supervisory staff were in breach of contract or in infringement of the plaintiffs’ constitutional rights. No point has been taken on the Constitution in any argument before me.
What is sought, in effect, is a mandatory order of the court directing An Post to pay the plaintiffs their salaries and wages.
The principles on which a mandatory order of this kind are granted I find usefully set out in Halsbury’s Laws of England (4th ed.) (vol. 24) para. 948, headed “Mandatory injunctions on interlocutory applications”.The principles are stated in this way:
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiffs, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”
In Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 at p. 105 of the report O’Higgins C.J. had this to say in relation to interlocutory applications, and, in fact, I think he was referring to mandatory orders which had been sought:
“It frequently happens that neither the applicant’s right nor the fact of its violation is disputed by the person whose acts are sought to be restrained. In such case an injunction may be given almost as of course. The application for an interlocutory injunction is often treated by the parties as the trial of the action. When that happens, the rights of the parties are finally determined on the interlocutory motion. In cases where rights are disputed and challenged and where a significant period must elapse before the trial, the court must exercise its discretion (to grant interlocutory relief) with due regard to certain well-established principles. Not only will the court have regard to what is complained of and whether damages would be an appropriate remedy but it will consider what inconvenience, loss and damage might be caused to the other party, and will enquire whether the applicant has shown that the balance of convenience is in his favour.”
In the present case counsel for An Post relied on an English decision as persuasive authority that no order should be made in this case. Jakeman v. South West Thames Regional Health Authority [1990] I.R.L.R. 62, was a case in which there was an industrial dispute over the pay of ambulance workers who were employed by the South West Thames Regional Health Authority and the London Ambulance Service. They had continued to make themselves available for work, but refused to comply with an operational instruction requiring them to make radio contact with the central control station after they had conveyed a patient to hospital on an emergency call. They were, in effect, restricting their work. The South West Thames Regional Health Authority, their employers, proceeded to dock their wages, reducing them by some amount which they thought was appropriate to the work not being carried out. The ambulancemen sought a mandatory injunction compelling payment of their wages. Their application was refused on three grounds. It seems to me that the first of these grounds distinguishesJakeman from the present case. The trial judge took the view that there was a serious issue to be tried and that there was a dispute as to what were the correct deductions that should be made and, consequently, a dispute as to what were the correct payments which ought to be ordered. He decided that it was not a clear case, one of the grounds on which he refused to grant a mandatory injunction. There were two other grounds to one of which I will refer later. The other has no direct bearing on the present case.
It is quite clear that this is a case in which the plaintiffs have a right to payment, which is undisputed. This is what distinguishes it from theJakeman case. An Post does not deny that the plaintiffs are entitled to be paid their wages and salaries. Equally, they do not deny the breach of that right. An Post admits that it failed to pay the plaintiffs.
It advances a reason why it failed to pay the plaintiffs but that does not in any sense satisfy the plaintiffs’ right to be paid.
I am satisfied that these two factors make this a clear case within the principle expressed in the above-quoted passage from Halsbury’s Laws of England (4th ed.) (vol. 24) at para. 948. It is an exceptional case where one can say with assurance that at the hearing of the substantive action the plaintiffs are bound to succeed. To that extent the plaintiffs have shown that the case falls within the principle to which I have already referred.
That is not the end of the matter. It is indisputable that what the plaintiffs seek is the payment of their wages and salaries due on 8th May, 1992, and the assurance of subsequent weekly and fortnightly payments as they fall due. Each of them claims payment of ascertainable sums of money.
Now, it is said on behalf of the defence that breach of the obligation to make such payments is clearly capable of being compensated by an award of damages and that the plaintiffs cannot in the circumstances show that they will suffer irreparable damage in the traditionally accepted sense. The plaintiffs reply is that some considerable time must elapse before their actions can come to trial, that each of them, except in one case, is a married man with family responsibilities and dependent on the payment of salary or wages; and that the cessation of payment will cause and has caused hardship, distress and anxiety and that the ultimate recovery of damages, even with interest, will not compensate them for such hardship, distress and anxiety.
I now refer to the relevant passages in the affidavits of each of the plaintiffs. The first plaintiff is Mr. Patrick Boyle. He is an inspector, grade 1, in the employment of An Post and working out of Whitehall District 9. His position is as supervisor in charge at Whitehall with full responsibility for supervising the postal staff and ensuring that postal deliveries are maintained, with general responsibility for the maintenance of the district office. He says that he has been employed by An Post since 1966, a period of 26 years and that his employment commenced with the Department of Posts and Telegraphs. He commenced employment as a postman and has been promoted over the interim period to his present position. He says that he has an unblemished record as an employee of An Post and has given loyal service over the previous 26 years. He then says:
“A minority of inspectors and supervisors (amounting to some 10 per cent) have been suspended in the course of the dispute but I have at no time been suspended and have continued to carry on my usual duties on behalf of An Post. I am a member of the Communication Managers Union. I have since been notified by the Communication Managers Union that it is proposed by An Post not to make payment of salary due to me on 8th May, 1992, and on every second Friday thereafter.”
Then he goes on:
“I say and believe that the non-payment of my salary on Friday 8th May, 1992, will give rise to extreme hardship for me and for my family.”
He then describes his personal circumstances:
“I am married with eight dependant children whose ages range from 5 to 15. My wife Eva does not work and is a full-time housewife and mother. I have no other source of income whatsoever, with no savings, and I actually owe money to the Credit Union and to Bank of Ireland. I am totally dependent on my fortnightly salary to afford the outgoings of my family over the ensuing fourteen day period. In particular, I am dependent on my salary to commence purchases of food for the household. I also need, for example, to provide for my children, to pay their bus service to school and for their lunches at school. Every aspect of my own, my wife’s and my children’s lives are dependent on the receipt of the fortnightly cheque. I am further dependent on the cheque to discharge mortgage payments in respect of my house. I have never previously defaulted on my mortgage in that I have always lodged the cash received by me to my bank account with the Bank of Ireland and there is a standing order in favour of the Irish Civil Service Building Society.”
He then refers to other periodic payments the subject of standing orders and says:
“In the event of the non-payment of the salary due to me, I will be placed in an intolerable and extremely embarrassing position.”
The second plaintiff is Mr. Brian Diviney. He is an overseer in personnel, Dublin Mail, in the G.P.O. and has been in the employment of An Post since 1977 and has been promoted to his present position as overseer which he has occupied for some six years. He says:
“I have a good employment record and have given loyal service to An Post.”
Mr. Diviney has continued to work, as has Mr. Boyle. He says:
“I am solely dependent on my salary from An Post. I have a wife, who does not work outside of the home, and six children, all of whom look to me to provide food and clothing and the ordinary amenities of life. I have a substantial mortgage on my home which is serviced by payments made by standing order to the Irish Permanent Building Society. I am also indebted to the Credit Union. I have an overdraft on my bank account. Therefore, I am unlikely to be afforded any overdraft or other credit facilities by any bank which I might approach. I further believe that my prospects of obtaining such credit will be severely prejudiced both by the indefinite nature of the present industrial dispute and by the risk of the dispute escalating. I am in common with other employees in the same position, owing to the fact that I am not suspended. I will not be eligible for supplementary welfare allowance from the Eastern Health Board, which would be payable to suspended employees or employees who are on strike or under protective notice. I say that without my salary I will be caused extreme hardship if An Post is permitted to cease payment of my salary.”
The next plaintiff is Mr. Joseph Doheny. He is an inspector, grade 1, in the employment of An Post assigned to Churchtown District Office 14. He says:
“I was first employed by An Post as a postman in 1966 and have been promoted through various stages to my present position as an inspector, grade 1. I have been a good and loyal servant of An Post over the past 26 years. I say and believe that I personally will be very seriously prejudiced if I do not receive my salary on Friday 8th May or on each ensuing fortnight thereafter. I am married with four children aged between 2 and 13. I am totally dependent on the said salary to meet my own outgoings and those of the household. My wife does not work other than as a housewife and mother. I have no savings and I am in debt to the Bank of Ireland both on foot of an overdraft and in relation to my mortgage.”
He then says:
“If An Post carries out its threat, which I believe to be unlawful, not to pay my salary, I will be placed in an intolerable position and will be very seriously financially embarrassed.”
The next plaintiff is Mr. Thomas Hennessey. He is a superintendent, grade 2, in the employment of an Post and is assigned to the mail section of the central sorting office. He says that he has 34 years of good and loyal service with An Post, including two commendations from the Secretary of the Department of Posts and Telegraphs. He says that he is a member of the Communication Managers Union and that he has not been suspended. He says that he is entirely dependent on his fortnightly salary to meet his outgoings and those of his wife, who has no income. Then he says:
“Three of my four children continue to be wholly dependent on my earnings. I am totally dependent on my salary from An Post to meet the ordinary day-to-day outgoings of the house. I am already on an overdraft which is not being adequately serviced by me because of my other commitments. This is with the Bank of Ireland. I also have a mortgage with the Irish Permanent Building Society. I owe money to the Irish Credit Union. I also owe money to the Bank of Ireland on my Access card.”
He says that he will suffer hardship and embarrassment if his salary is not paid by An Post.
On the other notice of motion the first plaintiff is Ms. Attracta Kelly. She is single and is 30 years of age and has been employed by An Post and its predecessor for almost 13 years. She is currently classified as a post office clerk in the central sorting office. She says that the non-payment of her wages will have far-reaching and immediate effects and that she will suffer immediate and irreparable loss and damage if the non-payment continues. She then goes into details about her receipts and outgoings. She is living in rented accommodation and describes her living expenses and says that in the absence of her weekly wages she would have to have recourse to her limited savings.
The next plaintiff is Mr. Thomas Rowe. He is 31 years of age. He is a married man with one child. He has been employed as a cleaner by An Post for six years. He says that he is currently engaged in his normal duties at An Post and is not under suspension or any other form of disciplinary action. He then describes his take-home pay and says:
“My wife and I are purchasing our house at 6, Ennel Park, and there is an outstanding mortgage of £25,000 with a weekly repayment of £68 which we pay into the bank each Friday following the receipt of wages. I further say that I have a loan of £2,000 for central heating installed and I am paying back £25 a week in respect thereof. I say that my wife works as a keypunch operator and her take-home pay is £110 per week which means that together we have a weekly income of about £250.”
He says that if he does not receive his wages it will be necessary for him to make an application for relief to the Eastern Health Board.
Lastly, there is Mr. William O’Toole. He is a married man with two children aged 10 and 12 and he is 46 years of age. He is employed as a postman by An Post in the philatelic bureau in the G.P.O. He has 24 years service with An Post and is currently engaged in his normal duties and is not under suspension or any other form of disciplinary action. He then sets out his take-home pay and his outgoings. He says that his wife does not work. He then says:
“I say that my family and myself will suffer extreme hardship and considerable distress as a result of my not receiving the wages due to me on a weekly basis.”
In respect of the plaintiffs in the first notice of motion (Mr. Boyle, Mr. Diviney, Mr. Doheny and Mr. Hennessey) I am satisfied that each of them and their families has suffered and will continue to suffer hardship and be caused severe distress and anxiety by the non-payment of their salaries on 8th May, 1992, and by future non-payment.
I have come the the same conclusion in respect of the three plaintiffs (Ms. Kelly, Mr. Rowe and Mr. O’Toole) in the second notice of motion.
In my view, these matters constitute substantial prejudice and injury to the plaintiffs despite any claim which they may have to damages.
What is the position in regard to An Post? Its case is made in the affidavits of Mr. Russell and Mr. Ryan. In substance it says that its payroll system has been disrupted by the industrial dispute over the employment of 98 temporary workers and that the computerised payment system through which the payment of wages and salaries is administered has had to be shut down, partly for security reasons, as I understand their case. I am mindful that An Post is in the middle of an industrial dispute and that it has a substantial number of employees. As a result of the dispute its payroll system has been interrupted and alternative arrangements will require to be made.
At this point I observe that counsel has said that these two actions are in the nature of test proceedings which will affect several hundred other employees of An Post who are continuing to work. However, I am concerned simply with the seven plaintiffs in these two notices of motion and my consideration of these two notices of motion concerns their respective affidavits and personal circumstances and not the personal circumstances of any other employees of An Post, about which I have no evidence whatsoever.
I accept that An Post may have difficulty in operating its normal systems for the calculation and payment of wages and salaries. It has asserted, either in Mr. Ryan’s affidavit or in Mr. Russell’s affidavit, that the difficulties in making alternative arrangements for the payment of wages and salaries are insurmountable. No sufficient explanation of this conclusion has been given to me, particularly having regard to the evidence of alternative arrangements which have been made in respect of the 98 temporary employees. I am not satisfied that such alternative arrangements could not, if there was the will, be made for the plaintiffs; that is to say, arrangements to make payment of wages and salaries which are admitted to be within An Post’s contractual obligations to the plaintiffs.
In my view the balance of convenience falls in favour of granting a mandatory order to the plaintiffs in both notices of motion.
There is one further matter to which I will refer. Counsel for An Post submitted that the court will not exercise its discretion to grant an injunction where its effect would be to favour one side in an industrial dispute and to give that side a greater bargaining position. He cited a number of decisions and dicta by judges in English cases. The plaintiffs in these motions are carrying out their work and are not parties to any dispute with An Post despite the fact that they are members of two of the unions which have other members in dispute. I am not convinced that granting the orders sought in the present motions will give either side a greater bargaining position. In these circumstances I do not find the submissions of counsel for An Post relevant to the present motions.
There will therefore be orders on both notices of motion, which will continue until the trial or until further order, that the defendants do pay to each of the plaintiffs their respective salaries or wages due on 8th May, last, after making all deductions permitted or required by law and do continue to make such payments as they fall due, so long as the plaintiffs continue at work; provided that it shall be sufficient compliance with this order if the defendants being unable to ascertain the exact sums to be paid make their best estimate of such sums to be paid or deducted and make payments accordingly. In the case of any errors in such estimates, such deductions or payments shall be without prejudice to any claim of the defendants or of the plaintiffs to have the same corrected.
In the circumstances of this case the right of the plaintiffs to recover payment of their wages and salaries is not in issue. I do not propose to require any undertakings from the plaintiffs as to damages.
The order is granted accordingly. Of course, that does not in any way interfere with the parties themselves coming to some working arrangement and applying to have the order discharged.
I propose to give the plaintiffs their costs in both motions.
Brid O’Dea v Muireann O’Briain,
Sylvia Brown, Frank Goodwin, Mary Jo Hand, Patrick O’Flynn, Margaret Deevy, Dan Davis and Siobhan Supple, being the Board of Management for the time being of St Louis High School and Fiona Fullam and the Minister for Education, Ireland and the Attorney General
1991 No. 13035P
High Court
22 October 1991
[1992] I.L.R.M. 364
(Murphy J)
delivered his judgment on 22 October 1991 saying: The plaintiff (Sister Brid O’Dea) is a nun, a member of the Congregation of St Louis, Louisville, Monaghan. She is also a teacher at St Louis Secondary School, Rathmines, Dublin. She has pursued both vocations for upwards of 40 years.
The first to the eighth named defendants are members of the board of management of St Louis High School, Rathmines. The first named defendant (Muireann O’Briain) is, in fact, the chairperson of the board of management.
The ninth named defendant (Sister Fiona Fullam) is the trustee of the school for the purposes of the articles under which the school is managed. In addition she is the plaintiff’s religious superior.
The eleventh named defendant is, of course, the Minister for Education. Undoubtedly the minister does have a significant financial role to play in contributing to the cost of the salaries of teachers in schools of this nature and does appear also to have a supervisory role of some nature in relation to such schools.
It is contended on behalf of the minister that she is not an appropriate party to these proceedings because her function in relation to the payment of salaries is, in a sense, purely ministerial in that the minister or her department simply pays or makes the appropriate contribution to the salaries of teachers appointed *366 by the board of management on the nomination of the trustee. In relation to whatever supervisory functions the minister may have, it is contended on her behalf that no case is made out on the pleadings that she has failed in any respect to discharge her duties. However, as the motion brought by the minister to be dismissed from these proceedings was not received by the plaintiff in time for the plaintiff to have an opportunity of considering the matter fully and replying, if necessary, to the affidavit grounding the minister’s application, I have already adjourned the minister’s counter-application, as it were, to a date to be fixed for the hearing of that motion.
The facts relating to this matter are set out at length in the statement of claim and are dealt with in detail in the affidavits sworn by the parties. However, the salient facts can be conveniently gathered by reference to two or three letters which were written and to two meetings which were held in the course of the present year in relation to this matter.
The first letter to which I will refer is the letter of 8 January 1991 from the first defendant, that is, the chairperson of the board of management, to Sister Fiona Fullam (to whom I will refer as ‘the trustee’). That letter is of crucial importance. There are three matters in particular referred to therein and I can deal with them by quoting the relevant passages. Firstly, the chairperson of the board of management referring to the plaintiff said as follows:
‘Not only is her sick leave absence from school excessive, but we have had numerous complaints about her poor teaching and lack of capacity for the role of teacher in the school. We have tried to communicate our concern to her in the hope that there would be an improvement, but we have not been successful’.
The next passage to which I will refer is paragraph 3 which reads:
‘As Sister Brid is your appointee, we are asking that you would help us in avoiding an acrimonious debacle by taking some action yourselves to remove her from our staff. One possibility would be to encourage her to take early retirement; another would be to transfer her to another position within one of your schools’.
The final passage to which I will refer is a single sentence in the penultimate paragraph of the letter which reads:
If we have to take action ourselves then we will need sufficient notice so that certain fair procedures can be complied with before the school year ends.
Clearly, what is being pointed out in that letter is that problems had arisen, as the chairperson saw it, and the chairperson was asking the trustee to exercise powers which the trustee possessed so as to avoid the educational authorities exercising powers which they possessed, the exercise of which would certainly involve fair procedures but with whatever difficulties and publicity might be associated with the exercise of such powers.
The second and third focal points to which I would refer were meetings held between the trustee and the plaintiff on 8 March and on 23 May of this year. At *367 the first of those meetings the trustee read out to the plaintiff the letter of 8 January 1991 from the chairperson of the board of management. One can immediately appreciate that the disclosure for the first time of the contents of that letter to the plaintiff caused her very great distress indeed. No doubt the problems which had arisen were matters of concern for both the board of management and the trustee but the impact of these complaints and the fact that they had been made and discussed was, I am told, and readily accept, a matter of very great distress and concern to the plaintiff. At those two meetings the problems were discussed. Manifestly that is the case. That was the purpose of the meetings. There is, however, a dispute between the plaintiff and the trustee as to whether or not discussions took place with regard to the relocation of the plaintiff away from her post in Rathmines and indeed out of Dublin. The plaintiff says that the matter was not discussed. The trustee says it was. It is surprising and perhaps disturbing that such controversy should arise but it has done so.
The next stage around which the dispute may be analysed is a letter of 10 July 1991 from the trustee to the plaintiff. In that letter the trustee as the regional superior of the Convent of St Louis informed the plaintiff of two particular facts, and I quote paragraph 1 of that letter as follows:
‘I write to let you know that in accordance with Article 118 of the Constitutions, I wish you to transfer from the community at Rathmines to that of the Motherhouse Community at Monaghan’.
The date of transfer is then set out. I skip, then, to paragraph 4 of the letter which provides:
‘You will understand that as a result of this transfer, I must inform — as I am doing — the Board of Management at Rathmines that your nomination by the Trustees to the staff of the school will terminate as from 31 July 1991’.
The plaintiff’s superior was therefore making and communicating two decisions; her decision to transfer the plaintiff nun from Dublin to Monaghan and her decision as trustee to inform the board of management that the nomination of the plaintiff to the staff of the school would terminate on 31 July 1991.
The reference to article 118 of the constitution of the congregation in the letter of 10 July is a reference to a paragraph in the constitution of the Congregation of St Louis, an extract of which has been exhibited. Article 118 in its terms appears to confer upon the religious superior or the regional superior the power to assign sisters to houses of the region after consultation with the regional council and the sisters concerned. It is this consultation which the plaintiff says did not take place and which the trustee says did take place.
The plaintiff’s reply by letter of 9 August 1991, which was delayed due to the plaintiff’s absence abroad, summarised her considered response in three numbered paragraphs. With regard to article 118 she says:‘Article 118 of the Constitutions has not been complied with, in that a transfer such as that directed requires prior consultation with the Regional Council and with myself as the individual to be transferred. No such consultation with myself has taken place’.
Paragraph 2 of that letter deals with a different matter, but paragraph 3 says:
‘In summary, I would ask that: (a) The transfer directed be withdrawn pending compliance with Article 118 of the Constitutions and that I be sent a confirmation in writing that it is so withdrawn, and (b) that if a letter has been sent to the Board of Management of St Louis High School regarding my position within the Congregation, or affecting my position at the school, that same be withdrawn forthwith and same be confirmed to me in writing’.
One may say at once that in that letter of 9 August 1991 the plaintiff sets out with commendable brevity and clarity the case which she was seeking to make. Indeed, I think that those paragraphs summarise adequately the case presented to me with the exception of one important matter which is understandably relied upon by the plaintiff’s legal advisers, namely, that the purported exercise of power by the trustee or religious superior to bring to an end the plaintiff’s employment with the school in Rathmines was a power which was invalidly exercised for an improper motive or for an ulterior purpose and not for the purpose for which the power was conferred.
It is also interesting to advert to the relief which the plaintiff herself sought. The plaintiff sought that the purported transfer be withdrawn pending compliance with article 118 of the constitution of the Congregation, that is to say, the plaintiff, in fact, was seeking what she would regard as proper consultation between her and her religious superior.
Effectively, therefore, there are two complaints made by the plaintiff against the trustee and her religious superior, Sister Fullam. One complaint is that (a) the trustee exercised the power under the community’s constitution invalidly because it was exercised without the requisite consultation; (b) that it was invalid because it was exercised for an improper or ulterior motive. Whilst relief is sought against the other parties (the board of management and the minister), there is no substance to that claim unless and until the plaintiff succeeds against the trustee. If the trustee exercised or even purported to exercise the power undoubtedly conferred on her by the articles of management to withdraw the nomination of the teacher proposed by her, it is accepted by all parties that the board of management and the minister have no option but to conform with that direction.
So that the challenge here is, as it must be, a challenge by the plaintiff to the purported exercise by the trustee of the two powers to which she expressly referred on 10 July in her letter: the power under the religious community’s constitution to relocate a member of the community and the other power under the articles of management to withdraw or alter her nomination.
It is not necessary for me to decide whether or not that case can be sustained on either ground. Undoubtedly there would be great difficulty in doing so. In the first place, the matter of fact as to whether consultation took place is a matter *369 which, it seems to me, would be very likely to be resolved in favour of the trustee rather than in favour of the plaintiff. On the facts as they appear in the affidavits it seems to me that the inference to be drawn is that the matter of relocation of the plaintiff was discussed at both the meeting in March and the meeting in May. Secondly, there is the problem, as, indeed, the plaintiff clearly foresaw in her letter of August, that whatever defect may have existed, if there was one in the order made pursuant to the constitution of the community, this would properly be remedied by holding or conducting such consultation now. It is unlikely and improbable that an injunction would be granted to restrain an action which could be remedied or rectified or carried out simply by holding an interview, the outcome of which was clearly predictable in the sense that the trustee has apparently absolute power to give such a direction to a member of her community. Whether or not the exercise of that power by the trustee was open to challenge as being an action done for an improper or ulterior purpose is again a difficult case for the plaintiff to make out.
The reality is that the plaintiff’s position as a teacher involved dual responsibilities. She was subject to and had the benefit of two codes or two regimes. In so far as she was a member of the teaching staff of the school, she was to some extent subordinate the board of management and answerable to them. But she was also a member of a religious community and subject to and with the benefit of their code of conduct and their regulations. As I see it, there is no guarantee that the two codes of conduct would reconcile or mesh one with the other.
Undoubtedly it is recognised by the defendants (particularly by the board of management in their letter of January last) that they would have to conform to particular standards if and in so far as they were considering the removal or disciplining of a member of the teaching staff of the school. But it is equally clear that different regulations and different considerations apply in so far as a religious superior is dealing with a member of his or her community.
I know of no reason to accept or assume that the rules of constitutional justice or fair play which have evolved so clearly over so many years would apply to a decision made by a religious superior in relation to a member of his or her community. The task which such a superior is performing is wholly different from that of an employer or a person exercising a quasi-judicial function and endeavouring to ascertain the truth of particular allegations or endeavouring to form an opinion in relation to disputed facts. It seems to me, though it is not as of yet a matter of expert evidence, that a religious superior exercises his or her authority for a variety of different reasons and different purposes. It may be a matter of discipline or it may have a religious purpose. It may be that it is to inculcate humility or obedience or to advance the interests of the religious order, whereas a lay tribunal would have as its purpose the ascertainment of truth and the vindication of the rights of the parties who are subject to its decision.
It does not seem to me that there is any basis for believing that similar considerations apply to decisions made by religious superiors in relation to members of their communities. The power given to the religious superior seems to be absolute or virtually absolute and subject only to the condition precedent that consultation should be held. But, of course, the religious superior is in no way bound by representations or submissions made to him or her. As I say, that is the particular power to give a particular direction. However, the constitution of the community must also be read in the context, as has been pointed out, that the members of a community of this nature have agreed to bind themselves by agreements or solemn vows of poverty and obedience and chastity. It seems to me that the vow of obedience is the converse of the absolute power of direction. It is the agreement, the unequivocal agreement, to accept orders that are given. To that extent it is unlikely and improbable that it was ever intended that the exercise by a religious superior of his or her powers to make orders could be subject to review by any other standard or by any other tribunal.
I have said and I now repeat that a decision on that matter must be postponed until the hearing of this action. I merely express the view that there are obviously serious difficulties in the plaintiff succeeding in the action. However, that is not to dismiss entirely the possibility that that would happen. Not only the facts require further consideration but it is proper to say that matters of complicated law can only be adjudicated on finally at the full hearing.
It seems to me that this matter can and should be dealt with like other interlocutory applications by considering the balance of convenience and the nature of the damage which can be done or avoided by granting or withholding the relief sought. The plaintiff is at this time residing alone in a private dwelling in the suburbs of Dublin and she does have a motor vehicle available to her. The documentation makes clear that if and when she accepts her transfer to Monaghan she will have similar facilities available to her there — the same type of accommodation and the same type of transport. Not only that, but the plaintiff will have the security of the order behind her in all respects. Her financial and physical and, presumably, religious welfare will be comprehensively safeguarded. To that extent the plaintiff is not in peril as might be others who seek relief from this Court, but she can and does say that her concern is that her reputation has been challenged and that she has not had an opportunity of vindicating it. That is the right which the plaintiff seeks to protect and safeguard at this stage. But there is no financial or physical respect in which she is at risk, as I understand it.
The defendants say that their concern is that the reputation of the school and the quality of the teaching and the interests of the children and those of the parents must be safeguarded. In particular it is recognised that the obtaining of interlocutory relief by the plaintiff means making a positive order effectively directing the trustee to revoke the decision which she purported to make under *371 article 118 and to revoke the directive or instruction which she gave to the board of management in relation to the employment of the plaintiff as a teacher. This would mean a positive order and a mandatory injunction directing a new state of affairs to be created, a state of affairs different from what it is during the current period where the plaintiff is not teaching.
To make a mandatory order at an interlocutory stage is possible but it is rare. It was recognised in Campus Oil Ltd v Minister for Industry and Energy (No. 2) [1983] IR 88 that there are circumstances in which it can and should be done, but I would be extremely reluctant to make a mandatory order even though I do sympathise with the plaintiff’s concern to have her capacity as a teacher reviewed by an appropriate and competent body. However, the difficulty in that regard is that I have no means of knowing or guaranteeing that that situation would come about because there is no order which I could make which would prevent the appropriate bodies taking action open to them. There is no basis on which I could direct an inquiry to be held as to the plaintiff’s competence, nor could this Court conduct an inquiry as to her capacity to carry out her job. To do so, it seems to me, would be intruding on the rights of others with no prospect of achieving the purpose which the plaintiff seeks. It seems to me that I cannot guarantee the remedy on which the plaintiff’s heart is set.
In the circumstances and on the balance of convenience it would be in-appropriate at this stage to grant an injunction of the type required by the plaintiff. If the plaintiff succeeds in her action at the plenary hearing the court will not be reluctant or precluded from granting a range of remedies. Obviously, the first course which the court could adopt would be to make a declaratory order which would perhaps satisfy the plaintiff’s ambitions if she does succeed in the action. Of course, the plaintiff would be entitled to monetary compensation if her rights have been infringed, though in her circumstances perhaps that is a less attractive remedy than it would be in other cases.
Finally, the court could make a mandatory order in certain respects. Perhaps one might assume that all of the parties would co-operate in facilitating the restoration of the plaintiff to her office if in the final analysis the court were of opinion that she had been improperly moved and unfairly treated. However, in the present circumstances it would be improper and inappropriate to grant the relief sought by the plaintiff. I will therefore dismiss the application and reserve the costs.
Fanning v University College Cork
Clean Hands
, unreported, High Court, Lavan J., July 25, 2002
Judgment of Mr. Justice Vivian Lavan delivered on the 25th day of July, 2002.
I heard this case commencing on the 11th of June 2002 and thereafter on the 12th, 13th, 14th, 18th and 19th days of June.
1. The evidence of the plaintiff and his secretary and the evidence adduced on behalf of the defendant took little over a day. The remainder of the six days of trial included a very lengthy opening and concluded with two days of closing submissions.
2. In his statement of claim the plaintiff claims extensive reliefs as is hereinafter set out. The defendant’s defence denies the plaintiff’s entitlement to the reliefs sought and it runs to some 57 separate pleas. Of those pleas the following were not relied upon at the hearing of the action before me, namely, paragraphs 42, 43, 44, 45, 46, 47, 48, 51, 52, 53, 54, 55.
3. The plaintiff set out an elaborate case. In order to establish that case he gave evidence. It was evidence totally lacking in candour and clarity. It was delivered in a defensive and a limited fashion and far from telling the truth, the whole truth and nothing but the truth it was an exercise in skirmishing and avoiding the issues. I doubt if I have heard another witness who was as less convincing. The plaintiff is a very overbearing and self righteous personality who considers that once he has convinced himself of his righteousness that is the end of the matter.
4. I do not accept the plaintiff’s evidence. Undoubtedly unhappy differences have arisen between the plaintiff and various members of the defendant’s staff which ought to have been resolved out of Court without the necessity for this action and other actions which the plaintiff is involved in against the University.
5. It is an essential rule of law that he who seeks equity must come with clean hands. With great regret I conclude that this plaintiff has signally failed to do this.
6. For completeness sake I will set out the various submissions made on behalf of the plaintiff and rejected by the defendant. These seem to be moot having regard to the findings I have made of the plaintiff and the evidence which he has given and which I reject.
1. Introduction
7. This case arises out of an incident that occurred on 31st August, 2001 involving the plaintiff, Mr. Connell Fanning, Professor of Economics and Head of the Department of Economics at University College Cork (UCC) and Ms. Joan Buckley, who at that time was an employee at the Language Centre at UCC, the defendant in these proceedings. This incident occurred at lunch time and out-of-term in a staff car park in the grounds of UCC. The plaintiff and the Ms. Buckley had not and would not normally come upon each other when engaged in their respective employment, and the incident was the first time they met. According to the account of the plaintiff, immediately prior to the incident, the plaintiff was walking his dog in a car park adjacent to Aras na Laoi, where the Department of Economics is located, and was talking to his wife on the phone. The dog was near to a car that moved forward, and when the plaintiff apprehended that there was some danger to the dog, words were exchanged between the plaintiff and Ms. Buckley, who was driving the car. Ms. Buckley alleged that she was assaulted by the plaintiff, an allegation strenuously denied by Mr. Fanning.
8. Ms. Buckley made a report of this incident in a latter dated 4th September, 2001, to the Director of Human Resources at UCC, Mr. Noel Keeley. The letter was given to two officials of the Human Resources Department by Ms. Buckley at a meeting with them on 7th September, 2001. At paragraph four of the submission of UCC, it is stated that Ms. Buckley approved the record of 7th September, 2001 on 12th September, 2001. On 5th October, 2001, Mr. Keeley informed the plaintiff that Mr. John Horgan had been appointed to investigate the incident. Mr. Horgan was a former chairman of the Labour Court. In the meantime, threats of litigation had been exchanged between the plaintiff and Ms. Buckley. However, on or about 16th October, 2001, the plaintiff and Ms. Buckley came to what the plaintiff avers, but which the defendant denies, to be an “amicable resolution” of their differences; in any event, in a letter of that date, solicitors for Ms. Buckley stated in a letter that she wished to put the incident behind her and did not intend to take any further steps in pursuance of it. In a letter dated 15th October, 2001, Ms. Buckley’s solicitors wrote to Mr. Keeley stating that she was withdrawing the reporting of the incident and that she at all times wished to record the incident, but that she did not require that it be investigated.
9. In a letter dated 13th September, 2001, Mr. Keeley sent a letter to the plaintiff advising him that a “very serious allegation” had been made against him In a letter dated 10th October, 2001, Mr. Keeley stated to the plaintiff’s solicitors that Mr. Horgan’s function would be to interview Ms. Buckley and others with a view to determining whether a prima facie case exists to submit to a disciplinary hearing committee. Mr. Horgan’s report was submitted to the UCC authorities on 19th October, 2001 in which Mr. Horgan stated that a prima facie case did exist against Mr Fanning arising from the incident. Mr. Fanning became aware of the report and, given that it was Mr. Fanning’s belief, averred to on page five of his written submission, that his suspension would automatically follow pursuant to UCC regulations in the area (Statute E as adopted by the Governing Body as its meeting on 30th January, 2001, pursuant to s. 25(6) of the Universities Act 1997 and the Disciplinary Procedure issued subsequent to the adoption of Statute E), Mr. Fanning instituted proceedings before the High Court seeking interim relief restraining his suspension. Smyth J. in the High Court granted the relief as sought on 22nd October, 2001. An interlocutory order was made on 27th November, 2001, on the same terms, but with the proviso that the defendant was permitted to begin disciplinary proceedings against the plaintiff.
10. The defendant proceeded to do so, and it is against these disciplinary proceedings of the defendant that the plaintiff’s action in this case is directed. This Court is not concerned with establishing as a matter of fact the details of the incident of 21st August, 2001 between the plaintiff and Ms. Buckley. Rather the Court is concerned with whether the defendant may invoke as it has purported to do disciplinary proceedings against the plaintiff as a result of the incident. The defendant may or not be entitled to do so without prejudice as to which version of events of that incident might eventually be determined to be true by whatever forum may be competent to determine the issue (here, putatively, the disciplinary body pursuant to Statute E and the Disciplinary Procedure of the defendant).
2. The Universities Act 1997
11. Section 25(6) of the Universities Act 1997 provides as follows:
A university may suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute made following consultation through normal industrial relations structures operating in the university with recognised staff associations or Trade Unions, which procedures or conditions may provide for the delegation of powers relating to suspension or dismissal to the chief officer and shall provide for the tenure of officers.
12. Section 25(8), upon which the fifth argument advanced on behalf of the plaintiff is based, provides as follows:
(8) For the removal of doubt, it is hereby declared that –
(a) The rights and entitlement in respect of tenure, remuneration, fees, allowances, expenses and superannuation enjoyed on the commencement of this section by persons who are employees, and in the case of superannuation former employees, of a university to which this Act applies shall not, by virtue of the operation of this Act be any less beneficial than those rights and entitlements enjoyed by those persons as employees of the university or corresponding constituent college or Recognised College immediately before that commencement, and
(b) The conditions of service, restrictions and obligations to which such persons were subject immediately before the commencement of this Act, shall, unless they are varied by agreement, continue to apply to such persons and shall be exercised or imposed by the university or the chief officer as may be appropriate, while such persons are employed by the university.
13. Section 33 of the Act provides as follows:
(1) Subject to this Act and to the Charter, if any, of the university, a governing
14. Authority of a university or the Senate may, and where required by this Act to do so shall, make such and so many statutes and regulations as it considers appropriate to regulate the affairs of the university.
(2) A governing authority shall, as soon as practicable after the making of a statute or regulation under section 17(2) or 24(1), inform an tUdaras and the Minister of the making of the statute and shall arrange for its publication in the Iris Oifigiuil.
(3) The statutes in force immediately before the commencement of this Part in a university to which this Act applies or its corresponding constituent college or Recognised College shall, so far as they are consistent with this Act, continue in force as Statutes of the university or the corresponding constituent university on and after that commencement but may be repealed or amended by a statute made under subsection (1).
3. Reliefs Claimed
15. The final reliefs sought by the plaintiffs, as set out at pages five and six of the plaintiff’s written submissions, are as follows:
(a) A declaration that the Disciplinary Procedure promulgated by the defendant and as applied to the plaintiff is unlawful and ultra vires the defendant;
(b) A declaration that the Disciplinary Procedure promulgated by the defendant does not apply to the plaintiff having regard to his statutory appointment;
(c) A declaration that there is in existence no matter, dispute, report, or complaint involving the plaintiff that could properly be the subject of any disciplinary procedure or inquiry;
(d) A declaration that the appointment of John Horgan to conduct a preliminary investigation is ultra vires the defendant;
(e) A declaration that the defendant, its servants or agents, has pre-judged the issue against the plaintiff and in the circumstances is biased against the plaintiff (this relates to a statement by Noel Keeley on affidavit that the incident occurred “in the course of employment” being a contentious issues which had yet to be determined);
(f) An injunction restraining the defendant, its servants or agents from holding any disciplinary inquiry involving the plaintiff relating to an alleged incident which occurred or about 31st August, 2001;
(g) An injunction restraining the defendant, its servants or agents from effecting any suspension of the plaintiff from his position as Professor of Economics and Head of The Department of Economics at University College Cork;
(h) An injunction restraining the defendant, its servants or agents from taking any steps whatsoever against the plaintiff relating to the alleged incident which occurred on or about 31st August, 2001;
(i) An injunction restraining the defendant, its servants or agents from taking any steps whatsoever to discipline, suspend or dismiss the plaintiff (arising out of the alleged incident which occurred on or about 31st August, 2001);
(j) Damages for breach of contract;
(k) Costs.
4. Points in Issue
16. The plaintiff makes twelve arguments in support of the application. The validity of each of these twelve grounds is denied in turn by the defendant. The arguments and the countervailing positions of the defendant are set out below:
1. The dismissal/suspension procedures are not specified in a statute:
17. The plaintiff submits that pursuant to ss. 25(6) and 33 of the Universities Act 1997, any dismissal procedures must be fully elaborated in a Statute. The plaintiff emphasises the use of the word “specified” as indicating the statutory intent that the procedures be set out in detail in a statute. The defendant has sought to apply against the plaintiff, in the plaintiff’s view, procedures that have not been specified in a statute as required; in particular, refers to the absence of a definition in Statute E of the defendant of a definition of “gross misconduct”, a basis upon which the defendant has proceeded against the plaintiff. Further, the plaintiff submits that the s. 33 of the 1997 Act recognises a distinction between statutes and regulations, furthering indicating the necessity that disciplinary procedures be specified in a statute, and not in a regulation.
18. The defendant makes a number of arguments against the plaintiff’s submissions in this regard. It argues, first, that the reference in s. 25(6) of the 1997 Act to “procedures” excludes from its scope gross misconduct since this is not, as such, a procedure. Further, the defendant submits that it is unnecessary to define gross misconduct, since it would not be possible to specify exhaustively a definition of the term. Finally, the defendant argues that as Mr. Fanning was appointed to his position prior to June 1997, the provisions of Statute 1, Chapter XXXIV of UCC apply and meet the requirement of s. 25(6) of the 1997 Act (i.e. that procedures be set out in a statute). Chapter XXXIV of Statute 1 provides that any president, professor, or lecturer appointed by the National University of Ireland may upon due cause in an application by the Governing Body of the college [i.e. a constituent college of the University], in the manner prescribed by the statutes of the University, be removed from office by the University, but that an appeal shall lie to the university visitor against any removal.
2. Even if the Statute had power to delegate the making of further disciplinary procedures, they could only themselves be made by statute:
19. The plaintiff submits that the words “but only” in s. 25(6) of the 1997 Act indicate that disciplinary procedures must be contained or specified in a statute, and that the disciplinary procedures on which the defendant relied were not so specified.
20. The defendant makes two arguments in reply to this ground. First, and following from the argument made that “gross misconduct” need not be defined in the Statute, the Statute does adequately set out the procedures to be followed and that any more detailed elaboration of gross misconduct would be otiose and unnecessary and would represent no valid ground of complaint to Professor Fanning. Alternatively, the defendant submits that if the procedures should have been specified in more detail than the defendant has done, that the defendant has effected “substantial compliance” with s. 25(6) of the 1997 Act and that its actions should be found intra vires. In support of this contention, the defendant relies on Megarry J. in Bates v. Lord Hailsham [1972] 1 WLR 1373 (at 1378-1379) (where the phrase “fairly and substantially followed” was used) and on the 7th edition of Craies on Statute Law, a quotation from the 3rd edition of which and that was also contained in the 7th edition, was approvingly cited by Smyth J. in delivering judgment at the interlocutory stage of these proceedings. Craies, at 256, in turn cites Hammond v. Hocking (1884) 12 QBD 291, where Cave J., referring to the Bills of Sale Act (1878) Amendment Act 1882, appeared to endorse a principle of construction whereby the courts will, where possible, seek to not avoid a contract.
3. Wrongful delegation of the issue of the definition of gross misconduct:
21. The plaintiff submits that the intent of s. 25(6) of the 1997 Act was clearly that the procedures be specified in Statute; the statutory intent would be undermined if the widest possible definition of “gross misconduct” were to justify suspension and the disappplication of the normal graduated disciplinary procedure. The defendant seeks to counter this argument by proposing that “gross misconduct” is not a procedure and, therefore, does not come within the requirement in s. 25(6) that procedures be set out in a statute.
4. The definition of gross misconduct is outside the delegated power of Statute E:
22. The plaintiff argues that even if the defendant had power to make disciplinary procedures otherwise than by way of statute and to delegate the making of those disciplinary procedures out of Statute E, the purported disciplinary procedures are not within the scope of the delegated powers since they do comply with the requirement to define and to specify “gross misconduct” under both Article 3(b) of Chapter 1 of Statute E and s. 25(6) of the 1997 Act. Such definition as there purports to be in paragraph 15 of the Disciplinary Procedure is so wide, it is argued, that it offers no indication of the practical scope of the term.
23. In reply, the defendant submits that the behaviour of the plaintiff in relation to the incident of 21st August, 2001, would be, if true, so clearly constitute an instance of gross misconduct that the charge of vagueness has no application to this case. Further, the defendant suggests that reliance by the plaintiff on King v. Attorney General [1981] IR 233 is misplaced in that that case related to vagueness of a criminal offence. Finally, the defendant submits that the examples given of gross misconduct in paragraph 15 of the Disciplinary Procedure were not meant to be, nor could reasonably be expected to be, exhaustive.
5. The suspension/dismissal procedures do not provide for the tenure of officers:
24. The plaintiff argues that the provisions of Statute E in so far as they affect the issue of tenure of office of officers of the University, of which the plaintiff is one in his role as Professor of Economics and Head of the Department of Economics, are contrary to s. 25(6) & (8) of the 1997 Act. Section 25(6) provides, inter alia, that the Statute shall provide for “the tenure of officers”. The plaintiff suggests that the Statute does not so provide and actually undermines the concept of tenure in so far as some of the Statute’s provisions are vague and uncertain. In relation to s. 26(8), the plaintiff submits that the scheme of disciplinary proceedings proposed by the defendant reduces the plaintiff’s entitlements as compared to the applicable rules prior to the 1997 Act; s. 25(8) specifically provides that rights and entitlements in relation to, inter alia, tenure, shall not be any less beneficial following the Act unless by agreement between the parties. As matters stood before the Act, the plaintiff submits, under Chapters III(iv) and IV of the Charter of the National University of Ireland (NUI), only the NUI had the power to dismiss the plaintiff; further, the plaintiff had a right of appeal to a board of four visitors, who had to agree unanimously to a purported dismissal before it became operative or valid. The limited power of the President of UCC in this regard, the plaintiff submits, was reinforced by Chapter XII(v) and Chapter XXXIV of Statute 1 of the Charter of UCC.
25. The defendants make a number of arguments against these submissions of the plaintiff. First, the defendants submit that on a proper construction, the statute does not require that provisions as to the tenure of officers be contained in a statute. Alternatively, the defendants submit that if the statute does in fact so require, UCC has conformed with the requirement through the provisions contained in paragraph 3(b) of Statute E and paragraph 24 of the Disciplinary Procedure providing for suspension with pay pending investigation of alleged gross misconduct; s. 25(6), it is submitted, clearly envisages suspension and such suspension, cannot, therefore, be deemed to adversely affect tenure within the terms of the Act. In effect, the defendant seems to submit that if the Act requires that provision be made as to tenure, this requirement is met by the fact that the provisions as to suspension, read in the context of the Act, cannot be said to adversely affect tenure.
26. Further, the defendant states, in relation to s. 25(8)(a) that provision is made as to tenure in paragraph 6 of Chapter 1 of Statute E concerning dismissal and the application of Chapter XXXIV of Statute 1 and by the provisions of paragraph 44 of the Disciplinary Procedure to similar effect. In addition, the defendant submits that the defendant’s tenure is not any less beneficial as a result of the 1997 Act, and that in so far as the Act envisages both the possibility of suspension and also the protection of tenure, suspension cannot be said, on a proper construction of the statute, of itself to adversely affect tenure.
27. In relation to s. 25(8)(b), the defendant submits that it has no application to this case because it applies to restrictions and obligations to which employees were subject before the commencement of the 1997 Act and those conditions, restrictions, and obligations continue to apply.
28. Finally, the defendant agrees that if there is any inconsistency between the 1997 Act and Statutes or measures of UCC (which the defendant denies), any such provisions do not continue in force as a consequence of s. 33(3) of the Act.
.
6. No power to suspend Professor Fanning:
29. The plaintiff submits that prior to the 1997 Act, the only way the tenure of a professor’s office could be interfered with was by way of a decision by the National University of Ireland to dismiss him, and he or she could not be suspended as a result of a mere allegation. This diminution in the level of protection afforded to tenure was inconsistent with s. 25(8) of the 1997 Act.
30. The defendant submits that this argument is misconceived because the 1997 Act expressly provides for the protection of an officer’s tenure and for suspension; as a result, the defendant submits, suspension cannot be regarded as interfering with tenure.
7. The procedures themselves were not complied with:
31. As a follow on to the previous arguments, the plaintiff submits that if any disciplinary procedure is applicable, it is not that which is applicable to alleged gross misconduct, but the progressive or graduated procedure provided for under Chapter 1 of Statute E and applicable to allegations of misconduct in general (i.e. other than of gross misconduct).
32. The defendant rejects this argument and submits that on any reasonable view, the alleged misconduct of the plaintiff comes within the term gross misconduct. In this regard, the defendant notes that in cross examination, the plaintiff accepted that the allegation made in relation to the incident of 21st August, 2001 by Ms. Buckley in her initial report was a “very serious allegation”.
8. The Director of Human Resources had no power, though he purported, to categorise the allegation as one of gross misconduct and to invoke disciplinary procedures and suspension:
33. The plaintiff submits that under the 1997 Act or the Irish Universities Act 1908, the Director of Human Resources is not a person recognised as having any power over a professor of the NUI. Further, under Article 1 of Chapter 1 of Statute E, even if the Statute is applicable, the University, and not Mr. Keeley, is the entity that may exercise a power of suspension.
34. The defendant submits that pursuant to paragraph 3(1) of the Fourth Schedule of the 1997 Act, the Chief Officer (in the case of UCC, the President) may delegate any of his or her functions, including functions delegated to the Chief Officer in accordance with s. 25(2) of the 1997 Act, to an employee of the University unless those functions of the Chief Officer are subject to a condition of non-delegation. Here, the defendant submits that Mr. Keeley was delegated the functions he exercised in the matters in issue in these proceedings. Further, the defendant asserts that Mr. Keeley did not actually threaten to suspend or purport to suspend Mr. Fanning.
9. The engagement of John Horgan to carry out an investigation:
35. The plaintiff submits that Mr. John Horgan was assigned an adjudicative function in relation to matters in issue in the case and that the legislation and Statute E of the University do not recognise such an appointee as having any such authority or power. Further, the plaintiff submits that, in line with previous argument, Mr. Keeley has no authority to make such an appointment. More generally, the plaintiff submits that the procedures applied in the case “was essentially made up by UCC as it went along”. The plaintiff provides an example of what he submits is the obvious lacuna in the procedures of UCC in relation to dismissal. Under s. 15 of the Disciplinary Procedure, which seeks to define though not definitively, the term gross misconduct, assault and theft are specified as instances of behaviour constituting gross misconduct. The plaintiff submits that it would be obviously inconsistent with the legislative intent if incidents that technically might constitute assault or theft (such as throwing a napkin at a fellow staff member at a party or photocopying a page using a university copier for one’s child’s school project) could be classified as gross misconduct and result in the automatic disapplication of the graduated procedure that generally applies to misconduct. In the absence of any filtering mechanism for determining what cases are to be proceeded with on the assumption that the alleged behaviour could constitute gross misconduct, the plaintiff asserts that the defendant adopted an ad hoc and ultra vires procedure. Further, the plaintiff states that Mr. Keeley’s actions contaminated the entire procedure because the determination of Mr. Horgan, the purported appointee of Mr. Keeley, was what led to the application of disciplinary proceedings against Mr. Fanning. Finally, the plaintiff submits that Mr. Horgan’s previous role as an expert witness testifying on behalf of UCC in another case for which he was paid (though he did not actually testify) resulted in him being “conflicted” in the current case and an inappropriate person to involve as happened.
36. The plaintiff makes a number of counter arguments in this regard. First, the defendant submits that the President of UCC could have invoked disciplinary procedures without there having been any involvement by Mr. Horgan, and that the involvement of Mr. Horgan was a “filtering device” arranged “in the ease” of Mr. Fanning given the dissatisfaction expressed by Mr. Fanning in a solicitor’s letter of 1st October, 2001 with respect to the involvement of Mr. Keeley, the Director of Human Resources. Having regard to the contents of this letter, the defendant submits that “it was felt appropriate that an independent person should carry out this initial filtering exercise”. Further, it is submitted that Mr. Horgan’s appointment was in any event irrelevant to the disciplinary procedure in that his report, concluding that there was a prima facie case against Mr. Fanning, was not furnished to the Disciplinary Hearing Committee and the Committee was unaware of its content. In this regard, the defendant denies that Mr. Horgan’s involvement “contaminated the whole procedure”. In addition, the defendant asserts that the suggestion that Mr. Horgan’s involvement was irrelevant to the Committee would appear to be with respect to the actual deliberations of the Committee, rather than more generally with respect to the involvement or the fact of the involvement of the Disciplinary Committee; the defendant acknowledges that had Mr. Horgan’s report concluded that there was no prima facie case against Mr. Horgan, then the disciplinary procedure would not have been operated.
37. In addition, the defendant submits, in relation to oral arguments adduced by Mr. Fanning, that although it could be argued that the principles of natural and constitutional justice did not apply at the stage of Mr. Horgan’s involvement (citing Moran v. Lloyd’s [1981] 1 Lloyd’s Reps 423; Herring v. Templeman [1973] 3 ALL ER 569; Gilligan v. Governor of Portlaoise Prison (Unreported, High Court, McKechnie J., 12th April 2001)), Mr. Horgan did comply with these principles and the non-involvement of Mr. Fanning in the deliberations of Mr. Horgan was because Mr. Fanning chose not to participate. Finally, in relation to the plaintiff’s argument that Mr. Horgan’s prior involvement in a dispute in which UCC was one of the parties, the defendant submits that it did not give rise to any reasonable apprehension of bias in relation to Mr. Horgan. The defendant refers to Dublin Well Woman Centre Ltd. v. Ireland [1995] 1 ILRM 408; Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 IR 412; and Rooney v. Minister for Agriculture and Food (Unreported, Supreme Court, 23rd October 2000). The defendant also refers to Judicial Review of Administrative Action: A Comparative Analysis (2001), in which the author, having reviewed a number of authorities, at page 174, concludes that:
. . . the reality is that some previous knowledge of the parties may be unavoidable
and it may be tolerated provided that the test that no reasonable apprehension of bias is satisfied (sic – check quote).
10. The disciplinary procedures are inapplicable because the acts were not in the course of his/her employment:
38. The plaintiff submits that disciplinary procedures are applicable only to acts that occur during the course of employment and that the incident in question cannot be said to come within this category. In support of this contention, the plaintiff points to the fact that the incident occurred outside of term time, during lunch hour, when the plaintiff was walking his dog and talking to his wife on the phone, and between two people who did not know each other and would have no cause to know each other during the course of their work. Further, the plaintiff submits that the fact the incident occurred on UCC premises, in a staff car park, is of no relevance, because it could just as well have happened outside of UCC. The plaintiff refers to a number of authorities in this regard: Buckley Stores Ltd. & Anor. V. National Employers Mutual general Insurance Association Ltd. [1978] IR 351, Nottingham v. Aldridge & Anor. [1971] 2 QB 739, and Listor v. Hesley Hall Ltd. [2002] 1 AC 215. The thrust of the plaintiff’s argument and submissions on these authorities is that a sufficiently close connection or nexus must exist between the plaintiff’s actions and the duties of the plaintiff’s employment. In the plaintiff’s submission, such a test is not met given the circumstances of the incident of 21st August, 2001 involving the plaintiff and Ms. Buckley.
39. The defendant submits, in relation to this issue, first, that it is not necessary for the conduct of the plaintiff to have occurred during the course of his employment for the disciplinary procedures to be applicable. The defendant submits that, in general, some conduct may be of such a nature that it is irrelevant that it was committed other than during the course of employment for the purpose of the applicability of disciplinary proceedings by an employer, and gives as an example murder or rape. In the defendant’s submission, the plaintiff’s alleged misconduct comes within this category of conduct that renders irrelevant the consideration that the impugned actions occurred during or outside the course of employment.
40. Alternatively, the defendant submits that if the alleged misconduct must have occurred during the course of employment, then this test is met in this case. The defendant points to the fact that the incident occurred on UCC property, in a car park for staff members. The defendant further proposes that “the fact that it occurred out of term time and at lunch hour is, it is respectfully submitted, irrelevant having regard to the nature and duties of a college professor which are not confined to term time and to standard predetermined working hours”. Further, the defendant submits that the cases cited by the plaintiff, other than Lister and Others v. Hesley Hall Ltd. [2002] AC 215, are not applicable. Finally, the defendant submits in this regard that if the principles in Lister are applicable, the term “during the course of employment” should be broadly construed. In the defendant’s submission, the decision of the Court of Appeal of England and Wales in Jones v. Tower Boots Co. Ltd. [1997] 2 ALL ER 406 supports such a broad construction of the concept of employment in cases that do not involve the application of vicarious liability in tort.
11. Comments of the Director of Human Resources and the issue of prejudice:
41. The plaintiff submitted that Mr. Keeley prejudged the issue as to whether the incident of 21st August, 2001 occurred during the course of employment in his affidavit sworn 5th November, 2001, at paragraph 22.
42. The defendant seeks to counter this argument first by submitting, as previously, that there is no requirement that the alleged misconduct take place during the course of Mr. Fanning’s employment. Further, the defendant submits that, whether or not Mr. Keeley did prejudge the issue (which the defendant denies), that the determination of it was left entirely to the disciplinary committee, which, the defendant states, did not have Mr. Keeley’s affidavit.
12. The disciplinary procedures are inapplicable because the matter has been amicably resolved:
43. The plaintiff proposes that paragraph 1 of the disciplinary procedures of UCC make it clear, particularly through the use of the phrase “wherever possible”, that amicable resolution is the object of the disciplinary procedures, the plaintiff submits that as all issues between Mr. Fanning and Ms. Buckley arising from the incident of 21st August, 2001 have been amicably resolved and that as a result, the disciplinary procedures should not be applied.
44. The defendant first denies that there has been any such amicable resolution of the issues between Mr. Fanning and Ms. Buckley. Secondly, the defendant suggests that the Disciplinary Procedure make no reference to a concept of amicable resolution, apparently basing this contention on the fact that a verb and adverb, rather than a noun and adjective, are used in paragraph 1, which refers to the University’s intention to “. . . amicably resolve . . .” wherever possible disciplinary matters. In addition, the defendant submits that the relevant parties to an amicable resolution, in any case, as envisaged by the Disciplinary Procedure are the University and the employee, and that the alleged amicable resolution in this instance was between Mr. Fanning and Ms. Buckley. Further, the defendant submits that the reference to “wherever possible” qualifies the University’s intention in this regard as set out in paragraph 1.
45. In my view far from the issues between Ms. Buckley and the plaintiff being amicably resolved I conclude that the plaintiff’s conduct towards Ms. Buckley was so overbearing and intimidatory that she was over borne by his threats conveyed through his solicitors towards a junior member of the defendant’s staff (Ms. Buckley) some few weeks before her wedding.
46. Seeing and hearing both of these people in Court I have no doubt, on the balance of probabilities, as to the correctness of my conclusions in this regard. The plaintiff, abusing his senior status, intimidated Ms. Buckley. I am satisfied that she fled from his wrath and unreasonableness. I can well sympathise with her decision. I find as fact that Ms. Buckley’s withdrawal of complaint was not the result of the matters being amicably resolved but was the result of the plaintiff’s overbearing and intimidatory conduct.
47. For the purpose of completeness I have set out the nature of the plaintiff’s case as it describes in detail the lengths he is prepared to go to support his egotistical and overbearing personality.
48. I do not consider it necessary to make findings on the important issues raised by the pleadings. I have determined that this plaintiff has not come to equity with clean hands. I regret that I do not accept his evidence as being given in a full and frank manner. In the circumstances this plaintiff has disentitled himself to the equitable reliefs he seeks in this case. In the result I therefore dismiss his case.
UK Cases
Doherty v Altman
House of Lords (1878) 3 App.Cas. 709; 39 L.T. 129; 26 W.R. 513
CAIRNS L.C.: . . . Now, my Lords, let us look at it in that point of view [i.e., that the covenant as to good repair should be read as a covenant to maintain the stores as stores for the whole of the lease]. I said that there is here no negative covenant-not to turn these buildings to any other use. My Lords, if there had been a negative covenant, I apprehend, according to well settled practice, a Court of Equity would have had no discretion to exercise. If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury-it is the specific per formance, by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves. But, my Lords, if there be not a negative covenant but only an affirmative covenant, it appears to me that the case admits of a very different construction. I entirely admit that an affirmative covenant may be of such a character that a Court of Equity, although it cannot enforce affirmatively the performance of the covenant, may, in special cases, interpose to prevent that being done which would be a departure from, and a violation of, the covenant. That is a well-settled and well-known jurisdiction of the Court of Equity. But in that case, my Lords, there appear to me to come in considerations which do not occur in the case of a negative covenant. It may be that a Court of Equity will see that, by interposing in a case of that kind, in place of leaving the parties to their remedy in damages, it would be doing more harm than it could possibly do good, and there are, as we well know, different matters which the Court of Equity will, under those circumstances, take into its view. It will consider for example whether the injury which it is asked to restrain is an injury which if done cannot be remedied. It will con sider whether, if done, it can or cannot be sufficiently atoned for by the payment of a sum of money in damages. It will ask also this question,-Suppose the act to be done, would the right to damages for it be decided exhaustively, once andfor all, by one action, or would there necessarily be a repetition of actions for the purpose of recovering damages from time to time? Those are matters which a Court of Equity would well look to, and on the other hand a Court of Equity would look to this: If we interfere and say, in aid of this affirmative covenant, that something shall not be done which would be a departure from it, no doubt we shall succour and help the Plaintiff who comes for our assistance. But shall we do that? Will the effect of our doing that be to cause possible damage to the Defendant, very much greater than any possible advantage we can give to the Plaintiff? Now, in a case of that kind, where there is an amount of dis cretion which the Court must exercise, those are all considerations which the Court will carefully entertain before it decides how it will exercise its discretion.
AG v Harris
Court of Appeal (1961] 1 Q.B. 74; [1960] 3 W.L.R. 532; [1960] 3 All E.R. 207
PEARCE L.J.: In very full and fair arguments many old cas s have been ited that show the development of the views taken by the courts m relator act10ns. It is now firmly established that where an individual or _public bo y persistently breaks the law, and where there is no person or no sufficient sanctton to preve t the breaches, these courts in an action by the Attorney-General may lend their aid to secure obedience to the law. They may do so whether the breaches be an invasion of public rights of property or merely an invasion of the com munity’s general right to have the laws of the land obeyed. “The Attorney General,” said Lorth Hatherley L.C. in Attorney-General v. Ely, Haddenham and Sutton Railway Co. ( (1869) L.R. 4 Ch.App. 194, 199), “represents the whole public in this sense, that he asks that right may be done and the law observed.
. . . The question is, whether what has been done has been done in accordance with the law; if not, the Attorney-General strictly represents the whole of the public in saying that the law shall be observed.”
The defendants contended that where the Act that created the offence pro vides the penalty, the general rule applies, the only remedy is that provided by the statute, and, therefore, an injunction cannot or at the least should not be granted in the present case. But, as Eve J. pointed out in Attorney-General v. A-emier Line Ltd. ([1932] 1 Ch. 303, 313) the Attorney-General is asserting the rights of the public which is concerned in seeing that Acts of Parliament are obeyed, and the general rule, therefore, no longer operates. The dispute is not between the individuals, but between the law breaker and the public. In Attorney-General v. Sharp ([1931] 1 Ch. 121) arguments similar to those of the present defendants were put forward without success. In that case, which has certain similarities to the case before us, it was held that the court had juris diction to grant an injunction to prevent the defendant from plying for hire with his omnibuses without a licence. “The defendant,” said Lawrence L.J. (at p. 133), “has deliberately and persistently committed breaches of the statutory obligations imposed upon him for the benefit of the public. Before this action was brought the defendant and his employees had, at the instance of the Cor poration of Manchester, been summoned and fined no less than 60 times for breaches of these obligations, and it is plain that the defendant intends to pursue his illegal course of conduct unless restrained by injunction….” And later he said this: ” In the present case moreover the defendant is wilfully persisting in an illegal course of conduct which has become and if no injunction be granted will continue to be a permanent habit. In these circumstances I think that the only appropriate remedy is by way of injunction at the instance of the Attorney General.”
The same is true of the defendants in the present case. Between them, they had at the date of the trial been convicted and fined on 237 summonses, and they admitted their intention to continue their course of action. For the profits derived from their breaches of the law exceed the penalties which can be inflicted on them. If, therefore, no injunction is granted, the law must (unless and until Parliament intervenes by amending the statute) confess itself defeated and leave them free to break the law, merely levying on their profits the small toll that the existing penalties allow.
. It is not, of course, desirable that Parliament should habitually rely on the 1gh Court t deter th_elaw_breaker by oth r means than the statutory penalties mstead of taki1:1g t?e leg1slauve step of aki?g the penalties adequate to prevent the offence which 1t has created. Especially 1s this so where the offences are of a trivial nature. Yet it is, on the other hand, highly undesirable that some mem ber of the public should with impunity Bout the law and deliberately continueacts forbidden by Parliament. And in cases where, under the existing law, this court alone can provide a remedy, it should in general lend its aid to enforce obedience to the law when that aid is invoked by the Attorney-General on behalf of the public.
See on the use of injunctions in public law de Smith, Judicial Review of Administrative Action, Chap. 10.
Seager v Copydex Limited
[1967) 1 W.L.R. 923; [1967) 2 All E.R. 415
LoRD DENNING M.R. : . . . Summarised, the facts are these-
(i) The plaintiff invented the “Klent” carpet grip and took out a patent for it. He manufactured this grip and sold it. He was looking for a selling organisation to market it.
(ii) The plaintiff negotiated with the defendant company with a view to their marketing the ” Klent ” grip. These negotiations were with Mr. Preston, the assistant manager, and Mr. Boon, the sales manager. These negotiations lasted more than a year, but came to nothing.
(iii) In the course of those negotiations, the plaintiff disclosed to Mr. Preston and Mr. Boon all the features of the “Klent” grip. He also told them of an idea of his for an alternative carpet grip with a ” V ” tang and strong point. But they rejected it, saying that they were only interested in the ” Klent ” grip.
(iv) Both Mr. Preston and Mr. Boon realised that the information was grven
to them in confidence. Neither of them had any engineering skills, nor had invented anything.
(v) As soon as the negotiations looked like coming to nothing, the defendant company decided to make a carpet grip of their own, which was to be basically similar to the ” Klent ” grip, but with spikes which would not infringe the plaintiff’s patent.
(vi) The defendant company did in fact make a carpet grip which did not infringe the plaintiff’s patent for a “Klent” grip. But it embodied the very idea of an alternative grip (of a “V-tang” with strong-point) which the plaintiff mentioned to them in the course of the negotiations. They made an application to patent it, and gave the name of Mr. Preston as the true and first inventor.
(vii) The defendant company gave this carpet grip the name “Invisigrip” which was the very name which the plaintiff says that he mentioned to Mr. Preston and Mr. Boon in the course of the negotiations.
(viii) The defendant company say that their alternative grip was the result of their own ideas and was not derived in any way from any information given to them by the plaintiff. They say also that the name of ” Invisigrip” was their own spontaneous idea.
(ix) I have no doubt that the defendant company honestly believe the alterna tive grip was their own idea; but I think that they must unconsciously have made use of the information which the plaintiff gave them. The coincidences are too strong to permit of any other explanation.
The Law. I start with one sentence in the judgment of Lord Greene, M.R., in Saltman Engineering Co., Ltd. v. Campbell Engineering Co., Ltd. ([1963] 3 All E.R. at 414): ” If a defendant is proved to have used confidential informa tion, directly or indirectly obtained from the plaintiff, without the consent,
express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights.” To this I add a sentence from the judgment of Roxburgh, J., in Terrapin, Ltd. v. Builders’ Supply Co. (Hayes), Ltd., Taylor Woodrow, Ltd.& Swiftplan, Ltd. ([1960] R.P.C. at 130), which was quoted and adopted as correct by Roskill, J., in Cranleigh Precision Engineering Co., Ltd. v. Bryant ([1956] 3 All E.R. at 301): “As I understand it, the essence of this branc of
the law, whatever the origin of it may be, is that a person who has ob a1_n d information in confidence is not allowed to use it as a springboard for act1v1t1es detrimental to the person who made the confidential communication, and springboard it remains even when all the features have been published or can be ascertained by actual inspection by any member of the public.”
The law on this subject does not depend on any implied contract. It depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent. The principle is clear enough when the whole of the information is private. The difficulty arises when the information is in part public and in part private. As for instance in this case. A good deal of the information which the plaintiff gave to the defendant company was available to the public, such as the patent specification in the Patent Office, or the ” Klent” grip, which he sold to anyone who asked. But there was a good deal of other information which was private, such as, the difficulties which had to be overcome in making a satisfactory grip; the necessity for a strong, sharp tooth; the alternative forms of tooth; and the like. When the information is mixed, being partly public and partly private, then the recipient must take special care to use only the material which is in the public domain. He should go to the public source and get it: or, at any rate, not be in a better position than if he had gone to the public source. He should not get a start over others by using the information which he received in confidence. At any rate, he should not get a start without paying for it. It may not be a case for injunction but only for damages, depending on the worth of the confidential information to him in saving him time and trouble.
Conclusion. Applying these principles, I think that the plaintiff should succeed. On the facts which I have stated, he told the defendant company a lot about the making of a satisfactory carpet grip which was not in the public domain. They would not have got going so quickly except for what they had learned in their discussions with him. They got to know in particular that it was possible to make an alternative grip in the form of a “V-tang “, provided the tooth was sharp enough and strong enough, and they were told about the special shape required. The judge thought that the infonllation was not signi ficant. But I think it was. It was the springboard which enabled them to go on to devise the ” lnvisigrip ” and to apply for a patent for it. They were quite innocent of any intention to take advantage of him. They thought that, as long as they did not infringe his patent, they were exempt. In this they were in error. They were not aware of the law as to confidential information.
The court grants neither an account of profits, nor an injunction, but only damages to be assessed by the master. Damages should be assessed on the basis of reasonable compensation for the use of the confidential information which was given to the defendant company.
Whitwood Chemical Company Limited v Hardman
Court of Appeal [1891] 2 Ch. 416; 60 L.J.Ch. 428; 64 L.T. 716; 39 W.R. 433
LINDLEY L.J.: . . . If he is committing a breach of the agreement, he is doing that which is wrong in point of law; but that is not the question. The question is as to the Plaintiffs’ remedy. Now there are various remedies. There is the remedy of dismissal, there is the remedy of an action at law, and there is the remedy by injunction. The Plaintiffs are not disposed to avail themselves of the first two remedies. They do not want to dismiss the Defendant, and they do not want to bring an action against him-they want an injunction. They asked the Court below for an injunction in terms which are different from those in which the learned judge has granted it. Their motion was that the Defendant might be restrained from setting up in business, or entering into any agreement or engagement with any person or company other than them selves, by which the whole of the Defendant’s time would cease to be devoted to their business, or by which the Defendant would be prevented from carrying out his agreement with them. The question is, whether an injunction in those terms, or substantiat in those terms, ought to be granted, having regard to the principles upon which the Court acts in cases of this description. The first point to observe is, that there is no negative covenant at all, in terms, contained in the agreement on which the Plaintiffs are suing-that is to say, the parties have not expressly stipulated that the Defendant shall not do any particular thing. The agreement is wholly an affirmative agreement, and the substantial part of it is that the Defendant has agreed to give “the whole of his time” to the Plaintiff company. That is important in this respect, that it enables us to see more clearly than we otherwise might what the parties had in their contempla tion. If there had been a negative clause in this agreement, such as there was in Lumley v. Wagner ( (1852) 1 D.M. & G. 604), and in some of the other cases, we should have been relieved from the difficulty of speculating what they had been thinking about. We should have seen that they had had their attention
drawn to certain specific points, and that they had come to an agreement upon those specific points. In this case, we are left more or less in the dark about that, because, as I have said, there is nothing that shews that anything definite was in the minds of these parties beyond this, that the Defendant was to give the whole of his time to the Plaintiffs’ business.
Now every agreement to do a particular thing in one sense involves a negative. It involves the negative of doing that which is inconsistent with thething you are to do. If I agree with a man to be at a certain place at certain time, I impliedly agree that I will not be anywhere else at the same time, and so on ad infinitum; but it does not at all follow that, because a person has agreed to do a particular thing, he is, therefore, to be restrained from doing everything else which is inconsistent with it. The Court has never gone that length, and I do not suppose that it ever will. We are dealing here with a contract of a particular class. It is a contract involving the performance of a personal service, and, as a rule, the Court does not decree specific performance of such contracts. That is a general rule. There has been engrafted upon that rule an exception, which is explained more or less definitely in Lumley v. Wagner
-that is to say, where a person has engaged not to serve any other master, or not to perform at any other place, the Court can lay hold of that, and restrain him from so doing; and there are observations, in which I concur, made by Lord Selborne in the Wolverhampton Railway Company v. London and North Western Railway Company ( (1873) L.R. 16 Eq. 433), to the effect that the principle does not depend upon whether you have an actual negative clause, if you can say that the parties were contracting in the sense that one should not do this, or the other-some specific thing upon which you can put your finger. But there is this to be considered. What are we to say in this particular case? What injunction can be granted in this particular case which will not be, in substance and effect, a decree for specific performance of this agreement? It appears to me the difficulty of the Plaintiffs is this, that they cannot suggest anything which, when examined, does not amount to this, that the man must either be idle, or specifically perform the agreement into which he has entered.
I agree with what the late Master of the Rolls, Sir G. Jessel, said about there being no very definite line. I agree, also, in what Lord Justice Fry has said more than once, that cases of this kind are not to be extended. I confess I look upon Lumley v. Wagner rather as an anomaly to be followed in cases like it, but an anomaly which it would be very dangerous to extend. I make that observation for this reason, that I think the Court, looking at the matter broadly, will generally do much more harm by attempting to decree specific performance in cases of personal service than by leaving them alone; and whether it is attempted to enforce these contracts directly by a decree of specific performance, or indirectly by an injunction, appears to me to be immaterial. It is on the ground that mischief will be done to one at all events of the parties that the Court declines in cases of this kind to grant an injunction, and leaves the aggrieved party to such remedy as he may have apart from the extraordinary remedy of an injunction. I am assuming that the Defendant either has broken his agreement, or intends to do so if he can. I assume that he is wrong, but I say, assuming that, the remedy is not that which the Plaintiffs claim, i.e., by injunction, but by damages, when the agreement is broken.
KAY L.J.: . . . However, what strikes me in this case is that if the Court could possibly interfere in the way in which the learned Judge has interfered, by injunction, I do not see any contract of hiring and service in which it ought not also to interfere. To take the most simple and ordinary case, of a man’s domestic servant, his butler (which was one of the cases put by way of illustration in one of the judgments referred to), who has contracted to give the whole of his time to his master’s service. Could it possibly be argued that an injunction could be obtained to prevent his serving some one else during that engagement? Yet if a negative is to be implied, I do not see any case whatever in which it could be more clearly implied than in a case of that kind. We must tread with very great caution such a path as that which this application invites us to pursue; and, as I think this case goes very far beyond any case which has been decidedwith consideration up to this time, I certainly am very strongly disinclined to support this decision; I am all the more disinclined to support it, because one cannot help seeing that the mode in which this injunction is granted is really the only mode in which the Court could possibly have granted such an injunc tion. The Court has implied a negative in the contract to give the whole of his time, and has therefore granted an injunction to prevent his giving any of his time to any other purpose. It is not really wanted, bona fide, for that purpose, but it is wanted to prevent him from setting up a rival business which he has not contracted not to do.
Mortimer v Beckett
Chancery (1920) 1 Ch. 571; 89 L.J.Ch. 245; 123 L.T. 27; 64 S.J. 341
The plaintiff bore the expense of training the defendant as boxer for three years whereupon the defendant gave the plaintiff sole matching rights for the next seven years, the defendant to get SO per cent. of all purses over £25. The defendant having refused to employ the plaintiff any ‘longer, the plaintiff sought an interim injunction to restrain the defendant from entering into any boxing engagements except those arranged by the plaintiff.
RussELL J.: . . . The question I have to consider is whether on a document of that kind the Court will grant an injunction, and to that extent grant specific performance of the contract. It is an agreement for personal services, an agree ment to employ the plaintiff as the sole agent for the defendant, and the defendant binds himself to accept those services and to employ him as sole agent. The authorities which have been cited support the view that the Court will not grant an injunction upon such a contract as this, but will leave the plaintiff to his common law remedy in damages. The first case is Lumley v. Wagner ( (1852)
1 D.M. & G. 604), which came before Lord St. Leonards on appeal from Sir James Parker, and is a case of high authority. In that case Miss Wagner had agreed to sing at a particular theatre during a particular period and for the performances specified, and down to the tenth clause of the agreement there was no independent negative clause to the effect that she would not perform any· where else. Lord St. Leonards came to the conclusion that down to this clause the agreement did involve a contract to sing at the theatre at these performances, and at no other, but that in order that the agreement should be enforceable by injunction there must be an independent negative stipulation that she would perform nowhere else. But there was an added independent clause, and Lord St. Leonards, although he had come to the conclusion that in the absence of such an express independent negative stipulation he would not grant an injunction, granted it on finding that independent negative stipulation. I will read a few passages from his judgment. He says: “The present is a mixed case, con sisting not of two correlative acts to be done, one by the plaintiff and the other by the defendant, which state of facts may have and in some cases has intro duced a very important difference,-but of an act to be done by J. Wagner alone, to which is suspended a negative stipulation on her part to abstain from the commission of any act which will break in upon her affirmative covenant the one being ancillary to, concurrent and operating together with the other. The agreement to sing for the plaintiff during three months at his theatre, and during that time not to sing for anybody else, is not a correlative contract, it is in effect one contract; and though beyond all doubt this Court would not interfere to enforce the specific performance of the whole of this contract, yet in all sound construction, and according to the true spirit of the agreement, the engagement to perform for three months at one theatre must necessarilr exclude the right to perform at the same time at another theatre. It was clear y mtended that J. W g ner was to exert her vocal abilities to the utmost to aid the the;:tre to which she agreed to attach herself. I am of opinion, that if she had attempted, even in the absence of any negative stipulation, to perform at anoth-::r theatre, she would have broken the spirit and true meaning of the contract as much as she would now do with reference to the contract into which she has actually entered.” Then a little later he says: “It was objected that the operation of the injunction in the present case was mischievous, excluding the defendant J. Wagner from performing at any other theatre while this Court had no power to compel her to perform at Her Majesty’s Theatre. It is true, that I have not the means of compelling her to sing, but she has no cause of complaint if I compel her to abstain from the commission of an act which she has bound herself not to do, and thus possibly cause her to fulfil her engagement.” Further on in his judgment he referred to Clarke v. Price ( (1819) 2 Wils. 157), which had been pressed on him by the defendant’s counsel, and said: “That is a case which does not properly belong to their argument, because there there was no negative stipulation, and I quite admit that this Court cannot enforce the performance of such an affirmative stipulation as is to be found in that case.” . . . That case was considered in Whitwood Chemical Co. v. Hardman ([1891] 2 Ch. 416)…. Lindley L.J. said: “. . . We are dealing here with a contract of a particular class. It is a contract involving the performance of a personal service, and, as a rule, the Court does not decree specific performance of such contracts. That is a general rule. There has been engrafted upon that rule an exception, which is explained more or less definitely in Lumley v. Wagner-that is to say, where a person has engaged not to serve any other master, or not to perform at any other place, the Court can lay hold of that, and restrain him from so doing.” Then comes a passage which causes me some trouble. The learned Lord Justice says that he agrees with some observations of Lord Selborne in Wolverhampton and Walsall Ry. Co. v. London and North Western Ry. Co. ( (1873) L.R. 16 Eq. 433), ” to the effect that the principle does not depend upon whether you have an actual negative clause, if you can say that the parties were contracting in the sense that one should not do this, or the other-some specific thing upon which you can put your finger.” If by this Lindley L.J. meant that this Court could grant an injunction when there was no independent negative stipulation, his view is contrary to what was said in Lumley v. Wagner and what he himself went on to say at the end of his judgment Then he discusses Montague v. Flockton
( (1873) L.R. 16 Eq. 189), and says: “Malins V.-C. did go to the length of restraining an actor from performing at a rival theatre, although there was no stipulation on his part, in terms, that he would not do so; and, with great deference to the learned judge, I must say I think he arrived at that conclusion owing to a misunderstanding of Lumley v. Wagner. I cannot read the decision of Malins V.-C. without seeing that he was under the impression that Lord St. Leona ds in Lumley v. Wagner would have granted the injunction, even if the negative clause had not been in the contract. This was a mistake. Lord St. Leonards was very clear and explicit on that subject. He said distinctly he would ot have done it i1: t?e absence of 0at negative clause, but he did go on to say m other parts of his Judgment that m the absence of that negative clause there would have been a breach of the agreement. That is true enough, and
Malins V.-C., I think, was under the impression that Lord St. Leonards intended to intimate not only that there would be a breach of the agreement, but that the remedy of injunction would be granted in the absence of that negative clause, which is not in accordance with the judgment in Lumley v. Wagner as I understand it.” I do not see how to reconcile this with the earlier passage I have read….Two subsequent cases have been cited, Davis v. Foreman ([1894] 3 Ch. 654), which came before Kekewich J., and Kirchner & Co. v. Gruban ([1909] 1 Ch. 413), which came before Eve J. Those cases only go to this, that there may be
instances of clauses which, prima facie, appear negative in form, but are in substance affirmative; and in those two cases the learned judges declined on this ground to grant injunctions. It was said that the clauses were negative, but the judges found they were in fact affirmative, and therefore not within Lumley
v. Wagner. I would point out however that Davis v. Foreman was (like the present case) a case where the agent was seeking to insist on his employment being continued.
Applying these authorities to the case before me, if I grant an injunction here, the effect will be to force the defendant to employ a particular person as his agent so far as his boxing engagements are concerned, and to accept that agent’s services. Therefore I should to that extent be granting specific perform ance of a contract for personal services. The contract is not negative save so far as a negative stipulation can be inferred from the word “sole.” It is, therefore, positive in form, and there is no independent negative stipulation to bring the case within Lumley v. Wagner and Whitwood Chemical Co. v. Hard man. I hold, therefore, that no injunction ought to be granted.
There is another ground on which I think I should be exercising a wise discretion in refusing an injunction. The contract is very peculiar in form. It is impossible to put one’s finger on anything which the plaintiff is bound to do. The only consideration is 10s., past services, and a vague reference to future services which are in no way defined so that it is impossible to predicate what would be a breach by the plaintiff of the contract. It is, therefore, lacking in mutuality, and on that ground also I think I should be unwise to grant an injunction pending the trial. The motion must therefore be dismissed.
Fothergill v Rowland
Chancery (1873) L.R. 17 Eq. 132; 43 L.J.Ch. 252; 7.9 L.T. 414; 38 J.P. 244; 22 W.R. 42
JESSEL M.R.: began with the argument that damages were not an adequate remedy, since the damage was not precisely ascertainable.
It is said, however, that, although you can ascertain the market price as regards all the past non-delivery, you cannot ascertain exactly the market price as to future deliveries. To say that you cannot ascertain the damage in a case of breach of contract for the sale of goods, say in monthly deliveries extending over three years (which is the case here, for there are three years unexpired of the contract), is to limit the power of ascertaining damages in a way which would rather astonish gentlemen who practise on what is called the other side of Westminster Hall. There is never considered to be any difficulty in ascer taining such a thing, therefore I do not think it is a case in which damages could not be ascertained at law.
That being so, what is there to distinguish this from any ordinary contract for the sale of goods? We have been told it has some connection with the colliery. I suppose coals must necessarily have connection with a colliery, and it happens that the person who sold the coal to be produced from a given colliery was also at that time the owner of the colliery. I apprehe d there is no difficulty about entering into a contract for the sa e of coal ommg from a particular colliery by persons not owners of that col 1ery; that 1s the co on practice. The coals not being delivered, and there bemg no me ns of obta_1mng their delivery without compelling_ e Defendant Rowla_nd to raise them, H_ has been admitted before me that this 1s a contract of which you cannot obtam a specific performance in a Court of Equity.
Therefore any relief to be obtained by the Plaintiffs in the shape of co?1 en sation must be obtained at law, and I do not understand that the Plamuffs, coming here for an injunction which they ask, are willing to abandon their claim to compensation at law in the shape of damages.
Then it is said, assuming this contract to be one which the Court cannot specifically perform, it is yet a case in which the Court will restrain the Defen dants from breaking the contract. But I have always felt, when at the Bar, a very considerable difficulty in understanding the Court on the one hand pro fessing to refuse specific performance because it is difficult to enforce it, and yet on the other hand attempting to do the same thing by a roundabout method. If it is right to prevent the Defendant Rowland from selling coal at all-he not having stipulated not to sell coal, but having stipulated to sell all the coal he can raise to somebody who has promised valuable consideration-why is it not right to compel him to raise it and deliver it? It is difficult to follow the distinction, but I cannot find any distinct line laid down, or any distinct limit which I could seize upon and define as being the line dividing the two classes of cases-that is, the class of cases in which the Court, feeling that it has not the power to compel specific performance, grants an injunction to restrain the breach by the contracting party of one or more of the stipulations of the contract, and, the class of cases in which it refuses to interfere. I have asked (and I am sure I should have obtained from one or more of the learned counsel engaged in the case every assistance) for a definition. I have not only not been able to obtain the answer, but I have obtained that which altogether commands my assent, namely, that there is no such distinct line to be found in the authorities. I am referred to vague and general propositions-that the rule is that the Court is to find out what it considers convenient, or what will be a case of sufficient importance to authorize the interference of the Court at all, or something of that kind.
That being so, and not being able to discover any definite principle on which the Court can act, I must follow what Lord St. Leonards says, in Lumley
v. Wagner ( (1852) 1 D.M. & G. 604), is the proper conduct for a Judge, in not extending this jurisdiction.
Donnell v Bennett
Chancery (1883) 22 Ch.D. 835; 52 L.J.Ch. 414; 48 L.T. 68; 47 J.P. 342; 31 W.R. 316
FRY J.: The question which arises is by no means an easy one. It is difficult because of the state of the authorities upon the point. It appears to me that the tendency of recent decisions, and especially the cases of Fothergill v. Rowland ((1873) L.R. 17 Eq. 132) and of the Wolverhampton and Walsall Railway Com pany v. London and North Western Railway Company ( (1873) L.R. 16 Eq. 433), is towards this view-that the Court ought to look at what is the nature of the contract between the parties; that if the contract as a whole is the subject of equitable jurisdiction, then an injunction may be granted in support of the contract whether it contain or does not contain a negative stipulation; but that if, on the other hand, the breach of the contract is properly satisfied by damages, then that the Court ought not to interfere whether there be or be not the nega tive stipulation. That, I say, appears to me to be the point towards which the authorities are tending, and I cannot help saying that in my judgment that would furnish a proper line by which to divide the cases. But the question which I have to determine is not whether that ought to be the way in which the line should be laid down, but whether it has been so laid down by the autho rities which are binding on me….
InLumley v. Wagner the Court enforced by way of injunction a portion of a contract the whole of which could not have been enforced by way of specific performance; and Lord St. Leonards in considering that case discussed the question whether an injunction ought to be granted in some cases in which specific performance cannot be granted, and he determined that question plainly in the affirmative. He made these observations: ” Wherever this Court has not proper jurisdiction to enforce specific performance it operates to bind men’s consciences, as far as they can be bound, to a true and literal performance of their agreements; and it will not suffer them to depart from their contracts at their pleasure, leaving the party with whom they have contracted to the mere chance of any damages which a jury may give. The exercise of this jurisdiction has, I believe, had a wholesome tendency towards the maintenance of that good faith which exists in this country to a much greater degree perhaps than in any other; and although the jurisdiction is not to be extended, yet a Judge would desert his duty who did not act up to what his predecessors have handed down as the rule for his guidance in the administration of such an equity.” It is plain, therefore, that Lord St. Leonards did not adopt the view which has occurred to me as that towards which the more recent cases have been tending.
That is the way in which the direct authorities stand in cases in which there is a negative clause, and they appear to me to shew that in cases of this description where a negative clause is found, the Court has enforced it without regard to the question whether specific performance could be granted of the entire contract.
Then it is said by Mr. Cozens-Hardy that in all those cases the negative contract enforced was but a part of a larger contract, and that it was a separable part of that larger contract, and that those cases do not apply to a case like the present, in which, as he suggests, the negative contract is co-extensive with the positive contract.
Upon that argument two inquiries arise. In the first place, is it true to say that the negative contract is in the present instance co-extensive with the positive? In my judgment it is not. The affirmative contract is that the vendor will sell all his fish refuse for two years to the purchaser. The negative contract is that during two years he will not sell any refuse fish to any other manufacturer whomsoever; leaving it open to him so far as regards the negative contract, either not to sell at all, or to sell to some person other than a manufacturer. But in the next place one must inquire whether the authorities support any such distinction as that which has been urged by Mr. Cozens-Hardy. It appears to me that they do not.
In Lumley v. Wagner the contract was that Mdlle. Wagner would sing three months at Her Majesty’s Theatre in London. The negative contract was that she would not ” use her talents at any othrr theatre, nor in any concert or reunion, public or private, without the. writte_nauth_orizat_ion of Mr. Lumley.” It is quite true that the contract contams certam stipulations as to h_ow many nights she should be required to sing, but it appears to me to be ev1?ent that the substantial contract, the affirmative contract, was that she would smg there for three months. Of course she could not be always singing, and therefore the contract must state necessarily some limits as to how often_ she was to sin , b t when she did sing during the three months she was to smg at Her Maiesty s Theatre; the negative terms were that during the three months she would not sing anywhere else than at Her Majesty’s Theatre. It appears to me. th_at those two contracts are substantially co-extensive. But further than _that 1 1s to. be borne in mind that Lord St. Leonards does not dwell on the d1st1nct1on which is now sought to be drawn, and so far as I am aware no trace of it is to be found in the earlier authorities. . . .
I have come to the conclusion, therefore, upon the authorities, which are
binding upon me, that I ought to grant this injunction. I do so with consider able difficulty, because I find it hard to draw any substantial or tangible dis tinction between a contract containing an express negative stipulation and a contract containing an affirmative stipulation which implies a negative. I find it exceedingly difficult to draw any rational distinction between the case of Fothergill v. Rowland and the case now before me. But at the same time the Courts have laid down that, so far as the decisions have already gone in favour of granting injunctions, the injunction is to go.
Cases Damages in Lieu
McGrath v Stewart
[2016] IESC 52.
udgment of Ms. Justice Laffoy delivered the 29th day of July, 2016
Underlying High Court proceedings leading to judgment and orders appealed against
1. The two plenary actions underlying this conjoined appeal were heard together in the High Court. In the first, the plaintiff, as purchaser, and in the second, the plaintiffs, as purchasers, sued the defendant, as vendor, for specific performance of two contracts, each of which was for the sale of property in the City of Dublin. Apart from the obvious fact that each of the contracts related to a different property, there is very little difference between the two contracts in issue and between the factual basis, the pleadings and the procedural process in both actions. That being the case, it is convenient to outline the background to this appeal by reference to the first plenary action.
2. The contract the subject of the first plenary action (Record No. 2004/10969P) was a contract in the standard form published by the Incorporated Law Society of Ireland for a sale by private treaty which was dated 8th June, 1998 and was expressed to be made between the defendant in the first action (Mr. Stewart), as vendor, and, in its final form, by the plaintiff in the first action, P.J. McGrath (Mr. McGrath) in trust, as purchaser, for the sale of the dwelling house and premises know as 14 Rutland Street in the City of Dublin at the price of IR£25,000. The relevant features of the contract were the following:
(a) that the interest being sold was a long leasehold interest for the residue of a term of nine hundred and four years from 29th September, 1882;
(b) that the special conditions did not disclose that the sale was subject to any tenancy, so that by virtue of General Condition 21, ex facie, Mr. McGrath was entitled to vacant possession on completion of the sale;
(c) that the closing date was 23rd July, 1998; and
(d) that a deposit of IR£2,500 was payable by Mr. McGrath on the execution of the contract.
The correspondence put before this Court demonstrates that the solicitors for Mr. Stewart, Stewart & Co., sent that contract and two other contracts, to Mr. McGrath’s solicitors, Tom Collins & Co. on 8th June, 1998 on a “subject to contract/contract denied” basis. The contracts as so furnished named William Black (Mr. Black) as purchaser. Mr. McGrath’s solicitors having obtained confirmation from Mr. Black that it was in order to do so, Mr. McGrath’s name was substituted for Mr. Black’s name as purchaser. The contracts thus amended were returned to Mr. Stewart’s solicitors by letter dated 25th June, 1998 together with a cheque, which will be referred to at the end of the judgment, which covered the deposit on that transaction and on the two other transactions and also requisitions on title. Of the other two contracts, one, which was the subject of the second plenary action (Record No. 2004/10973P), was for the sale of 9 Summerhill Place in the City of Dublin to Mr. McGrath (in trust) for IR£25,000 on similar terms to the terms in relation to the sale of 14 Rutland Street outlined above. The subsequent interaction between the parties and the pleadings disclose that Mr. McGrath was contracting to purchase 9 Summerhill Place in trust for himself and the second named plaintiff in the second plenary action, Thomas McGrath (the second Respondent).
3. On 2nd July, 1998, in accordance with normal practice, one part of the contract signed by both Mr. Stewart and Mr. McGrath was returned to Mr. McGrath’s solicitors. Subsequently by letter dated 10th July, 1998 Mr. Stewart’s solicitors furnished their replies to the requisitions on title, which were in the standard form published by the Law Society. The replies disclosed that the property was occupied by a tenant who was in possession at a weekly rent. By letter dated 8th September, 1998, Mr. McGrath’s solicitors informed Mr. Stewart’s solicitors that their client would seek vacant possession on closing of the transaction. The response of Mr. Stewart’s solicitors by letter dated 14th September, 1998 was that they were not in a position to give vacant possession on closing of 14 Rutland Street or of 9 Summerhill Place, which the replies to the relevant requisitions disclosed was also occupied by a tenant who was in possession at a weekly rent.
4. As regards the third contract, which related to another property in the area, 13 Summerhill Place, of which Mr. Stewart had vacant possession, the sale of that property was completed on 9th October, 1998. However, neither the sale of 14 Rutland Street nor of 9 Summerhill Place was completed. Thereafter correspondence continued from Mr. McGrath’s solicitors to Mr. Stewart’s solicitors seeking to know when the transactions could be completed with vacant possession. Although the relevant letter has not been put before this Court, it would seem that the last item of correspondence was a letter of 23rd May, 2000 from Mr. McGrath’s solicitors, which, as recorded in the judgment of the High Court referred to later (at p. 3), sought confirmation of the position regarding vacant possession and noted Mr. McGrath’s desire to close the sale. There was no response received to that letter or to any of the earlier letters, the last of them being dated 28th March, 1999.
5. Nothing happened after that for over four years. On 11th June, 2004 Mr. McGrath’s solicitors served a notice to complete on Mr. Stewart calling on Mr. Stewart to complete the sale within twenty eight days after the date of service of the notice and indicating that, in the event of failure to comply with the notice, Mr. Stewart, as vendor, would be deemed to have failed to comply in a material respect with the conditions of the contract and Mr. McGrath, as purchaser, would elect to pursue remedies available to him under the contact. The notice to complete was not complied with.
6. The first plenary action was initiated by a plenary summons which issued on 15th July, 2004, in which Mr. McGrath sought specific performance of the contract dated 8th June, 1998 in relation to 14 Rutland Street and damages. A statement of claim was delivered on 31st January, 2005 in which the reliefs claimed were specific performance of the contract and damages in lieu of specific performance. A defence and counterclaim was delivered by Mr. Stewart on 17th February, 2005 in which it was asserted that Mr. McGrath’s claim was statute-barred and, without prejudice to that plea, the various matters pleaded by Mr. McGrath were traversed. In the counterclaim, it was pleaded that the sale, which was denied, was subject to “existing tenancies” and that it was an express provision of the contract that Mr. McGrath would not be given vacant possession on closing. Rectification of the contract was sought.
7. It is disclosed in the outline submissions filed on behalf of Mr. Stewart that, by motion dated 1st April, 2005, Mr. Stewart sought orders striking out the first plenary action and the second plenary action on the basis, inter alia, that neither disclosed a reasonable cause of action. That motion having come on for hearing on 16th December, 2005, the relief sought was refused. That is mentioned merely because affidavits filed on the motion were mentioned in the pleadings in the circumstances outlined later. Those affidavits are not before this Court and their status in the High Court is not clear.
8. Both plenary actions were heard together in the High Court before Murphy J. (the trial judge) over two days on 14th and 15th October, 2008. Judgment was delivered by the trial judge on 11th November, 2008 ([2008] IEHC 348).
The judgment of the High Court
9. Having outlined the factual background more comprehensively than has been done in this judgment, the trial judge made a number of findings which are of relevance on this appeal.
10. First, he found that Mr. McGrath had contracted with Mr. Stewart to purchase his interest in the properties, but not a qualified interest subject to tenancies. He stated (at p. 5):
“The agreement was that he would purchase the properties with vacant possession. The contractual documents are consistent only with the interpretation that the plaintiff was to acquire vacant possession. I am satisfied that it was not until after he entered into the contract that he was informed of the expectation that he would take the properties subject to the existing tenancies. Accordingly, he contracted not for a title subject to tenancies but for the acquisition of all three properties without tenants.”
11. Secondly, the trial judge addressed another issue which had been raised which he stated was:
“. . . whether the parties had ever reached a consensus ad idem, and thus whether they had entered into a valid contract.”
Having observed that he had reservations in relation to the consideration of that question, since the issue was not pleaded, he stated that, in his view, the submission was not well founded in any event. Later, having analysed a number of authorities, he stated that, taking an objective view of the circumstances, it could not be said that Mr. Stewart’s mistaken understanding of the agreement, which I understand to mean his understanding that the sales of 14 Rutland Street and 9 Summerhill Place were subject to existing tenancies, was justified.
12. Thirdly, the trial judge addressed the contention of Mr. Stewart that Mr. McGrath had not come to Court seeking equitable relief with clean hands. Having reiterated that he was satisfied that the parties had entered into a valid contract for the sale of the three properties with vacant possession, the trial judge pointed out that specific performance is a discretionary remedy. He went on to consider whether, in relation to the transactions, Mr. McGrath had come to equity “with clean hands”, by reference to the various allegations made against Mr. McGrath, for example, that he acted otherwise than in good faith. However, he rejected all the allegations and he rationalised that rejection.
13. Fourthly, the trial judge addressed Mr. Stewart’s contention that Mr. McGrath was guilty of laches. In so doing, the trial judge identified the criteria which must be satisfied in order for that defence to be successful by reference to the decision of the High Court in J.H. v. W.J.H. (Unreported, High Court, 20th December, 1979), quoting the following passage from the judgment of Keane J. (at p. 35):
“I have no doubt that the interval of time which elapsed before the proceedings were issued in the present case could properly be described as substantial. That, however, is not sufficient . . . there must also be circumstances which render it inequitable to enforce the claim after such a lapse of time. I must accordingly consider the circumstances in which the defendant will now find himself if the plaintiff’s claim is allowed, as contrasted with the circumstances in which he would have found himself if the plaintiff had successfully prosecuted proceedings in 1973 or earlier.”
The trial judge recognised that in the case before him the Court was confronted with a delay of lesser duration than had arisen in J.H. v. W.J.H., but stated that there was a substantial delay nonetheless. He referred to the fact that the contract was entered into in 1998, that it became clear later that year that Mr. Stewart did not intend to convey the property otherwise than subject to the existing tenancies, that the completion date was 23rd July, 1998 and that Mr. Stewart was in breach from that date in failing to complete the sale and that the proceedings were not instituted until July 2004. The trial judge then stated (at p. 12):
“Where the defendant has indicated an intention not to perform the contract, either by express repudiation or otherwise, the plaintiff is expected to pursue his claim with greater expedition. The same is true where, during the period of delay, the plaintiff knew of the manner in which the defendant would be prejudiced by his failure to act expeditiously (Spry, Equitable Remedies, 5th Ed, 1997, p 232-233). Both of these circumstances arise here.”
Further, the trial judge rejected the explanation advanced for the delay by Mr. McGrath, being unable to conclude that the explanation was a plausible one.
14. The trial judge then considered whether the circumstances were such as to render an order for specific performance inequitable. Referring to the judgment of Keane J. in J.H. v. W.J.H. again, the trial judge stated that Keane J. had concluded that the defence of laches was made out by virtue of the added financial burden on the defendant in that case that resulted from the massive increase in market value of the property in issue and that the same circumstance applied to the case before him, indeed to a greater extent. He recorded that, while the contract price for each of the properties the subject of the actions before him was fixed at IR£25,000, the expert evidence given at the trial valued each somewhere between €250,000 and €270,000. He continued (at p. 14):
“Even in the uncertain climate currently prevailing in the property market, the defendant could not hope to acquire equivalent properties for a sum equivalent to the contract price agreed in 1998. Accordingly, I am satisfied that to make an order of specific performance against the defendant would be inequitable.”
15. On that basis, the trial judge concluded that the defence of laches succeeded. He then stated (at p. 15):
“Accordingly, the decree of specific performance should be refused on the ground of laches. However, even if I am wrong in that conclusion, it has been established that where a decree of specific performance is sought, damages can be awarded in lieu thereof where a delay such as to make damages more appropriate has occurred, even where the defence of laches has not been established (White v. McCooey [1976-77] ILRM 72).”
16. While the trial judge made it clear that, unlike the situation here, the defence of laches had not been established in White v. McCooey, it is convenient at this juncture to consider the circumstances in which, in that case, Gannon J., in the High Court, considered it appropriate to award damages in lieu of specific performance. As here, the action was an action by a plaintiff purchaser against a defendant vendor and it was for specific performance of a contract for the sale of a licensed premises and, as Gannon J. stated in his judgment (at p. 73), “alternatively for damages for breach of contract”. A number of defences were raised by the defendant, all of which were rejected by Gannon J. For instance, he found that the defendant had not established a line of defence based on the contention that there was such disparity between the price which the defendant might reasonably have expected from any other buyer and the price the plaintiff was paying as would suggest unfairness about the contract. On the plea of laches, Gannon J. stated (at p. 86):
“As to the plea of laches on the part of the plaintiff there is no evidence from which I could be asked to infer that the plaintiff intended to abandon his claim nor have I any evidence of injurious affect upon the defendant’s position by such delay as did occur. . . . Nevertheless there are necessarily some changes and circumstances of which I think I should take account in the exercise of the Court’s discretion as to the remedy to be given the plaintiff on his claim.”
Having outlined certain difficulties which might be encountered on the particular facts of that case, which related to the transfer of the publican’s licence attached to the premises and the contractual relations between the defendant and his tenants, Gannon J. stated that the proper relief in the case was to award to the plaintiff a sum of damages in lieu of specific performance. A significant feature of the decision of Gannon J. for present purposes is that he found that the plaintiff purchaser had established an entitlement to have the contract specifically enforced but he exercised his discretion as to the remedy to which the plaintiff was entitled and he determined that damages in lieu of the specific performance was the proper remedy.
17. Having diverged from the outline of the judgment of the trial judge in this case, to highlight the manner in which the decision in White v. McCooey is distinguishable from it, I will now return to it. The trial judge then went on to consider whether damages could be awarded to the plaintiff and he stated (at p. 15):
“Even where a plaintiff has sought a decree of a specific performance in circumstances where he had no right to do so, it is open to the court to award damages in lieu of a decree (Duggan v. Allied Irish Building Society (Unreported, High Court, Finlay J., 4th March 1976)). The plaintiff has sought such damages in the event of the refusal of a decree and the court must now consider how they are to be quantified.”
18. As an introduction to addressing how damages in lieu of specific performance should be measured, the trial judge quoted a passage from the judgment of this Court delivered by Walsh J., with whom Budd and Fitzgerald JJ agreed, in Holohan v. Ardmayle Estates (Unreported, Supreme Court, 1st May, 1967). Expanding the passage quoted slightly, Walsh J. stated:
“The present claim, however, as in all actions for specific performance, is grounded upon the submission that the contract is in being and that it is to be enforced. I take the view, therefore, that when the facts of the case are such that the trial judge is of opinion that he could make an order for specific performance but in his discretion does not do so but awards damages in lieu thereof, he must take into account in assessing the damages not merely such items as the loss of bargain and other loss which flows from that breach but the out of pocket expenses and other money laid out by the plaintiff which would naturally include any part of the purchase money already paid.”
The significant feature of the case under consideration by the Supreme Court which emerges from that passage is the emphasis on the trial judge being of opinion that “he could make an order for specific performance”, but having the discretion to award damages in lieu thereof.
19. There followed an analysis by the trial judge of a number of authorities on the quantification of the damages and on the factual scenario on the basis of the evidence he had heard. He set out at the end of his judgment the basis on which he considered that damages should be assessed in each of the plenary actions before him. He stated (at p. 22):
“From the market value as at mid 2005 (or the date of judgment if the latter is a lesser figure) will be subtracted the contract price of the properties. In light of the decision of the Supreme Court in Holohan, the plaintiff is also entitled to the return of the deposit paid in respect of the two properties. The total arrived at is to be calculated according to this method in respect of each property.”
Earlier, the choice of “mid 2005” was explained. It was chosen “as being three and a half years preceding the date of judgment in this action”.
20. On the delivery of the judgment of the trial judge, each of the plenary actions was adjourned so that the Court could hear evidence as to the market value of each of the properties in sale as at mid 2005. That hearing took place on 6th February, 2009, when the trial judge heard oral evidence of Peter Quigley of Douglas Newman Good, Estate Agents and Valuers, on behalf of Mr. McGrath and further evidence of Mr. Stewart. The order of the High Court on each of the plenary actions was made on 13th February, 2009.
The orders of the High Court
21. Both orders of the High Court are in the same format and have precisely the same effect. Once again, it is convenient to consider the order made in the first plenary action (Record No. 2004/10969P). The effect of the judgment delivered on 11th November, 2008 was recorded as follows:
“The Court refused the Plaintiffs claim for a decree of Specific performance of the contract for sale between the Plaintiff of the one part and the Defendant of the other part dated 8th June, 1998 for the sale by the Defendant to the Plaintiff of all the hereditaments and premises commonly known as 14 Rutland Street in the City of Dublin.
And the Court awarded damages in lieu of a decree of specific performance and ordered and adjudged that the Plaintiff do recover against the Defendant damages to be assessed in accordance with the method set out in the said judgment.”
The finding of the trial judge following the hearing on 6th February, 2009, which was declared on 13th February, 2009, and the subsequent assessment of damages was recorded as follows:
“The Court doth find that the market value of the said property as at mid 2005 was €170,000.00.
In accordance with the method set out in the said judgment delivered on the 11th day of November 2008 the Court doth assess damages in lieu of a decree of specific performance in the sum of €141,589.61.”
It is difficult to relate the final figure to the method set out in the judgment in that difference between the sum found to be the value of the property at mid 2005, €170,000, and the final figure, €141,589.61, is in excess of €3,300 less than the Euro equivalent of IR£25,000. However, that is a minor point. In the order, Mr. McGrath recovered against Mr. Stewart the costs of the action including any reserved costs, when taxed and ascertained.
The appeal
22. The orders of the High Court having been perfected on 19th November, 2009, notice of appeal was filed on behalf of Mr. Stewart in this Court on 16th June, 2010 against both orders of the High Court.
23. The grounds of appeal set out in the notice of appeal can be broken down into the following components, which will be outlined by reference to the first plenary action:
(a) There are eleven grounds which contend that the trial judge erred “in ignoring or not taking any or any sufficient account of certain evidence”, which is described as “uncontradicted evidence” given by three witnesses who were called to give evidence on behalf of Mr. Stewart, including Mr. Stewart. The eleventh ground asserts that even on the basis set out therein alone, there was no consensus ad idem and therefore no agreement between the parties.
(b) It is asserted that, if there was an agreement between Mr. Stewart and Mr. McGrath, which is denied, the trial judge erred in failing to hold that the failure and/or refusal of Mr. McGrath to complete the sale amounted to a repudiation thereof and that the contract was thereupon at an end and entitled to be so treated by Mr. Stewart.
(c) It is asserted that the trial judge erred in fact and in law in having held on the one hand that there was delay on the part of Mr. McGrath in issuing proceedings which disentitled him to specific performance and that he then in error granted to Mr. McGrath damages in lieu of specific performance, as if he was entitled to specific performance, when he should have dismissed Mr. McGrath’s claim and recognised and held that Mr. McGrath was not entitled to the reliefs sought on account of such delay and inactivity.
(d) Without prejudice to the foregoing grounds, it is asserted that the trial judge erred in his assessment of the damages on various bases.
The relief which Mr. Stewart seeks on the appeal, as outlined in the notice of appeal, is an order dismissing the claims in each of the plenary actions for specific performance or damages in lieu thereof in their entirety.
24. Outline submissions were filed on behalf of Mr. Stewart on the appeal on 26th May, 2016. In the outline submissions, having outlined Mr. Stewart’s version of the facts, three issues were identified for determination on the appeal, which, by reference to the first plenary action, may be outlined as follows:
(a) Whether there could have been consensus ad idem between the parties given the unilateral insertion by Mr. McGrath’s solicitor “by Tippex” of the name of Mr. McGrath as purchaser onto the contract with Mr. Stewart as vendor “in circumstances where the uncontradicted evidence of [Mr. Stewart], the beneficial owner that at all material times were selling the [property] subject to [tenancy] to Mr. Black”.
(b) Whether the unilateral insertion of the name of Mr. McGrath, described as “a third party”, “who is not a party to the contract without the consent of the beneficial owner/vendor” has the capacity “to bind the beneficial owner of the property to convey the same to that third party”.
(c) Whether an award of damages in lieu of specific performance can be made where a defence of laches succeeds in defeating a claim for a decree of specific performance.
As regards the issue at (a), it would appear that the issue was intended to be formulated as whether, given the uncontradicted evidence of Mr. Stewart and the beneficial owner, that they were selling the property subject to tenancy to Mr. Black, there could have been consensus.
25. In the replying outline submissions filed on behalf of Mr. McGrath and the second Respondent on the appeal on 20th June, 2016, having recognised that the nineteen grounds of appeal in the notice of appeal had been netted down to those three issues, those issues were addressed.
26. The basis on which the issues outlined at (a) and (b) in para. 14 above are advanced is that all three properties the subject of the transactions in 1998, including 14 Rutland Street and 9 Summerhill Place, were beneficially owned by Mr. Matthew Kelly (Mr. Kelly) and that Mr. Stewart only held the legal title. That is recognised in the judgment of the trial judge, as is the fact that Mr. Stewart was at all material times the solicitor for Mr. Kelly. Both issues are premised on the proposition that Mr. Stewart, who executed the contracts as vendor simpliciter (by which I mean, without disclosing that he held the property in trust) and was, in any event, acting for Mr. Kelly in the sales, did not have capacity to bind Mr. Kelly. Indeed, on the hearing of the appeal counsel for Mr. Stewart sought to advance that argument. Nowhere in the pleadings in either of the plenary actions is any lack of capacity on the part of Mr. Steward been pointed to. Aside from the plea that the claim was statute-barred, and the invocation of laches, the defence was that Mr. Stewart had no liability because the entirety of the claim was traversed, including the denial of the existence of an agreement and, even if an agreement existed, the denial that Mr. Stewart had liability to Mr. McGrath on the basis asserted on various grounds, for example, that the sale of 14 Rutland Street was subject to the existing tenancy. Further, as has already been recorded, in the counterclaim, Mr. Stewart sought rectification of the contract, the clear implication being that he had capacity to do so. The only reference to Mr. Kelly in the pleadings is a reference to an affidavit sworn by him on 30th June, 2005, presumably, on the motion to strike out referred to above (para. 7), which was one of a number of affidavits stated to set out the sequence of events, in reply to a request in a notice for particulars dated 13th July, 2005 issued on behalf of Mr. McGrath requesting that the full facts upon which it was alleged or claimed that Mr. McGrath was not ready, willing and able at the time of service to complete the sale. As has already been noted, those affidavits are not before the Court.
27. Moreover, I see nothing in the judgment of the trial judge to suggest that an argument was made to him on the consensus ad idem point that there was no consensus because Mr. Kelly, as the beneficial owner, was not bound. Quite clearly, the trial judge was treating Mr. Stewart, the defendant in both plenary actions, as the vendor and it was Mr. Stewart’s “mistaken understanding” which he addressed in the context of the consensus ad idem point, as outlined above (at para. 11).
28. For the foregoing reasons, I have come to the conclusion that issues (a) and (b) cannot be pursued on this appeal. Even if they could, this Court would be confronted with an insuperable problem. There is no transcript available of the hearing before the trial judge on 14th and 15th October, 2008 or of the hearing on 6th February, 2009. No digital audio recording of the hearing is available. There is not even an agreed note of the evidence given at the hearings. On the hearing of the appeal, this Court was furnished, for the first time, with notes of the evidence given on 14th and 15th October, to the High Court, which notes were prepared on behalf of the respective parties by their respective legal teams and in which there are conflicting accounts of the evidence.
29. Even if this Court had a satisfactory record of the evidence given in the High Court, and if the Court considered it appropriate to entertain issues (a) and (b), careful consideration would have to be given to the extent, if any, to which the findings of the trial judge could be interfered with, having regard to the jurisprudence of this Court and, in particular, the judgment of McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210. In any event, I have come to the conclusion that it is proper for this Court only to entertain issue (c). Accordingly, the issue which remains is whether a court may award damages in lieu of specific performance where the defence of laches has been upheld by the court and the court has found that a decree of specific performance should be refused and, in particular, whether Mr. McGrath, having been found guilty of laches, was entitled to damages in lieu of specific performance, as was found in the first plenary action.
Entitlement to damages in lieu of specific performance?
30. As is clear from the outline of the judgment of the trial judge above, the trial judge made an adverse finding against Mr. McGrath, as plaintiff, in the first plenary action, and also against both plaintiffs in the second plenary action, in that he found that the defence of laches must succeed and that the decree of specific performance should be refused on the ground of laches. Significantly, that finding was not cross-appealed by the respondents on this appeal, nor was any notice to vary filed on their behalf. Indeed, on the hearing of the appeal, counsel for the respondents argued that, notwithstanding that finding, the trial judge was entitled to award damages to the respondents, his principal arguments being that –
(a) the decision of the High Court in Duggan v. Allied Irish Building Society was authority for that proposition;
(b) what the respondents were seeking was damages for breach of contract; and
(c) although the relief sought in the statement of claim was damages in lieu of specific performance, in the plenary summons the relief sought was damages without qualification.
31. The jurisdiction to award damages in lieu of specific performance was first conferred on the Courts of Chancery in Ireland by the Chancery Amendment Act 1858 (21 & 22 Vict. c27), commonly known as Lord Cairns’ Act, s. 2 of which provides:
“In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance; and such damages may be assessed in such manner as the Court shall direct.”
As is pointed out in Buckley, Conroy and O’Neill on Specific Performance in Ireland (Dublin, 2012) (at para. 10.16), while s. 2 was repealed in 1883, the jurisdiction to award damages in lieu and in addition to specific performance continued, as the repealing statute contained a saver in respect of any jurisdiction or rule of law or equity established or confirmed by or under any previous enactment. The authors (at footnote 42) helpfully identify the repealing statute and also the saver provision and a later saver provision.
32. The claim of the plaintiff in Duggan v. Allied Irish Building Society in the High Court proceedings before Finlay J. was described as follows in the judgment (at p. 12):
“In them the plaintiff claims firstly specific performance of an agreement to advance to him the sum of £32,000 upon the security of a mortgage, secondly in the alternative damages for breach of that contract and further and other relief and costs.”
The defendant lender in that case raised a number of defences, the second being that, as a matter of law, the plaintiff was not entitled to specific performance of an agreement to make an advance and could not accordingly obtain damages in lieu of such specific performance either. In relation to this ground of defence, Finlay J. stated (at p. 15):
“With regard to the second ground of defence ultimately relied upon namely that the plaintiff is not entitled as a matter of law to a decree for specific performance and that accordingly the Court cannot award to him damages as an alternative I am satisfied on the authority of the decision in Roger v. Challis 27 Bevin Reports 175 and of Larios v. Gurety Law Reports 5 Privy Council 346 that the Court cannot and should not grant specific performance of a contract to advance money even where the contract is in the form of a contract to enter by the defendants into a legal mortgage. The second part of the contention, however, which of course is the vital one from the defendants point of view namely that there being no power to grant specific performance there is no power to grant damages in lieu thereof fails completely having regard to the provisions of the Judicature Acts. It is quite clear that the necessity for a right to exist or to have existed at the time of the commencement of an action to an order for specific performance as a condition precedent to the granting of damages applied only at a time when the Courts of Equity were separated from and distinct in their powers and jurisdiction from the Courts of Common Law. If in fact I am satisfied that the defendants had been in breach of this contract then the plaintiff upon proof of loss is entitled to damages for that breach irrespective of whether he could at law have obtained an order for specific performance of it.”
Finlay J. stated that, in the circumstances before him, he was satisfied that the defendants had been guilty of a breach of the contract which they entered into to advance the sum of £32,000 to the plaintiff and that the plaintiff was entitled to damages for that breach.
33. The reference in the second passage from the judgment in Duggan v. Allied Irish Building Society quoted above to the Judicature Acts is obviously a reference to the series of statutes which commenced with the Supreme Court of Judicature (Ireland) Act 1877 (40 & 41 Vict. c57) (the Act of 1877) and subsequent Acts which amended it and which were enacted before 1922. Those Acts changed the structure of the courts in Ireland and, in particular, outlined the jurisdiction vested in the various courts and how common law and equitable jurisdictions were to be exercised by each court. Counsel for Mr. McGrath referred the Court to the recent judgment of the High Court (Hogan J.) in Meagher v. Dublin City Council [2013] IEHC 474, in which the extent of what is usually referred to as the “fusion of law and equity” in consequence of the Act of 1877 was discussed in the context of the issue which arose there. It is useful to consider that judgement before considering the judgment in Duggan v. Allied Irish Building Society further.
34. It is clear from the judgment of Hogan J. that what he was considering was a claim for a liquidated sum of money, which had been initiated by way of summary summons which issued on 9th March, 2005. The proceedings were subsequently remitted to plenary hearing. As is pointed out by Hogan J. (at para. 17), the claim was for damages for breach of contract. Laches was pleaded as a defence. The issue addressed by Hogan J. which is of interest for present purposes is whether the equitable doctrine of laches could be utilised to defeat a claim for damages for breach of contract at common law which is otherwise not statute-barred. Having referred to some of the judicial and academic commentary on the effect of the Act of 1877, Hogan J. pointed out that, in over one hundred and thirty five years (and as of now, one hundred and thirty eight years) of jurisprudence since the passing of the Act of 1877, there is no authority for the proposition that the Court might refuse to award damages for breach of contract or in tort on discretionary grounds, such as undue delay per se or because the claimant has been guilty of bad faith, even though these would be well established grounds for refusing any equitable relief which might otherwise have been granted. His conclusion was that, while the two systems of law (that is say, common law and equity) work evermore closely together and draw mutual inspiration from each other, the two systems “are not yet fused”. In consequence, the doctrine of laches has, as such, no application to a claim at common law for damages for breach of contract where that claim is not otherwise barred by the Statute of Limitations. I respectfully agree with that conclusion. It follows that, if the claim by Mr. McGrath in the first plenary action was for damages for breach of contract and that claim was not statute-barred, a finding of laches would not preclude Mr. McGrath from pursuing the claim for damages for breach of contract.
35. Returning to the decision in Duggan v. Allied Irish Building Society, I consider that the identification of “the provisions of the Judicature Acts” as the solution to the problem there is misconceived. It must be borne in mind that the plaintiff there sought two alternative remedies: specific performance; and damages for breach of contract. It was held that he was not entitled to specific performance, because of the nature of the contract he sought to enforce, being a contract in respect of which specific performance is not granted. The reference to the Judicature Acts is made in the context that what Mr. Duggan was seeking was damages in lieu of specific performance. However, his alternative claim was for damages for breach of contract and, moreover, it was held by Finlay J. that the defendants had been guilty of breach of contract and that Mr. Duggan was entitled to damages for that breach. The effect of the Judicature Acts was that Mr. Duggan could pursue a claim in equity for specific performance, which, if wrongdoing was established on the part of the defendant, might, depending on the exercise by the Court of its discretion under Lord Cairn’s Act, give rise to an entitlement to damages in lieu of specific performance and, as an alternative, as he did, he could pursue a claim for damages for breach of contract at common law, and he could pursue both claims in the same Court, as he did, that is to say the High Court.
36. As the Judicature Acts do not supply the solution to the problem, it is necessary to revert to s. 2 of Lord Cairn’s Act and to consider its application on the facts here. The first question which arises, again by reference to the first plenary action, is whether in that action the High Court had jurisdiction “to entertain an application . . . for the specific performance of” the contract for sale entered into between Mr. Stewart and Mr. McGrath. In my view, the answer is that it had, because the contract was a contract for the sale of land. Accordingly, by virtue of s. 2, the Court had jurisdiction to award damages in lieu of specific performance, if it was appropriate for the Court to think it fit that it should do so. In a situation where the Court has determined that laches on the part of the plaintiff purchaser, as here, should operate as a bar to entitlement to an order for specific performance, it is difficult to see how the Court could think it fit to award damages in lieu of specific performance. The situation in which the Court refuses to make an order for specific performance in favour of a plaintiff purchaser because laches on the part of the plaintiff purchaser has been established is wholly different from a situation in which there is no finding that the plaintiff has been guilty of laches but the Court may think it fit to grant damages in lieu of specific performance, rather than specific performance. One example which is pertinent in the context of this case is the situation which arose in White v. McCooey referred to earlier, where it was found that there was delay but it was insufficient to establish the defence of laches, but the Gannon J. determined, in accordance with his discretion, that the plaintiff would be confined to a remedy in damages. In this case, the trial judge, having refused to make an order for specific performance because it would be unequitable to do so on the ground of laches, in my view, should also, for the same reason, have refused to award damages in lieu of specific performance.
37. Of course, as outlined earlier, it is an entitlement to damages for breach of contract which counsel for Mr. McGrath and the second respondent now argues on behalf of his clients. The question which remains is whether that argument can succeed. In my view, it cannot. The pleadings in the first plenary action have been outlined in some detail earlier to demonstrate the relief the plaintiff was seeking. The plaintiff, Mr. McGrath, was seeking specific performance or damages in lieu of specific performance, as was the case in Holohan v. Ardmayle Estates. His case was that the contract was in being. Nowhere was it alleged that he was entitled to damages for breach of contract and no basis for assessing such entitlement or for measuring the damages, if such entitlement existed, was pleaded. The trial judge approached the quantification of damages entirely on the basis that the damages awarded were damages in lieu of specific performance. The quantification of damages for breach of contract would, in all probability, not be the same. As was recognised by this Court in Duffy v. Ridley Properties Limited [2008] 4 I.R. 282, the general rule is that damages for breach of contract should be assessed at the date of the breach. On this appeal, it is not open to Mr. McGrath and the second Respondent to seek to pursue a claim which was not made or pleaded at first instance and, accordingly, the argument advanced on their behalf must be rejected. On this point I have had regard to the principles outlined in Delany and McGrath on Civil Procedure in the Superior Courts (3rd Ed.) at para. 22 – 79 to 22 – 83. I am satisfied that for this Court to find that in this case there is an exception to the general principle that this Court should not hear and determine an issue which has not been tried and decided in the High Court is not justified, because to so find is clearly not required in the interests of justice.
38. In the interests of clarity, I would reiterate that it appears from the judgment in Duggan v. Allied Irish Building Society that the plaintiff in that case did claim damages for breach of contract, so that that authority is distinguishable from the position here. The decision in Holohan v. Ardmayle Estates is also distinguishable because the Supreme Court treated the award of damages in that case as damages in lieu of specific performance in circumstances where the Court had jurisdiction to make such an order for specific performance.
Summary of conclusions
39. The only issue which, in my view, it is appropriate for this Court to consider on this appeal is whether the trial judge was entitled to make an award of damages in lieu of specific performance in favour of Mr. McGrath and the second Respondent in circumstances where he had found that Mr. McGrath and the second Respondent were not entitled to a decree of specific performance in either plenary action, because Mr. Stewart had established laches on their part. On that issue, I am of the view that the trial judge did not have jurisdiction to award damages in lieu of specific performance. As regards the argument advanced on behalf of Mr. McGrath and the second Respondent, that they are entitled to damages at common law for breach of contract, I consider that, as no such claim was made or pleaded in the High Court or considered by the trial judge, they cannot pursue such a claim on the appeal.
Order
40. I propose that there be an order allowing Mr. Stewart’s appeal and vacating the order of the High Court in both plenary actions awarding damages in lieu of specific performance and quantifying those damages.
41. Although not specifically addressed on the hearing of the appeal, apart from in the context of the measurement of damages, I think it appropriate to make some observations in relation to the deposits paid by the plaintiff purchasers under the contracts the subject of both plenary actions. The cheque referred to earlier in para. 2, which was sent to Mr. Stewart’s solicitors on 25th June, 1998, was dated 24th June, 1998 and it was made payable to “Stewart & Co. Solicitors”. It was in the sum of IR£7,500, IR£5,000 of which related to the deposits payable under the contracts in relation to 14 Rutland Street and 9 Summerhill Place. Those deposits, in accordance with Condition 5 of the general conditions in each of the contracts, were payable to Stewart & Co., as the vendor solicitors, as stakeholders. Assuming that the deposits have not been repaid, Mr. McGrath, as regards the 14 Rutland Street contract, and Mr. McGrath and the second Respondent, in relation to the 9 Summerhill Place contract, would appear to be entitled to repayment of the deposits so paid, even if, as seems likely, they have not been demanded. However, apart from making those observations, I do not consider it appropriate for this Court to take any further action in relation to the deposits.
Shelfer v City of London Electric Lighting
A. L. SMITH L.J.: . . . In my opinion, it may be stated as a good working rule that-
(1.) If the injury to the plaintiff’s legal rights is small,
(2.) And is one which is capable of being estimated in money,
(3.) And is one which can be adequately compensated by a small money payment,
(4.) And the case is one in which it would be oppressive to the defendant to grant an injunction : –
then damages in substitution for an injunction may be given.
There may also be cases in which, though the four above-mentioned require ments exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction.
Fishenden v Higgs and Hill Limited
Court of Appeal [1935] All E.R.Rep. 43; 153 L.T. 128; 79 S.J. 434
LORD HANWORTH M.R.: . . . Then comes another very difficult question: What is the remedy which is to be employed? No doubt in the old days before the passing of Lord Cairns’ Act in 1858 there would have been in equity an injunction granted. If the action had been brought at law, for instance, damages would have been granted. The courts of law could not have granted an injunc tion, and the courts of Chancery could not have granted damages. But by Lord Cairns’ Act, which is 21-22 Viet., c. 27, it is declared by sect. 2, reading the relevant parts, that in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against any wrongful act, “it shall be lawful for the same court, if it shall think fit, to award damages to the party injured … in substitution for an injunction in all cases.” Some efforts have been made to lay down some guiding rules as to when the ..:ourt ought to choose or adhere to an injunction or when it is sufficient that it should grant damages. Perhaps the best known place in which some rules are stated is the judgment of
A. L. Smith, L.J., which is to be found in Shel/er v. City of London Electric Lighting Company ([1895] 1 Ch. 287, 322). I will not read those four rules again, but the learned judge introduces them by saying: “It may be stated as a good working rule that,” so and so, and ” then damages in substitution for an injunction may be given.” He continues a little further on, “There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with
each case as it comes up for adjudication.” Those words at the commencement and at the conclusion of the four rules clearly indicate that A. L. Smith, L.J. was only attempting to lay down some sort of canons which ought to be followed
appropriately as a guide in determining whether an injunction or damages should be granted. But in the very terms he eliminates any stringency from them and
indicates that the tribunal itself must consider what is the right course in any particular case. Lindley L.J. (at p. 316) says this: “Without denying the juris diction to award damages instead of an injunction, even in cases of continuing
actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances.” Then he says he will not attempt to lay down rules for the exercise of judicial discretion and then comes the passage which has been read: ” In all such cases as these, and in all others where an action for damages is really an adequate remedy-as where the acts complained of are already finished-an injunction can be properly refused,” and so on, and he there, in the Shelfer case, grants the injunction. Be it remembered that the Shelfer case was a case in which, by reason of vibration, the lives of the persons in the house were rendered not merely uncomfortable, but that in s me measure their health was endangered. The Shelfer case seems to me_the high water mark of what might be called definite rules, and at the same time, when you examine those rules, both A. L. Smith, L.J. and Lindley, L.J. held that those tests are, if I may use the expression, “of imperfect application.” When we come to Colts v. Home and Colonial Stores ([1904] A.C. 179) once more, we find there that the matter is left more at large than it was in the Shelfer case not perhaps more at large than it was in the Shelfer case when yo read the passages which are concomitant to the rules, but more at large than 1t was left if you focus your attention upon the rules and the rules only. Lord Macnaghten in the Colts case (at p. 193), says this: “But the recovery of damages, whatever the amount may be, indicates a violation of right, and in former times, unless there were something special in the case, would have entitled the plaintiff as of course to an injunction in equity. I rather doubt whether the amount of the damages which may be supposed to be recoverable at law affords a satisfactory test.” Then he goes on: “But if there is really a question as to whether the obstruction is legal or not, and if th:: defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the court ought to incline to damages rather than to an injunction.” Lord Lindley (at p. 212), again, says this: “The present case is eminently one in which damages would be an adequate remedy, even assuming the plaintiffs could prove a small nuisance for which some damages could be properly given; and where that is the case an injunction, and especially a mandatory injunction, ought not to issue.” I pointed out in Slack v. Leeds Industrial Co-operative Society ( [1924] 2 Ch. 475) that the so-called tests in the Shelfer case were no more than what had been anticipated by Sir George Jessel in Aynsley v. Glover ( (1874) L.R. 18 Eq. 544), and that they did no more-that the Colts case had not altered those rules; but it must not be taken I held that the rules in the Shelfer case by themselves were now prescribed as the guiding tests for the court. I think my judgment indicates that one must bear in mind not merely the Sheffer case but the Colts case, and also what had been said by Sir George Jessel in Aynsley v. Glover, and it is important just to look at what he did say. Sir George Jessel said this (at p. 552): “As I under stand it, the rule now is-and I shall so decide in future, unless in the meantime the Appeal Court shall decide differently-that wherever an action can be main tained at law and really substantial damages, or perhaps I should say consider able damages (for some people may say that 20l. is substantial damages), can be recovered at law, there the injunction ought to follow in equity; generally, not universally, because I have something to add upon that subject. In this case I do not think that anybody would doubt the damages would be substantial. The obstruction would in fact destroy the use of the room altogether; it would so darken it that perhaps it might be used for a cellar,” and so on. Then he goes on (at p. 555): ” The discretion, being a reasonable discretion, should, I think, be reasonably exercised, and it must depend upon the special circumstances of each case whether it ought to be exercised.” After one turns to the passages in the previous judgments to which I was referring in the Slack case, I do not think it could be said that that judgment was intended in any way to cut down, as indeed it could not cut down, the previous authorities to which I was referring.
In Kine v. folly in the decision below, which stood affirmed after the case had
been argued in the House of Lords, damages were considered. Vaughan Williams, L.J. ([1905] 1 Ch. 480, 496), says this: ” The only other matter which,
according to Lord Macnaghten’s speech, remains to be considered is whether this injury cannot be fairly compensated by money damages. I think it can be, and therefore I think there ought to be no mandatory injunction.” In other words, following out the principle which Lord Macnaghten appeared to indicate, that the court ought to incline towards damages more than to an injunction, Vaughan Williams, L.J. applies that course. Again (at p. 504), Cozens-Hardy,
L.J. says this: “I think it is impossible to doubt that the tendency of the speeches in the House of Lords in Coils v. Home and Colonial Stores is to go a little further than was done in Shelfer v. City of London Electric Lighting Company, and to indicate that as a general rule the court ought to be less free in granting mandatory injunctions than it was in years gone by.” It seems to me, therefore, that these rules in the Shelfer case must now be taken with the con comitant passages to which I have referred in the later cases, in Coils and in Kine v. Jolly, and that we ought to incline against an injunction if possible. It is not possible to say what the injury to the plaintiff will be when estimated in money. I think the damages that he may be given will be a substantial sum not a trivial sum like 501. or 1001., but a substantial sum. On the other hand, the defendants have certainly acted with circumspection, and I think with a desire to avoid any unreasonable invasion of the plaintiff’s rights, and certainly not to take him or catch him at a disadvantage. Their conduct inures to their benefit, and therefore we have to consider what would be the result to them if they had to modify their plans and to cut off a portion of their building. They may be unable to use the site in a manner in which they have a right to use it when they are making use of this now vacant piece of land and building upon it in a manner which is not uncommon at the present time, a liberty which cannot be restrained because of what Lord Halsbury said in the Coils case, namely, that there is a right to build upon a piece of land like this within the City of Westminster.
I have come to the conclusion on the whole that this is a case in which damages will be a sufficient remedy. Even though those damages may sound a not inconsiderable sum, we are dealing with sites of large value. The plaintiff himself has to pay a high rental, and he is subject to a covenant under which he had to make a large outlay when he took possession of these premises. One cannot be surprised, therefore, if, appropriately to the site and to his own posi tion as lessee, the figures involved are considerable. But I also think that one ought to consider whether the defendants will be oppressed in the sense that they will lose so very large a quantum of the enjoyment of their site as to amount to oppression. In all the circumstances of the case, following Lord Macnaghten’s rule and following Sir George Jessel’s rule, I think we ought to leave the matter to be decided by the imposition of damages. Therefore, there will be an order that the case be remitted for the purpose of ascertaining what damage the plaintiff has suffered, and the mandatory injunction will be discharged.
Morris v Redland Bricks Limited
Court of Appeal [1967] I W.L.R. %7; 111 S.J. 373; [1%7] 3 All E.R. 1
DANCKWERTS L.J.: . . . The defendants’ contentions [in the court below] were as follows. First of all, that a mandatory injunction must specify exactly what is to be done. This one, of course, is expres_sed in_ general tern:is: whi h, according to my experience, is generally the way in which su h an miui:ict on is granted, being directed to the results to be achieved and without specifying necessarily the details of the work to be done, which is left to the defendant to carry out. I find this contention rather surprising in the circumstances, because in a letter before the action started the defendants declared themselves ready to give an undertaking–or to submit to an injunction; I am not sure which-in regard to the carrying out of the work which was necessary.
The defendants’ engineer, Mr. Coombs, who was their principal witness in regard to this matter, apart from their expert, Dr. Prentice, stated this in evidence (I am reading from the judge’s notes of evidence): “We have already hired some equipment to do work practical in present conditions. In present weather conditions not possible to do any work. [That, of course, was in October.] We have equipment to do job. By letter 19 we were prepared to do the work. We didn’t think we should be ordered to do it in a particular way. The dispute was as to time. We wanted longer than three months. I suspect further subsiding is only on the surface. [Then he added:] We are willing to undertake remedial measures at expense which will have a reasonable chance of success.”
That seems to me strangely inconsistent with the arguments which were put up before this court. It was quite plain that the defendants’ engineer was objecting to being told in detail exactly how to do the remedial measures.
In my view there is nothing wrong from this point of view in respect of the form of the injunction. As I have said, it leaves the defendants to carry out the work, to achieve the result to which the plaintiffs are entitled, according to their own methods and as they find them most successful. It would, I think, be restricting them unduly if they were ordered to do any particular operations in detail in a particular way.
The second line of attack on the injunction has been derived to some extent from suggestions made by a member of this court: it was said that to require the defendants to carry out works which might cost £30,000 or £35,000 was oppressive and quite out of all proportion to the value of the land belonging to the plaintiffs and the amount of damage which was likely to be done to it. The plaintiffs’ land is said to be about eight acres, and it was suggested that the value was about £12,000.
The defendants relied on some observations of Joyce, J., in A.-G. v. Stafford shire County Council ([1905] 1 Ch. 336, 342), where he said: ” ow what do the plaintiffs claim in this action? They claim, or did claim, a declaration that the defendants are liable to repair and maintain the said embankments and walls, meaning thereby, as has been explained to me, the embankments or walls mentioned or referred to in the particulars that have been delivered in the action; and, secondly, they ask that the defendants may be ordered forthwith to repair such of the said embankments and walls as are in need of repair. In my opinion no such mandatory order as that which is asked for, or was asked, can be made. Further, in my opinion it is the necessary requisite of every injunction and every mandatory order that it should be certain and definite in its terms, and it must or ought to be quite clear what the person against whom the njunction or order is made is required to do or to refrain from doing. Now a mandatory order, as I understand the practice of the court, will not be made to direct a person to repair. As we all know, the court will not superintend works of building or of repair.”
Then there are some other observations which I think are peculiar to that particular case. I doubt whether the observations of Joyce, J., have been carried out in practice.
Another case which was referred to was Kennard v. Cory Brothers & Co., Ltd. ([1922] 1 Ch. 265) in which a mandatory order was made; but that case was rather special in its terms because the work required to be done was comparatively simple-in fact clearing out a manhole or something of that sort and I do not attach, therefore, very much importance to that case for the present purposes. According to my experience, however, mandatory injunctions are very often made in general terms so as to produce the result which is to be aimed at without particularly, in the case of persons who are skilled in the kinds of work to be done, directing them exactly how the work is to be done; and it seems to me undesirable that the order should attempt to specify how the work is to be carried out. After all, the defendants in the present case are people who are used to doing work of this kind, dealing with difficulties caused in digging out clay; and, as their engineer in fact said, it would be undesirable to direct them exactly what was to be done, as such a direction would be restrictive rather than assisting the carrying out of the works in the most desirable way.
I therefore see no objection to the form of the judge’s order in regard to that purpose.
The other matter is perhaps rather more difficult. There is great force in the observations which have been made by Sellers, L.J., that it does seem rather out of proportion to require enormously expensive work to be done when the value of the land really is not so great as the expenditure which may be neces sary to achieve the effect which is desired; but, on the other hand, in my view the law is fairly well settled on the question when injunctions will be granted and when an attempt will be made to give damages for future damage-which is always difficult to estimate….
Turning to the four conditions which were laid down by A. L. Smith, L.J. [in She/fer v. City of London Electric Lighting Co. [1895] 1 Ch. 287, supra,
p. 123], for the giving of damages instead of an injunction, the first three plainly do not apply in the present case. The injury to the plaintiff’s legal rights is not small: it is substantial-substantially interfering with his business as a market gardener and affecting his ability to make a living from the acreage which he farms. Secondly, it seems to me one which is extremely difficult to estimate in money; so that the second condition does not apply. Moreover it seems to me that the money payment, having regard to the measure of damages in cases of this kind, is not an adequate compensation for the injury which has been suffered by the plaintiffs.
The only one of the four conditions which can be said to apply is the last condition, which refers to possible oppression on the defendant in the case. It seems to me that it would be wrong, if not impossible, to assess the damages adequately for the future in the present case, where the damages are not an adequate remedy. That has always been recognised as a ground for the inter ference of equity in order to protect a plaintiff’s legal rights….
SELLERS L.J. (dissenting): With all deference to my very experienced brethren I cannot bring myself to agree with the conclusion at which they have arrived….
In the course of the opening of the case two situations err erged in mr judg ment. There is no doubt that the defendants have committed an actionable wrong: they have excavated their land adjacent to the plaintiffs’. land to the
disadvantage of the plaintiffs and have up to the trial of the action, through misfortune rather than, I am sure, any intention, so used their own land that a portion of the surface of the plaintiffs’ land had fallen away in towards the excavation, the pit, which had been made in the quite proper industrial task of providing sui_table clay for, I think, in this case bricks, or it m y be pipes. Notwithstanding that they had, as they thought, acted prudently m leaving a margin so that it would give room for collapse without encroaching on the plaintiffs’ land in fact it had done that slightly. In a somewhat exaggerated claim, damages were sought and ultimately recovered from the defendants before the learned judge for that damage. It would appear that about one-tenth of an acre could be said to have been affected: the learned judge found that. He assessed that area at a value of £200, and he gave altogether damages of
£325. That was appropriate and no complaint is made about it. The question is as to the future. On the defendants’ land there is no doubt a large excavation which happens to be of a type of clay which, it may be because of the draining of the water from the plaintiffs’ land, is perhaps more than usually inclined to slip and in that way there has been this falling of the surfat:e of the land into the pit in the vicinity of the plaintiffs’ border so that this inroad has unfor tunately been made notwithstanding the precautions which were taken. The question now is, as I say, what of the future?
In some of the type of cases to which we have been referred it is quite clear that, unless there is an embargo, the manufacture which is offending will con tinue with the same result, whether it be gas from a gasworks or smoke from an establishment which is manufacturing electricity or it may be pernicious fumes which damage the countryside: if no injunction is granted that will continue. That is not this type of injunction. This injunction has laid it down that all necessary steps have to be taken to restore the support which has been taken away. In some cases that would be a most appropriate order. The first factor to consider, as I see it, is what are the risks for the future supposing that work is not done or is not done in the very extensive way which is contemplated here.
In my view the evidence is far from certain. It is, of course, possible that there may be further inroads if nothing is done. The movement of land in circumstances such as these is not easy for anyone to assess with any degree of certainty. The fact that the subsidence has taken place so far may reveal that of its own accord the land has reached a situation of repose and will not go further; but assume on the evidence that further erosion is possible. It cannot be said that it is probable, and I do not think that the judge has held that it was probable, and there is indeed evidence that it may not happen. That is a factor which has to be decided; but supposing it to be contemplated that it may happen, over what area is it likely to go? If perchance this subsidence continues it may affect-how much? I do not think it would be fair to assess the area, and what ought to be done, on the basis that anything more than an acre or thereabouts is likely to be affected. That area of one acre is in relation to the whole of the plaintiffs’ holding of some eight acres. And what do we know about this property? Apparently the plaintiffs, husband and wife, acquired it in October, 1947, at the price of £200 an acre-eight acres in all for £1,600- and they have cultivated it successfully apparently as a market garden since. It may be that in the intervening years, with the alteration in the price of land and their own good cultivation, it has brought the land now up to a value of something like £10,000 to £12,000, which were the figures that my brethren accepted. That may leave the value of one acre as £1,500 or thereabouts. That is what it is contemplated may be lost-maybe: 1t ts not certain to be lost. What, then, is the right order for a court to make? If this land could have been supported at a reasonable cost so that it could without doubt be retained, I would not have hesitated to agree with my brethren that would be an appropriate course to take. But the learned judge makes two findings. One is that this back-filling-that is, filling in as far as is required, filling in the excavation which has been made for business purposes, in order to prevent the land slipping any more-can be done but it will be very expensive and may cost the defen dants as much as £35,000; and he adds at the end of his judgment: “Inasmuch as the proposed remedy is possible and not beyond the means of the defendants, I am unable to say that the court should refrain from action and leave the plaintiffs to watch their land sink away and make a succession of claims for damages.”
It is that which, with regret but nevertheless with conviction, has made me take a different view from that which the county court judge held and which has been approved by my brethren.
I recognise, and certainly counsel for the plaintiffs has emphasised, that land is a commodity which is unique: it is to be differentiated from any other commodity; but nevertheless if one contemplated any other sphere of damages it would be unthinkable that a loss of possibly £1,500—-or £2,000, if one likes to exaggerate the loss somewhat-as the actual value of the land itself should result in damages against the wrongdoer of something like £35,000. It is out of harmony, as I understand it, with the principles which this court, when redress is called for, imposes on a wrongdoer-so much out of harmony that to my mind it seems that there must be something wrong.
I expressed myself several times, no doubt in an interlocutory and perhaps undesirable form, before we turned to some of the authorities. When we turned to the authorities I found support rather than rejection of something of that which I had said. From Meux’s Brewery Co. v. City of London Electric Lighting Co. ([1895) 1 Ch. 287), which has apparently been recognised as good law ever since the judgment was uttered in 1895, Danckwerts, L.J., has read the opinion given by A. L. Smith, L.J., and I do not wish to read it again. I would seek to apply it as I see it. “In my opinion”, he said, “it may be stated as a good working rule “-and then there are the four sets of circumstances which he sets out where damages should supplant a mandatory injunction. Now, first of all, is the injury to the plaintiffs’ legal rights small? I would hold, having regard to what I have said and all the arguments in this case, that in all the circumstances of this case it should be regarded as small. It has been said that the loss of this land-should it occur, which is not certain-is going to take away the livelihood of this husband and wife. There is no evidence as far as I know that a very satisfactory market garden cannot be carried on in seven acres or that the loss of an acre would prohibit such a business. There is no evidence about it, and I am not prepared to say that eight acres are so much more efficient than would be either seven or six, or ten, acres. It may be so, and I suppose that if one acre is lost the overheads have to go on and be compensated for by the cultivation of the other seven acres; but that that is so grave a matter that a man has to go out of business or be driven into another country is, I think, a wholly unjustifiable inference on the evidence in this case.
The second requirement of A. L. Smith, L.J., is that the injury is one which
is capable of being estimated in money. I have known greater problems than this in assessing damages, and I think that it is not beyond the court to assess the damages. Indeed in this case in relation to the one-tenth of an acre the judge has already done so. The third requirement is that the injury is one that can be adequately compensated by a small money payment. I think that it can.
The fourth requirement is the one that looks at a defendant’s side more particularly. Litigation has to be fair to both parties, to the defendant as well as the plaintiff, and the fourth item very properly has some regard to the wrongdoer, the defendant-” (iv) and the case is one” (said A. L. ith, _L.J.), “in which it would be oppressive to the defendant to grant an rn1un t1on” If this mandatory injunction involves that in this open expanse ‘?f a pit-half full of water, as I picture it to be, a slimy area of clay-£35,000 1s to be spent in order to protect even one acre of lanci, although the probability is that it is not so much, I would regard it as an oppressive way to give a remedy to the plaintiffs in this case.
Happily what I have said now in relation to the principles which A. L. Smith, L.J., laid down, or his guide in these matters, is not without some support of high authority, to which counsel for the defendants was kind enough to refer this court. I find the same attitude of mind, the same approach, in at least two speeches in a very well known case, a text-book case in this field, to do with light-Co/ls v. Home and Colonial Stores, Ltd. ([1904] A.C. 179). Lord MacNaghten said: “In some cases, of course, an injunction is necessary if, for instance, the injury cannot fairly be compensated by money; if the defen dant has acted in a high-handed manner; if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warn ing to others. But if there is really a question as to whether the obstruction is legal or not [ that is to do with light] and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money.”
In the final speech, given Lord Lindley, who was one of the most experienced judges in this class o litigation, he said: ” I should stop here, were it not that I feel very strongly that in any view of the case it was not one for a mandatory injunction. I am convinced that, even if the plaintiffs have a cause of action, the damages which could properly be awarded them would be very small, and to grant a mandatory injunction in such a case as this would be unduly oppressive and not in accordance with the principles on which equitable relief has been usually granted . . . The present case is eminently one in which damages would be an adequate remedy, even assuming the plaintiffs could prove a small nuisance for which some damages could be properly given; and where that is the case an injunction, and especially a mandatory injunction, ought not to issue.”
As the final support for the proposition I would take a passage from Younger, L.J.’s judgment in Slack v. Leeds Industrial Co-operative Society, Ltd. ((1923) 1 Ch. 431): “The learned judge’s decision accordingly if well founded involves this proposition, that it is the law of the court that merely because damages are not immediately available as a remedy, if the plaintiff has a cause of action an injunction must issue, however oppressive to the defendant, and of however little advantage to the plaintiff it may be. For myself I would hesitate long before I accepted such a position. It would undo all recent progress in these matters. Gradually, and in later years especially, the courts have come to recognise with a clearness which was hidden from them during a period not yet remote that injunctions in light cases not necessary for the adequate protec tion to a plaintiff’s proprietary rights may injuriously affect interests other than the defendants’ to an extent which the court cannot properly ignore. Incau tiously awarded such injunctions may impede, may, indeed, even entirely erase properly progressive schemes of building development with consequences as injurious ultimately to the community as they are throughout oppressive to a defendant.”
I recognise that the circumstances there were different and that the question involved was different, but the spirit of those observations can be transferred to a consideration of this present case.
As my brethren have taken the course which will mean that this appeal will be dismissed, I do not wish to do more than make these observations to justify the major nature of my opposition to that order. If it had been left to me I would have thought that we could have found some substituted remedy. It may be that the appropriate one would have been to have replaced the manda tory injunction by leaving it to the parties to await the future, which I do not view, having considered the whole of the evidence as best I can, with quite such alarming apprehensions as my brethren. Another action might be brought if further trouble does arise, and then the redress could be considered and damages could be given as they have been in this case and the future could be reviewed again. Another course would have been to suspend the injunction and await a decision. I do not think that there would be great prejudice to the plaintiffs in adopting either of those courses, and to balance what I regard as the overburdening and oppressive result on the defendants if this order is to stand. It would be one which would appeal to me and would, I should have thought, be a proper administration of the law.
There did arise in the course of reading the evidence something which is not without its impact on this case in more ways than one. The first question, or so it would appear from the judge’s note, which the plaintiff was asked in cross-examination brought forth on the judge’s note this answer: “I would be prepared to sell a piece of my land.” When the appropriate witness for the defendants went into the box he said they would be prepared to buy. These people are neighbours; they are living in conjunction; their properties are adjoining and they both have some sort of obligation to each other. This court cannot force the plaintiffs to sell and it is not an order it can make, but it would go a long way to remedying this matter and doing justice to the parties if that course were followed. It is quite clear that the defendants do not want to excavate on any new land on that side of the area if they acquired it. Indeed their attitude is: If we bought this land you may have the surface of it to till and in which to grow things so long as it remains. It would give an added buffer between the pieces of land, the offending pit on the defendants’ side and the plaintiffs’ cultivated land on the other; but that has not come about. It woufd have been no injustice, if the parties cannot be reasonable over this matter, I would have thought, to have left the decision on any further encroachment to the court to assess the damages….
Sachs s J.: . . . The second injunction, however, it is to be noted, is in essence in aid of the first: there is no suggestion that it was intended to cause the defendants to “re-make” the injured land but it was merely designed to prevent further collapse of parts of the plaintiffs’ land generally. Just as, in the Pride of Derby case ([1953] 1 Ch. 149), the injunctions were negative in form but mandatory in effect, so in the present case the second injunction, whilst mandatory in form, is but an essential supplement in the circumstances to the first injunction-the object of both orders being in combination to preserve the plaintiffs’ property, and the first being substantially useless without the second….
r I l t seems to me that the appellants’ general policy may well have been to
rely on their ability as wrongdoers to expropriate the property of those whom they wronged by such payments as seemed to them to be appropriate. Such an approach has seldom found favour from the courts. Unless and until the legis lature endows the defendants and those in similar positions with powers of compulsory purchase I, for one, see no reason for the court to confer those powers on them. On the contrary, to add to the number of ways in which a freeholder can already be deprived of his property against his will does not seem to me to be right. . . .
The owners of a relatively small property such as a market garden are entitled to stand up for their rights, if they have the courage to come to the courts for that purpose against a tortfeasor who happens to be a much larger concern. There is perhaps something to be said for emphasising that point to-day.
Counsel for the defendants has submitted that it savours of oppression that an injunction in these terms should be granted against the defendants. If such be his contention, I should have thought that the onus of establishing that plea lay on the defendants-a view which is reinforced in this case by their above mentioned offer in August, 1966. Suffice it, however, to say that this seems to me to be a case where commercial risks have been taken; and there is no evidence regarding the profits made by taking them or what percentage of those profits would be required to remedy the damage. Before a defendant speaks of “oppression” he should to my mind lead some evidence to show exactly what is entailed in all the circumstances ….
Criminal Assets Bureau v PS,
unreported, High Court, Finnegan P., April 12, 2002 Finnegan P.
Judgment of Mr. Justice Finnegan delivered on the 25th day of January 2002
The Plaintiff has obtained a garnishee order against certain assets of the Defendants. On this application to me the Defendants seek the following reliefs:
(1) an order setting aside the garnishee order upon the ground that it is ultra vires the Plaintiff to execute on foot of a final Judgment in its favour in the amount of €l,778,343.76;
(2) an order staying execution until such time as costs on a solicitor and client basis incurred by the Defendants are paid out of the assets attached by the garnishee order in accordance with a direction of Mr. Justice O’Higgins.
The Defendants’ argument on the first matter is as follows:
‘The Plaintiff is a corporation created by statute namely the Criminal Assets Bureau Act 1996. That Act in s.4 thereof sets out the objectives of the Plaintiff and in s.5 the functions of the Plaintiff. It is clear from sections 4 and 5 aforesaid that the Plaintiff’s sphere of activity is circumscribed and it is confined both as to its objectives and functions to acting in relation to assets which derive or are suspected to derive directly or indirectly from criminal activity. The Judgment obtained by the Plaintiff relates to revenue liabilities which have no relation to criminal activity. Further the liability to tax does not arise on foot of an assessment coming within the provisions of the Taxes Consolidation Act 1997 s. 58(1) and accordingly the Plaintiff has no power pursuant to that section to execute in respect of the Judgment in its own name.
Where a corporation has been incorporated by an Act of the Oireachtas the Act becomes the charter of the corporation declaring its rights and powers and prescribing its duties and obligations. Mann v Edinburgh Northern Tramway Company (1893) A.C. 69 at 79.
All incidental powers attach as of course to such a corporation and this includes a power to sue or be sued: Hallsbury Fourth Edition re issue Volume 9(2) para 1130. Even if the law were not so well settled in the present case the Judgment obtained by the Plaintiff in the High Court was appealed by the Defendant to the Supreme Court and there upheld and it is not now open to challenge. Having the power to sue the Plaintiff equally has the power to execute on foot of any Judgment which it may obtain. On the basis of the foregoing I am satisfied that the Defendant’s argument must fail insofar as reliance is placed exclusively on the Criminal Assets Bureau Act 1996. Insofar as reliance is placed on the Taxes Consolidation Act 1997 s. 58 again the Judgment being final and unappealable it cannot be now questioned before me. Having obtained Judgment it must follow that the Plaintiff can execute on foot of the same. In any event s.58 has the effect of empowering the Plaintiff to raise assessments, demand the tax charged in such assessments in its own name and to issue a receipt in its own name. I am satisfied that these express statutory powers must be read as carrying with theirs an implicit power to sue and to execute in each case in its own name. Accordingly I find no support in the Taxes Consolidation Act 1997 for the Plaintiff’s argument.
The Criminal Assets Bureau Act 1996 s.8(8) provides as follows:
“(8) A member of the Garda Siochana, an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare, who is a bureau officer, notwithstanding his or her appointment as such shall continue to be vested with and may exercise or perform the powers or duties of a member of the Garda Siochana, an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare, as the case may be for purposes other than the purposes of this Act as well as for the purposes of this Act. ”
It is clear from the pleadings already had herein upon which Judgment has been obtained that the Plaintiff is a Bureau Officer appointed to the Criminal Assets Bureau pursuant to s.8 of the Criminal Assets Bureau Act 1996 and also an officer of the Revenue Commissioners nominated by the Revenue Commissioners to exercise the powers and functions of the Collector General and that the proceedings were taken in the name of the Criminal Assets Bureau pursuant to the provisions of s.10 of the Criminal Assets Bureau Act 1996. Section 10 of the 1996 Act provides for anonymity of a bureau officer who is an officer of the Revenue Commissioners. I am satisfied that the effect of s.10 subsections 4, 5, 6 and 7 requires that proceedings which would otherwise be instituted in the name of a Revenue official must where that Revenue official is a bureau officer be instituted and maintained in the name of the Criminal Assets Bureau: by necessary implication from the express provisions of s.10 execution on foot of Judgment obtained in any such proceedings must likewise be in the name of the Criminal Assets Bureau.
For these reasons I reject the Defendants’ argument on the first matter mentioned above and refuse the relief sought.
With regard to the second matter there is no issue between the parties as to the entitlement of the Defendants to have the costs declared for by Mr. Justice O’Higgins discharged out of the assets which have been attached by the garnishee order. The dispute between the parties resolves itself to this. The Defendants have agreed a sum for the costs with their legal advisors and claim to be entitled to have the sum so agreed paid. The Plaintiff is willing to have the costs taxed on a solicitor and client basis. There can be no question but that the Plaintiff has an interest in the amount of costs to be paid by the Defendants – the greater the amount so paid the less there will remain of the assets attached to satisfy its judgment. It has long been the case that a person interested may require a bill of costs to be taxed. Thus a trustee in bankruptcy is entitled to require costs agreed between the bankrupt and his solicitor taxed: re Allingham (1886) 32 Ch D 36 where taxation was on a solicitor and client basis. Again a person beneficially interested in an estate is entitled to have the executors costs taxed: Ex p Dickson (1856) 44 E.R. 542. Similarly a cestui que trust the trustees costs: re Spencer, Spencer v Harte (1881) 51 L.J.Ch 271, Langford v Mahoney (1843) 51 IEgR 569. The matter is now dealt with by statute in the Attorneys and Solicitors Act 1870 s8 which provides for the taxation of costs notwithstanding an agreement between the solicitor and client on application by a person liable to pay the costs in respect of which such agreement has been made: the order for taxation is made by the court in which the business or any part thereof was done or a Judge thereof without suit or action on motion or petition of such person. The court has a discretion as to whether taxation should be ordered or not. The principles upon which such taxation will be ordered are well settled and I am satisfied from a perusal of the authorities that this is an appropriate case in which such taxation should be ordered. If requested to do so by the Plaintiff I will order taxation of the Plaintiff’s costs the subject matter of the order of Mr. Justice O’Higgins on a solicitor and client basis as between the Solicitor and the Plaintiff. If the Plaintiff gives an undertaking to the court to discharge the amount found due on such taxation I will allow execution to proceed.
Thomas Crosbie Holdings v Webprint Concepts Ltd, High Court, Hedigan J., January 9, 2008
Judgment of Mr. Justice Hedigan delivered on 9th January, 2008.
The plaintiffs seek an interlocutory injunction directing the defendants to provide, in respect of the newspapers, the subject of an agreement dated 22nd April 2005 referred to as the “master printing agreement” the following services:
(a) the inclusion of inserts into their newspapers.
(b) the printing of supplements.
(c) the service of trimming.
The background to this application is as follows: the Master Printing Agreement, hereinafter “The Agreement”, referred to above was for the provision of printing services by the defendants herein to the plaintiffs in respect of their newspapers, the Irish Examiner, The Sunday Business Post, The Evening Echo and various other regional newspapers. The printing by the defendants for the plaintiffs commenced on the 20th December 2005. Prior to this printing for the plaintiffs was in-house and in Northern Ireland.
Disagreement has arisen between the parties in relation to the payment of charges for services due under this Agreement. In the result the defendants herein issued High Court proceedings on the 21st December 2007, Record No. 2007/9687P, claiming a sum of €11,260,699.78 due up to the 14th December 2007 and damages for breach of contract.
The defendants herein have indicated their intention to apply to have these proceedings entered in the commercial list. The plaintiffs herein dispute the claim and indicate that they will be seeking damages for breach of contract. Prior to issuing those proceedings the parties exchanged letters concerning the amounts allegedly due. The defendants herein threatened to withdraw their services of trimming, inclusion of inserts, publication of supplements and preprints. The position of the defendants herein was, for the purposes of this application, finally set out in a letter dated 3rd January 2008. In this letter they confirmed they would provide the services of inserts and the printing of new supplements on a without prejudice basis pending resolution of the proceedings subject to the following conditions:
(a) In relation to inserts, the payment of €876,143.67 being the historic debt to the 14th December 2007 plus interest of 50,492.85 and agreement to discharge on a weekly basis the invoiced amounts in relation to inserts in accordance with the terms of the contract.
(b) In relation to printing new supplements, the payment of the sum of €306,153.89 being the historic debt plus interest of €33,305.21 and agreement to discharge the costs of printing further such items on a weekly basis.
Further, in relation to trimming, the defendants confirmed they would provide this service on a without prejudice basis providing the plaintiffs pay for the provision of the service to date and agreed a rate going forward. This payment would be without prejudice to either party.
The plaintiffs herein argue that the withdrawal of these services would have a catastrophic effect on their business because without inserts and supplements or proper trimming they would be unable to provide a high quality publication and their ability to compete would be seriously and possibly irretrievably undermined. The damage they would suffer would probably be unquantifiable. Their newspapers, notably the Irish Examiner, The Evening Echo and The Sunday Business Post were high quality publications that needed the above services in order to maintain their position in the market.
For their part the defendants argue that in response to their above letter, the plaintiffs paid on the 4th January the sum of €800,195 being the aggregate of the amounts claimed by them and conceded as owing as at the 4th November 2007 but reduced by certain setoffs. The difference was approximately €400,000 less whatever would have been payable from the 4th November to the 14th December. No payment was made in relation to trimming.
The defendants argue they are ready, willing and able to provide the services in question but only if they are paid. They note the payments made are less than the amounts claimed. They further argue that the reality of this application is that the plaintiffs want to pay less than the agreed rates by making setoffs to which they are not entitled and by forcing the defendants to provide the service of trimming without payment. This service is nowhere agreed to be provided in the Agreement between the parties, although the plaintiffs argue that trimming is an essential part of the production of a quality newspaper.
The plaintiffs applied ex parte to the High Court on the 4th January 2008 and by order of Clarke J they obtained an interim order directing the defendants to provide the services, the subject matter of these proceedings until 8th January.
The approach adopted by the Courts in determining whether to grant a mandatory injunction on a interlocutory basis is summarised in Delaney’s Equity and the Law of Trust in Ireland, 3rd edition, at page 497.
“On balance it would appear that in recent decisions the Courts have tended to favour the application of the traditional Campus Oil principles even in the context of mandatory relief and there has been some support for the proposition laid down by Murphy J in Bula Limited v Tara Mines Limited (No. 2), [1987] I.R. 95, that the granting or withholding of a mandatory interlocutory injunction should not be dependent on the strength of the Applicant’s case (see De Burca v. Wicklow County Council, High Court [2000] No. 42 Judicial Review, Ó Caoimh J, 24th May 2000). However, it is also fair to say that it is unlikely that the balance of convenience will lie in favour of granting mandatory relief save in fairly exceptional cases and to this extent it is still accurate to assert that the Courts are more reluctant to grant an interlocutory injunction where it is of a mandatory nature.”
It seems to me that in this case there certainly is an issue to be tried. Indeed, there appears to be a plethora of issues to be tried between the parties in relation to the printing contract referred to above. The real question for me to decide in this application is as to where the balance of convenience lies. On the plaintiff’s side there is the prospect of either having to agree the proposals contained in the letter of 3rd January 2008 sent to them by the defendants or suffer the damage of having no inserts or supplements printed nor the paper or supplements trimmed. The damaged caused thereby would likely be very substantial in a highly competitive market where the maintenance of quality is imperative.
On the defendants side there is the prospect of having to continue printing supplements, making inserts and trimming at, in the case of the first two services, substantially less money than they claim they are entitled to and in the case of the third service, i.e. trimming, with no payment at all. They argue they cannot do this on a commercially viable basis.
It is common case that whilst the financial position of the plaintiffs is a strong one, the same cannot be said of the defendants. Their position at the present moment is a threatened one. Were the Court to issue a mandatory order at this stage directing the defendants to provide the services required, this Order might well be in existence for a substantial period of time when it is considered that following a Commercial Court decision there might follow an appeal to the Supreme Court. It seems clear to me that the plaintiffs are in a far stronger position than the defendants to survive the financial challenge that would ensue were they to meet the demands for payment that were made by the defendants in their letter of the 3rd January 2008. In the event they do so the financial position of the defendants, as evidenced before me on this application, would be greatly improved and their position as a mark for damages in the event the plaintiffs ultimately won their case would be, in all probability, secure.
It is further to be noted that in relation to the third service sought, that is trimming, were the Court to order this as sought it would be ordering a service to be provided at no cost by the defendants to the plaintiffs, which it is clear is nowhere in the Agreement specified. The strongest case the plaintiffs can make at this stage is that trimming is implicit in the production of a newspaper. This may well be right but, equally, they may well be wrong. I cannot decide this matter at this stage.
The position of the plaintiffs in relation to the maintenance of a high quality in their publications can be secured on the basis of the payment by the plaintiffs on a without prejudice basis of certain sums of money. It seems fairer in the context of the balance of convenience that this is the way that matters should proceed. In this sense the balance of convenience and the adequacy of damages are mixed but in either or both cases, it seems to me that the balance favours the defendants.
I, therefore, refuse the application.
Shelbourne Hotel Holdings Ltd v Torriam Hotel Operating Company Ltd, High Court
, Kelly J., December 18, 2008
JUDGMENT of Mr. Justice Kelly delivered on the 18th day of December, 2008
Background
Four years ago, in December 2004, the plaintiff purchased the well known Shelbourne Hotel situated at St. Stephen’s Green, Dublin. It purchased it from the Royal Bank of Scotland for €145m. Following the purchase, an extensive refurbishment of the hotel was effected at a cost of €120m. With 262 rooms in the hotel, the plaintiff has expended, between purchase and refurbishment, a sum of about €1m per room.
On 23rd August, 2006 a management agreement (the Agreement) was executed between the plaintiff and the defendant.
The defendant is an affiliate of the well known Marriot Hotel Group. Marriot International Holding Company B.V. is a guarantor of the defendant’s obligations to the plaintiff under the terms of the Agreement.
The Agreement has an initial term of 20 years. During that period, the defendant is constituted as manager of the hotel, has exclusive control of it and is responsible for its proper and efficient operation.
For reasons which I will return to later in this judgment, the plaintiffs have become extremely dissatisfied with the defendant’s performance on foot of the Agreement. That dissatisfaction has given rise to these proceedings.
These Proceedings
On 5th November, 2008 the plenary summons in this action was issued. On the same day, a notice of motion seeking interlocutory injunctive relief was issued. Two days later the defendant issued a motion seeking to stay these proceedings pursuant to s. 5 of the Arbitration Act 1980.
Thereafter, the plaintiff applied to have the case transferred to the Commercial List. Such an order was made on 24th November, 2008 and the hearing of both motions was directed to take place on 2nd December, 2008. I heard both applications on that and the following day.
The Agreement
The Agreement runs to in excess of 90 closely typed pages exclusive of schedules and exhibits. It is divided into twelve different sections.
The following are the relevant provisions of the Agreement for the purposes of the two applications before me.
Under Article 1.01, the defendant is obliged to manage and operate the hotel to a standard of managerial expertise and financial control consistent with the operating standards applicable to other similarly situated first class, full service hotels that are operated by the defendant or its affiliates in Ireland as well as international hotel standards. The defendant is required to act as a reasonable and prudent operator and has to do so with the goal of optimising the profitability of the hotel over what is called “a reasonable duration”. The Agreement provides that it is understood “that a reasonable duration shall encompass a horizon of at least five years”.
Under Article 1.02, the plaintiff authorised and engaged the defendant to supervise, direct and control the management and operation of the hotel in accordance with the terms and conditions of the Agreement.
Under Article 1.03, all of the hotel employees are employed by the defendant which is responsible for payment of their remuneration and deduction of all tax and other liabilities. The defendant is given absolute discretion with respect to all hotel employees including their hiring, promoting, transferring and dismissing. In the case of some employees however, there are certain rights reserved to the plaintiff. For example, whilst the defendant has the authority to hire, dismiss or transfer the hotel’s general manager and director of sales and marketing, it is obliged to keep the plaintiff informed with respect to such actions, and must give prior notification to the plaintiff of the defendant’s desire to effect a transfer of either of those persons. In certain defined circumstances the plaintiff’s consent is required before the general manager and sales director may be transferred. (See Article 1.03B)
In the case of the hiring of a general manager, the plaintiff has to be consulted and has a limited right of veto in respect of candidates for that post. (See Article 1.03B(2))
Under Article 1.04, the plaintiff is given a right of inspection of the hotel. The article provides:-
“Owner and its agents shall have access to the hotel at any and all reasonable times for the purpose of inspecting the hotel and the business carried on at the hotel or showing the hotel to prospective purchasers, tenants or secured lenders, provided that owner and its agents shall exercise such right in cooperation with manager and with the goal of minimising the adverse impact of such access on manager’s operation and management of the hotel.”
The defendant is obliged, at the plaintiff’s request, to hold meetings on a monthly basis with a view to discussing the performance of the hotel and related issues. Amongst the items which are specifically mentioned as appropriate to be dealt with at such meetings are material deviations from either the business plan for the preceding month or the most recent accounting period statements.
The Agreement also provides for the defendant to be able to share services with other hotels that it manages but subject to the owner’s approval.
Article 1.08 places certain limitations on the defendant’s authority by requiring it to obtain the plaintiff’s approval in respect of the matters which are listed in that Article.
Article IV of the Agreement deals with accounting matters.
Article 4.02A requires that books of control and account pertaining to the operations of the hotel are to be kept on “the accrual basis” and in all material respects in accordance with what is described as “Uniform System of Accounts”. That term is defined as meaning:-
“The Uniform System of Accounts for the Lodging Industry, 9th Revised Edition, 1996, as published by the Educational Institute of the American Hotel and Motel Association, as revised from time to time to the extent such revision has been or is in the process of being generally implemented within the Renaissance System.”
No evidence has been placed before me as to what that system of accounting requires.
The Article goes on to confer a right on the plaintiff at reasonable intervals during the defendant’s normal business hours to examine such records. Furthermore, it expressly provides that if the plaintiff desires to engage an auditor to audit, examine or review the annual operating statement or the final accounting statement, it is entitled to notify the defendant in writing within 60 days after receipt of such statements of its intention to so audit.
Article 4.02B insofar as it is relevant provides as follows:-
“In connection with Owner’s responsibility to maintain its own effective internal controls over financial and tax reporting and the requirements for complying with statutory audit and tax requirements applicable to owner, owner may request manager to provide reasonable access to the hotel, including to the books of control and account and other records maintained for the hotel, and reasonable assistance necessary to owner that will allow owner to conduct activities necessary to satisfy such responsibilities (to the extent applicable). Manager shall provide such assistance and access to the extent consistent with the assistance and access it generally provides to similarly situated owners of hotels managed by manager and its affiliates.”
Article 4.04 requires the defendant to deliver to the plaintiff for its review and approval a draft of a business plan on an annual basis. In certain circumstances the owner may disapprove of such business plan. The defendant is obliged to operate the hotel in accordance with the business plan so as to achieve the budgetary goals reflected in it for each fiscal year. The Agreement provides for consultation between the plaintiff and the defendant with a view to reducing the effects of any adverse deviations from such a business plan. Somewhat similar provisions apply in respect of all capital expenditures.
Article IX of the Agreement deals with defaults.
The Article defines what a default is and the rights of the parties should such occur. One of the events of default is the failure by either party to perform, keep or fulfil certain of the material covenants, undertakings, obligations or conditions of the Agreement. If an event of default occurs the non-defaulting party is given the right to pursue any one or more of a number of courses of action. They include the institution of any and all proceedings permitted by law or equity in respect of such event of default including, without limitation, actions for specific performance and/or damages, or the termination of the Agreement subject to certain terms.
There are also some unusual rights which are given to the defendant under the terms of the Agreement. For example, the plaintiff does not have an unfettered right to sell the premises but is subject to the defendant’s veto in that regard under Article 10.02.
The final element of the Agreement which is relevant is that which deals with the applicable law and arbitration.
Article 11.04 provides as follows:-
“Applicable Law
A. This agreement shall be construed under and governed by the law of Ireland without regard to the conflict of laws provisions of such jurisdiction.
B. Notwithstanding anything to the contrary herein, either party may seek injunctive or equitable relief (including, without limitation, restraining orders and preliminary injunctions) in any court of competent jurisdiction; either party shall be entitled to make an application to the court requesting that the proceedings be referred to arbitration in accordance with s. 11.05 without prejudice, however, to preliminary or interim injunctions or enjoining orders granted by such court.”
Paragraph 11.05 insofar as it is relevant provides as follows:-
“Arbitration
A. Except for any determinations to be made by an Expert pursuant to this agreement, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the International Centre for Dispute Resolution (the ICDR) in accordance with the international arbitration rules of the ICDR (the ICDR Rules). The ICDR Rules are deemed to be incorporated by reference into this clause, save that any provision in this clause which is inconsistent with the ICDR Rules shall prevail over such ICDR Rules. The seat, or legal place, of arbitration shall be Dublin, Ireland. The language to be used in the arbitral proceedings shall be English…
D. Any dispute, controversy or claim to be settled by arbitration pursuant to this section 11.05 shall at the request of owner or any Marriot Company be resolved in a single arbitration before a single arbitral tribunal together with any dispute, controversy or claim arising out of or relating to any other Marriot Agreement.”
The Dispute
Lengthy affidavits have been filed by both sides in respect of the two motions before the court. At this stage it is not possible to resolve any conflicts of fact which emerge on those affidavits and indeed I am precluded from so doing. It is, however, possible to extract from the affidavits a number of matters that are not in dispute. They appear to be as follows.
The defendant is obliged under the terms of the Agreement to manage and operate the hotel to the standard prescribed. It is obliged to keep books of control and accounts pertaining to the operations of the hotel.
Because the plaintiff is liable to account for the tax liability arising from the business of the hotel, the Agreement provides for its right, as owner, to have access to the hotel and its business generally and specifically to inspect the systems of control and accounts and other records maintained. (See Article 4.02B of the Agreement)
Within a short time of the hotel re-opening for trading in March 2007, it became clear to the plaintiff that there were problems with the financial management of the hotel by the defendant. The fact that the financial director of the defendant and his assistant financial controller were not at work for a period of months from March 2008, for understandable health and personal reasons and that both subsequently left the defendant’s employment, did not help in this regard.
The plaintiff’s auditor in the course of carrying out audit work in respect of the year ended 31st December, 2007 uncovered serious problems with the financial management of the hotel and as yet has not been able to sign off on accounts for that year. Ms. Sharon Gallen, a partner in the plaintiff’s accountancy firm (Horwath Bastow Charleton) says that:-
“It became clear very early on during the audit field work that there had been a systemic breakdown in the accounting systems and controls in place in the hotel.”
In June 2008, a Marriot task force team was placed in the hotel with the task of reconciling the accounts. That team produced a series of revisions and restatements of the accounts for 2007. Prior to the issue of those revisions and restatements, the defendant had indicated a net profit figure for the hotel to the plaintiff of €1,429,000. However, a certified restatement of 15th September, 2008 recorded a net loss of €65,309. On any view that is a dramatic change.
Ms. Gallen recounts that at a meeting which she attended with Ms. Cynthia Braak, a regional vice-president of finance of Marriot Hotel International Limited, Ms. Braak admitted that the system breakdown at the hotel was the worst she had ever seen.
Ms. Gallen goes on to say that her firm will have to qualify its audit of the financial statements of the plaintiff for the year ended 31st December, 2007.
Because of the serious problems identified by Ms. Gallen’s firm, the plaintiff appointed KPMG Chartered Accountants in September 2008, with a view to conducting a review of the financial systems in place in the hotel. In particular, the plaintiff wished to ascertain whether the hotel was compliant with its revenue obligations. KPMG set out a list of the books, records and information it required in connection with its review. They are described in para. 22 of an affidavit sworn by Kieran Wallace, a partner in KPMG on 5th November, 2008. It is not necessary at this juncture to consider them in detail. The defendant denies that it is under any obligation to provide these documents. Mr. Wallace views that approach as a wrongful refusal on the part of the defendant which has totally frustrated the progress of his investigation. As a result he and his team had to withdraw from the hotel on 22nd October, 2008.
It was as a result of this standoff that these proceedings were instituted.
Marriot’s Letter of 5th November, 2008
Much reference was made during the course of the hearing to an open letter written on 5th November, 2008 by Edmund D. Fuller, the President and Managing Director of Marriot International Inc.
That letter candidly admits that Marriot is not proud of the financial errors that occurred at the hotel in 2007, but asserts that it does not understand how those errors translate into the kind of relief that the plaintiff is now seeking. It contends that what started as a good faith and expeditious effort to correct those errors and ensure that financial controls were being followed had been “virtually hijacked” into what is described as a letter writing campaign which:-
“was obviously designed to create a significant rift between hotel management and ownership with the goal of terminating our operating agreement.”
The letter goes on to assert that Marriot was candid and open regarding the errors made at the hotel and that its goal is to resolve the issues and continue to manage it.
The letter makes an offer to the plaintiff in an effort to settle the matter. Marriot offered a sum of €1,200,000 which is described as the approximate difference between the original 2007 statements and the revised statements that had been prepared. This was described as a good faith gesture to put the plaintiff in as good a position as it possibly could be. Marriot also offered to reimburse accounting and legal fees incurred by the plaintiff up to a maximum of €350,000.
The letter went on as follows:-
“To address an issue that, according to your solicitors is an ongoing problem, although we are not obligated, (sic) we will provide for your review our (sic) internal financial control documents, which by policy and practice are proprietary, provided that only such review be undertaken under reasonable confidentiality guidelines. Your solicitors also take issue with information that we believe we are constrained to provide due to Irish privacy laws; I am sure that between your solicitors and our lawyers we can come to a mutual agreement of what can and cannot be provided under Irish privacy laws; it can’t be that difficult.”
The letter makes it clear that it is an offer to resolve the situation and get on with business. In return, a release of claims on the part of the plaintiff is expected and its cooperation in completing the books for 2007 and finishing the plaintiff’s audits.
This offer was not accepted by the plaintiff.
The Referral to Arbitration
On 26th November, 2008 the defendant sent a request for arbitration to the ICDR. That request has not been put on evidence before me. I have, however, been told on affidavit that it seeks declaratory relief on the question of whether or not the plaintiff in these proceedings may terminate the Agreement and on the question of damages. I am told that it also seeks that tribunal’s assistance on the interpretation of clause 4.02 of the Agreement.
It is to be noted that this referral to arbitration came long after the commencement of these proceedings, two days after the date for the hearing of these two motions had been fixed and less than a week beforehand.
The Current Position
The defendant admits that there has been a serious breakdown in the financial control systems in the hotel. The final picture in relation to 2007 is not yet complete. That is so despite six restatements of the accounts for 2007 since August of this year.
It is also clear from the defendant’s own evidence that there has been a problem with VAT payments at the hotel. It has made a voluntary disclosure to the Revenue Commissioners and is attempting to negotiate a settlement in that regard.
The defendant also accepts that it has made underpayments to the plaintiff relating to VAT on Marriot rewards and advance booking deposits during the period 2007/2008. It has made a payment of €46,094 to the plaintiff “to hold towards any interest charges it may incur as a result of the full extent of any underpayment”.
The taskforce is still installed and is reviewing the hotel’s accounts so the position is as yet not clear.
The Agreement is still in force. The question of the entitlement to terminate it has been referred by the defendant to an ICDR Arbitration.
Pending the resolution of that issue the parties remain contractually bound to each other and must operate the Agreement which includes the necessity to hold monthly meetings to review the business plans and the entitlement on the part of the plaintiff to both inspection and access to books and records.
It is in this context that I must now turn to a consideration of the reliefs sought.
Logically, I ought to begin with a consideration of the defendant’s motion to stay the proceedings.
The Arbitration Clause
These proceedings do not seek to address either the plaintiff’s entitlement to terminate the Agreement (which it wishes to do) or any question of damages which may be recoverable by it. Both of those questions have already been referred by the defendant to an ICDR Arbitration.
These proceedings are much narrower in focus. The plenary summons seeks three injunctions. The first is one which asks the court to direct the defendant to grant access to the plaintiff to the hotel’s books and records on foot of its rights under the Agreement. A prohibitory injunction is sought restraining the defendant from obstructing such access. The third injunction sought is rather repetitive of the preceding two, seeking to enjoin the defendant from denying or obstructing access by the plaintiff to the books and records, business and staff of the hotel.
The interlocutory injunction which I am asked to grant seeks to direct the defendant to grant access to the plaintiff to the books, records, business and staff of the hotel in accordance with the plaintiff’s alleged entitlements under the terms of the Agreement.
I have already reproduced the text of the arbitration clause in the Agreement.
Article 11.05A is in fairly conventional terms providing for the reference of any dispute arising out of or in connection with the Agreement including any question regarding its existence, validity, or termination to arbitration.
Article 11.04B is a peculiar confection. Under its terms the parties agreed that, notwithstanding the arbitration clause either of them might have recourse to the courts to seek injunctive or equitable relief. Having identified that entitlement, it then goes on to provide that either party shall be entitled to apply to such court seeking a stay of the proceedings with a view to them being referred to arbitration under Article 11.05. So the Article creates an entitlement to litigate a dispute whilst at the same time builds in an ability to trigger Article 11.05. So very little seems to be achieved by Article 11.04 save this – it is quite clear that everything in it is without prejudice to preliminary or interim injunctions or enjoining orders. It follows that applications for such orders are not captured by Article 11.04 or 11.05. Therefore the present application to stay can only relate to the substantive proceedings but not to the application for interlocutory injunctive relief.
Such would be the situation even without Article 11.04 since the Agreement is clearly subject to the provisions of s. 22 of the Arbitration Act 1954.
That section insofar as it is relevant provides:-
“The Court shall have, for the purpose of and in relation to a reference, the same power of making orders in respect of – …
(h) interim injunctions or the appointment of a receiver, as it has for the purpose of and in relation to an action or matter in the Court.”
Article 11.04 does no more than reproduce the same effect as s. 22 albeit in less clear language.
Both by virtue of that section and the provisions of Article 11.04, a specific exclusion from the arbitration clause is created so as to permit either party to seek preliminary injunctive or enjoining orders. Clearly, such an application is not captured by the provisions of the arbitration clause.
I should make it clear that whilst both Article 11.04B and s. 22 of the Act speak of “interim injunctions” that term must be interpreted to include interlocutory injunctive relief. If it did not do so and was confined only to relief granted ex parte (i.e. interim relief in the strict sense) the section would be unworkable.
I am supported in this view by the observations made by O’Sullivan J. in Telenor Invest A.S. v. I.I.U Nominees Limited [1999] IEHC 188 where he said in the context of s. 22(1)(h) of the Arbitration Act 1954:-
“I consider that while it may well be appropriate to grant the first defendant a stay on part of the plaintiff’s proceedings that this in no way trammels the court’s jurisdiction to afford interim relief (which clearly includes what is usually termed interlocutory relief) to the plaintiff pending the determination of the dispute.”
If the injunctive relief sought before me is interlocutory it is expressly excluded from the purview of Article 11.04B by its very terms. Such an approach is entirely consistent with the statutory framework of s. 22 of the Arbitration Act 1954.
The application to stay has to be considered by reference to the terms of s. 5(1) of the Arbitration Act 1980. That section insofar as it is relevant provides as follows:-
“If any party to an arbitration agreement… commences any proceedings in any court against any other party to such agreement… in respect of any matter agreed to be referred to arbitration, any party to the proceedings may… apply to the court to stay the proceedings, and the court, unless it is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties…shall make an order staying the proceedings.”
As s. 5 of the 1980 Act confers no discretion on the court, once I am satisfied that its terms have been met I must stay the proceedings and refer them to arbitration. On the substantive issue raised in this action there is a valid arbitration agreement which can be performed and can address the dispute between the parties. There is no arbitration agreement which covers the interlocutory application. Accordingly, this action but not the motion will be stayed in favour of the arbitration agreed to between the parties.
I must now proceed to consider whether I ought to grant the interlocutory injunctive relief which is sought.
Principles Applicable
The single interlocutory relief which is sought by the plaintiff seeks an order directing the defendant to grant access to it, its servants or agents to the books, records, business and staff of the hotel in accordance with the plaintiff’s entitlements to such access under the terms of the Agreement. In fact the relief sought is narrower and more limited than this. Nonetheless, the injunction sought is mandatory in nature.
The parties are in disagreement as to the principles which ought to be applied by the court in considering an application for interlocutory mandatory relief.
On the one hand the plaintiff contends that the test is that prescribed by the Supreme Court in Campus Oil Limited v. Minister for Energy No. (2) [1983] I.R. 88. It is the same test as that prescribed by the House of Lords in American Cyanamid Co v. Ethicon Limited [1975] AC 396. The test requires that in order to obtain such an interlocutory injunction the plaintiff has to demonstrate a serious issue for trial, inadequacy of damages, and the balance of convenience lying in favour of the grant of the order.
The defendant contends that a different test must be met on the first of those three issues. It argues that it is not enough to show a serious issue for trial but rather, the issue must be such as to allow the court to feel a high degree of assurance that the injunction is being rightly granted or to put it another way a likelihood or strong likelihood of success at the trial.
The plaintiff, in support of its contention, cited the decision of Laffoy J. in Cronin v. Minister for Education [2004] 3 IR 205 where that judge in explicit terms rejected the argument that a plaintiff seeking mandatory relief at an interlocutory stage must demonstrate a likelihood to succeed at the trial. She said that she did not consider that that was the appropriate criterion to apply. She said:-
“It involves making a judgment at this juncture as to the strength of the respective cases of the plaintiff and the first defendant, which the court is not entitled to do, as was made clear by the Supreme Court in Westman Holdings Ltd. v. McCormack.”
Mr. McDowell, for the defendant said that this approach of Laffoy J. is wrong.
Campus Oil was itself a decision given on an application for a mandatory interlocutory injunction. It has been followed in such a context on many occasions. There is Cronin’s case, which I have just mentioned as well as decisions of Carroll J. in A & M Pharmacy Limited v. United Drug Wholesale Limited [1996] 2 ILRM 46 and the decision of Peart J. in Sheehy v. Ryan (Unreported, High Court, 29th August 2002).
There have however been other dicta suggestive of the necessity to demonstrate a strong or clear case redolent of the language used by Megarry J. (as he then was) in Shepherd Homes Limited v. Sandham [1971] Ch. 340 where he spoke of the necessity for the case to be “unusually sharp and clear” before a mandatory injunction would be granted.
Indeed, the approach of Megarry J. was subsequently approved by the Court of Appeal per Mustill L.J. (as he then was) in Locabail International Finance Limited v. Agroexport [1986] 1 All E.R. 901. There that judge noted that although the judgment of Megarry J. antedated the decision in American Cyanamid, nonetheless the statement of principle in relation to the case of a mandatory injunction was not affected by what the House of Lords said in the Cyanamid case. Mustill L.J. went on to prescribe the test applicable to applications for interlocutory mandatory injunctions by reference to a passage from Halsbury’s Laws of England which states as follows:-
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not be granted on motion. If, however, the case is clear and one which the court thinks ought to be decided at once…a mandatory injunction will be granted on an interlocutory application.”
That very passage was cited with approval by Costello J. (as he then was) in Irish Shell Limited v. Elm Motors [1984] 1 I.R. 200.
In Boyhan v. Tribunal of Enquiry into the Beef Industry [1993] 1 I.R. 210, Denham J. then a High Court judge, described a mandatory injunction as a powerful instrument and said that:-
“In seeking this exceptional form of relief, a mandatory injunction, it is up to the plaintiffs to establish a strong and clear case – so that the court can feel a degree of assurance that at a trial of the action a similar injunction would be granted.”
This approach has been adopted by the Supreme Court in Lingam v. Health Service Executive [2006] 17 E.L.R. 137 where Fennelly J. held that:-
“The implication of an application of the present sort is that in substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established that the ordinary test of a fair case to be tried in not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action. So it is not sufficient to simply show a prima facie case, and in particular the courts have been slow to grant interlocutory injunctions to enforce contracts of employment.”
This approach seems very different to that adopted by the Supreme Court in the Campus Oil case and by Laffoy J. in this Court in Cronin’s case. It is more in harmony with the approach of the English courts beginning with the observations of Megarry J. and culminating more recently in the Court of Appeal decision in Zockoll Group Limited v. Mercury Communications [1998] FSR 354 where that court said:-
“…the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’ in the sense described by Hoffman J. in Films Rover International & Ors v. Cannon Film Cells Limited [1986] 3 All E.R. 772’.
Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo.
Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish his right at a trial. That is because the greater the degree of assurance that the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted.”
If one pauses at this juncture, one might think that at least in England the test was clear. However, the very next paragraph adds further confusion where the court went on to say:-
“But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if the injunction is refused sufficiently outweighs the risk of injustice if it is granted.”
To return to Ireland, there seems to be an inconsistency of approach on the standard that must be met in order to obtain an interlocutory mandatory injunction. On one view it is the demonstration of a fair case or serious issue for trial, on the other, a higher standard of proof must be achieved that has variously been described as a strong case likely to succeed at the hearing of the action or a strong and clear case.
Faced with these conflicting approaches and pending a final determination of the issue by the Supreme Court, I am much attracted by the approach of Hoffman J. (as he then was) in the Films Rover case [1987] 1 WLR 670 where he took the view that the fundamental principle on interlocutory applications for both prohibitory and mandatory injunctions is that the court should adopt whatever course would carry the lower risk of injustice if it turns out to have been the ‘wrong’ decision.
Whatever standard applies it is clear that the grant of mandatory interlocutory relief is exceptional. In many if not all cases, the mandatory nature of the relief will also be a factor to be taken into consideration when the balance of convenience falls to be considered.
I have already set forth the relevant provisions of the Agreement relied upon by the plaintiff to support this application. The plaintiff has a clear contractual right to certain information. Provision of such information is vital so as to enable the plaintiff to know its true position and for the agreement to work. What that information amounts to in practical terms is attested to by two chartered accountants. Mr. Wallace at para. 22 of his affidavit sets out seven species of information required. He gives it as his professional view that that is what is covered by clause 1.04 and clause 4.02 of the Agreement. That is further attested to by Ms. Gallen where she says that the information:-
“falls within the type of documentation and information which should be made available as part of books and records maintained for the hotel as per clause 1.04 and 4.02 of the management agreement.”
No expert testimony was adduced by the defendant to suggest that either of these deponents were wrong. Furthermore the defendant led no evidence as to what precisely is required under the Uniform System of Accounts for the lodging industry.
I am satisfied on the basis of the evidence before me that the plaintiff has achieved the higher of the two tests namely the demonstration of a clear case on this aspect of the matter.
Adequacy of Damages
If damages would be an adequate remedy for the plaintiff then no question of granting the injunction should arise. At present the plaintiff is deprived of information to which it is entitled.
If it was simply a case of the plaintiff being deprived of information between now and the ultimate determination of its substantive entitlements, it could well be said that damages would be an adequate remedy but that is not the case here. It is being deprived of information in circumstances where the hotel continues to be run by the defendant with the plaintiff ignorant as to what the true financial position is. How can the plaintiff make a decision in the context of its rights under the Agreement when in such a state of ignorance?
Even in such circumstances it might be said that if, ultimately, the plaintiff succeeds, damages can be awarded in respect of any further financial mismanagement. But here the position is even more serious. For the first time in its dealings with the defendant the plaintiff became aware when it had sight of the replying affidavit of Ms. Chugh sworn on the 28th November, 2008, that it may have a liability to the Revenue Commissioners in respect of VAT. The defendant undertook a review of the maximum extent of underpayments, and has on its own evidence made a payment of €46,094.00 to the plaintiff, to hold towards any interest charges which may be incurred as a result of the full extent of any underpayment. This information was a complete surprise to the plaintiff. It is entirely in the dark as to the extent of the liability, and it is the defendant that has made the calculation to attempt to prevent interest running on such liabilities. Obligations to the Revenue Commissioners are serious matters and underpayments frequently result not merely in the necessity to pay the amount outstanding together with interest, but also to the possibility of penalties and even perhaps prosecution. It also raises the question of the reputation of the plaintiff company with may reflect also on the business people behind it.
In these circumstances, I am satisfied that damages would not be an adequate remedy were the plaintiff to be further denied access to the information sought.
Balance of Convenience
I am satisfied that the balance of convenience lies in favour of the grant rather than the refusal of the injunction. There is an urgency about this matter which must be addressed. To deny the plaintiff relief would defer the issue for a further as yet undetermined period until such time as the ICDR arbitration would get under way. At that stage the arbitrators would have to reconsider all of the material which has been put before me, with a consequent waste of not merely time, but also money.
In addition there appears to be little by way of practical difficulty in giving effect to the order which is sought. Indeed in the much quoted letter of the 5th November, 2008, the defendant offered to provide for the plaintiff’s review, its internal financial control documents which it is said by policy and practice are proprietary, provided only that such review be undertaken under reasonable confidentiality guidelines. That letter offers even more than what the defendant contends to be the plaintiff’s entitlement, but yet it continues to deny the information which is sought here.
In so far as there may be a genuine concern on the part of the defendant involving confidentiality, I propose to make the order subject to a requirement that information obtained by the plaintiff as a result of this order should be used solely for the purposes of this litigation, the arbitration and the plaintiff’s dealings with the business of the hotel and its creditors, including the Revenue Commissioners. If it is sought to utilise the information for any other purpose the consent of the defendant must be obtained and in the absence of such consent, leave of this Court.
In granting the relief I am, of course, mindful of the argument which was made to the effect that if the order sought is granted there will be little left to be considered by the arbitrators on the plaintiff’s rights to access of these documents. Nonetheless, given the seriousness of the situation, the clarity of the plaintiff’s case having regard to its contractual entitlements and the serious consequences for it, should this order be refused, I take the view that relief should be granted. There will therefore be an order in the plaintiff’s favour requiring the defendant to forthwith grant access to the plaintiff its servants or agents to:-
A. The minutes of the defendant’s management meetings.
B. The defendant’s internal control system manual and details of internal audits carried out by Marriott Group Internal Audit Function and any reports issued by them.
C. Details of any actions taken by the defendant as a result of any risk identified by the Marriott Group Internal Audit Function, and the scope of the Marriott’s task force team’s recent review/investigation and any reports issued as a result of that review.
D. Details of access rights to each computer system.
E. Details of customer names.
F. Details of employees including names, addresses, salaries, bonuses, benefits, staff advances, disciplinary action and tax information.
G. Details of who made any journal postings.
I direct the provision of that documentation and information for the reasons which are set out under each specific subheading at para. 22 of the affidavit of Kieran Wallace, sworn on the 5th November, 2008.